Post v. Pearsall. The other casas cited by the counsel for the defendant in error are cases where either the presumption of a full and perfect dedication was rebutted by some continued act of the owner, as putting a bar or gate across the street, 1 Camp. 263, note; or where the dedication was shown by the evidence to be a partial one, 7 Barn. & Cress. 243; or where the claimants had been in the habit or usage of fishing, by drawing in a seine by hand, and afterwards, without the consent of the owner, erected a reel or capstan upon his land, 5 Conn. R. 311; or where the claim was for a profit a prendre in alieno solo, for which the party must prescribe in a que estate. 4 T. R. 718. These would be analogous cases, if the defendant in error had kept up a fence or gate across this landing from the first, and shut out the public, and not permitted them to come upon it without his permission; or had shewn that this was a partial dedication, which would probably have been impossible, as all the proof goes to shew that the user, which is evidence of the decication, was general; or had shewn that this was a case of prescription by individuals in a que estate; but none of these being the fact, those cases are of little or no value in settling this question, and have no legitimate bearing upon the same. The only other case cited was that of The Commissioners of Highways of the town of North Hempstead v. The Judges of Queen's County, 17 Wendell, 11, which I have before adverted to and which has but a slight bearing upon the present subject. After admitting the extensive application of the principle of dedication, the supreme court, in their opinion in this matter, insensibly fall into the doctrine, that "the rights inferrible from usage, both the servitude of the civil and the easement of the common law, rest almost without exception an the idea of a grant between competent parties: citing 3 Kent's Comm. 434, 444, 3d ed., and that the only easement by dedication to the public, mentioned by the learned commentator, is the common highway or street." The learned judge who delivered the opinion, says that he has "searched in vain among the English books for the idea of a grant which can enure to the personal use of all man Post v. Pearsall. kind." In this I have not the least doubt he is entirely correct, and fully believe that he would never find such a grant if he should pass a whole life in search of it, for the reason that in the case of easements for the benefit of the public, it is not usual to give grants, because there is no grantee to take, and therefore a grant, as such, is not presumed; I believe the courts have invariably held that the easement is not the less perfect and valid, because it wants both a grant and grantee. In this case, no such grant is set up or hinted at; the claim sought to be established here is not a grant to the personal use of all mankind, but a dedication for the use of the citizens and inhabitants of the state of New York-in which ease the law does not require there should be a grantee capable of taking. The court again in a subsequent part of the same opinion reiterate the idea of a grant, and observe, in this case "there is no one to take, and none to release, and that the claim is novel, and, by an English authority binding upon us, has been expressly denied, and that too in a series of instances, including Gateward's case, 6 Rep. 60 ;" and then proceeds to examine the latter case, which, with all due deference to the learned judge, has nothing to do with the matter under consideration. All that was decided in that case was, that a person prescribing for a right of common for pasturage, i. e. a right a prendre in alieno solo, must do so in respect to some estate, and not, as was done in that case, rely upon a mere inhabitancy. This is not a case of prescription, founded upon that part of the English law which grew up under the state of lords and vassals, which formerly existed in that kingdom. The freemen of the state of New York are not here prescribing for a right in this landing in a que estate, or by mere inhacitancy under a feudal lord. That very case recognizes as an exemption from its rule the only right which the then half civilized state of the public in that kingdom found sufficient for their accommodation, and the court there expressly hold that that easement in the public, the only one their wants then required, was not a charge or profit a prendre in the soil of another, but a mere casement. It is undoubtedly true, that the English law has allowed the Post v. Pearsall. extension of customary and prescriptive rights to individuals, and uniformily denied them to the public, because those rights never did apply except to individuals or corporations, and the public could not prescribe in a que estate, nor plead a custom-for, as the courts have held, when it applies to the public at large, it is the common law, and the courts are bound to take notice of it, and it is not required to be pleaded. But as the wants of the community have extended with their increasing trade and civilization, the courts have also extended the doctrine of dedication; and I say, and the cases will bear me out in so asserting, they have applied it to every case where the public had been in the uninterrupted use of the land for a requisite period of time, and where it was necessary for their accommodation that their right should be so sustained. The case cited by the court, in 2 H. Black. 393, proves this position; as does also Fitzgibbon, 51. The supreme court seem to regard it as of great moment in this decision, that we have Gateward's case, which is obligatory upon our courts, and which lays down the law in relation to customs by prescription. I regard it of equal importance that we have the case in Strange, 1004, which is no less binding upon our courts than the former; and which establishes the law of dedication. As to the relative value and importance of those two cases in settling this controversy, I think there can really be but little difference of opinion. The first gives us the law as applicable to the local rights of individuals or the community of a town or village, which from a part of their inheritance, and relates to a branch of the law which it is admitted was never adopted in this country; the second proves to us the legal existence of the doctrine of dedication at an early period; a principle which applies only to the rights of the public and cannot relate to those of individuals; and which was brought to this country with the rest of the common law by our forefathers, and has been extended and defined in numerous instances, as the wants of the public extended in connection with the rapid growth of the country in population and wealth. The first never could under any circumstan Post v. Pearsall, ces have become applicable to the state of society, and the equal diffusion of property among our people; whilst without the second, the steady growth of the country would have been seriously retarded. From the foregoing examination, I am entirely satisfied, that there can be such a dedication made as that sought here to be established; and that the evidence adduced and offered to be given, is sufficient to establish and prove it; and therefore, in my opinion, the judgment of the supreme court should be reversed. By Senator LIVINGSTON. I do not conceive it necessary, neither do I feel competent to examine and expound the numerous authorities on the subject of dedications, which were cited and commented upon by the counsel, in the argument of this cause, as the views which I have taken of this case, do not render it important to decide what constitutes a dedication of right to the public. The claim set up by the defendant is, that the public at large have a right to deposite all articles of whatever nature they choose, without limitation as to the quantity or as to the time of the continuance of such deposite. It was not claimed on the trial of the cause, or upon the argument before this court, that the public had any right, except such as they had acquired by user of the premises. It was admitted that the public might acquire a right to a highway or street, and to a public square by dedication; but it was denied by the counsel for the defendant in error, that there could be a public right to occupy the ground of the owner of the soil in fee, as a place of deposite of property. The only benefit which the owner can derive from his title to the soil, is the right to occupy it himself. No authority was read on the argument which established the principle that the soil belonging to one man, could be occupied by another, unless by a licence, or permission of the owner. All the cases cited, admitted the right of property to be in the owner, and merely established the principle, that another person might have an easement in the soil; but no case was referred to in which such easement ex Post v. Pearsall. tended to an actual occupation of the soil. A right of way does not include a right to occupy; a highway is merely a place for passage and re-passage, and a public square is also in a limited sense, a place for passage and re-passage. Indeed public squares in all the cases cited, were either called or freated as highways, and no case was read in which it was decided, that the public had a right of deposite in a public square. In the cases of dedication referred to from the Vermont reports, public squares are treated as highways and were so called by the courts, and in the Watertown case, the chancellor considered the public square as a highway, and called it a public square or public walk. So in the Cincinnati case the court considered the square as a highway merely. If then as the right claimed by the plaintiff in error is a right to deposite, and not merely to pass and repass or load and unload, the law relative to highways, does not apply in this case; for it was admitted that the public had no right of deposite in a highway, but only a right to pass over it. Even if the right claimed by the defendant was claimed as an individual right, it would not be an easement, for as I remarked before, every easement is a right issuing out of the soil, and not the right to possess the soil, it admits the posssesion to be in the owner of the fee. But how could it be said that the possession of the soil was in the owner of the fee, when another person had covered the soil with his property. If I take a lease of a farm from another, I have the right of possession as long as my lease continues, and the manner in which I would exercise my right of possession would be by cultivating the soil, by ploughing and gathering the crops, or by depositing my property upon it. This is all the possession I could have, and a deposite of my property upon the soil, would be a more complete and exclusive possession, than the mere tilling the soil. A right of way either public or private does not take away the title to the soil, nor does it give it any other person but the owner of the soil a right to the possession. But even if an individual could have a right to occupy the soil of another, by depositing his property upon it, it does not follow that the public |