Grinnell v. Kirtland.

seem in conformity with and to carry out this covenant.

If Mrs. Audubon meant that this easement or right of way should extend along the line and to the breadth of One hundred and fifty-sixth street, as that street was then laid down upon the map referred to, it was an easy matter to have said so, instead of using such language in her deeds as "a sufficient right of way for all legal purposes, to use as a public road," which shows that what she meant was what already existed,-a sufficient public road through the land,-and which, immediately after her conveyance, was carried out by changing the old road or lane, and running it between the two separate pieces of land she had conveyed to her sons, and bounded by the center line of One hundred and fifty-sixth street, as that street was laid down on the pre-existing maps.

This lane the plaintiff has the enjoyment of in common with the public, and it is all the easement she has in the land lying between her and the defendants, beyond any right she may have acquired by the conveyance made to her husband by the executrix of John W. Audubon, which it is not material here to inquire into.

The judgment should be affirmed.

ΛΕΣΤΟ

On appeal to the court of appeals the judgment was affirmed in February, 1877, without further opinion.

NOTE ON EVIDENCE OF DEDICATION.

A highway can be proved to be such without producing the deed or record establishing it. Cook v. Harris, 61 N. Y. 454; 1 Whart. Ev. 96, § 77; citing Woburn v. Henshaw, 101 Mass. 193.

But parol testimony that it was such, is alone incompetent, espec

Note on Evidence of Dedication.

ially where it appears, that the place was never opened, worked or used as such. In such case there must be documentary evidence that it was laid out. Harrington v. People, 6 Barb. 607.

Where it is sought to prove the existence of the highway, by the official proceedings to lay it out, it must appear on the face of the proceedings of the commissioners (or by proof aliunde), that they acquired jurisdiction in the particular case. Miller v. Brown, 56 N. Y. 383.

A record, purporting to be the record of a highway, laid out by them, which fails to show affirmatively that jurisdiction was acquired, cannot be helped by intendment, based on the fact, that the commissioners were public officers acting in the discharge of a public duty, especially where the record is set up to justify an entry upon land, which, in the absence of a public right of way, was clearly a trespass. Ib.

The original record of the proceedings being void, the laying out of the highway was void, and an omission to appeal from the result of the proceedings does not preclude the person interested from contesting, in another action, the existence of a legal highway. Ib.

But, one joining in the petition and subsequently confirming the result, may be estopped from objecting to the validity of the proceedings. Trickey v. Schlader, 52 Ill. 78. Compare Scott v. State, 1 Sneed (Tenn.) 629.

Public documents of an ancient date, and papers of the party denying the dedication, which referred to the street as then existing, Held competent. Kennedy v. Jones, 11 Ala. 63.

To prove a highway, by dedication, three facts must be shown : intention to dedicate, an act of dedication, and an acceptance by the public. State v. Green, 41 Iowa, 693; Buchanan v. Curtis, 25 Wis. 99; S. C., 3 Am. R. 23; Manderschid v. Dubuque, 29 Iowa, 73; Cook v. Harris (above cited).

In some jurisdictions, mere user, sufficiently long continued, is enough to prove acceptance; in others, there must be an official acceptance. Where mere user is enough, it must, according to some authorities, be for the statute period; according to others, user sufficient to show that the public convenience requires the road, is enough. Buchanan . Curtis, 25 Wis. 99; S. C., 3 Am. R. 23. And see Cook v. Harris, above, and cases there cited; Laws of N. Y. 1877, c. 465

And in some States it is hell, that if an intent to dedicate permanently is once adequately manifested, acceptance is not necessary to preclude revocation. The public have a right to accept, at a future time, as their wants require. Meth. Episc. Ch. v. Hoboken, 33 N. J. L. 13.

The intent to dedicate may be presumed or inferred from long pubVOL. II.-26

Note on Evidence of Dedication.

lic user, with knowledge, on the part of the owner, who acquiesces. Wilson v. Sexon, 27 Iowa, 15.

Acquiescence as well as knowledge must be shown. Daniels . Chicago, &c. R. R. Co., 35 Iorca, 129; Sullivan v. State, 52 Ind. 309. Where the owner was absent when the way was opened, though he, on returning, did not close it, nor sue for trespass,--Held, that there was no dedication. Kelly v. Chicago, 48 Ill. 388.

The evidence from circumstances must be such as to indicate, not a privilege revocable at the owner's pleasure, but a right exercisable without regard to his wishes. Beall v. Clore, 6 Bush (Ky.) 676.

User by the public, not adverse to the exclusive claim of the owner, but under and in connection with his use in the manner desired by him, is not evidence of intent to dedicate. Talbott v. Grace, 30 Ind. 389.

Thus, where ground is laid out as a private alley, allowing the public to pass and repass does not prove intent to dedicate it to public use. Hemingway v. Chicago, 60 Ill. 324.

So, where the owner uses his own wharf property, his allowing the public to pass and repass is not evidence of intent to dedicate it. Boeres v. Strader, 1 Cinc. (O.) 59; Post v. Pearsall, 22 Wend. 475 ; affirming 20 Id. 111.

A mere parol expression of intention is not alone enough; but, together with acceptance or acquiescence in the enjoyment by the public, may prove a dedication. Cook v. Harris, above; Robertson v.

Wellsville, 1 Bond, 81.

The acts of the owner, and the surrounding circumstances, are competent on the question of intention. Wood v. Hurd, 34 N. J. L. 87. S. P., Harding v. Jasper, 14 Cal. 642.

Declarations made before acquiring title, are not enough, without evidence of recognition after it. Nelson v. City of Madison, 3 Biss. 244.

Acts and declarations contemporaneous with the alleged dedication, are more cogent than the testimony of the person, as to what was his intent. Columbus v. Dahn, 26 Ind. 330.

Acts and declarations subsequent to manifested dedication, may confirm, but cannot usually revoke it. Compare Chapin v. State, 24 Conn. 236; Buchanan v. Curtis, 25 Wis. 99; S. C., 3 Am. R. 23. Maintenance of obstructions across the way is competent to show absence of intent to dedicate. State v. Green, 41 Iowa, 693.

To make out dedication by an agent, his authority should be shown. Nelson v. City of Madison, 3 Biss. 244. Or subsequent recognition of his acts, by the principal. State v. Merrit, 35 Conn. 314.

Where there is no expressed dedication, the question of intention

Note on Evidence of Dedication.

is a mixed question of law and fact, to be determined by the jury, under instructions of the court. Wood v. Hurd, 34 N. J. L. 87.

Stronger proof is required to establish a dedication in favor of the dedicator, as a ground of action by him, than against him. v. Hartt, 8 Mo. 448.

Rector

An expressed dedication of a part of a way, used by the public, rebuts the presumption of intent which might be drawn from user of the other part. Kelly v. Chicago, 48 Ill. 388.

Where the act of dedication, on the part of the owner, is a proposition to the public authorities, expressed acceptance must be shown. Parsons. Atlanta Univ., 44 Ga. 529.

The adoption by the common council of a committee report, stating a dedication, is evidence of it against the corporation. Mayor, &c. v. Franklin, 12 Ga. 239.

Acceptance may be proved by an act of the legislature of the State, or of congress. Hoadley v. San Francisco, 50 Cal. 265.

User (short of the statute of limitations) without intention to dedicate, is not enough. Buchanan v. Curtis, 25 Wis. 99; S. C., 3 Am. R. 23.

The assessment or non-assessment of taxes on the property, is competent. See Irwin v. Dixion, 9 How. U. S. 10.

Repairing and controlling may be proof of acceptance without formal action of expressed acceptance. Shartle v. Minneapolis, 17 Minn. 308; Rutland v. Dayton, 60 Ill. 58.

Acts of the authorities in appropriating money or labor, are competent to show acceptance. Wright . Tukey, 3 Cush. 290.

Whether a prosecution for obstructing is evidence of acceptance. Compare 4 Am. R. 196, 202; Steph. Ev. 53.

That public acceptance of a part of a system of streets, laid out and dedicated, in anticipation of the future, may be a constructive acceptance of all,- -see Town of Derby v. Alling, 40 Conn. 410. And see State v. Trask, 6 Vt. 355.

User to less than the entire width, may be sufficient evidence of acceptance to the entire width. Simmons v. Cornell, 1 R. I. 519.

To prove user, evidence of a public plot, marking the land as a street, and that no taxes had been assessed thereon, is competent, even without bringing these facts home to the knowledge of the land owners. Tingley v. Providence, 8 R. I. 493.

A deed by the city to an adjoining purchaser,-Held, evidence. Mayor, &c. v. Franklin, 12 Ga. 239.

Abandonment may be inferred from circumstances or presumed from long-continued neglect. Town of Derby v. Alling, 40 Conn. 410.

Embury . Sheldon.

As to evidence of interruption of user,-see Connor . Sullivan, 40 Conn. 26; S. C., 16 Am. R. 10.

Dedication does not necessarily divest the fee (compare 48 Ind. 178; 50 Cal. 171; 6 Hun, 486); it may be restricted to special uses. See Mowry v. Providence, 10 R. I. 52; Warren v. Grand Haven, 30 Mich. 24; Supervisors v. Ellison, 8 W. Va. 308; Princeville . Auten, 77 Ill. 325.

EMBURY v. SHELDON.

N. Y. Court of Appeals, 1877.

TRUSTS.-VESTED AND CONTINGENT ESTATES.-WILLS.—INTERMEDIATE RENTS AND PROFITS.

In the absence of any controlling provision to the contrary, a bequest to executors, in trust to receive income and apply the same during a life named, and, after its termination, to receive the income and pay the net amount to persons named in equal proportions, the gift being expressed in the present tense and in unqualified terms, vests an interest in the last named bencficiaries immediately upon the death of the testator.*

In such a bequest it being also provided that in case of the death of either beneficiary leaving lawful issue surviving him, such issue should take, of income as well as principal, the share the parent would have taken, and, should no lawful issue survive, the survivors should take the share,―the share of one who dies, whether before or after the testator, leaving lawful issue, vests in such issue, and does not go to the survivors.

A provision making the executors guardians of all minors who may become entitled to a share under the will confirms this construction. The immediate vesting of the beneficial estate under these rules of construction is not prevented by the fact that the entire legal estate is vested in the executors in trust.

While the legal estate is vested in the trustee, the beneficial estate is vested in the cestuis que trust.

The provision of section 60 of the statute of trusts (1 R. S. 729; 2 Id. 6 ed. 1109),—declaring that the cestui que trust takes no estate,

* Sec also Vernon v. Vernon, 53 N. Y. 351; and Bruner v. Meigs, 64 ld. 506.