Post v. Pearsall. of the understanding thrown into the form of a legal rule and sanctioned by former judicial decision. Thus; where no interest has been paid on a bond, and no demand proved thereon for twenty years, it would be a natural inference of the understanding, that it was highly probable according to the common course of human dealings, that the debt had in some way been discharged or settled or voluntarily given up. Accordingly, courts will recommend it to the jury to presume that it was discharged. What was the conclusion of probability in particular cases, at first, has now been made by decision a legal rule. How the doctrine of prescription grows out of the presumption of reason, cannot be better explained or expressed than it has been by Lord Chancellor Erskine, in a beautiful and philosophical opinion, worthy of the earlier and most brilliant days of that eloquent and original man. "The presumption," says he, "from length of time, stands upon clear principle; it is built upon reason, the nature and character of man, and the result of human experience. It resolves itself into this: that a man will naturally use what belongs to him. That is the whole principle. It has been said that you cannot presume unless you believe. It is because there are no means of creating belief, or disbelief, that such general presumptions are raised upon subjects, on which there are no written muniments or records. Therefore upon the weakness and infirmity of all human tribunals judging of matters of antiquity, instead of belief which must be the foundation as to a recent transaction, when the circumstances are incapable of forming any thing like belief the legal presumption holds the place of particular and individual belief." And again: "Mankind, from the infirmity and necessity of their situation, must, for the preservation of their rights of property, have recourse to some general principles to take the place of individual and specific belief, which can hold only as to matters within our own time, and on which no conclusion can be formed from particular and individual knowledge." Hilary v. Watkins, 12 Ves. 265. It is on such grounds, from the necessity of some general rules of property, from public policy requiring that long Post v. Pearsall. user or possession should not be disturbed, and from the ordinary probability that in most cases where one man has for many years used another's property with claim of right to do so, that such claim was morally rightful at least, if not legally so, the doctrine of prescription as to private rights was originally established in England, and has been generally received in the American courts. But in receiving the rule and the authorities explaining and supporting it, we ought to go beyond the letter of the law, and to look back at the reasons on which it rests, limiting or regulating or rejecting it, as the particular circumstances of our times and country differ from those of England. This our Amercan courts have not hesitated to do in several instances, as in varying the terms of prescription in different states. It has accordingly been held, that the presumption of grant in favor of ancient lights, does not apply to buildings on the lots of our rapidly increasing cities and villages. Parker v. Foote, 19 Wendell, 309; and other cases of similar import will be found in the reports of different states. The same sort of natural presumption of a private right does not always arise here, as matter of inference, from the same circumstances in our state of society that they produce in another. The legal presumption forming a prescriptive right ought to be accordingly sometimes modified, and American courts have done so, where it was notorious that a proprietor would ordinarily, in this country, permit his neighbor to have a certain use of his land for light or air for years, without the remotest idea of relinquishing any single right himself. Then, how stands the doctrine of public prescriptive rights? The doctrine of prescription is applied with full force, both in England and here, to public roads and city streets. Here, this English rule of prescriptive right to public roads seems to me to have been wisely adopted, because its presumption is in unison with the experience of our country, and in conformity, therefore, with the sound reasoning of presumptive or inferential evidence. The publicity of a road or street, its notoriety of use, the total incompatibility of any other use or occupation of the surface with Post v. Pearsall. such a continued transit-the various interests of parties. which grow up with reference to it, and depend more or less upon its preservation-the benefit or convenience resulting commonly to the proprietor himself; all these circumstances furnish such strong presumptive proof of a voluntary relinquishment of all right of soil incompatible with the public transit, that, without any legal rule or judicial authority, they would be decisive with a jury in nineteen cases out of twenty as to the owner's intention. We have accordingly adopted the decided law as we found it, converting the ordinary inference of reason and observation into a positive legal presumption, establishing a right by legal prescription. This presumption is, moreover, confirmed by the great convenience of the rule, as well in actual litigation as in the adjustment of numerous rights of property dependent upon public thoroughfares-all of which would be uncertain, if proof of actual dedication was left to be made out by parol evidence, after an enjoyment of twenty years. ex Can we on this authority, and for the same reasons, tend this rule to the analogous case of dedication of other rights or easements in land to public use? The first objection which will occur to such an extension is the absence of nearly all adjudged authority for so doing. Among the many English cases in the law of prescription, collected by the industry of counsel or of the learned judge who pronounced the judgment of the supreme court, I find none that carries the public prescriptive right beyond streets and highways. Indeed, the inference to be drawn from some of them, (as that of 2 H. Black. 393, and especially Judge Buller's opinion,) is directly hostile to any such doctrine. Again in the numerous American cases, I find none applying the rule of prescriptive evidence to any dedicated use other than of thoroughfares, excepting one single case, that of the decision of the supreme court of Massachusetts in 8 Pick. 304; the high authority of which, and the ability and learning of Judge Wilde's opinion, I cheerfully acknowledge. That decision is, however, in contradiction to a prior one of the same court, 4 Pick. 145; and Post v. Pearsall. it otherwise stands alone. In the other cases where dedications to public uses other than that of streets and roads have been upheld, I find that evidence of user was not received for the purpose of establishing a prescriptive right or legal presumption of prior dedication, but merely in connection with other evidence to prove actual dedication, and the acceptance, occupation or use under it by those meant to be benefitted. Long user is not relied upon as sufficient presumptive legal evidence of dedication, but is adduced in the same manner as if it had been a claim resting upon a lost deed, where use and occupation might serve to corroborate other probable evidence of the existence of such an instrument, and shew the acceptance and the extent of the right accruing under it. Thus, in the case of the Lexington Spring, Chief Justice Marshall, after stating the evidence, thus recapitulates: "The reasonableness of reserving such a spring for public uses, the concurrent opinion of all the settlers that it was reserved, the universal admission of all that it was never understood that the spring lot was drawn by any individual, the early appropriation of it to public uses, the length of time permitted to elapse without any assertion of title, the fact that the claimant drew another lot, &c., are decisive." 12 Wheaton, 583. Again: in the Cincinnati case: "The fact of the dedication to public use," says Judge Thompson, "is not left to conjecture, from the circumstances that the land was enjoyed for years as a common; but the actual dedication is established by the most probable and certain evidence." 6 Peters, 438. So in the Vermont cases, 11 Verm. R. 480, 6 id. 355, there was evidence, parol or documentory, that the land had been set apart, and the evidence of user went to support this, and to shew public acceptance. Is there, then, in the silence of authority, any thing in the reason of the matter to raise such a presumption of dedication upon evidence of long user in a case like the one before us. The ordinary state of society among us, and our manner and habits as influenced by our extensive territory and thinly scattered population; our equality of condition; the extent of vacant land even in the vicinity of large towns; Post v. Pearsall. the distance or absence of many proprietors; the small comparative value of much land for present purposes, which the owner often rates highly for its future and contingent purposes; the frequency of permitted uses of land such as in other countries would be jealously guarded from intrusion; the familiarity with which permission is presumed, and leave taken as a matter of course, and this without complaint or offence, all combine to exclude such a presumption. If an owner of the shore permits it to be occupied every year by a temporary deposite of timber, in rafts, as we often see along our rivers; if a vacant field near a village is used for years as a parade ground for the militia, or a play ground for school boys, who amongst us would infer from those facts that the proprietor had actually and designedly relinquished his property to the public for those uses? Who could consider proof of such use for twenty years, even connected with a vague notion of right in those who thus used it, sufficient evidence of an actual abandonment of the land to the public, whilst the owner still continued to exercise over it all the other evidences and rights of property? This is not what commonly happens here. It is not that "quod plerumque fit," according to the civil law definition. Every day's experience here, shows the contrary. Such permitted use of shores or vacant grounds, is allowed for years without the slightest idea of an actual surrender of any rights of property. Actual and formal grants of land to public uses are common enough with us. But the mere circumstances of use by other persons occur a thousand times without any such surrender. It ought not, therefore, to be presumed from them, with us, as if they were its usual and certain accompanying indications. It is then, not only from the absence of legal authority, but moreover and especially from the absolute improbability of any such presumption in this and similar cases, that I must reject the idea that a prescriptive right in the inhabitants of the state can be acquired merely by common user of land for other purposes than those of roads and streets. Nor can I perceive the same necessity or good policy in allowing mere prescriptive public rights in such cases that |