페이지 이미지

poses to which it had been appropriated; with but occasional and slight interruptions to small portions of it; from the establishment of the designation of the quay in 1724, until 1836. The interruptions were of a temporary nature, and were permitted where private accommodation was in some degree connected with the public convenience. The interruptions were not such as deprived the public of the dedication.

New Orleans r. United States, 10 Peters (U. S.) R. 662. The equitable owners of a tract of land on the river Ohio (the legal title to which was granted to John Cleves Symmes, from whom they had purchased the land before the emanation of the patent from the United States) proceeded in January, 1789, to lay out part of the said tract into a town, now the city of Cincinnati. A plan was made and approved of by all the equitable proprietors, and according to which the ground lying between Front street and the river was set apart as a common, for the use and benefit of the town forever, reserving only the right of a ferry; and no lots were laid out on the land thus dedicated as a common. Afterwards the legal title to the land became vested in the plaintiff in ejectment, who, under the same, sought to recover the premises so dedicated to public use. It was held, that the right of the public to use the common must rest on the same principles as the right to use the streets in Cincinnati ; and that the dedication, when the town was laid out, gave a valid and indefeasible title to the city of Cincinnati. No particular form or ceremony, it was held, is necessary in the dedication of land to public use; and all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. City of Cincinnati v. Lessee of White, 6 Peters (U. S.) R. 431. In another case in the same court, the plaintiffs in error, (defendants in ejectment in the circuit court) claimed for the city of Pittsburgh, a slip of land lying on the bank of the river Monongahela, near the junction of that river with the river Alleghany, being a space between the southern line of the lots of the city, and the


4. The foregoing authorities would seem to be clusive against a primâ facie public right of way to

Monongahela river. It was contended by them, that this slip of land was dedicated by the surveyor, when he laid out the town to the public, for streets and other public uses. The depositions of witnesses, who were present when the ground on which the city stands, was laid out in lots by the surveyor, authorized so to do by the proprietors of the land, were offered to prove declarations of the surveyor, made to persons assembled at the survey, and who occupied part of the ground so laid out; by which declarations and other acts of the surveyor, also proposed to be proved, it was contended the said dedication was made ; that is, that he had observed, that “the street," the slip of land, “ to low-water mark, should be for the use of the citizens and the public forever.” By the court: The surveyor had authority to fix upon the plan of the town and survey it. He had the power to determine the width of the respective streets and alleys, the size and form of the lots, to mark out the public grounds, and to determine on every thing so far as related to the town, and its beauty, convenience and value. These were clearly within the scope of his powers, as they were es. sentially connected with the plan of the town on which he was authorized to determine at his discretion. The proof of such declarations should have been admitted by the circuit court; because, under the circumstances, they formed part of the transaction. Barclay et al. v. Howell's Lessee, 6 Peters (U. S.) R. 498. In some cases, the dedication of property to public use, where the public has enjoyed the unmolested enjoyment of it for six or seven years, has been deemed a sufficient dedication. If the ground in controversy, had been dedicated to a particular purpose, and the city authorities had appropriated it to an entire different purpose, it might afford ground for the interference of a court of equity to compel a specific execution of the trust. But even in such case, the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the conditions imposed in the grant. Ibid. The two foregoing cases were examined, and the principles upon which they were decided, were considered, approved and affirmed in the case of New Orleans v. The United States (10 Peters, R. 662). In this case, it was held,

navigable waters by the common law. Rights of way are considered acquirable by use, express grant, or by virtue of necessity arising from a grant of land to which access can only be had over other land of the grantor. On the latter ground, it might perhaps be argued, that a common liberty of passing over land which is private property to a valuable public fishing place in an arm of the sea, or on the border of the sea itself, may legally be asserted. It has indeed been not infrequently suggested, that the law would not allow to every man the right to fish in the sea, &c., and at the same time. deny to him the means of getting there. It should however be recollected, that whenever a way is claimed by necessity, it is a good plea that the plaintiff has another way. It is moreover reasonable to presume, that if a public right of way over estates adjoining to, or in the proximity of tide waters, did exist at common law as incident to the public right of fishery, or of the right of navigation, it would have been treated

that in order to dedicate property for public use, in cities and towns, and other places, it is not essential, that the right to use the same shall be vested in a corporate body. It may exist in the public, and have no other limitation than the wants of the community at large. If buildings have been erected on the lands within the space dedicated for public use, or grants of part of the same have been made by the power which had authority to make, and had made a dedication of the same to public use ; the erection of the buildings, and the making of the grants would not be considered as disapproving the dedication, and the grants would not affect the vested rights of the public. lb.

[ocr errors]

of, and in some degree defined. It is said by an old authority, it is true, that "the fishers who fish in the sea may justify their going upon the land adjoining to the sea, because such fishery is for the commonwealth, and for the sustenance of all the kingdom. But in Brooke's Abr. tit. Custom, the case cited in support of this proposition is more fully stated, and shows that the doctrine was laid down on a question which arose upon a custom. Mr. J. Holroyd, in Blundell v. Catterall, just referred to below, regarded it as proceeding entirely from a particular custom, and so was it regarded by Lord Hale. In the case just mentioned, it was expressly decided by the court, that where an individual had acquired an exclusive right to the shore, by grant, the defendant was liable for passing over it with vehicles for bathing, from some place above high-water mark, on the ground of the private ownership of the shore. One of the topics urged at the bar in favor of the supposed right, was public convenience, but it was replied by Abbott, C. J., that such a view should be taken with a due regard to private property."

Under the local law of Massachusetts, which was considered in the preceding chapter, by which towns may appropriate the fish, if not appropriated by the legislature, no man, says Parsons, C. J., can lawfully go on the soil of another, without his leave; and if no such appropriation has been made, any citizen, may take the fish, “ so that he does not trespass on the land of others. In a very early case in the same state, the defendant claimed the right of going over the plaintiff's land to the river Merrimack, but he relied solely on prescription. In South Carolina, where a person living on an island had a navigable watercourse from his own door to the highway, of no greater distance than to pass through his neighbor's field, the court held, that it was not such necessity as gave him a right of way over the field. In Cortelyou v. Van Brundt, in New York, it was held that the common right of fishing in tide waters, gives no power of the adjoining land.

1 Fitzh. Barre, 93, referring to the Year Book, 8 Ed. IV. 19. This authority adduced and overruled by Holroyd, J., in Blundell v. Catierall, App. p. xxiii.

2 De Juris Maris, Harg. Tracts, 86.
* See ante, Chap. I. p. 28-33.
* Blundell v. Catterall, App. p. xxxviii.

Both commerce and fishing, therefore, and bathing in the sea, although they are matters favored by the common law, by reason of public and national benefits to be derived from them, do not, because the waters of the sea are open to all persons for all lawful purposes,

afford a universal right of access to them over land which is private property.”

1 Coolidge v. Williams, 4 Mass. R. 440. 2 White v. Whitier, 2 Dane's Abr. 702.

Lawton v. Rivers, 2 McCord (S. C.) R. 445, cited in 2 Rice, Dig. 356.

* Cortelyou v. Van Brundt, 2 Johns. (N. Y.) R. 357. * See Blundell v. Catterall, App. p. i.

« 이전계속 »