Elmer, J.
The errors assigned rest altogether upon the bill of exceptions taken to the charge of the judge upon the trial [717] before the Court of Oyer and Terminer. It is well settled, that only the points on which the exceptions were taken are open to examination in error. 7 Halst. 168; 1 Green 216. The first was, in substance, that the judge took from the jury the decision of the questions, as to the dedication and use of the land in controversy as a public highway, and assumed them as established facts. This exception is not made out in point of fact; and if it were true that the court had expressed a decided opinion upon the weight of the evidence, it would not be error.
The second exception relates to the construction of the deed from Parsons to Pennington and others, a question in itself not very material; but, whether it was so or not, the instruction was right.
But the exception mainly insisted on in the argument before this court, and the only one upon which I have felt any doubt, is the third, viz. “ that it was not material where the road was originally laid out, or whether the lines of the street, as occupied, correspond with the lines of the original survey, or whether the road was ever laid out by surveyors of the highways.” It was very strongly insisted that the question of dedication of land for public use, is always a question of intention; and that admitting it to be law, that a laid out highway may be widened or altered by long public usage, affording evidence of the intention of the owner of the property and of the people thus to dedicate it, yet that the true situation and course of the road, as originally established, are material elements in the decision of the question, whether or not it was so dedicated. Undoubtedly such facts may in many eases be very material, so material that the true solution of the question of dedication may turn upon them; but a careful examination of the charge, as applied to the evidence, and of the exception itself, has satisfied me that in this case the direction complained of, taken in connection with other parts of the charge, was correct.
A dedication implies, as has been argued, the intention of the owner of the land to make the dedication ; and so the law was correctly stated in the charge of C. J. Ilornblower, in the case of Stuyvesant v. Woodruffs 1 Zab. 145.
[718] Nor is there any thing in the charge before us in contradiction of this doctrine. We have been referred to the following clause of it, as implying the contrary, or as at least excluding from the jury a proper consideration of the question of intention : “ If there were no evidence in the cause previous to the year 1821, when Parsons acquired title, it is nevertheless shown that the public have used the land where the defendant’s building is erected, with the assent of the owners, for more than twenty-five years. If you believe the witnesses, this evidence establishes the public right. If this be so, it is not material where the road was originally laid out, or whether the lines of the street, as occupied, correspond with the lines of the original survey, or whether the road was ever laid out by surveyors of the highways. The public have acquired by use a right to the road, as good as if the street had been originally laid out where it now is according to law.” In another part of the charge, the judge had stated that the mere fact that the owner of the land chooses to leave it unfeneed, does not divest him of his property or give a right of way to the public; that he may permit the public to use it for the purpose of passing andr repassing, and yet vest no right in the public. All this and other parts of the charge are founded upon the doctrine that dedication is a question of intention; so that the charge taken together contains nothing in contradiction of, but much in support of that doctrine. It does not appear that a more explicit statement of that point was required by the nature of the evidence or by the arguments of the respective counsel.' Every charge necessarily has reference to, and depends much upon the admissions and arguments of the counsel. For any thing that appears, the counsel of the state may have explicitly admitted that the intention to dedicate was necessary; so that this principle was fully understood by the jury, and required no elucidation from the court. Hence the party who objects to any part of a charge as erroneous, is bound to point out the error and make his exception at the time, or to ask of the court an explicit charge upon the point of law he thinks important, otherwise a court of error will not and cannot with safety interfere. Had the court been asked to charge [719] that the question of dedication was one of intention, we are bound to infer, and indeed may in this case safely infer from what was said, that it would have done so. Had such a charge been refused, so that injustice was done, it would have been good ground for a reversal; but the mere omission to state correct principles cannot be so held, unless it be clearly shown that such omission led to an erroneous result.
The most that can be properly inferred from the language of the judge, which is complained of, is, that in his opinion the evidence, as to the acts of the owners of the property since 1821, if believed by the jury, established an intentional dedication of the land by those owners to the public use; so that it thereby became a public highway, even if it were admitted that the road, as originally run, did not go there, or that no road was ever legally laid out. Such opinion he had a perfect right to give, and it was fully warranted by the evidence. The street in question had been laid out as a public highway so long ago as the year 1761, before the town of Paterson existed. It was admitted by the surveyor, whose running was relied on by the defendant, that the two first courses were, as he terms it, indefinite, that is to say, they could not be ascertained; so that his survey depended wholly upon certain buildings, which he assumed, from information he relied on, to have been erected on the true lines of the street. It appeared that, as far back as the year 1793, a post and rail fence existed at the place in question, along what is now called Broadway, from the corner of what is now Main street, which was followed by a paling or picket fence, and afterwards a store house was put up on the same line, which was regarded by all parties, and occupied by the successive owners of the property and the public as the true line. In 1821 Parsons, one of the witnesses, became the owner of the corner lot, and from that time the lines and usages remained unchanged, until the defendant built his store house between four and five feet over the line, as previously recognized. Parsons sold the property, in 1835, to Pennington and others, who, in 1849, sold to the defendant. These sales were made by the foot, as laid out on Main street, at a high rate. Parsons and Pennington both testify, -that although [720] doubts were expressed about the true line of Broadway, they held and sold only to the corner, as they found it established, and as the line had been used for more than fifty years ; and it is admitted that the defendant has all the front he purchased and paid for, without the additional land, for building on which he is now indicted. Not only had all the successive owners of the corner lot occupied and transferred it as bounding on the line where the old fence had stood, but other adjoining lots were held and sold in the same way, and dwelling houses and stores were built on them to correspond with the building at the corner, as it had been used to stand. Under such circumstances, an intentional dedication of the land now built on, if it be indeed outside of the true line of the street, as originally run, ought to be conclusively inferred. After the line of a street in a town or village has been long regarded and been built upon as running at a particular place, it would be sanctioning gross injustice to allow one proprietor to advance his building so much as to throw the others back, and thus perhaps greatly depreciate their value. As was said by the Supreme Court of the United States, in the case of Cincinnati v. While, 6 Peters 438, “ After being thus set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original swner from revoking such dedication.” And, substantially, the same principle was established by the Supreme Court of this state in the case of Den v. Dummer, Spencer 86.
The fourth exception is not well taken. The neglect of the overseers to work a road, or the acts of other township or city officers in surveying or otherwise endeavoring to ascertain its true location, conclude neither the owners of the land nor the public. Such acts may sometimes be competent evidence, and may be laid before the jury, as they were in this case. But they cannot relieve the defendant from his liability, if it turn out that he has in fact encroached upon a highway, either as it was laid out, or as it has become such by the dedication of the owner of the land to the public use.
The judgment of the Supreme Court affirming the judgment [721] of the Court of Oyer and Terminer, ought, in my opinion, to be affirmed.
Potts, J. Smith was indicted at the Passaic Oyer and Tertniininer for a nuisance. The alleged nuisance was the erecting a building some four or five feet over the line of Broadway, in Paterson. He was found guilty. The Supreme Court affirmed the judgment, and this writ of error is brought to review the case. The facts will be found sufficiently stated for reference in 3 Zab. 130.
The errors assigned embrace four exceptions to the charge delivered by the court to the jury at the trial in the oyer. The first and third cover the most material grounds relied on for a reversal, and may be considered together.
The first is, that “the jury were expressly told, and a large part of the charge assumed it as an established fact, that the land in question had been dedicated by the owners to public use, and used by the public as a highway for a sufficient length of time lo establish the same as such in law; whereas the question of such dedication and use are properly questions for the jury, and should have been left open for their decision.” The third is, “ because, by said charge, the jury were instructed that it was not material where the road was originally laid out, or whether the lines of the street, as occupied, corresponded with the iiues of the original survey, or whether the road was ever laid out by surveyors of the highways; whereas each and all the said matters were material and important.”
There can be no doubt that the four or five feet of land over which the plaintiff in error had extended his building oil Broadway, in the town of Paterson, had been used by the public as a part of the street, with the permission, or at least without the interdiction of the owners of the land, for a period of more than twenty-five years. The testimony of Andrew Parsons and AaronS. Pennington, who had the title, establishes this fact beyond all controversy. The real question is, what is the effect of such permissive use? Hoes the mere use, with the assent, or without any dissent of the owner, of itself vest a [722] right in the public, or amount to a constructive dedication of the land ? or is it necessary that it should appear affirmatively, by facts or circumstances, that such assent or permission was given with the intent on the- part of the land owner to part with his private right to the soil, and give it to the public? And if so, was the question of intention left by the court to the jury as a question of fact, with proper instructions?
Now I think the intention of the land owner to dedicate, or surrender, or abandon land to the public for public use, is of the essence of the act on his part, and is the foundation of the public right to it. fie is not bound to fence his land from the highway, or build his house or construct his fence upon the line-of a street. He may leave his land out in common if he pleases, and reclaim it at his pleasure, so long as there is nothing in the lapse of time or the facts and circumstances of the case to let in the legal presumption that he has done it with the intention of dedicating it to the public or abandoning it to the public use.
But if, on the other hand, property owners on the street of a city thus throw out land in front of their dwellings or of their enclosed lots, and leave it in that situation, acquiescing in the public use of it as part of the street, until it comes to be so regarded and adopted as such by the public generally, and persons, assuming it to be a part' of the street, locate their buildings in accordance with that belief; and more especially when such property is bought, sold, and divided among different purchasers, who take, hold, and improve portions of it under the same idea, the case presents a very different aspect, and the law will imply the intention, from the facts and circumstances of the case, to support the public right, particularly if that right has been enjoyed uninterruptedly for a period of twenty years, without any thing appearing to rebut the presumption of an original intention to dedicate or abandon to the public.
Such is, in substance, the well settled doctrines of the law. Justice Thompson, in the case of the City of Cincinnati v. Lessees of White, 6 Peters 440, says, “ There is no particular form or ceremony necessary in the dedication of land to pub-[723] lie use; all that is required is the assent of the owner of the land and the fact of its being used for the public purposes intended by the appropriation.” And the same doctrine was held by C. J. Best, in 3 Bingham 447, who told the jury that “ if they thought the street had been used for years as a public thoroughfare with the assent of the owner of the soil, they might presume a dedication.” That is, it became a public street by the permission of the owner to have it used as such. And Justice Thompson, in the first case cited, adds, that such use ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment.
Chancellor Kent, in 3 Commentaries 451, sums up the doctrine in this proposition, that if there be no other evidence of a grant or dedication than the presumption arising from the fact of acquiescence on the part of the owner in the public use of land as a road, twenty years’ use would be required to establish the right, in analogy to the statute of limitations ; but that unequivocal acts of the owner might raise the necessary presumption within any intermediate period. In the one case the law presumes an intention to dedicate the land, in the other the parties declare it.
In the case of Noyes v. Ward, 19 Conn. Rep. 268, it was held that it is the circumstances of the case, rather than the time, that fixes the public right; that it should be for such a length of time that, under the circumstances, it should satisfy the mind of the triers that it was with the assent of the owners of the land ; and that the rights of the public and others would be injuriously affected by permitting the owner to resume his original right to exclude the public-therefrom. Each case, in this respect, depends on its own circumstances, and it is only with reference to the particular cases before them that courts have spoken of the time during which the use of the public has been permitted. The intention to dedicate is the origin of the public right to use; and the intention may be presumed from the circumstances, or established by the facts of a case.
In accordance with this, is the case of Barraclough et al. v. [724] Johnson et al., 8 Ad. & Ell. 99. The principle there laid down is, that in determining whether or not a way has been dedicated to the public, the intention of the proprietor must be considered. If it appear that he has suffered a continual user, that may prove a dedication, but such proof may be rebutted by evidence of acts showing that he contemplated only a license resumable in a particular event. The court in that case held that there was no dedication, though the public had had the use for a period of nineteen, years, because it was shown that the owner had no intention to dedicate it; and 5 Barn. & Ald. 454 was cited to show that a use enjoyed as long as could be remembered did not establish a right, because it originated iu the permission of a tenant, and not of the landlord. The intention of the owner of the fee was wanting. But it that case if the land had been in possession of the owner of the fee, and such use had been permitted by him, the presumption of an intention to grant it would have been sufficiently established by the lapse of-time alone.
The case of Valentine v. City of Boston, 22 Pick. 75, was where a man set his house back from the line of the street, and the public used the strip in front of it as a part of the street for more than forty years; and the court held that this use for so long a time was evidence of a dedication by the owner. And the general doctrine on the subject is very well stated in Stuyvesant v. Woodruff, 1 Zab. 145, “ that whether lands have been dedicated to the public use or not, is always a question of intention • and the proof of that intention may be express or may be gathered from circumstances.” It may grow up from the lapse of time and long use of it by the public. And so is the language of the chancellor in Livingston v. The Mayor of New York, in error, 8 Wend. 105. He says, “ there are two modes of establishing the dedication of a street, one by length of time, the other by an act so unequivocal in its nature as to require no time to warrant a presumption,” that is, a presumption of dedication by the owner to the use.
The cases in 19 Wend. 128, and 1 Hill 189, lay down the undoubted doctrine, that where a man sells lots bounded on a street by description in his deed, that is, of itself, an act of [725] dedication. The intention is apparent in the act itself. And the case in 1 Spencer 106 is analogous in principle.
I repeat, therefore, that tiie doctrine of all the authorities is, that the intention to dedicate land to the public use is of the very essence of the act; but this intention may be proved as a fact, or inferred from circumstances. The result is, undoubtedly, that the intention is a question for the jury; but the court has a right, equally undoubted, to tell the jury what facts or circumstances will in law amount to a dedication, leaving them to judge whether such facts and circumstances appear in the case before them.
It then remains to inquire, on this branch of the ease, whether the question of intention, upon the facts and circumstances which appeared in evidence, was fairly submitted to the jury under proper instructions by the court.
The whole charge must be taken together. After some preliminary remarks, the court charged, that a public highway may be established — 1, “ by the act of surveyors of highways in laying out the road according to the statute; 2, by the uninterrupted use and enjoyment of the road, as a highway, by the public for a period not less than twenty years; 3, by the dedication of the land by the owner to the use of the public as a highway.” These, as general propositions, are unquestionably true ; though the second of them is subject to exceptions, as, for instance, if the use had originated and been continued by permission of a tenant merely, and not of the owner of the fee; or if there were circumstances sufficient to negative the presumption of an intention on the part of the owner of the lee to dedicate the land to such use, the mere lapse of time would not establish the right. But the charge does not stop here: it goes on to state what circumstances will not constitute a dedication. It says, “ it is certainly true that a landlord may leave his land adjoining a highway unenclosed and open to the public; he may permit the public to use it for the purpose of passing and repassing, and yet vest no right in the public.” And “ it is said again, that the mere fact that a man opens the street up to his house, if he leaves his porch or cellar door extending into the street, it protects his right: this is [726] undoubtedly true, if there be in fact no dedication of the land to the use of the public.” “The use by the public of private property, or the appropriation of a public street to individual use for the- necessary purposes of steps or porches, may be permissive merely, without conferring any right.” And “ this (says the charge) brings up the question, whether in fact this land was used by the public with the assent of the owners, and with a recognition, on their part, of the right of the public to the use of the road in the place where*the defendant’s building is erected.” This, it seems to me, was leading the jury fairly to the inquiry as to the intention to dedicate, and was stating the law with sufficient accuracy; tor, as a question of law, it is clear, on all the authorities, that if the owner of land assents for twenty years to the public use of his laud, and during all that time recognizes their right to use it as a public road or street, the intention to dedicate it to that purpose is as clearly implied as if he had expressed it in any other way.
And it is with this preliminary statement of the question before them, that the court proceeded to sum up the evidence on that part of the case to the jury; and having stated, as matter of opinion, that “if there were no evidence in the cause previous to the year 1821, when Parsons acquired title, it is nevertheless shown that the public have used the land where the defendant’s building is erected with the assent of the owners for more than twenty-five years,” it is added, that “if you, believe the 'witnesses, this evidence establishes the public right.” That is, taking the several parts of the charge together, if you believe the witnesses, they prove the use of this laud by the public for more than twenty-five years, with the assent of the owners that they should so use it as a street, thus recognizing the public right for that length of time: and “ if this be so,” if the public right has been thus established, “it is not material where the road was originally laid out, or whether the lines of the street, as occupied, correspond with the lines of the original survey, or whether the road was ever laid out by surveyors of the highways.”
Whether, therefore, the facts were correctly stated or not, and whether or not the conclusion, as to what was proved, [727] was correct, it was still put to the jury as a question for them to decide. The legal inference drawn from the facts, if the jury should find them as stated, was correct. There was no error in point of Hw, and it is only such an error that this court can deal with. 2 Halst. 190.
The second exception is, that the court instructed the jury that the description in Parson’s deed to Pennington and others manifestly calls for the corner of the street, as it actually was at that time. The language of the deed is, “ beginning on the easterly side of the Paterson and Hamburgh turnpike, at the southeast corner of its intersection with Broadway.” Undoubtedly where a corner or a monument is described as a fixed, known, existing landmark in a deed of lands, the fair inference is that the grantor means the monument or corner existing and known as such at the time of the grant; for ambiguity is not to be presumed where it does not appear in the language itself. And if we go outside of the plain words of the deed in search of a different intent from that which the words express, we do not find it in this case; for Parsons says, though he claimed to bind on Broadway, wherever it was, yet he never did occupy or claim farther than the line of the picket fence or the corner, as it was when the deed was made. There is no ground, therefore, for this exception.
The fourth exception is, that “the court instructed the jury that the act of township officers in not working the road, and of the overseers of the highways and the counsel of the township in not correcting the error, (if any actually existed) cannot relieve the defendant from liability; whereas the said matters were material and binding on the public, and ought to have been left to the jury for their consideration.” There was no error in the instruction here referred to. Public rights, once acquired, cannot be lost by any mistake or neglect on the part of township officers, nor can a public road or street, once legally established in any of the modes recognised by law, be afterwards altered, except in the mode provided by the law.
Upon all the points, I concur in affirming the judgment below.
[728] For affirmance — The Chancellor, Justices Elmer and Potts, and Judges Schenck, Cornelison, Arrowsmith, Valentine, Wills.
For reversal — Judge Risley.
Judgment affirmed.*
Cited in Hopkinson v. McKnight, 2 Vr. 426; Atty. Genl. v. Mor. & E. R. R. Co., 4 C. E. Gr. 391.