the benefit of the stream, he is liable to damages to the extent of the loss. (Merritt v. Brinkerhoff, 17 John. 306.) The principle is that each must so use his own right as not unnecessarily to impair the right of his neighbor.

The exclusive enjoyment of water in a particular way for twenty years, without interruption, is sufficient to raise a presumption of title; and it is not necessary that the water should have been used in the same precise manner during the twenty years, or that it should have been used to propel the same machinery. (Belknap v. Trimble, 3 Paige, 577. Smith v. Adams, 6 id. 435. Baldwin v. Calkins, 10 Wend. 167.)

In case there be a spring of water on a man's land which flows naturally on to the land of another, the owner of the land where the spring is may use as much as is necessary for his family and cattle, but he cannot appropriate the whole of it to his own use for purposes of irrigation, if he thereby deprives his neighbor of a reasonable use of it. (Arnold v. Foot, 12 Wend. 330.)

The same principle with respect to a diversion of water courses applies to subterraneous streams, as well as to such as flow upon the surface. (Smith v. Adams, 6 Paige, 435.) The fact with respect to the diversion of a subterranean stream may be more difficult of proof, but when the fact is ascertained the same legal principles apply. (Id.)

All the property that a man can acquire in flowing water is a right to its use; the right is no greater though it passes wholly through his land. He may have a certain right of property in it; but the water itself is not his property. He has a right to its natural flow, and to use it for his cattle, or his household, or upon his water wheels. (Marshall v. Peters, 12 How. Pr. Rep. 222.) Land, says Sir Edward Coke, comprehends any soil, ground or earth, and all buildings upon it, and the water passing over it. An action is never brought to recover water, by that name, but is brought for so much land covered with water. (2 Bl. Com. 18.) The mode of granting the water of a running stream, is to convey so much land covered with water, and not the grant of the stream itself. (Nostrand v. Dunham, 21 Barb. 478. Jackson v. Halstead, 5 Cowen, 216. Co. Litt. 4 a.)

concern.

The doctrine of dedication extends to streets, highways, public squares, burying grounds, and perhaps to other easements of a public An examination of its principles frequently becomes necessary in the investigation of titles to land. Whether, though the fee be in the grantor, the public may not have acquired an easement in the same premises, is often an interesting and difficult question.

A dedication of land to public or pious uses is a solemn appropriation of it by the owner to such uses. It is a devoting of property for some proper object in such a manner as to conclude the owner. (Per Beardsley, J. 6 Hill, 411.) It may be either by an express grant to a person, or corporation capable of taking in trust for the public, or it may be implied from the acts of the owner.

In the case of Stuyvesant v. The Mayor &c. of New York, (11 Paige, 414,) the dedication was by an actual grant by the owner of the land to the corporation of the city, of certain lands for the purposes of a public square, upon condition that such lands should for ever be used and appropriated for the purpose of a public square exclusively, and upon the further condition that the corporation should immediately proceed to regulate the lands granted, and should inclose and improve the same in the manner specified in the conveyance thereof; and the corporation joined in such deed by executing it under its corporate seal, and covenanted to stand seised of the premises for that purpose exclusively, and that such corporation should abide by, observe and perform the conditions imposed upon it by the acceptance of such agreement and conveyance. This was held to be a valid dedication, obligatory upon the parties, and that the corporation was bound to perform the conditions specified in the conveyance.

The grant, in the foregoing case, having been upon condition that the grantees would proceed immediately to regulate the lands granted, and to inclose and improve them within a reasonable time, the grantor, it was held, had the, right, at his election, either to waive the forfeiture and file his bill in equity to compel a specific performance of the covenants and to compensate him for the damages sustained by the neglect, or to insist upon the forfeiture, and repossess himself of the land, for a breach of the condition.

But a dedication in cases of this kind is more frequently implied, than by an express grant to the public or a corporation, in trust. It usually occurs where the owners of land in a city or village, with

a view to their own as well as the public advantage, lay it out into lots with streets and avenues intersecting the same, and sell the lots with reference to such streets and avenues. In cases of this kind the original grantor cannot afterwards deprive his grantee of the benefit of having such streets or avenues kept open. The same principle is applicable to a similar dedication of urban lands to be used as an open square or public walk. (The Trustee of Watertown v. Cowen, 4 Paige, 510.)

The subject was very fully discussed by the supreme court of the United States in the case of the City of Cincinnati v. The Lessee of White, (6 Peters, 431.) In that case the equitable owners of a tract of land, before they had perfected their title by a patent from the government, laid out a part of it into a town which now constitutes the site of the city of Cincinnati. Upon the plot of the town they laid out and designated a part of the land as a public common, or open square, for the use of the inhabitants of the town. This was held to be a sufficient dedication of the land to the public, to vest the title to this common or square in the city of Cincinnati; although the city was not incorporated until many years afterwards.

The surveying of land into building lots, by the owner, and selling them or any of them for that purpose, with reference to, and bounding them on streets therein designated, amounts to a dedication of the streets, and on their being opened by the public authorities he is entitled, as owner of the fee, to only a nominal compensation. The purchaser is presumed to pay an enhanced price for the anticipated easement, and, therefore, the original owner has no equitable claim to a remuneration from the public. (Matter of Lewis Street, 2 Wend. 472, overruling 4 Cowen, 452. Livingston v. Mayor of New York, 8 Wend. 55. Wyman v. Same, 11 id. 486. Matter of Freeman Street, 17 id. 661. Matter of Thirty-Second Street, 19 id. 128. Matter of Twenty-Ninth Street, 1 Hill, 189. Matter of Thirty-Ninth Street, Id. 191.)

And this is so whether the owner bounds his grantees on the center of the street, or on the side of it. (Id.) If the grant be bounded on the center of the street, such act alone, without an user by the public, is deemed a dedication of the land over which the street passes to the public use, so far forth that on the opening of the street, the purchaser is entitled only to a nominal sum as compensation for the fee. (Matter of Thirty-Second Street, supra.)

When a street is thus dedicated to the public, but before it has been accepted or recognized by the proper public officers as a public street, it has been doubted whether the grantee of a lot bounded on such a street may be considered as taking to the center of the street, so as to enable him to maintain an action against another for digging the street opposite to his lot and removing the earth therefrom, or whether he has merely an easement or right of way in the street. (Willoughby v. Jenks, 20 Wend. 96.) It would seem, on principle, that his title extends to the center of the street in such a case. (2 Smith's Lead. Cas. note 180 to 188, where the subject is fully discussed and many of the cases are ably reviewed.) Should the grantee be limited in terms to the exterior line of the street, the fee of the land in the street would remain in the original owner, subject to the easement of a way. In the absence of such express limitation, the cases before referred to under this head, carry the grantee to the center of the street.

After such dedication, if the title to the street remains in the original grantor, he cannot use it in a manner inconsistent with the dedication, and should he sell it to others, the purchaser would take the fee subject to the dedication. (Wyman v. Mayor of New York, 11 Wend. 486.)

But where lands are thus dedicated by the original owner to public use as a street, such street does not become a public highway until it is accepted as such by the public authorities. (The City of Oswego v. The Oswego Canal Property, 2 Seld. 257. Clements v. The Village of West Troy, 16 Barb. 251; S. C. 10 How. 199. Bissell v. The New York Central Rail Road Co. 26 Barb. 630.) If, however, the street be opened and used uninterruptedly for a period of twenty years or over, it affords evidence of acceptance, and it becomes a public street. (Wiggins v. Talmadge, 11 Barb. 457. Gould v. Glass, 19 id. 179, 195. 10 How. 199.) A user of twenty years or upwards is thus made equivalent to a laying out of the road by public authority, or an acceptance by the proper officers.

The same principle of acquiring a right to a street or a way by usage is extended to rivers. A usage for a period of twenty-five years for rafting boards and timber, though the river be not navigable in the common law sense of the term, and the fee of its bed is in the owners of the adjoining land, becomes a public highway, for WILL.-15

such purposes. The free use of the waters which can be made subservient to commerce, has, by the general consent of mankind, been considered as a thing of common right. Individuals who occupy the adjoining banks may use the waters for their own emolument, so far only as it can be done without any material interruption of the public use. (Shaw v. Crawford, 10 John. 236. The People v. Platt, 17 id. 195, 212.) But the doctrine of dedication does not extend to a right of landing and depositing manure &c. from a navigable stream upon adjoining land. (Pearsall v. Post, 20 Wend. 111, affirmed, 22 id. 425.) Nor to a private stream which can only be used for a short time in each year. (Munson v. Hungerford, 6 Barb. 265.)

The dedication of property is not confined to streets, public squares, and the like. It may be extended to pious and charitable objects; to churches, court houses, and other public buildings; to a spring of water for public use, and for a burying ground. (McConnell v. The Trustees of Lexington, 12 Wheat. 582. Beaty v. Kurtz, 2 Peters, 566. State v. Trask, 6 Vt. R. 351. Hunter v. The Trustees of Sandy Hill, 6 Hill, 407. Potter v. Chapin, 6 Paige, 639.)

It is not at all necestitle which he has; for

"The law which governs such cases is anomalous. Under it rights are parted with and acquired in modes and by means unusual and peculiar. Ordinarily some conveyance or written instrument is required to transmit a right to real property; but the law applicable to dedications is different. A dedication may be made without writing; by act in pais, as well as by deed. sary that the owner should part with the dedication has respect to the possession and not the permanent estate. Its effect is not to deprive a party of title to his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. The principle upon which the estoppel rests is, that it would be dishonest, immoral, or indecent, and in some instances even sacrilegious, to restrain at pleasure property which has been solemnly devoted to the use of the public, or in furtherance of some charitable or pious use. The law, therefore, will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed." (Per Beardsley, J. in Hunter v. Trustees of Sandy