Abbott v. Inhabitants of Cottage City
| Decision Date | 23 February 1887 |
| Citation | 10 N.E. 325,143 Mass. 521 |
| Parties | ABBOTT, Petitioner v. INHABITANTS OF COTTAGE CITY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
T.M. Stetson and H.M. Knowlton, for defendant.
See Acts 1857, c. 115; Acts 1875, c. 163; Pub.St. c. 54, § 13. See Pub.St. 357, § 16. As the public needs have recently become obvious, special acts for condemnation of public parks have been passed. Acts 1873, for Worcester; 1874, for Somerville; 1881, for Marblehead; 1882, for Quincy, Abington and Newton; Acts 1882, c. 154. In Massachusetts the common-law principle of dedication to the public has been recognized. In Hobbs v. Lowell, 19 Pick. 407 (1837;) Valentine v. Boston, 22 Pick. 80, (1839;) Com. v. Fisk, 8 Metc. 243, (1884;) McConnell v Lexington, 12 Wheat. 582. Indeed, we think the courts will and do hold that anything may be given to the public which may presumbly be for its welfare. Larned v. Larned, 11 Metc. 423, (1846.) After the law was as thus declared, it became a practical legislative question whether such burdensome things as ways and streets should thus be imposed upon towns, (Acts 1846, c. 203,) as certain ways, and nothing else. Com. v. Holliston, 107 Mass. 233, (1871;) Washb. Easem. (4th Ed.) *150; Tyler v. Sturdy, 108 Mass. 196; Com. v. Old Colony & F.R.R., 14 Gray, 94, (1859.) "If a way is by record established, the right of the public is not impaired to acquire or prove an addition to its width by dedication. Com. v. Petitcler, 110 Mass. 62; McKenna v. Boston, 131 Mass. 143; Com. v. Coupe, 128 Mass. 65.
Six cases were cited against us at the trial, viz.: (1) Light v. Goddard, 11 Allen, 5; (2) Boston Water-power Co. v. Boston, 127 Mass. 377; (3) Coolidge v. Dexter, 129 Mass. 167; (4) Williams v. Boston Water-power Co., 134 Mass. 406; (5) Regan v. Boston Gas-light Co., 137 Mass. 37; (6) Attorney General v. Whitney, Id. 450.
Nos. 1, 2, 3, 4, and 5 are easily disposed of. They were not public dedication cases at all.
No. 6 we consider to be in our favor. It may be proper for us to show that no 20 years' period of user is requisite to a valid dedication, nor the "vote of any town." The 20 years' period of a prescription has nothing to do with title by dedication. Title by dedication is completed by the acceptance of a gift, and the case finds this was accepted. "No specific length of time is necessary." Com. v. Coupe, supra; Hobbs v. Lowell, supra; Com. v. Fisk, supra; Larned v. Larned, supra; Hayden v. Stone, 112 Mass. 349; Cincinnati v. White, 6 Pet. 431; Washb. Easem. (4th Ed.) *139, *140; Abbott v. Mills, 3 Vt. 530; Hunter v. Trustees, 6 Hill, 411; Tallmadge v. East River Bank, 26 N.Y. 108. No "town vote" is essential to the acceptance of a park dedicated to the general public. Com. v. Taunton, 16 Gray, 230; Hayden v. Stone, 112 Mass. 350-352. See Com. v. Petitcler, Com. v. Holliston, Com. v. Coupe, and McKenna v. Boston, supra. The rule of evidence in respect of acceptance of a public park may well be even more liberal. Coolidge v. Learned, 8 Pick. 511; Cincinnati v. White, 6 Pet. 431. "It is clearly unnecessary to show any public act of acquiescence on the part of a town." Abbott v. Mills, 3 Vt. 525; State v. Trask, 6 Vt. 355; Washb. Easem. *142. The idea of estoppel enters into the theory of a dedication so far that a party who has made a gift which has been acted upon, and in consequence of which situations have been changed, shall not be heard to revoke it. See Cincinnati v. White, 6 Pet. 431; Alves v. Henderson, 16 B.Mon. 131; Rowan v. Portland, 8 B.Mon. 232; Knight v. Heaton, 22 Vt. 480; Abbott v. Mills, 3 Vt. 525; Hunter v. Trustees, 6 Hill, 411.
Title by dedication of squares, etc., "may now be deemed a settled doctrine at common law in this country generally." Washb. Easem. 132; Cincinnati v. White, ubi supra; New Orleans v. U.S., 10 Pet. 662-712; Pomeroy v. Mills, 3 Vt. 279; Knight v. Heaton, 22 Vt. 483. No conveyance, even with warranty, affects a dedication once made. Washb.Easem. 129, and cases cited; McConnell v. Lexington, 12 Wheat. 582; State v. Trask, 6 Vt. 355; Abbott v. Mills, 3 Vt. 521; Washb. Easem. 153, 154.
This question of dedication was a material one, and went to quantum of damages. See Wellington v. Petitioners, 16 Pick. 99-101; Valentine v. Boston, 22 Pick. 75; Sexton v. North Bridgewater, 116 Mass. 200; Pierce v. Drew, 136 Mass. 80; Chase v. Sutton Manuf'g Co., 4 Cush. 152; Boston v. Richardson, 13 Allen, 146, 160. If the original dedication had even been in form of a conditional deed, the right of entry and enjoyment for condition broken could never be assigned to him. Trask v. Wheeler, 7 Allen, 111; Guild v. Richards, 16 Gray, 317; Hubbard v. Hubbard, 97 Mass. 191; Thompson v. Bright, 1 Cush. 429; Rice v. Boston & W.R.R., 12 Allen, 143. The dedication was plain and absolute. Barker v. Barrows, 138 Mass. 580; Rawson v. Uxbridge School-dist., 7 Allen, 125; Sohier v. Trinity Church, 109 Mass, 1, 19; Packard v. Ames, 16 Gray, 327; Episcopal City Mission v. Appleton, 117 Mass. 326; Chapin v. Harris, 8 Allen, 596.
It is well settled that more than one, perhaps even all, the abutting estates, may receive special benefits, and that the multiplying of special benefits does not change their character. They do not thereby become general benefits. Cross v. County of Plymouth, 125 Mass. 557; Hilbourne v. Suffolk, 120 Mass. 393; Allen v. Charlestown, 109 Mass. 243. The charge of the judge should be more than a mere statement of law generally. It should reach the facts of the case, and be applicable to them, and classify them.
L.W. Howes, for petitioner.
The only benefit that can be set off against the petitioner's damages is some direct, special, or peculiar benefit to the rest of the petitioner's land which is not common to the other estates on the same street, or in the same neighborhood. Meacham v. Fitchburg R. Co., 4 Cush. 292; Cross v. County of Plymouth, 125 Mass. 557; Parks v. County of Hampden, 120 Mass. 395; Upton v. South Reading B.R. Co., 8 Cush. 600. See Whitman v. Boston & M.R.R., 7 Allen, 323-327; Allen v. Charlestown, 109 Mass. 243; Whitney v. Boston, 98 Mass. 314, 315. The case of Parks v. County of Hampden, ubi supra, was precisely like this, and approved in Cross v. County of Plymouth, 125 Mass. 557. See Sexton v. North Bridgewater, 116 Mass. 200, 202.
The court below was not bound to give the rulings requested in the language requested. Randall v. Chase, 133 Mass. 210. Towns and cities have no powers except what are conferred by statute; and not until the statute of 1882, c. 154, had they any power to acquire public parks, or to accept them as such. Attorney General v. Whitney, 137 Mass. 459, 460. And, of course, no money could be raised or appropriated or expended upon any public park prior to said statute of 1882. Since the statute of 1846, c. 203, public ways, even, could not be established by dedication. Morse v. Stocker, 1 Allen, 150-154; Attorney General v. Whitney, ubi supra. To constitute dedication, there must be a gift or surrender by the owner, and an acceptance by the public; and the public can only act through some properly authorized officer of a municipality. State v. Bradbury, 40 Me 154; Hobbs v. Lowell, 19 Pick. 405. And in this case the exceptions show that there was no dedication under any statute, or by vote of any town. There never has been in this state any such thing as dedication of a public square or park to the public; hence the evidence offered by the respondent was properly excluded. Attorney General v. Whitney, 137 Mass. 459, 460. To constitute acceptance at common law, by user, it must be for a period of not less than 20 years in this state. Lowell v. Hobbs, 19 Pick. 413; State v. Bradbury, ubi supra; Valentine v. Boston, 22 Pick. 81.
OPINION
This was a petition to recover damages for the laying out of a way over the land of the petitioner. The first exception before us is to the exclusion of evidence that, from 15 to 19 years ago, the premises were dedicated to the public as a public square, that the dedication was then accepted by the public, but not under any statute, or by vote of any town, and that public use of the premises as a park has continued down to the present time. The court ruled that no such dedication is possible in Massachusetts. We are of opinion that this ruling cannot be sustained. The principle of dedication, although of ambiguous origin, has been recognized in this state as in force here before St.1846, c. 203, (Pub.St. c. 49, § 94,) and as still in force in cases not within the terms of that statute. Tyler v. Sturdy, 108 Mass. 196; Hobbs v. Lowell, 19 Pick. 405. Notwithstanding the able opinion in Pearsall v. Post, 20 Wend. 111, 22 Wend. 425, so far as that tends the other way, it is now generally admitted that open squares in towns are as much within the principle referred to as highways, and it has been held in numerous decisions that such squares may be dedicated to public uses. Com. v. Fisk, 8 Metc. 238, 243; Cincinnati v. White, 6 Pet. 431; New Orleans v. U.S., 10 Pet. 662, 713; Watertown v. Cowen, 4 Paige, 510; Cady v. Conger, 19 N.Y. 256, 261; Abbott v. Mills, 3 Vt. 521, 526; Com. v. Rush, 14 Pa.St. 186; Rowan v. Portland, 8 B.Mon. 232, 248; Methodist Episcopal Church v. Hoboken, 33 N.J.Law, 13; Mayor, etc., v. Morris Canal, etc., Co., 12 N.J.Eq. 555; Bayone v. Ford, 43 N.J.Law, 292; Princeville v. Austen, 77 Ill. 325; Grogan v. Hayward, 4 Fed.Rep. 161; 3 Kent, Comm., *450, *451.
The Massachusetts statute only applies to certain classes of ways, (Tyler v. Sturdy, ubi supra;) and we see no reason to doubt the suggestion of Mr. Washburn that "the law remains, it would seem, as at common law, in respect to public squares and other subjects of dedication;" especially in view of the...
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