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nothing therein contained shall prevent the revocation im-
plied by law from subsequent changes in the condition or cir-
cumstances of the testator. ^^•'

By the common-law rule, generally recognized as in force
in this country, in the absence of a statutory change, the
marriage of a man, if followed by the birth of a child, re-
vokes his will previously made.^^" This rule is based, it is
said, upon a tacit condition, annexed to the will, that, in
case of such a total change in testator's circumstances, the
will shall be void,^"^ and consequently evidence of a contrary
intention on the ])art of the testator is, by the weightiest de-

ii«Nutt V. Norton, 142 Mass. 242; Hoitt v. Hoitt, 63 N. H. 498.

11- Ward's Will, 70 Wis. 251; In re Emery, 81 Me. 275, Chaplin,
Wills, 313; Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 329; Webb
V. Jones, 36 N. J. Eq. 163; Noyes v. Southworth, 55 Mich. 173, 54
Am. Rep. 359; Morton v. Onion, 45 Vt. 145; In re Tuller's Will, 79
III. 99. Contra, Swan v. Hammond, 138 Mass. 45.

118 Brown v. Clark, 77 N. Y. 369, Chaplin, Wills, 315; In re Kauf-
man's Will, 131 N. Y. 620, Chaplin, Wills, 317.

ii» Shorten v. Judd, 60 Kan. 73; Swan v. Hammond, 138 Mass. 45.

120 1 Jarman, Wills, 110; Christopher v. Christopher, 2 Dickens,
445. 4 Gray's Cas. 390.

In New Hampshire it has been held that the marriage and birth
of issue no longer effect a revocation, in view of the statute which
gives to a widow and child not provided for in the will the same
share as if decedent had died intestate. Hoitt v. Hoitt, 63 N. H.

i-'i Kenebel v. Scrafton, 2 East, 530, 4 Giay's Cas. 394.


§ 417 REAL PROPERTY. [Ch. 20

cisions, not admissible.^ ^^ The rule that marriage and birth
of issue revokes the will does not, however, apply if the fu-
ture wife and the issue of the marriage are provided for by
the will,^^^ and occasionally, by statute, a provision for the
issue alone is sufficient to. prevent its application.^ ^^^

The birth of a child does not, apart from statute, affect a
man's previous disposition of his property by will.^^^

There are in most of the states express statutory provi-
sions as to the effect of marriage or birth of issue in revoking
a will. In some states a will is revoked by marriage and
birth of issue, unless provision for such issue is made in the
will or by settlement, or they are in such way mentioned in
the will as to show an intention not to provide for them. In
several states the marriage alone of the testator revokes the
will, subject, in some states, to the condition that he leaves a
widow for whom he does not provide by marriage settle-
ment or in the will, or does not so mention her in the will
as to show an intention not to provide for her. And in some
states a will made before the birth of issue, which makes no
mention of possible issue, is in effect revoked if the testator
leave a child.^^®

Alienation of land.

The conveyance by the testator of land, which would oth-

122 Marston v. Roe, 8 Adol. & E. 14, 4 Gray's Gas. 403; Chicago,
B. & Q. R. Co. V. Wasserman (G. C.) 22 Fed. 872; Baldwin v.
Spriggs, 65 Md. 373. See Nutt v. Norton, 142 Mass. 242; Hoitt
V. Hoitt, 63 N. H. 498. Contra, Wheeler v. Wheeler, 1 R. I. 364.

123 Kenebel v. Scrafton, 2 East, 530, 4 Gray's Gas. 394; Marston
V. Roe, 8 Adol. & E. 14, 4 Gray's Gas. 403; Warner v. Beach, 4
Gray (Mass.) 162; Baldwin v. Spriggs, 65 Md. 373.

124 1 Stimson's Am. St. Law, § 2676(C).

125 Doe d. White v. Barford, 4 Maule & S. 10, 4 Gray's Gas. 402;
Brush V. Wilkins, 4 Johns. Ch. (N. Y.) 506; Goodsell's Appeal from
Probate, 55 Conn. 171. Contra, McGullum v. McKenzie, 26 Iowa,

126 1 Stimson's Am. St. Law, § 2676.

Ch. 20] TRANSFER BY WILL. § 417

erwise pass under a will previously made, necessarily with-
draws such land from the operation of the will.^^'^ When
there is merely a contract to convey, the vendor is, as before
stated,^"* a mere trustee for the purchaser, and the legal title
alone passes under his previous devise of the land, the right
to the purchase money passing, in the absence of statute,
to the personal representative.^ ^^ In some states, however,
the statute provides that, on the death of the vendor of land,
the unpaid purchase money shall pass under the devise of
the land, in place, as it were, of the land.^^°

So far as the common-law rule that the will operates only
on land ovmed by testator at the time of its execution may
still remain in force in any jurisdiction, the reconveyance to
testator of land conveyed by him after the making of the
will cannot render the will operative as to such land.^^^
And, apart from any change in the law brought about by
the modern statutes, a conveyance by the testator after the
making of his will, if it transfers the legal title in fee sim-
ple, is effective as a revocation, even though, by the same in-
strument, another estate is created in favor of himself, as
in the case of a declaration of trust in his own favor.^^^ Un-
der the statutory rule which now prevails in England, and
in most, if not all, of the states, that the will operates on such
land as the testator has at the time of his death, a convey-
ance by testator after making his will cannot prevent the
operation of the will upon the land conveyed, if it is recon-

127 1 Jarman, Wills, 129.

128 Ante, § 110.

129 1 Jarman, Wills, 129, Bender v. Luckenbach, 162 Pa. St. 18;
Skinner v. Newberry, 51 111. 203; Bruck v. Tucker, 32 Cal. 426. See
ante, § 112.

130 1 Woerner, Administration, § 53.
1311 Jarman, Wills (4th Ed.) 147.

132 Cave V. Holford, 3 Ves. 650; Brydges v. Chandos, 2 Ves. Jr.
417; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258; Jones v. Hart-
ley, 2 Whart. (Pa.) 103.


§ 418 REAL PROPERTY. [Ch. 20

veyed or title is in any way revested in the testator before
his death; and in many jurisdictions there is an express pro-
vision that a conveyance shall not prevent the operation of
the will with respect to such an estate as testator has at the
time of his death, unless, in some states, the intention to re-
voke is expressed in the conveyance.-^ ^^

A conveyance by a testator was held in England, as the
law formerly stood, to effect a revocation, although the con-
veyance was void, either for want of capacity in the grantee,
or for want of the proper formalities.^^'* This rule is no
longer in force in England, on the theory, it is said, that, as
a valid conveyance no longer effects a revocation if the title
becomes revested in testator, one which is invalid can have
no greater effect. ^^^ In this country there seems to be no
explicit decision that an invalid conveyance could in any
case constitute revocation, though there are dicta to such
an effect,^ ^® and a conveyance which is voidable because pro-
cured by fraud has been here held not to cause a revoca-

§ 418. Children or issue omitted from will.

In most states there is a statutory provision that, if a
child living or leaving issue at the testator's death was born
after the execution of the will, such child or issue shall take
the share to which he or they would have been entitled if tes-

13S Wills Act, 7 Wm. IV. and 1 Vict. c. 26. § 23; 1 Stimson's
Am. St. Law, § 2810.

134 1 Jarman, Wills (4tli Ed.) 165; Mountague v. Jeoffereys,
Moore, 429, 4 Gray's Gas. 682; Hick v. Mors, Amb. 215, 4 Gray's
Gas. 685.

135 1 Jarman, Wills, 133.

136 See Walton v. Walton, 7 Johns. Gh. (N. Y.) 258; Graham v.
Burch, 47 Minn. 171; Bigelow, Wills, 134. But see Bennett v.
Gaddis, 79 Ind. 347.

137 Graham v. Burch, 47 Minn. 171. Contra in England. Simp-
son V. Walker, 5 Sim. 1. See 1 Redfield, Wills (4th Ed.) 344.


Ch. 20] TRANSFER BY WILL. !J 419

tator had died intestate. In a nnmbcr of the states^ such a
provision applies only in case the chihl or issnc were not
provided for otherwise hy testator, or were not intentionally
omitted. ^^^ In a number of states, statutes of this charac-
ter, entitling an omitted child to the share which he would
have had if deceased had died intestate, are not restricted in
their application to children born after the execution of the
will, but apply in the case of any child, usually whether
that child was omitted intentionally or unintentionally.^'"'

§ 419. Revival of will.

In the case of a will which is revoked by an express state-
ment to that effect in a subsequent will, or by inconsistent
provisions therein, the question has frequently arisen as to
the effect of a subsequent revocation of the revoking will.
In England it was held by the common-law courts that tlie
effect was to "revive" or put in force again the provisions of
the earlier will, if this had not been destroyed, on the theory
that, as the second will had no operation until testator's
death, if it was revoked it could not operate as a revocation
of the earlier will.^^*^ The ecclesiastical courts, however,
held that the question of revival was one of intention purely,
to be decided according to the facts and circumstances of
the particular case.^'^^ This question is there set at rest
by the Wills Act,^^" which provides ''that no will or codicil,
or any part thereof, which shall be in any manner revoked,
shall be revived otherwise than by the re-execution thereof,

138 1 Stimson's Am. St. Law, § 2843.

139 1 Stimson's Am. St. Law, § 2842. See Page, Wills, § 291 ;
1 Woerner, Administration, § 55.

i*'> Goodright v. Glazier, 4 Burrows, 2512, 4 Gray's Gas. 434; 1
Jarman, Wills (4th Ed.) 136.

141 Moore v. Moore. 1 Phillim. 357; Usticke v. Bawden, 2 Addams,

142 7 Wm. IV. and 1 Vict. c. 26. § 22.


^ 419 REAL PROPERTY. [Ch. 20

or bj a codicil executed in manner hereinbefore required,
and showing an intention to revive the same," it being held
thereunder that the cancellation or destruction of the revok-
ing will cannot revive the previous will.-^^^

In this country the view of the English ecclesiastical
courts, that the question of revival is one purely of intention,
has occasionally been adopted,^ ^^ with the presumption, it
seems, in the absence of evidence, against a revival in such
a case.^'*^ In a few jurisdictions, however, the view is taken
that the revocation of the subsequent will ipso facto revives
the earlier one;^^® and in some this view is applied to cases
in which the second will revoked the first will merely by
reason of inconsistency therewith, and not by an express
statement to that effect.^'*''^ In one state, at least, the rule
which prevails by statute in England has been adopted, in
the absence of any local statute on the subject.^^*

There are, in many states, statutory provisions on this
subject, it being sometimes provided, as in England, that a
will once revoked can be revived only by a re-execution
thereof, or by a codicil duly executed, while in others the
canceling, destruction, or revocation of the second will does
not revive the first will, unless such intent appear in the

143 1 Jarman, Wills, § 126; 1 Williams, Executors (9th Ed.) 163.

1*4 Pickens v. Davis, 134 Mass. 252, 4 Gray's Gas. 444; In re
Gould's Will, 72 Vt. 316; McClure v. McClure, 86 Tenn. 173. See
Bohanon v. Walcot, 1 How. (Miss.) 336; Randall v. Beatty, 31 N.
J. Eq. 643.

145 Pickens v. Davis, 134 Mass. 252, 4 Gray's Gas. 444. See 15
Harv. Law Rev. 142.

146 Taylor v. Taylor, 2 Nott & McG. (S. C.) 482; Peck's Appeal
from Probate, 50 Conn. 562; Flintham v. Bradford, 10 Pa. St. 82.

147 Scott V. Fink, 45 Mich. 241; Cheever v. North, 106 Mich. 390;
Colvin V. Warford, 20 Md. 357. See Hawes v. Nicholas, 72 Tex.
481 ; Peck's Appeal from Probate, 50 Conn. 562.

148 Harwell v. Lively, 30 Ga. 315.


Ch. 20] TRANSFER BY WILL. j; 420

terms of the revocation, or the first will be duly repub-

§ 420. Republication.

A will may be republished so as to give the words of the
will the same effect as if the will had been originally exe-
cuted at the time of such republication, — that is, so as to
make it "speak" as of that time.^^*^ Under the law as it
formerly existed in England, restricting the operation of a
devise of lands to such lands as were owned by the testator
at the time of execution of the will, and in those states in
this country where the same rule still prevails, the effect of
a republication is important, as it brings lands acquired be-
tween the date of execution and of republication within the
operation of a general devise.^ ^^ But since the general
change of the law in this respect, the doctrine of republica-
tion has lost much of its importance, and it calls for consid-
eration now chiefly in connection with the possibility of giv-
ing effect to a will originally invalid, or which has been re-
voked.^ ^^

The republication may consist of a re-execution of the in-
strument with the same formalities as are necessary in the
case of an absolutely new will. Accordingly, while, previ-
ous to the Statute of Frauds, it might be by means of an oral

149 1 Stimson's Am. St. Law, §§ 2678, 2679.

The destruction of a codicil reviving a former revoked will has
been decided not to have the effect of rendering the revival inop-
erative, if there was no intention that it should have that effect.
James v. Shrimpton, 1 Prob. Div. 431, 4 Gray's Cas. 443.

150 1 Jarman, Wills, 159; Williams, Executors (9th Ed.) 170.

151 Beckford v. Parnecott, Cro. Eliz. 493, 4 Gray's Cas. 419; Barnes
V. Crow, 4 Brown Ch. 2, 4 Gray's Cas. 421.

152 See Burge v. Hamilton, 72 Ga. 568; Brown v. Riggin, 94 111.
560; Walton's Estate, 194 Pa. St. 528; McCurdy v. Neall, 42 N. J.
Eq. 333; Skinner v. American Bible Soc, 92 Wis. 209.


§ 420 REAL PROPERTY. |Cll. 20

declaration even in the case of land,^^^ since that time sign-
ing and attestation are necessary.^ ^"* The making and exe-
cution of a codicil to a will has likewise the effect, in the ah-
sence of any appearance of a contrary intention, of a repub-
lication of the will, and it is immaterial wdiether the codicil
expressly so provides, or whether it is actually annexed to
the will.^^^ In the absence of an expression of a contrary
intention, the republication of a will, whether by re-execu-
tion, or by the making of a codicil, is of the will as changed
by any pre-existing codicils, they being in effect a part of
the will.^^*^ The mere fact that the will is referred to by its
original date does not take the case out of the rule.^^'

153 Beckford v. Parnecott, Cro. Eliz. 493. 4 Gray's Gas. 419.

154 Jackson v. Potter, 9 Johns. (N. Y.) 312; Love v. Johnston, 34
N. C. 355, 1 Woerner, Administration, § 56.

155 1 Williams, Executors (9th Ed.) 164; Barnes v. Crow, 4 Brown
Ch. 2, 4 Gray's Gas. 421; Van Alstyne v. Van Alstyne, 28 N. Y. 375;
In re Murfield's Will, 74 Iowa, 479; Hobart v. Hobart, 154 111. 610;
Pope V. Pope, 95 Ga. 87; McCurdy v. Neall, 42 N. J. Eq. 333.

156 1 Williams, Executors (9th Ed.) 171; Crosbie v. MacDoual, 4
Ves. 610, 4 Gray's Gas. 426.

157 Green v. Tribe, 9 Ch. Div. 231, 4 Gray's Gas. 428.




§ 421. The nature of dedication.

422. Mode of dedication.

423. Acceptance.

424. Effect of dedication.

The dedication of land for public use involves a declaration
by the owner, by either word or act, of an intention that the
land shall be thereafter used by the public, and to that extent
it divests the rights of the owner of the land. By statute, oc-
casionally, a dedication made in a particular manner vests in
the public, not a right of user only, but the ownership of the

The dedication must usually be accepted in order to impose
any liability upon the municipality as the representative of
the public, and, by some decisions, in order to render the dedi-
cation irrevocable. Such an acceptance will, in some cases, be
presumed from user by the public.

§ 421. The nature of dedication.

A highway may be created by the dedication of land for
highway purposes by the owner thereof, this being in eilect
a declaration, by word or act, of his intention that the land
shall be used by the public for highway purposes.^ Land
may likewise be dedicated for nse as a park, common, or
square.^ It has also been decided in this conntry that land

1 Angell, Highways, § 132 et seq.; Elliott, Roads & S. c. 5.

2 Baker v. Johnston, 21 Mich. 319; City of Cincinnati v. White's
Lessee, 6 Pet. (U. S.) 431, 4 Gray's Cas. 799; Abbott v. Inhabitants
of Cottage City, 143 Mass. 521, 58 Am. Rep. 143; Com. v. Rush,


§ 421 REAL PROPERTY. Ch. 21

may be dedicated for use by the public as a wharf or landing
place,^ as a cemetery/ or for school purposes.^

In some jurisdictions in this country the common-law
theory of dedication has been greatly extended by decisions
that land may be dedicated, not only for use by the public,
but for use by a small portion of the public belonging to a
particular class, this being presumably due to a desire to up-
hold gifts which otherwise would fail for want of a sufficient
conveyance. Thus, gifts for charitable and religious pur-
poses, though merely oral, have been supported on the theory
of dedication.^

14 Pa. St. 186; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554; Rhodes
V. Town of Brightwood, 145 Ind. 21.

3 City of Napa v. Rowland, 87 Cal. 84; Village of Mankato v.
Willard, 13 Minn. 13 (Gil. 1), 97 Am. Dec. 208; Portland & W. V.
R. Co. V. City of Portland, 14 Or. 188, 58 Am. Rep. 299; Penny
Pot Landing v. City of Philadelphia, 16 Pa. St. 79; City of Pitts-
burg V. Epping-Carpenter Co., 194 Pa. St. 318; Gardiner v. Tisdale,
2 Wis. 153, 60 Am. Dec. 407. Contra, Pearsall v. Post, 20 Wend.
(N. Y.) Ill; Post V. Pearsall, 22 Wend. (N. Y.) 425; Thomas v.
Fiord, 63 Md. 346, 52 Am. Rep. 513; Horn v. People, 26 Mich. 221;
O'Neill V. Annett, 27 N. J. Law, 290, 72 Am. Dec. 364.

4 Davidson v. Reed, 111 111. 167, 53 Am. Rep. 613; Hunter v. Trus-
tees of Sandy Hill, 6 Hill (N. Y.) 407; Hagaman v. Dittmar, 24
Kan. 42; Pierce v. Spafford, 53 Vt. 394; Mowry v. City of Prov-
idence, 10 R. L 52.

5 Carpenteria School Dist. v. Heath, 56 Cal. 478; Chapman v.
Floyd, 68 Ga. 455; Klinkener v. School Directors of McKeesport,
11 Pa. St. 444; Board of Education of Incorporated Village of Van
Wert V. Edson, 18 Ohio St. 221; Board of Regents for Normal
School Dist. No. 3 v. Painter, 102 Mo. 464.

GBeatty v. Kurtz, 2 Pet. (U. S.) 566. 3 Gray's Cas. 794; City of
Hannibal v. Draper, 15 Mo. 634; Atkinson v. Bell, 18 Tex. 474;
Williams v. First Presbyterian Soc. in Cincinnati, 1 Ohio St. 478.
Compare Home for Care of the Inebriate v. City & County of San
Francisco, 119 Cal. 534; Trustees of Methodist Episcopal Church of
Hoboken v. City of Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696.

But the courts have refused to support a dedication for railroad
purposes in favor of a private corporation. Lake Erie & W. R.


Ch. 21] DEDICATION. § 422

A dedication may be made subject to certain reservations
or restrictions upon the freedom of use of the land by the
public. Thus, a highway may be dedicated, to be used only
at certain seasons/ or subject to a right in the dedicator or
in others to use the land for certain purposes, or at certain
times.^ And the dedication of a highway may be, not for
general highway purposes, but for use by pedestrians only,
or for a certain class of vehicles.^

§ 422. Mode of dedication.

A dedication need not be by any formal act or declaration,
but it is sufficient if in any way the owner of the land indi-
cates an intention to devote the land to the public use.^'^
The act of dedication is, however, affirmative in character,
and the intention to dedicate must be clearly shown. Conse-
quently, the mere acquiescence by the owner of land in the
use thereof by the public does not of itself show a dedication.^ ^

Co. V. Whitham, 155 111. 514, 46 Am. St. Rep. 355; Todd v. Pittsburg,
Ft. W. & C. R. Co., 19 Ohio St. 514.

7 Hughes V. Bingham, 135 N. Y. 347.

8 Mercer v. Woodgate, L. R. 5 Q. B. 26, 3 Gray's Cas. 790; City
of Noblesville v. Lake Erie & W. R. Co., 130 Ind. 1; City of Du-
buque V. Benson, 23 Iowa, 248; Ayres v. Pennsylvania R. Co., 52
N. J. Law, 405.

9 Stafford v. Coyney, 7 Barn. & C. 257; Trustees of Methodist
Episcopal Church of Hoboken v. City of Hoboken, 33 N. J. Law,
13, 97 Am. Dec. 696.

10 Quinn v. Anderson, 70 Cal. 454; Godfrey v. City of Alton, 12
111. 29, 52 Am. Dec. 476; Williams v. Wiley, 16 Ind. 362; Hall v.
McLeod, 2 Mete. (Ky.) 98, 74 Am. Dec. 400; Wright v. Tukey, 3
Cush. (Mass.) 290.

11 Cunningham v. Hendricks, 89 Wis. 632; City of Chicago v.
Chicago, R. I. & P. Ry. Co., 152 111. 561; Steele v. Sullivan, 70 Ala.
589; Cyr v. Madore, 73 Me. 53; Hayden v. Stone, 112 Mass. 346;
Stacey v. Miller, 14 Mo. 478; Lewis v. City of Portland, 25 Or. 133,
42 Am. St. Rep. 772; Weiss v. Borough of South Bethlehem, 136
Pa. St. 294; Worthington v. Wade, 82 Tex. 26; Hibberd v. Mellville
(Cal.) 33 Pac. 201; Irwin v. Dixion, 9 How. (U. S.) 10; McKey v.
Village of Hyde Park, 134 U. S. 84.


§ 422 REAL PROPERTY. [Ch. 21

But the fact that the public is allowed to use the land,
when taken in connection with other facts, may be sufficient
to show a dedication.^- The fact that the owner of the land
continues to pay taxes thereon,^ ^ or that he makes convey-
ances of the land,^* may tend to rebut any presumption of
dedication otherwise arising, and, in the case of land used as
a highway, the fact that the owner erects bars and gates
thereon are strong evidence in rebuttal of the rights of the
public. ^^ But while the intention to dedicate must be clear-
ly shown, and the landowner himself may, according to
some decisions, testify as to his intention,^'' he cannot, if his
acts are such as to show an intention to dedicate, assert, aft-
er the making of expenditures by the municipality or in-
dividuals on the strength of such acts, that he had no inten-
tion to dedicate.^ ^

As a general rule, if the owner of laud who has laid it off

1^ New Orleans, J. & G. N. R. Co. v. Moye. 39 Miss. 374; State
V. Birmingham, 74 Iowa, 407; Schwerdtle v. Placer County, 108
Cal. 589; Tupper v. Huson, 46 Wis. 646; City of Chicago v. Chi-
cago, R. I. & P. Ry. Co., 152 111. 561; Weiss v. Borough of South
Bethlehem, 136 Pa. St. 294.

13 Mansur v. State, 60 Ind. 357; City of Topeka v. Cowee, 48
Kan. 345; Case v. Favier, 12 Minn. 89 (Gil. 48); Bauman v. Boeck-
eler, 119 Mo. 189. But payment of taxes is but slight evidence
against a dedication. See Rhodes v. Town of Brightwood, 145 Ind.
21; Getchell v. Benedict, 57 Iowa, 121; Town of San Leandro v.
Le Breton, 72 Cal. 170; City of Ottawa v. Yentzer, 160 111. 509.

It Hall V. City of Baltimore, 56 Md. 187; Case v. Favier, 12 Minn.
89 (Gil. 48).

1-; Jones V. Phillips, 59 Ark. 35; People v. Reed, 81 Cal. 70, 15
Am. St. Rep. 22; Bidinger v. Bishop, 76 Ind. 244; State v. Green,
41 Iowa, 693; Com. v. Inhabitants of Newbury, 2 Pick. (Mass.) 51.

I'i Bidinger v. Bishop, 76 Ind. 244; Goodfellow v. Riggs, 88 Iowa.
540; City of Chicago v. Chicago, R. I. & P. Ry. Co., 152 111. 561;
Helm V. McClure, 107 Cal. 199. Contra, Perkins v. Fielding, 119
Mo. 149.

iTBigelow, Estoppel (5th Ed.) 035; Angell, Highways, § 156; El-
liott, Roads & S. §§ 125, 168.


Ch. 21J DEDICATION. g 422

into lots, Avitli streets and allevs iiitersectiiii;" the same, sells
his lots with reference to such streets and alleys, or with
reference to a plat on which tlicy ap})ear, this constitutes a
dedication to the public of the land covered by such streets
or alleys.^ ^ By some decisions, however, such a sale of lots
with reference to a street which has not yet been opened is
not regarded as vesting any rights in the public,^'' though
the purchasers of such lots would no doubt acquire a right
of way in the land so referred to as a highway.^" A mere
description of land, upon the conveyance thereof, as bounded
on a certain street, as extended, or as shown on a city map,
does not involve a dedication of land for such street.^^

The question whether a dedication has been made is usu-
ally one of fact for the jury under instructions as to what
may constitute a dedication,^^

Statutory dedication.

In the statutes authorizing the record of a plat of a sub-

1" Irwin V. Dixion, 9 How. (,U. S.) 10, 31; Trustees of Methodist
Episcopal Church of Hoboken v. City of Hoboken, 33 N. J. Law, 13,
97 Am. Dec. 696; Meier v. Portland Cable Ry. Co., 16 Or. 500; City
of Baltimore v. Frick, 82 Md. 77; Fossion v. Landry, 123 Ind. 136;
Quicksall v. City of Philadelphia, 177 Pa. St. 301; Bartlett v. City
of Bangor, 67 Me. 460; Briel v. City of Natchez, 48 Miss. 423;

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