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 .
In connection with the subject of highways, which they resemble as involving rights of user in the individual members of the public, it seems proper to refer to parks, public squares, and commons, though the ownership of land appropriated to these purposes is usually vested in the state or municipality, and consequently the rights exercised therein by the public are but seldom rights in another's land.
56. Gebhardt v. Reeves, 75 111. 301; Matthieson & Hegeler Zinc Co. v. La Salle. 117 111. 411, 8 N. E. 81; Plumer v. Johnston. 63 Mich. 165, 29 N. W. 687; Board of Education of Van Wert v. Edscra, 18 Ohio St. 221. And see Fairchild v. City of St. Paul, 46 Minn. 540, 49 N. W. 325.
57. Pettingill v. Devin, 35 Iowa, 344; Tifft v. City of Buffalo, 82 N. Y. 204.
58. Com. v. Wilkinson, 16 Pick. (Mass.) 175, 26 Am. Dec. 654; Angell, Highways, S 8; Elliott, Roads & St. c. 4.
59. 1 Lewis, Eminent Domain,
Sec. 261; Randolph, Eminent Domain. Sec. 42.
60. See Wright v. Carter, 27 N. J. Law, 76; Robbins v. Borman, 1 Pick. (Mass.) 122; Turner v. Rising Sun & L. Turnpike Co., 71 Ind. 547; State v. Maine, 27 Conn. 641, 71 Am. Dec. 89.
61. See People v. Newburgh & S. Plank Road Co.. 86 N. Y. 1.
62. 2 Shearman & R. Negligence, c. 16; Elliott, Roads & Streets SSec. 111-116; Carver v. Detroit & S. Plank-road Co., 61 Mich. 5?4. 28 N. W. 721; Baltimore & L. T. Co. v. Cassell, 66 Md. 419. 59 Am. St. Rep. 175, 7 Atl. 805.
The term "park" is ordinarily applied to a tract of land, in or near a town or city, which is subject to state or municipal control, and designed to furnish the public with opportunities for recreation and to obtain fresh air and exercise. The term "square" or "public square" is also used in this connection, without any very precise meaning, but usually with reference to a space in a city, under municipal control, a part or the whole of which is devoted to vegetation of an ornamental or at least agreeable character. Land may be acquired for the purpose of a park or public square by direct purchase,63"64 by proceedings under the power of eminent domain,65 or by dedication of land for the purpose by a private individual.66
- Commons. The term "common" is sometimes used to describe lands open to use by all the inhabitants of a city or town, and subject to the control of the public authorities. This is the construction usually given to a grant or dedication of land for use as a "common," it being in effect thereby declared that the land shall be open for use by the public, subject to municipal, or, occasionally, state, control.67
63-64. Holt v. City Council of Somerville, 127 Mass. 408; People v. Common Council of Detroit, 28 Mich. 230, 15 Am. Rep. 202.
65. 1 Lewis, Eminent Domain, Sec. 271; Brooklyn Park Com'rs v. Amstrong, 45 N. Y. 234, 6 Am. Rep. 70; West Chicago Park Com'rs v. Western Union Telegraph Co., 103 111. 33; St. Louis County Court v. Griswoh, 58 Mo. 175.
66. See post, Sec. 479.
67. See City of Cincinnati v. White's Lessee, 6 Pet. (U. S.) 431, 8 L. Ed. 452; Den d. Commissioners of Town of Bath v. Boyd, 23 N. C. 194; City of Newport v. Taylor, 16 B. Mon. (Ky.) 699; White v. Smith, 37 Mich. 291; Goode v. City of St. Louis, 113 Mo. 257, 20 S. W. 1048; Crawford v. Mobile & G. R. Co., 67 Ga. 405; Sheffield & Tuscumbia St. Ry. Co. v. Moore, 83 Ala. 294: Newell v. Town of Hancock, 67
In the New England colonies the term "common" was applied to a particular class of lands, which belonged, not to the municipality or to individuals, hut rather to associations of individuals. This system of holding lands arose from the frequent practice, upon the founding of a town, of reserving a large portion of the territory within the town limits, to he utilized by the settlers in common for pasture, cultivation, the procuring of timber or building stone, and like purposes. Tracts of land thus reserved were called "commons," "common lands," or "general fields," and the persons entitled to share in the benefits thereof were known as "proprietors," in contradistinction to those who, becoming inhabitants of the town at a later period, were not regarded as entitled to such benefits. As time went on, these common lands became reduced in quantity, owing to the extensive allotments of parts thereof by the proprietors to individuals, and those which remained common came gradually, as the numbers of the non-proprietors increased so that they controlled the policy and public opinion of the town, to be regarded as the property of the town, rather than that of the proprietors or their descendants; and so much of the old common lands as at the present day retain their common character are utilized chiefly for park and pasture purposes, for the benefit of all the inhabitants.68 There have been a number of decisions in regard to these common lands in New England, as, for instance, to determine who constitute the proprietors, in a particular case,69 the regularity of their meetings and proceedings,70 or the validity of sales or allotments of the lands to individuals.71 Such questions, however, are of chiefly local interest, and, moreover, have lost their importance to a great extent with the disappearance of the common lands and the proprietary bodies, and no consideration of these matters will be here attempted.
N. H. 244, 35 Atl. 253; Trustees of Western University v. Robinson, 12 Serg. & R. (Pa.) 29; Carr v. Wallace, 7 Watts (Pa.) 394; Bell v. Ohio & P. R. Co., 25 Pa. St. 161, 64 Am. Dec. 687.
So occasionally, in colonial grants, certain land was given for use as a "common," this being regarded as in effect a gift of the land to the town. Town of Southampton v. Mecox Oyster Bay Co., 12 N. Y. St. Rep. 514; Denton v. -lackson, 2 Johns. Ch. (N. Y.) 320.
68. See Johns Hopkins University Studies in Historical & Political Science, Series 1, Nos. II., IX., X., by Prof. H. B. Adams, and Series 4, Nos. XL, XII., by Melville Egleston, Esq.
The same system of commons occasionally existed in New York. See John Hopkins Studies, Series 4, No. I., by Irving Elting, Esq.; Appley v. Trustees of Montauk, 38 Barb. (N. Y.) 275.
Similar to the New England common lands were the communal lands belonging to the inhabitants of French and Spanish villages in parts of the territory included in the Louisiana purchase. The titles of these communal lands were confirmed in favor of the village inhabitants by act of congress after the cession of the territory to the United States.72