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 .
It is frequently asserted that the doctrine of dedication is based upon the theory of estoppel in pais, but this would seem to be incorrect.96 The doctrine of dedication was recognized earlier than the doctrine of estoppel in pais,97 and the former doctrine is perfectly comprehensible without reference to the latter. One who indicates, by his course of conduct, an intention to devote his property to public use, thereby effects a dedication, just as one who, by executing an instrument of conveyance in favor of an individual, indicates an intention to transfer to him an estate in land, effects such transfer. In neither case can it properly be said that, because the expression of intention in accordance with legal requirements results in effecting the intention, an estoppel in pais is involved. So when it is said, as it occasionally is said, that one whose acts are such as to show an intention to dedicate, is estopped to deny such intention, the introduction of the theory of estoppel appears entirely unnecessary. Such a case involves merely an application of a general rule that, for legal purposes, one's intention is such as his acts would lead a reasonable man to believe to be his intention.98 The only case, it is submitted, in which it is at all appropriate to refer to the theory of estoppel in this connection is that, above referred to,99 of a dedication by sales with reference to a plat, in which case the dedication appears to be, in some way not explained, a v. :;47, 17 L. K. A. 454, 32 N. E. 78.
Result of the vendor's asserted estoppel, as against the purchasers, to deny the existence of ways and spaces as indicated on the plat.
Precedent to the vesting of rights in the public.8 as has a provision that other owners of land shall dedicate for the same public purpose.9 A stipulation relieving the dedicator from liability for any part of the cost of adapting the land to the public use has been upheld.10
Made, not for general highway purposes, but for use by pedestrians only, or for a certain class of vehicles.4 But there may be a restriction imposed by the dedicator upon the control or user of the land by the public so far reaching in its nature as to be inconsistent with the very nature and purpose of a dedication.
96. As is well stated in An-gell, Highways, Sec. 156.
97. The doctrine of dedication was recognized in express terms in Lade v. Shepherd, 2 Strange 1004, an action of trespass, decided anno 1735. Estoppel in pais, or equitable estoppel, received its first explicit recognition in courts of law in the nineteenth century. See Bigelow, Estoppel, ch. 18, Sec.
2; Ewart, Estoppel, p. 7. As before remarked (ante, Sec. 479, note la), the doctrine of dedication presumably was recognized in principle, if not by name, early in the history of English law.
98. See 4 Wigmore, Evidence,. Sec. 2413.
99. Ante, Sec. 482, note 56.
Although, as just stated, the doctrine of dedication is properly independent of that of estoppel, the fad that the public have been allowed to utilize the land as if it has been dedicated to public use may, under particular circumstances, operate to prevent or estop the owner from interrupting such use. In such a case the court is quite as likely to state that the user of the land by the public for the particular purpose shows a dedication for that purpose, as to say that the landowner is estopped to prevent the continuance of such user. For instance, in the case of land which has been used, without dissent by the owner, for the purpose of a cemetery, a finding of dedication is no doubt usually based, to a considerable extent at least, upon considerations which appertain properly to the doctrine of estoppel rather than to that of dedication. A dedication is found to have been made by reason of circumstances which would properly estop the owner to deny that it was made. For the purpose of the particular ease the confusion of the two doctrines is immaterial, but for the purpose of scientific discussion it is much to be deprecated.1