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 .
58. United States v. Chicago, 7 How. (U. S.) 185, 12 L. R. A. 660; Webb v. Demopolis, 95 Ala. 116, 21 L. R. A. 62, 13 So. 289; Town of Holly Grove v. Smith, 63 Ark. 5, 37 S. W. 956; People v. Reed, 81 Cal. 70, 15 Am. St. Rep. 22, 22 Pac. 474; Baltimore & Ohio S. W. Ry. Co. v. Seymour, 154 Ind. 17, 55 N. E. 953 (sem-hie); Bennett v. Seibert, 10 Ind. App. 369, 35 N. E. 35; Rowan v. Portland, 8 B. Mon. (Ky.) 232; Quirk v. Miller, 129 La. 1071, 57
So. 521; Whitworth v. Berry, 69 Miss. 882, 12 So. 146; New York & L. B. R. Co. v. Borough of South Amboy, 57 N. J. L. 252, 30 Atl. 628; Nodine v. Union, 42 Ore. 613, 72 Pac. 582; Patterson v. Peoples Natural Gas. Co., 172 Pa. St. 554, 33 Atl. 575.
59. Post, notes 63a-66.
59a. East Birmingham Realty Co. v. Birmingham Machine & Foundry Co., 160 Ala. 461, 49 So. 448; Los Angeles v. Mccolliun, 156 Cal. 148, 23 L. R. A. (N. S.) 387, 103 Pac. 914; Kimball v. Chicago, 253 111. 105, 97 N. E. 257; [ndlanapolis v. Kingsbury, 101 Ind. 200, 51 Am. Rep. 749; Hanson v. Eastman, -1 Minn. 509; bmann v. City of St. Louis, 121 Mo. 523, 26 S. W. 687; Weger v. Delran, 61 N. J. I.. 224, 39 All. 730.
2 R. P. - 43 be sustained upon a different theory,60 and it is unnecessary, in such a case, to introduce any reference to the doctrine of dedication. Many of the cases, however, which assert this doctrine of dedication by sales with reference to a plat, involve the rights of the public generally, or of the municipality as representative of the public, and that such sales do usually involve a dedication in accordance with the plat may be regarded as settled in most, if not all, of the states. It is to be regretted that, of the great number of cases in which a dedication by sales in accordance with a plat is asserted, none, so far as the writer has observed, undertake to explain why such sales should operate as effecting a dedication, why, for instance, the fact that the owner of land has sold two or three lots with reference to a plat, and has thereby subjected himself to obligations in favor of the purchasers as regards the streets depicted on the plat, is to be regarded as showing an intention to create rights in such streets in favor of the public generally. The doctrine had its origin, it may be suspected, in a failure to distinguish between the rights of the individual purchasers and of the public, as when the courts said, as they have not infrequently said, that the sale of lots with reference to a plat involves a dedication of the lots in favor of the purchasers, thus ignoring the well settled principle that land cannot be dedicated for the benefit of particular members of the public.61 The expression "dedication" having thus been introduced to express the result of such sales in favor of individuals, it was to be expected that, as time went on, such sales should come to be regarded as effecting a dedication for all purposes.62
60. Ante, Sec. 366(b).
61. See the remarks in People v. Reed, 81 Cal. 70, 15 Am. St. Rep. 22, 22 Pac. 474; Prescott v. Edwards, 117 Cal. 298, 59 Am. St. Rep. 186, 49 Pac. 178.
62. That such sales effect a dedication appears to be negatived in Washington. See Smith v. King County, 80 Wash. 273, 141 Pac. 695.
- Description with reference to street. That in selling or conveying land, it is described by reference to a suppositious street, or extension of a street, which has not actually been opened, does not, it seems, necessarily involve a dedication of land for such street,62a though it would no doubt ordinarily give the purchaser a right of way in the land so referred to as a street, if the vendor is the owner thereof.63
- Statutory dedication. In the statutes authorizing the record of a plat of a subdivision of land made by the owner thereof,638 there is usually a provision that the strips or pieces of land which the owner, as indicated on the plat, intends shall be used by the public for streets, parks, and the like, shall be regarded as dedicated to the public. These statutes usually contain minute requirements in regard to the form and authentication of the plat, and, if these requirements are not complied with, the plat does not constitute a statutory dedication, though it may, in connection with sales of land with reference thereto, or other acts, constitute evidence of a common-law dedication.64
A statutory dedication by the recording of a plat differs from a common-law dedication in that it involves a direct conveyance of the legal title, the ownership of the land, to that extent, to the municipality, while in the case of a common-law dedication the legal ownership is not affected, there being vested in the public merely a privilege of user.65 In case there is no municipality in existence at the time of a statutory dedication, the fee, it has been said, is in abeyance until a municipality is created.66
62a. Hoole v. Atty. Gen., 22 Ala. 190; Mobile v. Fowler, 147 Ala. 403, 41 So. 468 (semble)', Cerf v. Pfleging, 94 Cal. 131, 29 Pac. 417; Owensboro v. Muster, 111 Ky. 856, 64 S. W. 840; City of Omaha v. Hawver, 49 Neb. 1, 67 N. W. 891; Atlantic City v. Groff, 68 N. J. L. 670, 54 Atl. 800; In re Eleventh Avenue, 81 N. Y. 436; Jones v. Teller, 65 Ore. 328, 133 Pac. 354; Tesson v. Porter Co.,
238 Pa. 504, 86 Atl. 278; Felin v. Philadelphia, 241 Pa. 164, 88 Atl. 421; Rathmun v. Halfman. 58 Tex. 551. Contra, Flersheim v. Baltimore, 85 Md. 489. 36 Atl. 1098; Philadelphia, B. & W. R. Co. v. Baltimore, 121 Md. 635, 93 Atl. 146; Whyte v. City of St. j.ouis, 153 Mo. 80, 54 S. W. 478.
63. Ante, Sec. 366(a).
63a. Ante, Sec. 143.