Gardiner v. Tisdale

2 Wis. 153

• Court: Wisconsin Supreme Court
• Decided: December 15, 1853
• Status: Published

Opinion

By the Court,

CuAwroun, X

On the trial of this ■ cause in the Circuit Court, the plaintiff read in evi- ' dence a patent from the United States to Robert P. Crane, bearing date the 9th day of May, A. D. 1842, for certain lots or tracts of land, within which is embraced the particular land .now in controversy. He also gave in evidence a quit-claim deed from Robert P. Crane and wife to himself (the plaintiff) for a portion of the lands described in the. patent, and now ' contained within the limits of the village of Beloit, in Rock county, and proved that the lot and tenement described in the declaration, was a portion of the land so conveyed to him by Crane and wife, and that the defendant Brown built a house thereon, and claimed title thereto. It was admitted, that at the time of the commencement of this suit, the defendants, Tis-dale and Tondro, were in possession of the premises in dispute as the tenants of Brown. Having by this evidence established a prima facie case, the plaintiff rested.

The defendants, Tisdale and Tondro, did not defend the action, and their default was duly entered; but the defendant Brown, who, as landlord claiming title, was admitted to defend, interposed a plea. The substance of the defence on the trial was, that R. P. Crane and others had, in the years 1889 and 1840, *“OTlfc an(^ c^sed to be surveyed and platted, the town site of the present village of Beloit, which em-)3race(j t]ie lands described in the above mentioned pg^gj^ Qt.ane; as well ag other lands, and that the premises in dispute constituted a part of what had been set apart and designated on the plat of said village, as a public landing, on the bank of Rock river, and within the tract patented to Crane, and that by the platting and laying out of said village under the laws of Wisconsin Territory then existing.on the subject of recording town plats, the fee simple title to the streets, alleys and grounds laid off and set apart for public uses, was transferred from Crane and vested in the public, for the uses intended, so that the subsequent conveyance by Crane to the plaintiff, of a portion of the public landing, vested no title thereto in the plaintiff. It was also insisted by the defendant, that even if the proceedings in laying out, platting and recording the plat of the village of Beloit, were so irreg' ular and defective as not to be a compliance with the law on that subject, and therefore insufficient to divest the title of Crane to this public landing, yet there was evidence of a dedication of the ground for that purpose, which was sufficient to render the subsequent deed of Crane to the plaintiff inoperative to vest any title.

The questions which have necessarily occupied our attention in this case, are presented by the nature of the defence urged on the trial. Although we can perceive no evidence of title to the premises in dispute, in the defendant Brown, yet, as in the action of ejectment, the plaintiff must recover, if a recovery may be had, on the strength of his own title, and not from the weakness or want of title of the defendant, it was competent, in any legitimate manner, to assail or destroy the title of the plaintiff, and thereby prevent a judgment in his favor.

At the trial in the Circuit Court, the defendant’s counsel requested the Judge to charge the jury “that the record testimony introduced by the defendant did comply with the Statute in force in Wisconsin Territory in 1839 and 1840, in relation to town plats, and that the effect of said record testimony in law, was to pass the title to the land in controversy in this suit from the said R. P. Crane, the plaintiff’s grantor, previous to the deed from said Crane and wife to the plaintiff’ and that the defendant was entitled to a verdict.” This instruction was given by the court.

It appears from the bill of exceptions that a survey and plat of the village of Beloit was made by A. W. Doolittle, county surveyor of Racine county, in the month of March, 1839, which plat, with the minutes of the survey, were filed in the office of the register of deeds of Rock county, on the 24th day of September, A. D. 1839. This survey and plat designated only the blocks, without any subdivisions into lots, but, the streets, squares, and tha public landmg, were delineated on the map. Afterwards, in the month of July, 1840, an additional survey of the village, by which the lots were designated, was made by John Hopkins, the county surveyor of Rock county, and the plat and minutes of this survey were filed for ^record in the office of the register of deeds, on the 10th day of August, A. D. 1840. It also appears that copies of these minutes of surveys and maps were offered and received in evidéüce, the minutes of the survey made by Doolittle being on a single sheet of foolscap paper, and those of the survey made by Hop--^ns> being- on nine half sheets of foolscap papex*, connected oi’ fastened together Tby a piece of tape, in the orcqnaiy mauner. The record of the plats consisted 0£ COpies on loose sheets, kept in a “ portfolio hook,” hut not attached thereto. On neither of these plats does there seem to have, been any acknowledgment of execution endorsed; hut attached to the minutes of Hopkins’ survey, and on the last half sheet of the paper, we find a certificate of a justice of the peace, that on the 6th day of August, A. D. 1840, Crane, White, and Bicknell, the proprietors of the laixds contained within the survey, had appeared before the said justice of -the peace, and “ acknowledged the execution of ike foregoing papers,” Ac.

The fourth section of the act of the Territorial Legislature, entitled “An act to provide for recording-town plats,” (R. S. of Wis.,p. 159,) provides that “the plot, or map, after having been completed, shall be certified by the surveyor and the county commissioners, and every person or persons whose duty it may be to comply with the foregoing requisition, shall, at or before the time of offering suck plot or map for record, acknowledge the same before any person authorized to take the acknowledgment of deeds. A certificate of such acknowledgment shall, by the officer taking the same, be endorsed on the plot or map, which certificate of the survey and acknowledgment shall also be recorded, and form a part of the record.

The fifth section provides that “tohen the plot or map shall have been made out and certified, aclmowlr edged and recorded, as by this act required,” every donation or grant to the public, &c., marked or noted as such on the plot or map, shall be deemed in law and in equity, a sufficient conveyance to vest the fee sim-pie of all parcels of land so donated or granted, and shall Toe equivalent to a general warranty as against the donor or donors, for the purpose and use expressed and intended. This section also provides, that the land intended for streets, alleys, ways, commons, or other public uses, in any. city or town, shall he held in the corporate name of such city or town, in trust, for the use and purpose expressed, set forth or ntended.

It was competent for the. legislature to prescribe the manner and formalities by which the title to lands of this kind might be transferred from the proprietor of a town site, and secured for public uses, and when they provided the manner in which such transfer should be accomplished, as they evidently have done by the sections above recited, a compliance with the requirements prescribed is just as essential in order that the original proprietor may be divested of title, as the execution of a deed of conveyance would be in the transfer of real estate from one person to another on a purchase.

Without enquiring whether these plats are prepared in accordance with the provisions of the first, second and third sections of the act, it is obvious from inspection of them, that they have not been acknowledged, and the certificate of acknowledgment endorsed on them, as the act requires, so as to effect by means of the recording <fcc., of the plats alone, a transfer of the title.

In the case of the People vs. Beaubien, 2 Doug. Rep. 256, which was on an indictment for obstructing a highway or street in Detroit, a question arose as to whether the making and recording of the plat of that portion of the city wherein the street was situate ^eeu conformity with the statute of Michigan, to the recording of town plats, (Rev. Stat. of Michigan, 1827, p. 278.) It appeared that a map or p]aj. 0£ a Qg^ain addition to the city, within which the street obstructed was included, had been recorded by the city register, but the record contained no certificate of the acknowledgment of the map purporting to be endorsed thereon, or attached thereto. It was shown, however, that on several occasions thereafter, the defendant had conveyed portions of the property embraced in the plat, and had made reference in his deeds to this map, as having been duly recorded. In delivering the opinion of the court, Judge Goodwin says, among other things, “A map or plat was required, áse.; this was required to be acknowledged before one of the officers named in the act, and to be accompanied with a certificate of the acknowledgment under the hand and seal of the officer. The map, with the acknowledgment, was also required to be recorded. The mode of conveyance required by the statute w'as peculiar, and different from any other known to the law ; and upon obvious and familiar principles, to be operative to pass the title, a conveyance under the statute must have fully complied with its several requirements. It does not appear to have been acknowledged as required by the act, and is accompanied with no certificate of acknowledgment. The subsequent references to it, in deeds to individuals purchasers of lots, and the acknowledgments of those deeds to the grantees named in them, cannot supply the defect, or operate as an acknowledgment of the map, with the certificate, signed and sealed, required by the statute.”

We think the decision of Judge Goodwin on this point, is perfectly correct, and that m the case now before us, it cannot be claimed that the statute has been compiled with. There wasvno record evidence that the maps had been acknowledged, and certificates endorsed thereon, and it is needless to cite authorities showing that parol evidence was inadequate to supply the defect. The principle of law is too plain.

The next enquiry is whether, in the absence of a compliance with the statute in the making acknowledgment, and recording of the plats, which would divest Crane of the title to the land in controversy,the acts of Crane and the whole transaction do not establish a dedication of this public landing to a public, use. The very able arguments of the counsel in this case have greatly assisted us in the examination of this question.

Perhaps as comprehensive and reasonable a definition of a dedication as can be found in the books, is given by Senator Verplanck, in Post vs. Pearsall, 22 Wend. 472. He described it as “the deliberate appropriation of land by its owner for any general and public uses, reserving to himself no other rights in the soil than such as are perfectly compatible with the full exercise and enjoyment of the public uses to which he has devoted his property.”

When this appropriation is shown to have been made by the acts and parol declarations of the ownei’, and not by a deed, it would certainly seem to be contrary to the the Statute of Frauds, but if the principle of dedication, as applicable to streets and highways, may be extended to the case of a public landing, there can be no doubt that the owner of land may, 'by parol, dedicate it to a public use. Whether it is to be considered as forming an exception in the operation ^ie statute, originated from a regard to public necessity,or depending on the doctrine of an estoppel in pais, jn favor 0f individual rights acquired with reference to p. -g no^ imp0rtant at the present time to enquire. The principle is too firmly established by adjudications, to admit of discussion. The right ceded, created, or declared by the owner of the soil, is certainly a use and power over land, yet the courts hold it to be an easement, to the creation of which a deed of conveyance is not indispensable. Mr. Justice Cowen, in speaking of this hind of right by dedication, in Pearsall vs. Post, 20 Wend. 122, says, “ Thus, though it be of the nature of an incorporeal hereditament, and indeed of all real estate, since the Statute of Frauds, to pass by deed only, we find a most important easement, forming a plain and well established exception. It stands entirely independent of all grant, or presumption of grant?

But the counsel for the plaintiff’ in error has forcibly insisted that dedication cannot apply to a public landing, because the right to discharge lumber and merchandize from the river upon the land, and to deposit the same there, is an mterest and profit in the land, which is incapable of dedication and cannot be enjoyed by the public. The phrase “ public landing,” as used in this case, conveys to our mind, the idea of a piece of ground on the bank or margin of Bock river, provided for the open and common use of all persons in the debarkation' of themselves or their goods, but not a place to be permanently encumbered with piles of lumber or other merchandize or goods, any more than a public highway or street, because, the benefits and accommodation to the public, which were intended to be conferred, would be greatly affected, if not wholly destroyed, by any such perrna-nent' encumbrance. And why should not a piece of ground adjoining, and bounded by' a- public stream, such as Rock river is at this point, be as much the subject of dedication to a public use and enjoyment, as a highway, street, or public square ? If we rightly construe the precise power-over the land, partéd with by the owner, and acquired by the public, in a dedication of a public landing,- it is but an easement or right of transit; it is no greater privilege in, or power over, the land ,pf another, than that given by the dedication of a public highway, or street ; and it may be supported on the same principle of public policy and convenience. The proprietor parts with no more right to the soil in the one case than in the other ; he is entitled to the same remedies for injuries to his freehold in a public landing as in a public square ; and whether we view the subject in its bearing upon the rights of the individual citizen, or upon the interests of the public, we are wholly unable to appreciate any reasons.' which may be urged in favor of the dedication of a street, that are not equally in‘favor of the application of the same principle to a public landing.

In the case of Pearsall vs. Post, 20 Wend. 111, the bous had been used for many years as a place for the landing and deposit of large quantities of manure brought from the city of New York, -and in some instances an area of more than an acre was covered with the manure. From the year 1764 until the year 1800, it had . n used by the public for the loading an ■ unloading vessels, and for the deposit of wood and oi "*• property carried .v. an" ^'om the landing. Mi*. Justice Oowen, in giving the opinion of the court, nearly exhausts the subject of dedication to a Public use- He admits “that a street, highway, or right of public passage may he derived from a dedi-ca£jon ” and cites a formidable array of cases, in the courts of Great Britain, and of many of our own States, in support of the principle, and yet he holds that it does not apply to the case of a public landing. The learned judge evidently had an impression that the right claimed in that case, and implied from the phrase “ public landing,” was not merely the right of way, but also a right to permanently occupy the land as a depot for lumber, manure, <fcc. He says (p. 122) : “The claim is for each and all persons in the State, indeed, for any one in the whole world, who shall have occasion, to deposit lumber, manure, or other articles on the soil of the plaintiff! The question is, can such a claim be made to any right, except that of loay ?”

And again (p. 126), in speaking of ways, urbans, commons, and walks, or other places of recreation by travel, he says : “Even ejectment will lie by the owner for a permanent incumbrance ; whereas, by a customary profit a prendre, as of common, and above all, a right to deposit articles of merchandise, by all the world, the owner is deprived of the use of the soil itself; it is covered with buildings, or by piles of lumber, heaps of manure, or by merchandise, at the discretion of all people.”

It is not necessary that we should, at this time decide whether the occupation of a public landing by permanent obstructions, such as buildings, lumber, and the like, would be a user of the ground, according to the purpose of the dedication ; but it is fairly inferrable from the language of the learned judge, that for the purpose of a right of transit for goods and persons, dedication may be predicated of a pub-lie landing. If we include in the right of way, the necessary and incidental right of temporary deposit, in the transfer of goods from water craft to the ordinary vehicles used in land carriage, then our views of this question are sustained by the opinion of Judge Cowen, and we think that a reasonable exercise of the right of way involves this temporal')-' occupation of the ground. The case just cited was removed to the Court of Errors, where the judgment of the Supreme Court was affirmed, although Judge Cowen’s views were not fully endorsed. The Chancellor (Walworth), and Senators Edwards and Livingston, delivered opinions, in which they denied the application of dedication to a public landing ; while Senators Eurman and Verplanck affirmed its application, in opinions replete with sound reasoning.

In the case of McConnell vs. The Trustees of Lexington, 12 Wheat. 582, Chief Justice Marshall holds that this doctrine of dedication, arising from matters in pais, extends to the case of a spring reserved for public use. He says : “The reasonableness of reserving a public spring for public use ; the concurrent opinion of all the settlers that it was so reserved; the universal belief of all, that it was never understood that the spring lot was drawn by any person; the early appropriation of it to a public purpose, <kc., are, we think, decisive against the appellant.”

The same court afterwards, in the case of The City of Cincinnati vs. The Lessees of White, 6 Peters, 431, applieá the principle of dedication to a public common. Mr. Justice Thompson, who gave the opinion of the court, after discussing the application of the principle to highways, proceeds to say : “If this is the doctrine of the law applicable to highways, it must apply with equal force, and in all its parts, to all ded-^¡^071$ 0† iancis -fc0 public uses“ The right of the pUjqjc j.Q uge 0f ppg common Cincinnati, must rest on the same principles as the right to the use of the streets.” “All public dedications must be considered with reference to the use for which they are made, and streets in a town or city may require a more enlarged right over the use of the'land, in order to carry into effect the purposes intended, than may be necessary in an appropriation for a highway in the country ; but the principle, so far as respects the right of the original owner to disturb the use, must rest on the same ground in both cases, and applies equally to the dedication of the common as to the streets.”

At the same term, in the case of Barclay and others vs. Howell’s Lessee, 6 Peters, 498, the court upheld a dedication of a slip of land between the north line of Water street, in the city of Pittsburg, and the margin of the Monongahela river, for a public street or right of way. It may not be improper to remark, that in each of the two cases last cited, the locus was situated on the margin of a river, and was used as a place of landing for persons and property. After-wards, in the case of The Mayor, &c., of New Orleans vs. The United States, 10 Peters, 662, the court, among other things, say : “There can be no difference in principle between ground dedicated as a gumj to public use, and the streets and alleys of a town.”

In Massachusetts, a plea of a public prescriptive right to a landing place on the Charles river was held good. Coolidge vs. Learned, 8 Pick. 503. In Vermont, the principle has been applied to a public square (2 Vermont, 480), to a court house square (3 Vermont, 521; 6 id. 355), and to a college green, (3 Vermont, 530.) So also in New York, it kas been extended to a pnblic square (4 Paige, 513), and to a burying ground, (Hunter vs. The Trustees of Sandy Hill, 6 Hill, 407.)

In Blinois, the principle of dedication has been applied to the case of a public landing on the Mississippi river, in two cases. Godfrey vs. The City of Alton, 12 Illinois, 29, was the case of a public highway . and landing, which was called;4 Front street,” and extended to the low water mark. By accretion and filling up with stone, &c., the width of the street was increased, and the original proprietors claimed a strip of land extending from Front street to the river, and which had been acquired by accretion and filling up as above stated ; but the court held that the original laying out of the street extending to the river, for a pnblic highway and landing, and the use of it for the purpose, by the public, amounted to a .dedication. We do not mean to say, that the court was correct, or •not, as to the evidence being sufficient to establish a dedication, but we think they were correct in holding that it might be applied to a landing place. (See also, The City of Alton vs. The Illinois Trans. Co., 12 Ill. 38.)

A careful examination of the subject has satisfied us that an easement in favor of the public, such as a public landing, or other place for public use and en-jojment may be dedicated.

’We are not called upon at present to determine, nor are we disposed to discuss, what evidence is necessary to establish a dedication of a public highway, street, public landing, or other easement; this is a question to be submitted to the jury upon the 'circum-s^anccs of each particular case, and among others, a most material inquiry with, the jury should he, an intention on the part of the land owner, tQ ¿ecnca^e) pag peeu shown. Barraclough et al. vs. Johnson et al., 8 Adolph. & El. 99; The Grand Surrey Canal Co. vs. Hall, 1 Man. & Grange, 392; Jarvis vs. Dean, 3 Bing. 447; The Trustees of the British Museum vs. Finnis et al., 5 Car. & P. 640, and note (a); Post vs. Pearsall, 22 Wend. 425; 3 Kent's Com. 450, 451, and note.

Although length of time, as it relates to user, becomes in some cases an important consideration, yet in a country like ours, where roads and highways are being constantly enjoyed over the lands of persons without any authority of law, and by the tacit permission of the owners, but without any act of theirs showing an intention to appropriate or yield their property to public use, we think it would be mischievous to permit user of itself, to be evidence of dedication. Other facts and circumstances ought to be shown, which might not only evidence an intention to devote the use of the property to the public, but an actual appropriation.

We have seen that, by dedication, the public may acquire an easement in a public highway, and this easement, like others of a similar kind, such as ahigh-way, is perfectly consistent with the right to the soil remaining in the dedicator or owner ; and we think it a necessary consequence, that if the use and enjoyment be relinquished or abandoned, as, for instance, if it be impossible to use the property for the puipose, and in pursuance of the dedication, or if there be a non toser for a sufficient length of time to be evidence of a discontinuance and abandonment, the property will revert to tlie original owner, provided lie has not in some manner parted with his interest in the soil. Perhaps it would‘he more correct to say, that the title to the soil is released from the easement, wherever that title rests at the time of the abandonment. Vide Alden vs. Murdock, 13 Mass. 256-9; Jackson ex dem. Yates et al. vs. Hathaway, 15 John. 447; Whitbeck vs. Cook and wife, 15 id. 483; Barclay et al. vs. Lessees of Howell, 6 Peters, 513, in which last case, Mr. Justice McLean sustains the general doctrine, hat holds (p. 507) that where the land has heen misappropriated, it does not cause a reverter; probably this would not be considered an abandonment. Parley vs. Chandler, 6 Mass. 456.

The only remaining question which we propose to • examine in this case is, •whether, assuming that the land in controversy ivas by grant or by dedication, set apart for a public use and used accordingly, the original owner, or those claiming under him, could maintain an action of ejectment against a permanent ■incumbrancer who occupies and uses the whole or a portion of the land dedicatee!'-for purposes repugnant to, and inconsistent with, the public use.

There can be no doubt that the owner may maintain trespass for an injury to the freehold, carryingaway'the grass, cutting down shade or fruit trees, or any other injury not warranted by the public use; and to entitle him to maintain trespass, he must have the actual or constructive possession. If the right were merely reversionary, his remedy would be case.

It is true, the possession of the owner must be entirely consistent with the occupancy and use by the public, but it is obvious that the exclusive occupancy ^e ^ole or any distinct portion of a public highway, landing, or square, by the erection of a building for páyate use, must be an infraction alike of the rights of the owner and of the public. Where the rights of the latter are invaded, the remedy is of a public character, by the ordinary process of indictment, while the rights of the owner must be asserted, if at all, by the usual private remedies.- Upon this subject, our attention has been called to the opinion given by Mr. Justice Thompson, in the case of The City of Cincinnati vs. The Lessees of White, 6 Peters, 431. It is entirely becoming, that State tribunals should yield the utmost respect to the decisions and opinions of the highest federal court known to the constitution, composed as it is, and always has been, of men of the most distinguished acquirements-On some subjects, their exposition of the law is tobe received by us as conclusive, 'and upon all subjects it is entitled to the very highest 'consideration, although in some instances not obligatory. Of this latter character is the opinion in the case just cited, in which the learned judge advances some propositions of law that we are compelled to dissent from. In discussing the right of the owner of the soil in a common, dedicated to public use, to maintain ejectment against an incumbrancer, he says : “ But if we look at the action of ejectment, on principle, and inquire what is its object, it cannot be sustained on any rational ground. It is to recover possession of the land in question ; and the judgment, if carried into execution, must be followed by delivery of possession to the lessor of the, plaintiff. The purpose for which the action is brought, is not to try the mere abstract right to the soil, but to obtain actual possession ; the very thing to which the plaintiff can have no exclusive or private right. This would he utterly inconsistent with the admitted public right. That right consists in the uninterrupted enjoyment of the possession. The two rights are therefore incompatible with each other, and cannot stand together. The lessoi; of the plaintiff seeks specific relief, and to be put into the actual possession of the land. The very fruit of his action, therefore, if he avail himself of it, will subject him to an indictment for a nuisance, the private right of possession being in direct hostility with the easement or use to which the public are entitled, and as to the plaintiff’s taking possession subject to the easement, it is utterly impracticable.” . ,

It is certainly true, that the object of the action of ejectment is to recover the possession from one who has taken it to himself to the exclusion of the plaintiff, in common with the public, and who has thereby become a tort feasor as against the plaintiff; but the possession which is sought to be recovered, is in our judgment, entirely compatible with the public enjoyment, and is neither more nor less than the same possession which the plaintiff had in law before the entry or ouster by the defendant.

We are at a loss to discover the' impracticability of placing the plaintiff in statu quo, by means of a recovery and writ of habere facias possessionem, anymore than in the case of a recovery of an undivided interest ; and surely in the case of a recovery by a tenant in common, or joint tenant who has been excluded, or his right as such denied, the possession redelivered to him, is equally as restricted by the possession of his co-tenant, as is the possession to be delivered to the. owner of lands dedicated to a public use by the ease-men^ or right of use by tbe public. Tbe public right to uninterrupted enjoyment can exist in perfect harmony with tbe possession sought to be obtained by the plaintiff, and we ought not to presume that tbe plaintiff would prosecute bis action with the object of substituting himself as a wrong doer in continuing a public nuisance. If there be no doubt as to the law, arguments ah inconvenienti are not esteemed forcible ones. The possibility that by permitting the plaintiff to recover, he will be enabled to violate the law if he choose to do so, furnishes no reason why he should be denied a legal right, and we ought rather to presume that he would uphold the law by abating a public nuisance, than violate the law by continuing such nuisance. At all events, we are not at liberty to presume a guilty intention in such a case.

In the very able opinion of Judge Swift, in Peck vs. Smith, 1 Conn. 136, we find this objection to a recovery in ejectment thus disposed of: “ How can the defendant say it is not the object of the plaintiff to recover possession to abate the nuisance. It might lead to a great disturbance, to pull down a house over the heads of the family of a man who had erected it in the highway. The adjoining proprietor, instead of resorting to this violent measure, may wish to recover possession for the purpose of abating the nuisance in a peaceable manner, and it can never lie in the mouth of the wrong doer to say such is not his object.”

We are well convinced that an action of ejectment may be maintained by the owner of the soil, of a highway or public landing, against an individual wlm has entered upon and become a permanent incum-brance of the laud, or any distinct portion of it, by the erection of a building or otherwise, to the exclusion of the public and the owner. • Such, in our ment, is the result of the authorities, and with the utmost respect for the opinions of Mr. Justice Thompson, we must believe that on this subject his views are in conflict with the weight of authority to be found in other courts who have had the precise question before them for decision.

In Goodtitle ex dem. Chester vs. Alker and Elmes, 1 Burr. 133, where one of the.questions argued and decided by the court was,' “whether an ejectment will lie by the owner of the soil, for land which is subject to passage over it as the .king’s highway,” Lord Mansfield, with Mr.- Justice Dennison and Mr. Justice Foster, held, that the action could be maintained, because the ownership of the soil was not in the king, and a recovery of it by the owner, and delivery to him of the possession by the sheriff' might well be consistent with, and subject to the right of passage or easement. This has long been considered the leading case on the subject, and in almost every case since, it is referred to and commented upon.

In the American courts, we find this question repeatedly decided in favor of the maintenance of the action. We will only refer to the several cases cited to this point by the counsel for the plaintiff in error, and to Tillinghast's Adams on Ejectment, 18, and the cases cited in the notes to be found there ; this is all that we consider it necessary to do at present without referring to them in detail. That there are some cases to be met with, in which a contrary doctrine is upheld,, cannot be denied, but the weight of authority is unquestionably the other way, and we think that no-substantial reason can be urged against permitting the owner of the soil, which is only subject to an easement, and who has not only the freehold, but the right to the possession as against a wrong doer, to recover ip. an action of ejectment, subject to the easement secured to the public. The fruits of his action do not conflict with, or impede the rights of the public; on the contrary, he is but restored to the same condition, to the same possession which he enjoyed before the wrongful act of the defendant.

We think the provisions of chapter 5T, of the Revised Statutes, concerning uses and trusts, have no application to the present case.

Upon the whole, we believe the Circuit Court erred in giving the instruction asked for by the defendant, on the subject of the making and recording of the town plats, and in refusing the fourth, fifth, sixth and ninth instructions asked by the plaintiff. The judgment must, therefore, be reversed, and the cause remanded for a new trial.