ordinate officer would not have such an effect.82

A mere

user by the public is sufficient, according to numerous decisions, to justify a finding that there was an acceptance of the dedication.38 The question whether there has been an acceptance is, like that of the offer of dedication, usually one of fact for the jury.34

424. Effect of dedication.

At common law, a dedication for highway purposes does not affect the ownership of the land, but gives the public merely a right to use the land,35 and such is prima facie the result of a dedication for a park, common, or square. 36 The

v. Linquist, 138 Ind. 566; Wright v. Tukey, 3 Cush. (Mass.) 290; Kaime v. Harty, 73 Mo. 316; Du Bois Cemetery Co. v. Griffin, 165 Pa. St. 81; Folsom v. Town of Underhill, 36 Vt. 580.

82 State v. Bradbury, 40 Me. 154, 3 Gray's Cas. 810.

88 Hall v. Kauffman, 106 Cal. 451; City of Denver v. Denver & S. F. Ry. Co., 17 Colo. 583; Green v. Elliott, 86 Ind. 53; City of Hartford v. New York & N. E. R. Co., 59 Conn. 250; Parsons v. Trustees of Atlanta University, 44 Ga. 529; Attorney General v. Tarr, 148 Mass. 309; Klenk v. Town of Walnut Lake, 51 Minn. 381; Holdane v. Village of Cold Spring, 21 N. Y. 474; State v. Borough of South Amboy, 57 N. J. Law, 252; Stewart v. Conley, 122 Ala. 179; Los Angeles Cemetery Ass'n v. City of Los Angeles (Cal.) 32 Pac. 240. But see Forbes v. Balenseifer, 74 Ill. 183; Gilder v. City of Brenham, 67 Tex. 345; White v. Bradley, 66 Me. 254; Morse v. Stocker, 1 Allen (Mass.) 150.

84 City of Hartford v. New York & N. E. R. Co., 59 Conn. 250; Grube v. Nichols, 36 Ill. 92; Flack v. Village of Green Island, 122 N. Y. 107; Downend v. Kansas City, 71 Mo. App. 529; Folsom v. Town of Underhill, 36 Vt. 580.

35 Wilder v. City of St. Paul, 12 Minn. 192 (Gil. 116); Charleston Rice Milling Co. v. Bennett, 18 S. C. 254; Indianapolis, B. & W. R. Co. v. Hartley, 67 Ill. 439; City of San Francisco v. Calderwood, 31 Cal. 585, 91 Am. Dec. 542. See ante, § 365.

36 City of Cincinnati v. White's Lessee, 6 Pet. (U. S.) 431, 8 Gray's Cas. 799; Raleigh County Sup'rs v. Ellison, 8 W. Va. 308; Attorney General v. Abbott, 154 Mass. 323; Pomeroy v. Mills, 3 Vt 279, 23 Am. Dec. 207.

statutes in regard to dedication by the recording of a plat frequently provide that the ownership of the land, and not a mere right of user, shall be vested in the public, or in the municipality in trust for the public. Moreover, when land is dedicated for purposes which necessarily exclude the idea of its use by any and every individual, as in the case of a dedication for a school, or for charitable or religious uses, it would seem that, to make the dedication effective, exclusive rights of enjoyment equivalent to ownership must necessarily be vested in the corporation or association which carries out the purpose of the dedication.88

Whether the ownership or merely a right of user is vested in the public, the land cannot be aliened by the public authorities to individuals, nor used for purposes other than those for which it was dedicated.40

A use of the land by the public authorities for purposes other than those contemplated in the dedication will be restrained upon the application of owners of other land in

BT See City of Pella v. Scholte, 21 Iowa, 463; City of Winona v. Huff, 11 Minn. 119 (Gil, 75); Gebhardt v. Reeves, 75 Il. 301; Village of Grandville v. Jenison, 84 Mich. 54; Incorporated Village of Fulton's Lessee v. Mehrenfeld, 8 Ohio St. 440; Elliott, Roads & S. §§ 115, 149.

38 See Campbell v. City of Kansas, 102 Mo. 326; Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407.

39 City of Alton v. Illinois Transp. Co., 12 Ill. 38, 52 Am. Dec. 479; Trustees of Augusta v. Perkins, 3 B. Mon. (Ky.) 437; Cummings v. City of St. Louis, 90 Mo. 259; Corporation of Seguin v. Ireland, 58 Tex. 183.

40 Board of Regents for Normal School Dist. No. 3 v. Painter, 102 Mo. 464; Trustees of Methodist Episcopal Church of Hoboken v. City of Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696; Western Railway of Alabama v. Alabama G. T. R. Co., 96 Ala. 272; Arkansas River Packet Co. v. Sorrels, 50 Ark. 466; Lutterloh v. Town of Cedar Keys, 15 Fla. 306; City of Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540; Church v. City of Portland, 18 Or. 73; Com. v. Rush, 14 Pa. St. 186.

41

jured by such use, and a suit for this purpose may be maintained by the dedicator, it seems, in case the ownership of the land is still in him,42 but not if, under the statute, the ownership is in the public."

In case a right of user only is vested in the public, an abandonment of such user has the effect of leaving the land free from the burden thereof, in the original dedicator or those claiming under him." And when, under the statute, the ownership is vested in the public, if the authorities entirely relinquish the use of the land, or the use for which the land was dedicated becomes impossible, the land reverts to the original dedicator, or to persons claiming under him.15 An improper use of the land by the public authorities is not, however, sufficient of itself to terminate the rights of the public therein, whatever be the character of such rights.**

41 Huber v. Gazley, 18 Ohio, 18, 3 Ohio St. 399; Corporation of Seguin v. Ireland, 58 Tex. 183; Strange v. Hill & W. D. S. Ry. Co., 54 Iowa, 669; State v. Travis County, 85 Tex. 435; Church v. City of Portland, 18 Or. 73; Price v. Thompson, 48 Mo. 363; Lutterloh v. City of Cedar Keys, 15 Fla. 306.

42 Hardy v. City of Memphis, 10 Heisk. (Tenn.) 127.

48 United States v. Illinois Cent. R. Co., 154 U. S. 225. See Williams v. Milwaukee Industrial Exposition Ass'n, 79 Wis. 524. Contra, Warren v. City of Lyons City, 22 Iowa, 351.

44 Mahoning County Com'rs v. Young, 8 C. C. A. 27, 59 Fed. 96; Baltimore & O. R. Co. v. Gould, 67 Md. 60; Town of Freedom ▼. Norris, 128 Ind. 377; Benham v. Potter, 52 Conn. 248; Thomsen v. McCormick, 136 Ill. 135; Bayard v. Hargrove, 45 Ga. 342. See ante, § 365.

45 Board of Education of the Incorporated Village of Van Wert v. Inhabitants of Village of Van Wert, 18 Ohio St. 221, 98 Am. Dec. 114; Kent County Sup'rs v. City of Grand Rapids, 61 Mich. 144; City of Newark v. Watson, 56 N. J. Law, 667; State v. Travis County, 85 Tex. 435; Heard v. City of Brooklyn, 60 N. Y. 242; Gebhardt v. Reeves, 75 Ill. 301.

46 Barclay v. Howell's Lessee, 6 Pet. (U. S.) 498; Williams ▼. First Presbyterian Soc. in Cincinnati, 1 Ohio St. 478; Hardy v. City of Memphis, 10 Heisk. (Tenn.) 127.

Upon the death of the owner of an estate of inheritance without leaving a will, it usually passes, subject to the rights of the surviving wife or husband, to persons designated by statute to take in such case by virtue of their relationship to the decedent, known as the latter's "heirs." An estate less than freehold passes, with other personal property, to the personal representative, to be distributed to the next of kin.

In this country, the children of an intestate, including any posthumous child, share his property equally, without reference to age and sex. An illegitimate child may usually, by force of statute, inherit from his mother, and from his father, if acknowledged by him.

If there are no children, the land passes to the parents, surviving consort, brothers and sisters, or other collateral kindred, the statutory provisions in this regard differing in the various states.

The statutes frequently provide that the children or descendants of a person who would have inherited in case he had sur

vived the intestate shall have his share, by right of "representation."

Gifts made by the intestate, before his death, to one who subsequently becomes his heir, are, if so intended, treated as “advancements," and deducted from his share of the estate.

425. General considerations.

At common law, the real property belonging to decedents passed, in the absence of a valid will,' to persons standing in a position of blood relationship to them, according to certain established rules or "canons" of descent.2 Personal property, on the other hand, including chattels real, passed to the administrator, appointed by the ecclesiastical court from among the intestate's next of kin, who usually, whether rightly or wrongly, appropriated to his own use all the surplus after payment of debts, until by statute it was provided that such surplus should be distributed, in a certain manner, to the widow and children, or, in default of children, to the next of kin.1

In this country, the common-law distinction between real and personal property in this regard is still retained in a majority of states, though in some the executor is empow ered, upon receiving authority from the court, to sell real property for the payment of debts. In some states, however, the statute provides that real property shall pass to the personal representative, to be administered by him in the same manner as personal property, and there is a growing

1 But a will was valid, except by particular custom, only after the Statute of Wills. See ante, § 409.

a Litt. 882-8; 2 Bl. Comm. 208 et seq.

2 Bl. Comm. 515; Holdsworth & V. Law of Succession, 132. 422 & 23 Car. II. c. 10.

Post, 462.

•1 Woerner, Administration, §§ 276, 337; 1 Dembitz, Land Titles, 28; 11 Am. & Eng. Enc. Law, 1037 et seq.