The opinion of the Court was delivered by
Williams, J.
The jury, under the direction of the court, have found thatjjje square or common in front of the plaintiff’s house has been dedicated to the public and set apart as a public common or highway ; that the defendants have erected the building thereon which, is complained of; that this building isa nuisance and injury to the lands and buildings of the plaintiff, and have assessed the damages which the plaintiff has sustained thereby. Objections were taken to the decision of the court in admitting some part of the testimony, and also to their charge to the jury. The evidence on which the plaintiff and defendants relied, is detailed in the bill of exceptions. On the part of the plaintiff, it was contended that there was sufficient proof that the common had been dedicated to the public, for a public use, by the original proprietors. It was contended on the part of the defendants that the town of Burlington was to be regarded as proprietor of some one or more of the public rights; that it had never acquiesced in the dedication, and that the defendants, having a regular lease from the town, had rightfully erected the building complained of as a nuisance, on the land belonging to the proprietors. In accordance with the views of the defendants the court decided, that the town was to be regarded as proprietor of one or more of the public rights; and unless they had acquiesced in the dedication, the defendants would be eptitled to a verdict. The correctness of this part of the decision and charge of the court, is not now in question. If the verdict had been different, the plaintiff would probably have presented this point to the court to be reviewed. The principal question involved in this case is, what shall constitute a dedication of land to the public use, so as to bar the proprietors or owners from recovering it, while it is wanted and occupied for the purpose to which it was dedicated.
The inquiry is important in every view. In the present case property to a considerable amount will be affected by the decision, [526]*526and the principle involved will affect the interest of indi vid ti-ais and the public in almost every town in the state. It is cus-tomary ’n laying out towns, particularly when it is contemplated that they will be places of business,to lay out a square or common, , / ..i,.--,,,., » , , and to locate building lots bordering thereon. And these lots acquire an increased value in consequence of their location. 'If a village is built up, and individuals buy these lots,-erect buildings, and commence the establishing of k village, and make it a common centre for the business of the town, the other lands in town rise in value, of which the proprietors have all the advantage. It would then be the height of injustice, and contrary to every principle of good faith, to permit these proprietors to derive this advantage, and then frustrate the expectations held out, by resuming the lands thus set apart, .and at a value greatly enhanced in consequence of their having been thus set out.
Adedication oflandtolhe use ofthe publicneed not be by deed. The public are not a body capable of taking the fee either by deed or otherwise. The fee must remain either in the original proprietor, or in some persons to whom he shall convey it, and the soil is his or theirs for every use and purpose not inconsistent with the use for which it is dedicated ; and the whole reverts to him or them,divested of every incumbrance, when it ceases to be wanted or occupied for the use to which it is dedicated. This question was lately before the Court, and decided in the case of the State vs. Wilkinson, 2 Vt. Rep. 480.
Neither is it necessary that it should have been appropriated for the use of the public for so long a period of time as that a grant might or should be presumed. It is sufficient if the owner of the soil by some unequivocal act manifests his intention of dedicating the land toa public use, and, in consequence of such intention so manifested,individuals have embarked in any undertakings, or invested property which will be materially affected if such intention should be altered or changed. Whenever a public square or common is marked out and set apart as such by the owners or proprietors, and individuals are induced to purchase'lots or lands bordering thereon, in the expectation held out by the proprietors or owners, that it should so remain, or even if there are no such marks placed on the ground, but a map or plan is made, and village lots marked thereon, and sold, as such, it is not competent for the proprietors or owners to disappoint the expectations of the purchasers by resuming the lands thus set apart, and appropriating n'bem to any other use.
[527]*527In the civil law it is said, “things sacred, religious and holy, belong to no individual,” and tbat “ any man may at his will render his own place religious by making it the depository of a dead bodyand it is also said, that ¡1 a dead' body be laid in a place by the consent-of the owner, the place becomes religious though he afterwards dissents.—Cooper’s Justinian, 69. The civiMaw in'this particular is said by Bracton to be the common law in regard to pious donations. ’ In Sullivan’s history of land titles, he speaks of burying places, training fields; and common landing places, as having been originally laid out for these purposes, and consecrated to these uses, and as public immunities, or common privileges.
In the case of the State vs. Wilkinson, above cited, the authorities in relation to highways were referred'lo and examined ; therefore, it will be unnecessary to re-examine them here. That case establishes the principle that the use and enjoyment of a common way for the period of fifteen years, would he sufficient to give an easement to the public, and subject the person encroaching thereon to an indictment for a nuisance, Neither that case, however, nor either of the others referred to, establish any particular period of time, short of which this presumption cannot be inferred. But it appears clearly from the cases, particularly that of Rugbycharity vs. Merrywether, 11 East, 375, n. and the remarks of Chambers, Judge, in Woodger vs. Hadden, 5 Taunton, 126, that a period short of fifteen years furnishes sufficient ground for such presumption. ' Indeed, we should gather from all the cases, that, as in the civil law, the burying a dead body renders the place where it is.buryed religious or sacred, so the act of throwing open the property to public use, without any other formality, is sufficient to establish the fact of a .dedication to the public ; and if individuals,in consequence of this act, become interested to have it Continue so, as by purchasing property, &c., the owner cannot resume it. We come then to the conclusion,that the enjoyment of a public highway, square, common, or any other common privilege or immunity, for a period short of fifteen years, 'may afford conclusive evidence of a right so to do ; and that the charge of the court is not liable to the objection which has been urgedj' viz. that they omitted to charge, that an enjoyment by the public for the period of fifteen years, was necessary to extinguish the right of the proprietors.
There is no difficulty in the application of this principle,and in enforcing it,in all those cases where one or more individuals are the [528]*528owners of the land, and where they do not act as a corporation,or by vote;
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The opinion of the Court was delivered by
Williams, J.
The jury, under the direction of the court, have found thatjjje square or common in front of the plaintiff’s house has been dedicated to the public and set apart as a public common or highway ; that the defendants have erected the building thereon which, is complained of; that this building isa nuisance and injury to the lands and buildings of the plaintiff, and have assessed the damages which the plaintiff has sustained thereby. Objections were taken to the decision of the court in admitting some part of the testimony, and also to their charge to the jury. The evidence on which the plaintiff and defendants relied, is detailed in the bill of exceptions. On the part of the plaintiff, it was contended that there was sufficient proof that the common had been dedicated to the public, for a public use, by the original proprietors. It was contended on the part of the defendants that the town of Burlington was to be regarded as proprietor of some one or more of the public rights; that it had never acquiesced in the dedication, and that the defendants, having a regular lease from the town, had rightfully erected the building complained of as a nuisance, on the land belonging to the proprietors. In accordance with the views of the defendants the court decided, that the town was to be regarded as proprietor of one or more of the public rights; and unless they had acquiesced in the dedication, the defendants would be eptitled to a verdict. The correctness of this part of the decision and charge of the court, is not now in question. If the verdict had been different, the plaintiff would probably have presented this point to the court to be reviewed. The principal question involved in this case is, what shall constitute a dedication of land to the public use, so as to bar the proprietors or owners from recovering it, while it is wanted and occupied for the purpose to which it was dedicated.
The inquiry is important in every view. In the present case property to a considerable amount will be affected by the decision, [526]*526and the principle involved will affect the interest of indi vid ti-ais and the public in almost every town in the state. It is cus-tomary ’n laying out towns, particularly when it is contemplated that they will be places of business,to lay out a square or common, , / ..i,.--,,,., » , , and to locate building lots bordering thereon. And these lots acquire an increased value in consequence of their location. 'If a village is built up, and individuals buy these lots,-erect buildings, and commence the establishing of k village, and make it a common centre for the business of the town, the other lands in town rise in value, of which the proprietors have all the advantage. It would then be the height of injustice, and contrary to every principle of good faith, to permit these proprietors to derive this advantage, and then frustrate the expectations held out, by resuming the lands thus set apart, .and at a value greatly enhanced in consequence of their having been thus set out.
Adedication oflandtolhe use ofthe publicneed not be by deed. The public are not a body capable of taking the fee either by deed or otherwise. The fee must remain either in the original proprietor, or in some persons to whom he shall convey it, and the soil is his or theirs for every use and purpose not inconsistent with the use for which it is dedicated ; and the whole reverts to him or them,divested of every incumbrance, when it ceases to be wanted or occupied for the use to which it is dedicated. This question was lately before the Court, and decided in the case of the State vs. Wilkinson, 2 Vt. Rep. 480.
Neither is it necessary that it should have been appropriated for the use of the public for so long a period of time as that a grant might or should be presumed. It is sufficient if the owner of the soil by some unequivocal act manifests his intention of dedicating the land toa public use, and, in consequence of such intention so manifested,individuals have embarked in any undertakings, or invested property which will be materially affected if such intention should be altered or changed. Whenever a public square or common is marked out and set apart as such by the owners or proprietors, and individuals are induced to purchase'lots or lands bordering thereon, in the expectation held out by the proprietors or owners, that it should so remain, or even if there are no such marks placed on the ground, but a map or plan is made, and village lots marked thereon, and sold, as such, it is not competent for the proprietors or owners to disappoint the expectations of the purchasers by resuming the lands thus set apart, and appropriating n'bem to any other use.
[527]*527In the civil law it is said, “things sacred, religious and holy, belong to no individual,” and tbat “ any man may at his will render his own place religious by making it the depository of a dead bodyand it is also said, that ¡1 a dead' body be laid in a place by the consent-of the owner, the place becomes religious though he afterwards dissents.—Cooper’s Justinian, 69. The civiMaw in'this particular is said by Bracton to be the common law in regard to pious donations. ’ In Sullivan’s history of land titles, he speaks of burying places, training fields; and common landing places, as having been originally laid out for these purposes, and consecrated to these uses, and as public immunities, or common privileges.
In the case of the State vs. Wilkinson, above cited, the authorities in relation to highways were referred'lo and examined ; therefore, it will be unnecessary to re-examine them here. That case establishes the principle that the use and enjoyment of a common way for the period of fifteen years, would he sufficient to give an easement to the public, and subject the person encroaching thereon to an indictment for a nuisance, Neither that case, however, nor either of the others referred to, establish any particular period of time, short of which this presumption cannot be inferred. But it appears clearly from the cases, particularly that of Rugbycharity vs. Merrywether, 11 East, 375, n. and the remarks of Chambers, Judge, in Woodger vs. Hadden, 5 Taunton, 126, that a period short of fifteen years furnishes sufficient ground for such presumption. ' Indeed, we should gather from all the cases, that, as in the civil law, the burying a dead body renders the place where it is.buryed religious or sacred, so the act of throwing open the property to public use, without any other formality, is sufficient to establish the fact of a .dedication to the public ; and if individuals,in consequence of this act, become interested to have it Continue so, as by purchasing property, &c., the owner cannot resume it. We come then to the conclusion,that the enjoyment of a public highway, square, common, or any other common privilege or immunity, for a period short of fifteen years, 'may afford conclusive evidence of a right so to do ; and that the charge of the court is not liable to the objection which has been urgedj' viz. that they omitted to charge, that an enjoyment by the public for the period of fifteen years, was necessary to extinguish the right of the proprietors.
There is no difficulty in the application of this principle,and in enforcing it,in all those cases where one or more individuals are the [528]*528owners of the land, and where they do not act as a corporation,or by vote; but there is some in applying it to the proprietorsof townships, as such, who have their lands in common, and make divisions from to as their interests require. A vote passed at a meeting of the proprietors,duly warned for that purpose, setting apart a common for public buildings, or for any other purpose manifestly for the interest and benefit of the proprietors, would probably be such an act of dedication as would be binding on them. But in the case under consideration there was no such legal vote. A division of a town among the proprietors in fact, has been recog-nised as a legal division, where there has been an acquiescence on the part of the proprietor, although it was neither legal nor binding when first made. The same principle which has established those divisions may apply to the present case. The vote of the proprietors passed June 26, 1798, though not binding on the proprietors at the time, as not made at a meeting warned for that purpose, still, if acquiesced in by them until they derive a benefit from it, by the increased value of their other lands in town, and by individuals having purchased under them in consequence of the appearance thus held out by their vote, or if recognised by allotting their lands to the common, treating it as a public common, laying their roads terminating there, and laying out village lots bordering thereon, would be such an act as ought to be binding on the proprietors of the town. There was no error, therefore, in the decision of the court so admitting the vote of the proprietors in evidence,to be weighed with other evidence, or in their charge to the jury in this part of the case.
It has been urged in argument, that there was no evidence of acquiescence on the part of the town in this dedication. It was clearly unnecessary to show any particular act of acquiescence on the part of the town. If towns are to be considered as proprietors, and vested with all the rights which appertain to other proprietors, (of which there are very great doubts,) it must be incumbent upon them to show by some act of theirs, their dissent from the doings of the other proprietors. The silence of the town, or the silence of any or all the proprietors, while people were buying and building on the square, was a sufficient acquiescence under the circumstances which are set forth in the case. The jury was correctly charged that the town should have manifested a claim of right, or, at least, an intention to have put an end to the enjoyment of the square, and that they should have furnished some evi[529]*529dence of such an intention, so that individuals of common ty or prudence might have taken notice.
The proceedings in relation to the land and buildings where the jail was formerly erected, have been cited as evidence that the town has not so acquiesced. Of the weight of the evidence introduced into the case the jury were competent judges. But it appears clear to me that those proceedings lurnish no evidence at all of the dissent of the town as a proprietor to this dedication 5 on the contrary, that they are strong evidence that the square was-recognised as dedicated to the uses designated in the vote of the proprietors. All these proceedings were unnecessary if the town as proprietors were asserting their right to the land in question. The doubts which arose as to the powers of the county court, and the necessity which was felt to apply to the legislature for authority to enable the select men to convey, (and at that time it was supposed that the powers of the legislature, both as to private and public rights, were not to be questioned,) go upon the ground that this land was appropriated to a public use by the proprietors, and that nothing short of the unlimited powers of the legislature could change the application.
Another point was made in this case, though not much insisted on, to wit, that case would not lie in all cases where the public might abate a nuisance, and that the jury should have been so charged. In all cases of nuisance the public may abate the nuisance, and if there is no injury to individuals, no action can be sustained. But if the nuisance is injurious to the individual, he may maintain an action for the damage sustained by him. It is difficult to see what advantage the defendants could have derived from this being stated to the jury. The plaintiff claimed that th.e acts of the defendants complained of were not only a public nuisance, but that they were detrimental to him I the jury have found so’, and have estimated and assessed the damages he has sustained thereby. By the most familiar principles of law he was entitled to this remedy. Why the defendants should complain of the silence of the court in the particular mentioned, we cannot perceive; as it would only have been stating to them, that if the plaintiff had sustained no injury, he could not maintain the action, though the public might abate the nuisance.
On the whole it appears to us, that there is no error in any of the proceedings of the county court in this case; and we are fully satisfied that the verdict of the jury was right; that, from the evidence detailed in the bill of exceptions, there can be no doubt there [530]*530was a square properly dedicated to the public, and that it x . was not competent lor the town, nor any ol the proprietors, to appropriate it to any other use than the one designated by the vote l^e proprietors, and acquiesced in by them.
Allen, for plaintiff.
Adams & Bailey & Marsh, for defendants.
The judgement of the county court must, therefore, be affirmed»