The opinion of the court was pronounced by
Phelps, J.
— This is an indictment for a nuisance. The of-fence charged consists in the respondent’s having placed a dwelling-house upon a part of what is alleged to be a public common or highway, in the town of Windsor, and in maintaining it there to the common nuisance of the public. The act complained of is not denied. But whether the respondent has a legal right to maintain the building in the place where it is located, is the point in issue.
The prosecutor relies upon having shewn a dedication of the locus in quo to public use. For this purpose, he offered in evidence at the trial, a deed of conveyance from one Hastings to Nathan Stone and sundry others, which is appended to the case, and which purports to convey the premises in trust, for certain public uses in the first instance, and upon failure of that use, then to the use of the grantees and their associates, subscribers to a fund for erecting a court-house. To the admission of this deed as evidence, the respondent objected; and to the decision of the court overruling the objection and admitting the evidence, the first exception is taken.
It is objected that this deed attempts to limit an use upon an use, which at law cannot be done. The true interpretation of this deed however in this particular, seems to be, that the grantees take in trust, in the first instance for the public, and in casejhat use fails, then and upon that contingency to the use of themselves and their associates. It is not the case of an use upon an use, but rather a case qí contingent or alternative uses, and one of very frequent occurrence in the law. It is of the same character with family settlements, in trust for eldest and other sons in succession. The uses are not contemplated as existing together — the latter being inoperative, while the former continues, and taking effect when the former is determined. [364]*364The deed is very unskilfully drawn, and although some parts of it may be repugnant or inconsistent, yet it by no means follows that the deed is void. If the intent of the parties is clearly ascertained upon the face of the deed, courts will give it effect; and those parts which are inconsistent and repugnant to that intent will be rejected. There is one part of the deed which seems to limit the use to the grantees and their associates for certain public uses. This is apparently limiting an use upon an use ; but this is clearly inconsistent with another part, which limits the use in the first instance to the public, with a contingent and resulting use to those who paid the consideration. — ■ The first clause was probably introduced as mere words of form, without apprehending their import, and is clearly repugnant to the manifest intent of the grantor. We have no difficulty therefore in giving effect to the deed, according to that intent.
That the deed is evidence of a design to dedicate the land to public use, we think apparent.. Although it is inaptly drawn, yet enough we think appears to establish the intent. The recital of the consideration or motive of the grant — the power to convey to the county — and, above all, the express declaration of the use and purpose to which the land is to be applied, indicate, beyond a doubt, - a trust in the grantees for the public use.
The title indeed remains in the grantees, but a conveyance to the county is not essential to a dedication, and even if such a conveyance had been executed and the county had relinquished the particular use, still the land, or a portion of it, might, and probably would, have been irrevocably dedicated to public use. No particular form of words is necessary for that purpose. A dedication may be, and often is, without deed. All that seems necessary, is that the owner shall clearly manifest an intention to dedicate the land to public use, and that the public should, relying upon that manifestation, have entered into the use and occupation of it, in such manner as renders it unjust and injurious to reclaim it. Much of our public property rests upon this footing. Plots of land have been set apart for the interment of the dead — they have been used for that purpose, with the assent of the owners, and they have been hallowed by the use. The right of the owner to reclaim them has been denied. — See Beatty vs. Kurtz, 5 Peters’ Rep. So public [365]*365squares and highways have been laid out by the original owners of city and village sites. — Building-lots have been sold and built upon, bounded upon these public squares, and from the' moment this has been done with a just understanding on the part of the purchasers that the land is permanently devoted to public use, the dedication has become irrevocable. This result has grown out of the appropriation of land for the erection of churches, town and county buildings, &c. Even where the particular use has ceased, the public have acquired a right, which cannot be disregarded. Long continued usage is evidence of such right, but it is evidence merely. The circumstances of that usage are to be considered, and more especially whether the intention of the owner to dedicate to a general public use is found.. Nor is any particular length of time necessary to acquire that right. — Such time, and such only, is requisite, as suffices to acquire that interest, with the assent and concurrence of the owner, which would render it fraudulent in him to resume his rights. Enjoyment for a given period, for more than fifteen years, has generally been considered as sufficient prima facie evidence of a right in the public ; but enjoyment for a much less period, with other circumstances, may perfect it.
As evidence of an intent, on the part of Hastings, to dedicate this land to public use, the deed was certainly admissible. The quantity is evidently larger than would be necessary for the site of a .court-house only. — He doubtless contemplated the usual space to be laid open about it, and his deed was an assurance to the public, that this land, or so much of it as should be required, should be appropriated to that use. If then the public have availed themselves of this act of dedication, and the land cannot now be reclaimed without injury to the public, and to individuals who have invested their money in adjoining property, at an enhanced price, it is too late to reclaim it.-— There was therefore no error in admitting this deed.
The deed however being admitted, a serious question arises as to its effect, in connexion with the other evidence in the case. And this brings us to consider the charge of the court below, upon the whole case as here presented. In doing this, it becomes necessary to advert to the evidence on both sides.
- On the part of the prosecution it appears, that the building in question is located upon the land specified in the deed from [366]*366Hastings to Stone and others, and that the land, excepting the part covered by this budding, has been occupied and enjoyed by the public, from the date of the deed to the present time.
The respondent, on his part, gave in evidence a deed of the premises in dispute from one Grandy to S. Conant, dated in 1795, and a chain of conveyance, bringing down the title of said Grandy to himself; and also evidence tending to prove, that from 1791 to the present time, the building complained of ha,s stood in its present location.
It is remarkable that there is no evidence of the title of Hastings, except what is to be derived from subsequent possession and his deed.
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The opinion of the court was pronounced by
Phelps, J.
— This is an indictment for a nuisance. The of-fence charged consists in the respondent’s having placed a dwelling-house upon a part of what is alleged to be a public common or highway, in the town of Windsor, and in maintaining it there to the common nuisance of the public. The act complained of is not denied. But whether the respondent has a legal right to maintain the building in the place where it is located, is the point in issue.
The prosecutor relies upon having shewn a dedication of the locus in quo to public use. For this purpose, he offered in evidence at the trial, a deed of conveyance from one Hastings to Nathan Stone and sundry others, which is appended to the case, and which purports to convey the premises in trust, for certain public uses in the first instance, and upon failure of that use, then to the use of the grantees and their associates, subscribers to a fund for erecting a court-house. To the admission of this deed as evidence, the respondent objected; and to the decision of the court overruling the objection and admitting the evidence, the first exception is taken.
It is objected that this deed attempts to limit an use upon an use, which at law cannot be done. The true interpretation of this deed however in this particular, seems to be, that the grantees take in trust, in the first instance for the public, and in casejhat use fails, then and upon that contingency to the use of themselves and their associates. It is not the case of an use upon an use, but rather a case qí contingent or alternative uses, and one of very frequent occurrence in the law. It is of the same character with family settlements, in trust for eldest and other sons in succession. The uses are not contemplated as existing together — the latter being inoperative, while the former continues, and taking effect when the former is determined. [364]*364The deed is very unskilfully drawn, and although some parts of it may be repugnant or inconsistent, yet it by no means follows that the deed is void. If the intent of the parties is clearly ascertained upon the face of the deed, courts will give it effect; and those parts which are inconsistent and repugnant to that intent will be rejected. There is one part of the deed which seems to limit the use to the grantees and their associates for certain public uses. This is apparently limiting an use upon an use ; but this is clearly inconsistent with another part, which limits the use in the first instance to the public, with a contingent and resulting use to those who paid the consideration. — ■ The first clause was probably introduced as mere words of form, without apprehending their import, and is clearly repugnant to the manifest intent of the grantor. We have no difficulty therefore in giving effect to the deed, according to that intent.
That the deed is evidence of a design to dedicate the land to public use, we think apparent.. Although it is inaptly drawn, yet enough we think appears to establish the intent. The recital of the consideration or motive of the grant — the power to convey to the county — and, above all, the express declaration of the use and purpose to which the land is to be applied, indicate, beyond a doubt, - a trust in the grantees for the public use.
The title indeed remains in the grantees, but a conveyance to the county is not essential to a dedication, and even if such a conveyance had been executed and the county had relinquished the particular use, still the land, or a portion of it, might, and probably would, have been irrevocably dedicated to public use. No particular form of words is necessary for that purpose. A dedication may be, and often is, without deed. All that seems necessary, is that the owner shall clearly manifest an intention to dedicate the land to public use, and that the public should, relying upon that manifestation, have entered into the use and occupation of it, in such manner as renders it unjust and injurious to reclaim it. Much of our public property rests upon this footing. Plots of land have been set apart for the interment of the dead — they have been used for that purpose, with the assent of the owners, and they have been hallowed by the use. The right of the owner to reclaim them has been denied. — See Beatty vs. Kurtz, 5 Peters’ Rep. So public [365]*365squares and highways have been laid out by the original owners of city and village sites. — Building-lots have been sold and built upon, bounded upon these public squares, and from the' moment this has been done with a just understanding on the part of the purchasers that the land is permanently devoted to public use, the dedication has become irrevocable. This result has grown out of the appropriation of land for the erection of churches, town and county buildings, &c. Even where the particular use has ceased, the public have acquired a right, which cannot be disregarded. Long continued usage is evidence of such right, but it is evidence merely. The circumstances of that usage are to be considered, and more especially whether the intention of the owner to dedicate to a general public use is found.. Nor is any particular length of time necessary to acquire that right. — Such time, and such only, is requisite, as suffices to acquire that interest, with the assent and concurrence of the owner, which would render it fraudulent in him to resume his rights. Enjoyment for a given period, for more than fifteen years, has generally been considered as sufficient prima facie evidence of a right in the public ; but enjoyment for a much less period, with other circumstances, may perfect it.
As evidence of an intent, on the part of Hastings, to dedicate this land to public use, the deed was certainly admissible. The quantity is evidently larger than would be necessary for the site of a .court-house only. — He doubtless contemplated the usual space to be laid open about it, and his deed was an assurance to the public, that this land, or so much of it as should be required, should be appropriated to that use. If then the public have availed themselves of this act of dedication, and the land cannot now be reclaimed without injury to the public, and to individuals who have invested their money in adjoining property, at an enhanced price, it is too late to reclaim it.-— There was therefore no error in admitting this deed.
The deed however being admitted, a serious question arises as to its effect, in connexion with the other evidence in the case. And this brings us to consider the charge of the court below, upon the whole case as here presented. In doing this, it becomes necessary to advert to the evidence on both sides.
- On the part of the prosecution it appears, that the building in question is located upon the land specified in the deed from [366]*366Hastings to Stone and others, and that the land, excepting the part covered by this budding, has been occupied and enjoyed by the public, from the date of the deed to the present time.
The respondent, on his part, gave in evidence a deed of the premises in dispute from one Grandy to S. Conant, dated in 1795, and a chain of conveyance, bringing down the title of said Grandy to himself; and also evidence tending to prove, that from 1791 to the present time, the building complained of ha,s stood in its present location.
It is remarkable that there is no evidence of the title of Hastings, except what is to be derived from subsequent possession and his deed. Had his previous title been established, the only question in the case would have been, whether the statute of limitations would run in favor of the respondent, against the public. As it is, the title of Hastings depends altogether upon the possession, and is established so far and no farther than that possession goes. There is no ground for assuming that the title of the respondent was derived from Hastings; but, as the possession of the land for private purposes, is inconsistent with the alleged right of the public, the two claims must be taken to be adverse. In this point of view, it is apparent that no title is proved in the public, unless it has been acquired by occupancy. There is no reason for applying the rule, that the statute does not run against the public; but the case presents the simple question of fact, how far the title of the public has been established by subsequent enjoyment. Had that title been established by other evidence, and the attempt had been to divest it by adverse possession, the case would have presented a different question. But when the attempt is to support the public claim by evidence of possession, it is most clear that evidence of adverse possession in the respondent is admissible to contradict it; and if the possession is not made out, the attempt fails. The title of Hastings might have been good, as to that part which has been occupied by the public, and not so as to the residue.
If, however, we assume, as the county court seems to have done, that Hastings was the common source of title on both sides, still a different view of the subject presents itself from that presented by the charge.
From what has already been said, it will be inferred, that to render a dedication to public use binding, it is necessary, not [367]*367only that there be some act of dedication on the part of the owner, but there must also be something equivalent to an acceptance on the part of the public. In analogy to grants and other conveyances, the concurrence of two parties seems necessary to pass the right. Towns and cities may be projected— streets, public squares and roads may be laid out, but if no town or city is built, there is no effectual dedication. So in this case, had no court-house been built, the owners might have reclaimed the land; yet even in that case, had the owners permitted it to be appropriated as it has been, they might at this day be bound.
If this position be correct, it follows that there may be an acceptance and appropriation in part, and not for the whole. A piece of land may be dedicated to public use, and yet the public convenience may not require the whole of it; a part may be in fact appropriated, and the residue may, by common consent, be relinquished. Where this is done, and the owner left to erect valuable buildings upon the land, there seems to be the same reason why the public should not reclaim it, as has already been given why the owner should not do so, after an actual appropriation. In this instance, there is strong evidence of such relinquishment. The fact that it was not necessary to the public, their never having occupied it, and the arrangement of the public streets and buildings rendering it of no use to them, seem to warrant the owner in applying it to private use.
The question whether the land in dispute had ever been in fact appropriated to public use, should have been left to the jury. — They should have been charged, that cases may exist, where a dedication is accepted in part, and where a general and more extensive appropriation of land to public use may be limited, restricted and defined by long continued use. That in this case, the public may have availed themselves of so much of the land proffered as was necessary for the purposes of the grant, and waived it as to the residue. And at all events, where the public rely upon usage, as evidence of their right, the right cannot be more extensive than the usage. There was abundant evidence in the case requiring such a charge. It appeared, that as early as 1791, the building occupied its present location; and previous to that date sufficient time had not elapsed to create evidence of a right in the public.
We are of opinion that the charge was erroneous; and that the error consisted principally in these particulars, viz:
[368]*3681st, In assuming the legal title to be in Hastings at the date of his deed, when there was no evidence to that effect, except 'a subsequent possession, which did not extend to the land in controversy.
2dly, In assuming that the respondent’s title emanated from Hastings, which the charge seems to do, and which is necessary to sustain the charge, upon the point of possession.
3dly, In overlooking the fact, that the public right rested upon usage, and that the burthen of proof as to that usage, whether regarded as confirming the title of Hastings, or as direct evidence of the publip right, rested upon the prosecutor. And,
4thly, In the inference, “ that the respondent could only be justified by a right acquired by adverse possession,” and that the burthen of proof, as to the character of that possession, rested upon him.
For these reasons, the judgment must be reversed, and a new trial granted.