Butler, J.
The donation or dedication of land by the owner for the purpose of a highway, may ordinarily be determined by his declarations and conduct with reasonable certainty ; but the question, what shall be sufficient proof of the [321]*321acceptance by the unorganized public, who can not as a whole or by a majority expressly accept, is not without difficulty. In some of the states the power to accept has been conferred by special statute upon the local corporations who are charged with the burden of constructing and maintaining the necessary highways within their limits. In other states a like result has been reached and such acceptance required, in the absence of statutory provision, by judicial decision. But in this state we have no statutes conferring such authority, nor any judicial decisions recognizing a necessity for it. Under the apprehension that individuals, by dedicating land for highways where public convenience and necessity did not require them, might impose unnecessary burdens upon towns and cities, some disposition has existed in this court to require an acceptance by towns; but the whole matter, acceptance as well as dedication, has been left by a majority of the court to rest on the principles of the common law with which it originated. These principles authorize the gift, estop the giver from recalling it, and presume an acceptance by the public where it is shown to be of common convenience and necessity, and therefore beneficial to them. For the purpose of showing that it is beneficial, aii express acceptance by the town, or other corporation within whose limits it is situate, and who are liable for its repair, the reparation of it by the officers of such corporation, or a tacit acquiescence in the open public use of it, are important; and so are the acts of individuals, such as giving it a name by which it becomes generally known, recognizing it upon maps and in directions, using it as a descriptive boundary in deeds of the adjoining land, or as a reference for locality in advertisements of property, &c., and any other acts which recognize its usefulness and tend to show an approval of the gifts by the members of the community immediately cognizant of it; but the principal evidence of its beneficial character will be the actual use of it as a highway, without objection, by those who have occasion to use it for that purpose. Green v. Town of Canaan, 29 Conn., 157.
On the face of this motion, therefore, the dedication and acceptance of the highway in question appear, and the defect [322]*322and injury are found by the verdict. The city was not by statute liable to repair and the town was. Prima facie, therefore, the town was liable for the injury, and the verdict right.
But the defendants made several claims on the trial in avoidance of that liability. They claimed tjiat a special obligation to maintain the highway was imposed upon the city by the deed which made the dedication, and that such obligation was assumed by their acceptance of a conveyance from Thomson the trustee ; and that by force of the exceptions in the general statute, such assumption of an obligation exempted the town from the duty to repair, and all consequent liability for injuries resulting from defects. But we think it very clear that the defendants have misapprehended the true character and purpose of the deed from the Jocelyns to Thomson.'
In the first place, it appears from the recitals in the instruments that in 1835 the Messrs. Jocelyn were the owners of a tract of land within the limits of the city and town, and that they divided it into streets, squares and sections, for the purpose of selling the sections for building lots ; made a map of the same, designating the streets by name, and among them the street in question as Walnut street; indorsed upon the map their intention to sell at public auction at a certain time and place; and filed the map in the office of the town clerk in the town of New Haven ; and for aught that appears, proceeded to sell the lots at the designated time and place and bound them upon the designated highways. It further appears that between that time and the execution of the deed, the tracts intended for streets “ were laid out, opened and made into streets,” &c., and some of the lots were sold, for the deed speaks of “ owners of land adjoining said streets,” &c., other than the grantors. Now reading this deed in the light of surrounding and recited facts, we find it to contain convincing evidence of a prior dedication of the highway. The proposed sales of the owners imperatively required that the streets should become highways immediately, so that the purchasers could have access to their lots. The mapping of the intended lots and streets, and naming the latter as such, was clear evi[323]*323dence of the “ animus dedicandi; ” and filing the map in the office of the town clerk, a clear publication of that intention; and both, in connection with the laying out. opening and making of the streets and selling the lots, furnish conclusive evidence of a dedication to take effect immediately. It does not appear whether there had been an acceptance by the public prior to the execution of the deed or not, nor is that material. That acceptance must have been by the public, not by the city of New Haven ; and the public must have a reasonable time for acceptance, and in case of a dedication of a street for the use and accommodation, mainly, of those who were expected to purchase the adjoining lots and build on them, an immediate practical acceptance, evidenced by a considerable public use, was not to be expected. 'In a case like this, a reasonable time was the time required for the settlement and occupation of the adjoining lands; and that must have been in the contemplation of the parties. Bead in the light of surrounding circumstances and recited facts, therefore, this deed is not a deed of dedication in itself, or of land to enable others to dedicate; but a deed of the fee in certain lands which had already been dedicated, and which the intermediate trustee was to “ suffer ” the owners of the adjoining lands, who had purchased them on the faith of a dedication, and the public generally, to enjoy forever in conformity to that dedication, and which the city were to hold for the same purpose.
And in the second place, if this could be construed as primarily a deed for the purpose of dedication, we are pointed to nothing, and we discover nothing in it, whether read according to its terms or in connection with the surrounding facts and the vote of acceptance, which indicates a purpose to impose upon the city the duty of maintaining the streets in repair, or which could have any such effect in the law. The title was given to Thomson as an intermediate trustee, and in trust to suffer the public to enjoy, and to convey to the city. The city were to take subject to the same trust, and a perpetual ease, ment in the public, then existing, and recited and declared to be such in the deed, and there is no conveyance to the city of the entire title, with authority to them to dedicate, nor for [324]*324any discretionary purpose, nor upon any condition that they should repair, express or implied.
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Butler, J.
The donation or dedication of land by the owner for the purpose of a highway, may ordinarily be determined by his declarations and conduct with reasonable certainty ; but the question, what shall be sufficient proof of the [321]*321acceptance by the unorganized public, who can not as a whole or by a majority expressly accept, is not without difficulty. In some of the states the power to accept has been conferred by special statute upon the local corporations who are charged with the burden of constructing and maintaining the necessary highways within their limits. In other states a like result has been reached and such acceptance required, in the absence of statutory provision, by judicial decision. But in this state we have no statutes conferring such authority, nor any judicial decisions recognizing a necessity for it. Under the apprehension that individuals, by dedicating land for highways where public convenience and necessity did not require them, might impose unnecessary burdens upon towns and cities, some disposition has existed in this court to require an acceptance by towns; but the whole matter, acceptance as well as dedication, has been left by a majority of the court to rest on the principles of the common law with which it originated. These principles authorize the gift, estop the giver from recalling it, and presume an acceptance by the public where it is shown to be of common convenience and necessity, and therefore beneficial to them. For the purpose of showing that it is beneficial, aii express acceptance by the town, or other corporation within whose limits it is situate, and who are liable for its repair, the reparation of it by the officers of such corporation, or a tacit acquiescence in the open public use of it, are important; and so are the acts of individuals, such as giving it a name by which it becomes generally known, recognizing it upon maps and in directions, using it as a descriptive boundary in deeds of the adjoining land, or as a reference for locality in advertisements of property, &c., and any other acts which recognize its usefulness and tend to show an approval of the gifts by the members of the community immediately cognizant of it; but the principal evidence of its beneficial character will be the actual use of it as a highway, without objection, by those who have occasion to use it for that purpose. Green v. Town of Canaan, 29 Conn., 157.
On the face of this motion, therefore, the dedication and acceptance of the highway in question appear, and the defect [322]*322and injury are found by the verdict. The city was not by statute liable to repair and the town was. Prima facie, therefore, the town was liable for the injury, and the verdict right.
But the defendants made several claims on the trial in avoidance of that liability. They claimed tjiat a special obligation to maintain the highway was imposed upon the city by the deed which made the dedication, and that such obligation was assumed by their acceptance of a conveyance from Thomson the trustee ; and that by force of the exceptions in the general statute, such assumption of an obligation exempted the town from the duty to repair, and all consequent liability for injuries resulting from defects. But we think it very clear that the defendants have misapprehended the true character and purpose of the deed from the Jocelyns to Thomson.'
In the first place, it appears from the recitals in the instruments that in 1835 the Messrs. Jocelyn were the owners of a tract of land within the limits of the city and town, and that they divided it into streets, squares and sections, for the purpose of selling the sections for building lots ; made a map of the same, designating the streets by name, and among them the street in question as Walnut street; indorsed upon the map their intention to sell at public auction at a certain time and place; and filed the map in the office of the town clerk in the town of New Haven ; and for aught that appears, proceeded to sell the lots at the designated time and place and bound them upon the designated highways. It further appears that between that time and the execution of the deed, the tracts intended for streets “ were laid out, opened and made into streets,” &c., and some of the lots were sold, for the deed speaks of “ owners of land adjoining said streets,” &c., other than the grantors. Now reading this deed in the light of surrounding and recited facts, we find it to contain convincing evidence of a prior dedication of the highway. The proposed sales of the owners imperatively required that the streets should become highways immediately, so that the purchasers could have access to their lots. The mapping of the intended lots and streets, and naming the latter as such, was clear evi[323]*323dence of the “ animus dedicandi; ” and filing the map in the office of the town clerk, a clear publication of that intention; and both, in connection with the laying out. opening and making of the streets and selling the lots, furnish conclusive evidence of a dedication to take effect immediately. It does not appear whether there had been an acceptance by the public prior to the execution of the deed or not, nor is that material. That acceptance must have been by the public, not by the city of New Haven ; and the public must have a reasonable time for acceptance, and in case of a dedication of a street for the use and accommodation, mainly, of those who were expected to purchase the adjoining lots and build on them, an immediate practical acceptance, evidenced by a considerable public use, was not to be expected. 'In a case like this, a reasonable time was the time required for the settlement and occupation of the adjoining lands; and that must have been in the contemplation of the parties. Bead in the light of surrounding circumstances and recited facts, therefore, this deed is not a deed of dedication in itself, or of land to enable others to dedicate; but a deed of the fee in certain lands which had already been dedicated, and which the intermediate trustee was to “ suffer ” the owners of the adjoining lands, who had purchased them on the faith of a dedication, and the public generally, to enjoy forever in conformity to that dedication, and which the city were to hold for the same purpose.
And in the second place, if this could be construed as primarily a deed for the purpose of dedication, we are pointed to nothing, and we discover nothing in it, whether read according to its terms or in connection with the surrounding facts and the vote of acceptance, which indicates a purpose to impose upon the city the duty of maintaining the streets in repair, or which could have any such effect in the law. The title was given to Thomson as an intermediate trustee, and in trust to suffer the public to enjoy, and to convey to the city. The city were to take subject to the same trust, and a perpetual ease, ment in the public, then existing, and recited and declared to be such in the deed, and there is no conveyance to the city of the entire title, with authority to them to dedicate, nor for [324]*324any discretionary purpose, nor upon any condition that they should repair, express or implied.
There were obvious and sufficient reasons for vesting the legal title in the city, to be found in the legal principle that in case of dedication the fee remains in the owner or 1ns heirs or a trustee; in the fact that the town had no control by law or custom over the sidewalks or the public squares; and in the fact that it was important that the city should have entire control of the public squares, that they might improve, adorn and protect them. In these facts we find a sufficient and probable motive for giving the deed and placing the fee in the city, subject to the trust as to the squares and the dedication of the streets, and see nothing to indicate that its purpose was one of authority to dedicate or accept the easement, nor to impose upon the city the duty of maintaining the streets in repair.
If there is nothing in the deed indicative of an intention that the city should repair the highways, there is certainly nothing in the other facts stated which indicates such an intention. The motion shows that the statutory liability of the town to repair the highways in the town, irrespective of the city, was recognized by both. It states that most if not all the highways or streets in the city were repaired by the town. It does not appear, therefore, that the city has ever repaired any of the streets within its limits, however laid out, whether under their charter or by the selectmen, or recognized its liability to do so in any case. The legal liability therefore rested upon the town, and the parties must be presumed, in the absence of evidence to the contrary, to have given and received the deeds in the expectation that the town would repair.
Nor is there any thing in the vote of the city which countenances the claim of the defendants. That vote recites the fact that the streets had been laid out, opened and made, and accepts the streets, places and squares as such for the uses and purposes therein expressed, that is, expressed in the deed to Thomson. Here is nothing like the acceptance of a condition or the assumption of an easement or obligation to repair. As [325]*325to the streets, it was a mere acceptance of a legal title to land, which was already, and was to continue to be, a highway, and subject to an easement in the public.
We are satisfied therefore that the first, second and fifth points made by the defendants are not sustained, and that there is no error in that part of the charge or omission to charge to which they refer.
The entire investigation and discussion in relation to sidewalks was irrelevant and immaterial. On the conceded facts Walnut street at the time of the injury was a highway. Though a short street there were five dwellings upon it. It must be assumed to have been in use by people on foot, by night and by day. It was level and safe. The town entered upon it and commenced an excavation for a road bed, as the plaintiffs claimed, or as the defendants claimed, a drain; if for a road bed, within lines of demarkation between the road bed and spaces on each side reserved for sidewalks, and fixed by the street commissioner. The city were not bound and did not attempt to work the sidewalks at the same time ; and the town in making the excavation, if for a road bed, were bound to the same precautions as they would be in digging a drain, or excavating for a bridge or culvert, or for any other purpose in the highway. If they made an excavation they were bound to protect it, until the adjoining ground reserved for sidewalks was worked by the city and the excavation was safe. Because they did not protect their excavation, Mrs. Guthrie, without negligence on her part, fell into it and was injured. This involved' no question about sidewalks which could affect the merits of the case, and the court properly declined to instruct the jury as requested.
The third exception of the defendants is well taken. That part of the charge in which the court instructed the jury that a highway in fact, which it was the duty of the city to repair, could be dedicated to the town was erroneous. Land may be dedicated to the public for, and subjected to, an easement; but an easement can not be dedicated by the corporation who are merely liable to keep it in repair, to another corporation. The fee of the land was in the city. Assuming they were liable to repair, the easement was in the public not in them, [326]*326and there was nothing they could dedicate. As owners of the fee, they could not dedicate it for a new easement, for the existing one in the public was exclusive. They could not dedicate the easement, for that was not theirs, it was in the public. They could not dedicate the obligation to repair, for the law knows of no such operation. That obligation they could transfer, if at all, by contract only.
But that error does not entitle the defendants to a new trial. Upon the conceded facts the town was liable, and no injustice has been done. Walnut street was a highway, and there was no evidence offered which would justify the jury in finding the city liable to repair it. The agents of the town entered upon the highway for the purpose of excavating, and did excavate, either a roadway or a drain. In either event they were bound to protect the public from injury. They did not do it, the injury happened in consequence, and the verdict should stand.
A new trial is not advised.
. In this opinion the other judges concurred; except Dutton, J., who being interested as a tax-payer of the town of New Haven, did not sit. s'