This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Land may be "dedicated" to a public use by means of a declaration by its owner, either by word or act, of his intention that the land shall be devoted to such use.1 The doctrine of dedication appears in its inception to have been confined to the case of a dedication of land, or of a bridge erected thereon, to highway uses,la but the scope of the doctrine has been very greatly extended. It has, for instance, been decided that land may be dedicated for use by the public as a park, common or public square,2 as a wharf or landing la. While Lade v. Shepherd, 2 Strange, 1004 (anno 1735) appears to be the first reported case in which the doctrine is specifically referred to, it is reasonable to suppose that it existed, in theory at least, from a much earlier period. In Woolrych, Ways, p. 5, appears the following language: 'it is laid down in the old books, that in a highway the king has nothing except the passage for himself and his people, but that the freehold, and all the profits, as trees, etc., appertain to the lord of the soil (citing Y. B.
1. Angell. Highways. Sec. 132 et seq; Elliott, Roads & Streets, c. 5.
2 Ed. 4, 9; 8 Ed. 4, 9; 8 Hen. 7, 5; 2 Co. Inst. 705). For it is presumed by the law, that the proprietor of such land adjoining gave up to the public for passage at some former period all the land between his enclosure and the middle of the road" (citing Doe d. v. Pearsey, 7 B. & C. 306). See also the discussion and quotations fin the opinion of Collin, J., in Appleton v. New York, 219 N. Y. 250, 114 N. E. 73.
2. Baker v. Johnston, 6 Pet. (U. S.) 431; San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405; Gordon County v. Calhoun, 128 Ga. 781, 58 S. E. 360; Rhodes v.
Purposes for which dedication may be made.
No particular beneficiary or beneficiaries.
Qualified and conditional dedication.
Place,3 as a cemetery,4 for school purposes,5 and for the erection of public buildings.6
The analogy between the dedication of land for a park or common and its dedication for a highway is reasonably close, since in both cases there results a right of user in each and every member of the public. The same may be said of a dedication of land, covered by water, for use by the individual members of the public, for purposes of navigation, passage or recreation,7 and of a dedication of land immediately surrounding a well or spring, to enable the public to obtain water therefrom.8 Likewise, a decision that land may be dedicated to the use of the public for the purpose of keeping the view of the sea unobstructed appears to involve merely a recognition of the fact that there may, in such a case, be a use of the land by any member of the public who may chose to look at the sea over that land. But the position that land may be dedicated for school purposes, or for use by the public authorities as a cemetery, involves a very considerable departure from the original conception of dedication, since such a use is necessarily restricted to but a small part of the public. A school building into which any and every person shall have the right of entry, or a cemetery in which any and every person shall have the right of burial, is not readily conceivable. And likewise, when land is devoted to the purposes of the particular municipality, as, for instance, to the erection of a municipal building, the beneficiaries of the use are not the public generally, but that class of the public who reside within the municipal limits. As regards the dedication of land for a wharf or landing place, such a use of land appears to be analogous to its use for highway purposes, in so far as the former use involves merely a right, in any member of the public, to pass to or from boats over that land, but in so far as this may involve the temporary storage or piling of goods on the land by any member of the public, to the possible exclusion of any use whatsoever of the land by the owner of the land or by other members of the public, the applicability thereto of the doctrine of dedication appears, on principle, to be open to question, and there are judicial expressions to this effect.10 The greatest extension which the doctrine of dedication has received is that involved in decisions that land may be dedicated for the use of a particular religious sect or denomination, or a particular church society, as a place for worship,11 as a cemetery,12 or as a parsonage.13 These decisions appear, ordinarily, to have been dictated by a desire to uphold a gift which would otherwise fail for lack of a sufficient conveyance, and they are usually sought to be justified on the theory that such a use is a public use. It is difficult to concede, however, that a use of land by a sect or society for religious or cemetery purposes is a public use. The doctrine of dedication has never, apparently, been applied in the case of land devoted to a merely philanthropic use, such as an almshouse or hospital, not under the control of the public authorities,14 and yet the public is ordinarily quite as much interested in such a use
Town of Brightwood, 145 Ind. 21, 43 N. E. 942; Pella v. Scholte, 24 Iowa, 283, 95 Am. Dec. 729; Northport Wesleyan Grove Camp Meeting Ass'n v. Andrews, 104 Me. 342, 20 L. R. A. (N. S.) 976, 71 Atl. 1027; Higgenson v. Slat-tery, 212 Mass. 583, 99 N. E. 523; Trustees of M. E. Church, Hoboken v. Council of Hoboken, 33 N. J. L. 13, 97 Am. Dec. 696; Porter v. International Bridge Co., 200 N. Y. 234, 93 N. E. 716; Le-clercq v. Gallipclis, 9 Ohio, 217, 28 Am. Dec. 641; Carter v. Portland, 4 Ore. 339; Com. v. Rush, 14 Pa. St. 186; State v. Travis County, 85 Tex. 435, 21 S. W. 1029; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554; Sturmer v. Randolph County Court, 42 W. Va. 724, 36 L. R. A. 300, 26 S. E. 532; Thorndike v. Milwaukee Auditorium Co.. 143 Wis. 1, 126 N. W. 881.
3. City of Napa v. Howland, 87 Cal. 84, 25 Pac. 247; Alton v. Illinois Transportation Co., 12 111. 38, 52 Am. Dec. 479; Village of Mankato v. Willard, 13 Minn. 13, 97 Am. Dec. 208; Child v. Chap-pell, 9 N. Y. 246; Portland & W. V. R. Co. v. Portland, 14 Ore. 188, 58 Am. Rep. 299, 12 Pac. 265; City of Pittsburg v. Epping Carpenter Co., 194 Pa. St. 318. 45 Atl. 129; Gardner v. Tisdale, 2 Wis. 153, 60 Am. Dec. 407.
4. Wormley v. Wormley, 207 111. 411, 3 L. R. A. (N. S.) 481, 69 N. E. 865; Redwood Cemetery Ass'n v. Bandy, 93 Ind. 246; Hagaman v. Dittmar, 24 Kan. 42; Tracy v. Bittle, 213 Mo. 302, 112 S. W. 45; First Nat. Bank of Pawnee City v. Hazels, 63 Neb. 844, 56 L. R. A. 765, 89 N. W. 378; Stockton v. Newark, 42 N. J. Eq. 531, 9 Atl. 203; Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407; Pott v. Pottsville, 42 Pa. 132; Mowry v. City of Providence, 10 R. I. 52; Pierce v. Spafford, 53 Vt. 394; Roundtree v. Hutchinson, 57 Wash. 414, 27 L. R. A. (N. S.) 875, 107 Pac. 345;
5. Carpenteria School Dist. v. Heath, 56 Cal. 478; Chapman v. Floyd, 68 Ga. 455; Board of Regents for Normal School Dist. No. 3 v. Painter, 102 Mo. 464, 10 L. R. A. 493, 14 S. W. 938; Board of Education of Incorporated Village of Van Wert v. Edson, 18 Ohio St. 221; Pott v. Pottsville. 42 Pa. 132; School Dist. No. 2 of Johnson County v. Hart. 3 Wyo. 563, 27 Pac. 919, 29 Pac. 711.
6. Spires v. Los Angeles, 160 Cal. 64, 87 Pac. 1026; Campbell County Court v. Newport, 12 B
Mon. (Ky.) 538; State v. Travis
County, 85 Tex. 435, 21 S. W. 1029; Board Sup'rs Frederick County v. City of Winchester, 84 Va. 467, 4 S. E. 844.
7. See Shaw v. Crawford, 10 Johns. 236; Compton v. Waco Bridge Co., 62 Tex. 715; Gillean v. Frost, 25 Tex. Civ. App. 371, 61 S. W. 345; Trenton Water Power Co. v. Donelly, 77 N. J. L. 659, 73 Atl. 597.
8. Smith v. Cornelius, 41 W. Va. 59, 30 L. R. A. 747, 23 S. E. 599; Mcconnell v. Lexington, 12 Wheat, 582; Raleigh County v. Ellison, 8 W. Va. 308; Thompson v. Mcpherson - Ky - 124 S. W. 272.
9. Atty Gen. v. Vineyard Grove Co., 181 Mass. 507, 64 N. E. 75; See Atlantic City v. Associated Realties Corp., 73 N. J. Eq. 721, 17 Ann. Cas. 743, 70 Atl. 345; Berrien Springs v. Ferguson, 154 Mich. 472, 118 N. W. 262; Poole v. Commissioners of Rehoboth, 9 Del. Ch. 192, 80 Atl. 683.
10. Pearsall v. Post, 20 Wend. (N. Y.) 111; Post v. Pearsall, 22 Wend. N. Y.) 425.
11. Com'rs of Wyandotte Co. v. Presbyterian Church, 30 Kan. 620, 1 Pac. 109; Griffey v. Briars, 7 Bush. (Ky.) 471; Hannibal v. Draper, 15 Mo. 634; Cooper v. Sandy Hill First Presbyterian Church, 32 Barb. (N. Y.) 222; Williams v. First Presbyterian Society, 1 Ohio St. 478; Atkinson v. Bell, 18 Tex. 474.
12. Beatty v. Kurtz, 2 Pet. (U.
S.) 566, 7 L. Ed. 212; Boyce v. Kalbaugh, 47 Md. 334, 28 Am. Rep. 404.
13. Mckinney v. Griggs, 5 Bush (Ky.) 401, 96 Am. Dec. 360.
14. In Cincinnati v. While's Lessee, 6 Pet. (U. S.) 431, it is said that " it was admitted at the bar that dedications tor charitable and religious purposes, and for public highways, were valid." The admission appears to have been unjustified as regards dedication for charitable purposes as in the use of land for worship under the auspices of some particular church. And it has been explicitly decided that land cannot be dedicated for use for a railway,15 a use in which all classes of the community are more or less interested. The decisions that land may be dedicated for the use of a particular religious sect or society, appear to be based, directly or indirectly, upon a false analogy suggested in an early case in the federal Supreme Court,16 between the doctrine of dedication, and a doctrine, applied in that case, that a grant for the establishment of a church will be upheld even though at the time of the grant there is no grantee in existence.17 The suggestion thus made, that land may be dedicated for religious purposes, was subsequently applied by that court as validating an oral gift of land to an unincorporated religious body for use as a cemetery.18 And these cases are ordinarily referred to as conclusive of the validity of a dedication for the benefit of a religious society.