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Post v. Pearsall. can have such' a right, for a place of depoşite is in this respect very different from a highway; all persons may use a highway without interfering with each others's rights, and the great convenience, and indeed absolute necessity of highways, requires that all persons should have a right to use them. But how can it be possible that all persons can use a place of deposite. If it is open to all persons, the first occupant has a right to occupy the whole of it, and no one has a right to turn him out. Of course, it cannot be said that any other person has a right to deposite upon it; for from the necessity of the case case, no other person can take possession, while the first occupant is in the rightful possession; and it is absurd to say that one person has a right which he cannot exercise, because the right of another. prevents him from exercising it. The case of Cortelyou v. Van Brundt, seems to decide this question. It was there held, that a man could not acquire a right by user to erect a temporary hut on the soil of another; and if so, he certainly cannot take possession by placing any other property upon it, or by making a deposite which may be temporary, or not, as suits his convenience.

In short, it seems that the premises on which the deposite was made, the use of which is claimed by the public, was a part of the farm of the defendant in error, lying contiguous to the sea shore. That al the time when the population in the neighborhood was small, and the necessity for the public use of course limited, the owner of the soil permitted the public to make deposites upon the premises. This appears to have been a mere licence, not intended to vest any right in the public, but to be temporary and for the accommodation of the neighborhood, revocable, however, at any time when it might suit the convenience of the owner of the soil. There is no doubt in iny mind, that the proprietor of the soil would still have continued to accommodate his neighbors and the public with the privilege his ancestors granted, had not that public abused the favor, by depositing large and offensive heaps of filth and fermenting manure, filled with contagion and death, directly in front of his lawn and dwelling, thereby rendering his domicil un

Post v. Pearsall. healthy, and disagreeable. Similar licenses to use land, adjoining public navigable waters, where it is not particularly wanted at the time for agricultural purposes, are not uncommon. But these licenses are evidently merely temporary, and are not intended to divest the rights of the owner of the soil, or to give any to the public; and such is undoubtedly the general custom and understanding. On the whole, I am of opinion that the claim set up by the plaintiff in error is contrary fơ sound reason and common sense, and is not sustained by the authorities cited by his counsel on the argument of this case: and that, therefore, the judgment of the supreme court ought to be affirmed.

By Senator VERPLANCK. The definition, character and legal effect of a dedication of lands to public purposes seem well enough settled in our law. The only doubts are: 1. To what sort of rights does this principle extend ? and 2. By what evidence may such dedication be shown, or from what may it be inferred ?

A dedication of land to the public purposes, in the sense of our decisions, I take to be the deliberate appropriation of land by its owner for any general and public uses, reserving to himself no other rights in the soil than such as are perfectly compatible with the full exercise and enjoyment of the public uses to which he has devoted his property. Such an appropriation our courts have held will take effect without any formal deed, or any matter of record, and without any specific grantee to take the title. The land, by the deliberate act of dedication, becomes subjected to the objects and purposes of the dedication, and is held for the benefit of all who may choose to enjoy them. In respect to such an opening of land for streets and highways, the law has been clearly settled by numerous decisions here and in England, both as to the effect of the dedication itself as to its external evidence.

Now I see no reason upon principle, why such an appropriation should be confined to roads and streets. The very same reasons of public spirit or private interest that induce the proprietor of the soil to abandon his right of way to the

Post v. Pearsall. world at large, may equally lead bim to set apart to the community a square for public recreation and health, a parade ground, a mineral spring, a landing place, a burying yard, or a place of temporary deposite for any of the purposes of commerce or agriculture. The landed proprietor's inducement for such a dedication may be precisely the same as in the case of a highway. It may be munificence and public spirit. It may be the desire to add beauty,

health, or convenience 10 a favorite neighborhood, or it may • be merely the intention to improve his own property, while

he benefits his neighbors. In any other dedication, as well as of a road, the proprietor deliberately sets apart his property to certain uses, and invites the world at large to enjoy the privileges he offers. In either case, he invites individuals to build, improve and make other arrangements of life and business in reference to such public rights. The convenience and comforts of society require that the policy of the law should equally protect all these and similar public interests as much as the right of way. Were it, therefore, now an entirely new question, I should hold that the doctrine of public dedication must extend to every use or easement of land which can be of any service or convenience, or pleasure to the community at large. This view is confirmed and established by the adjudications of various courts in our own country, successively extending and applying the doctrine of dedication to different objects as they happened to be presented.

Within a few years, the courts of this state, (our own court included,) have decided that when the owner of city property has laid it out into lots with intersecting streets and avenues, and has sold with reference to such a plan, he has so far dedicated the streets and avenues to the public, that he cannot deprive his grantees of the benefit they may derive by having such ways laid open; nor claim compensation for the soil which he has thus dedicated to public uses. 2 Wendell, 472. 8 id. 80. 11 id. 486. The chancellor applied the same rule in the case of the trustees of Watertown to a village public square. 4 Paige, 513. So the supreme court of the United States supported the ap

Vol. XXII.

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Post v. Pearsall. propriation of a spring of water at Lexington to the publie use. 12 Wheat. R. 580. And again, in the still more elaborately considered case at Cincinnati, where the equitable owners before perfecting their title had laid out the town plat, designating a portion for a common, for certain useful purposes of business, and lands were sold and houses built with reference to the arrangement; this the court considered a sufficient and valid dedication. 6 Peters' R. 437. SimiJar decisions bave been made in the courts of other states, particularly in Vermont, on very elaborate argument and well considered opinion. 2 Verm. R. 480. 3 id. 521. 6 id. 355. I connot, therefore, assent to the doubts expressed by Judge Cowen, as to extending the docirine of dedication beyond highways. I think we are authorized, both by the reason of the matter and the authority of numerous strongly analogous American cases, to consider the doctrine as applicable to a landing place on the banks of a river, or the shores of the occan, and its bays and inlets and all the uses of deposite or otherwise to which a landing place may be put.

If there has been a deliberate act by the owner of the soil, setting apart a portion of the shore for a public landing or for a place of deposite, which dedication has been accepted and confirmed, either by frequent public use or by individuals building, making roads, or other arrangements of business with reference to such a landing, I should consider it as set apart to the public use ; the original owner reserving to himself no rights whatever but such as are compatible with the full and general enjoyment of the easement. Such a dedication, with respect to highways, may be made either by express designation in maps, deeds, or other evidences and muniments of property, or else by other clear, unequivocal and decisive acts of the owner, amounting to such a positive manifestation as cannot be mistaken, to make a permanent abandonment of his property to certain specific public uses. See cases above cited, and 3 kent's Comm. 451.

The next point of inquiry then is, what is the sort and degree of evidence admitted or required by the law in order to establish such a public right to the qualified use and en

Post v. Pearsall. joyment of private property ? Can such a right be supported without positive and direct proof that the land had been deliberately appropriated to the purposes in question by the owner himself? Or, on the other hand, will evidence of frequent and continued use for twenty years by the public with claim of right to such use, be sufficient to estabJish a prescriptive right in the people at large, as it would, in similar circumstances of a private claim, establish an individual right to an easement or servitude in the lands of another.

The general principle of prescription is, that where there is an undisputed enjoyment of any easement of way, water, drains, party wall, or any incorporeal right affecting the lands of another, without interruption for twenty years, such exclusive and adverse enjoyment raises a prescription of title to the easement against the owner of the soil who has not asserted his opposing rights. Some few of the authorities even give to the presumption the effect of conclusive evidence of title ; but all agree that at least such possession, when adverse and unrebutted, imposes on court and jury the necessity of presuming a grant. This last is the more general doctrine of the books and authorities of our own country. Now the principle of prescription is founded in common sense and the observation of human nature; for it is nothing more than a legal and somewhat technical application of the rules of presumptive evidence: a species of reasoning which regulates the conclusions and conduct of all men in the daily affairs of life. The presumption of a fact is the conclusion drawn in the silence of all positive proof, from such existing circumstances as common experience shews ordinarily to accompany or follow the fact presumed. One of the greatest of modern civilians has condensed the whole philosophy of presumptive evidence into a definition of six words: “ Presumptio, ex eo quod plerumque fit.Cujas as quoted by Pothier. Every well grounded

presumption, then, is but an inference of the understanding · from the common observation of life and the usual motives

and conduct of mankind. It bears the same character in the law, being there, nothing more than the same inference

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