
    GEORGE A. GARDINER, Plaintiff in Error, vs. LUTHER TISDALE, FRANCIS A. TONDRO & BENJAMIN BROWN, Defendants in Error.
    
    ERROR TO ROCK COUHTY CIRCUIT COURT.
    In an action of ejectment, though the defendant set up no title in himself, it is competent for him to assail the title of the plaintiff; and the latter muss recover, if at all, upon the strength of his own title, and not on the weakness of that of the defendant.
    Where the legislature has prescribed the manner and formalities by which the title to lands may be transferred from the proprietor of a town site, and secured for public uses, a compliance with the requirements so prescribed, is essential to divest the proprietor of the original title, and to vest the same in the public or the constituted authorities.
    Where certain lands had been surveyed, laid out, and platted as a town silei and a map thereof had been made, designating streets, squares, public land' ing, lots and blocks, and left for record' in the office of the register of deeds, but no certificate of the acknowledgment thereof was endorsed on such map, (as áiown by the record,) in accordance with the statute of 1839, the title to the land covered by such streets, public landings, &c., was not thereby transferred from the original proprietor.
    To pass the title, a map or plat should be made, and acknowledged before the proper officer, and a certificate of such acknowledgment endorsed on the map, all of -which should be recorded. _ In other words, the statute prescribing a new mode of conveyance, should be strictly complied with.
    The owner of land may dedicate the sámelo the public use by parol, and by acts which shmv a deliberate appropriation of the land by the oivner to the public use, reserving to himself no other rights in the soil than such as are perfectly consistent with the full enjoyment of the public use, to which it is intended to be devoted.
    The power over land, parted with by the owner, and acquired by the public by dedication of a public landing, is but an easement,' or right of transit, no greater than that of a highway, and may be supported upon the same principle. It confers no right to a permanent occupation of the soil.
    The question of dedication is one of fact, to be submitted to the jury upon the circumstances of each particular case, and there should be shown on the part of the owner an intention to appropriate the land to the particular use claimed, and an actual appropriation.
    In a country like ours, where roads and other public conveniences are permit-, ted on wild or unoccupied lands, mere user ought not to be evidence of a dedication. An actual appropriation by tlie owner should be shown, and the particular intention and purposes of the dedicator ought to be manifest.
    The easement which the public may acquire by dedication, such as a highway, &e., may perfectly consist with the right of soil remaining in the owner or dedicator, and when the use or enjoyment of such easement is relinquished, or abandoned, or becomes impracticable, the property, with all its incidents and appurtenances, will revert to the owner or his proper representatives.
    Or, if there be a non user by the public for such a length of time as to afford evidence of a discontinuance or abandonment of the easement, the whole estate will revert in like manner, and the title to the soil will be released from such easement.
    The original owner, or those claiming under him, of land dedicated to public use, may maintain ejectment against a permanent incumbrance or occupier, inconsistent with, or repugnant to, the purpose of the dedication or grant.
    In an action of ejectment, it is no defence for a permanent incumbrancer or occupier to set up a dedication or grant of a public easement on the part of the owner, or his grantors, of the fee of the soil.
    This was an action of ejectment, commenced by tlie plaintiff in error against Tisdale & Tondro, to re-' cover a part of tlie southeast fractional quarter of fractional section 85, town one, range twelve, particularly described in tlie declaration as follows: being a building now occupied by defendants as a grocery, and the land on which it is situated, bounded on the west by a meat market occupied by Phillip Lovell ; and on the east side by a certain building recently occupied by ¥m, Talbot; being on the south side of the highway leading on to the east end of the bridge over Rock River, in Beloit.
    The declaration, with notice in due form, was served on the 26th day of November, 1852. Declaration filed, and order to plead entered the 1st day of December, 1852. Tisdale & Tondro did not plead, and their default was duly entered. At the March term of said court, 1853, Benjamin Brown, claiming to be landlord of Tisdale & Tondro, and owner of the premises, was admitted to defend, and pleaded the general issue. At the September term, 1853, the issue was "brought on to "be tried, lion. Wyman Spooner, judge of said court, presiding. The plaintiff introduced in evidence a patent from the United States to 31. P. Crane, dated the 9th of May, 1842, conveying lot 6 and 7 of the southeast fractional quarter of fractional section 35, town 1, range 12. The plaintiff also introduced in evidence a quit-claim deed in the common form, from said Crane and wife to himself, dated the 2d of September, 1852, by which said deed the said Crane conveyed to plaintiff parts of lots 6 and 7, in the S. E. fr. qr. of fr. sec. 35, T. 1, R. 12, described, “Beginning on the bank of the river, at low water mark, on the north line of block 58, and running east on said line to the center of Turtle street; thence northerly up the center of said street, as the same was laid out, to the center of the street called Public Avenue ; thence northerly to the south line of block 46 ; thence west on said line to the river at low water •mark ; thence down the river as it runs, to the place of beginning, being in "Beloit, Bock county, Wisconsin.” The plaintiff proved that the land described in the deed was paid of the land described in the said patent; that the land described in the declaration was part of the land described in the deed ; that the defendants Tisdale <& Tondro were in possession of the premises in question at the time this action was commenced, as tenants of Benjamin Brown, who claimed title thereto ; and that Benjamin Brown built the building on the land in question. The plaintiff "then rested.
    The defendant proved, all under objection and exception, that John Hopkins,.in 1840, at the request of R. P. Crane and others, made a survey of the village of Beloit; that is to say, of the land on which Beloit how stands ; that the said Hopkins was then county surveyor.
    paper was here shown to the witness and his at-Mention directed to a certificate at the end of it, and he stated that the certificate was in his hand writing; that the paper contained the minutes of survey made at the time; that he saw Crane sign it, and that the whole was in his hand writing ; that he at the time made a map of the survey ; that at the time the certificate was made, the map was present; that the map and paper (survey) were one .paper necessarily ; they could not have formed a complete transaction without being together. That he knew a piece of land in Beloit called “ Public Landingthat this land known as the public landing, was within the limits of the survey made by the witness ; that when the paper (the survey) was completed, and the map made, they were left with the proprietors, and witness never saw them afterwards.
    The witness further testified that he was employed by Horace White to make the survey, and that White paid him for it; that Crane neither employed him nor paid him ; that he could not say that the survey and the map were attached together, by wafer, string or otherwise, when the certificate was made.
    The defendant also called' as a witness George Wil-liston, who was register of deeds of Bock county, from 1842 to 1847, and who testified that Bailey was his predecessor in office. A portfolio book was presented to the witness, and he said “that was the book kept by him for recording town plats, and that it was in the office when he took possession.” The witness further testified as to the condition of the portfolio book when he delivered it over to his successor: to which. ■ the plaintiff objected, that the recoi’d must prove itself, and could not be aided by parol, and that parol evidence could not be given to prove that the loose sheets (maps of Beloit) were ever attached to the book of records; but.the objection was overruled, and the witness said “ that these leaves, now loose, (being maps of Beloit) were, when the book was in iny hands, attached to it.” Copies of minutes of survey, aud of a former survey of the village of Beloit, made by one Doolittle, were shown to the witness, and against the objection of the plaintiff' he was permitted to testify “that these minutes of survey were received by me, as register, of my predecessor. I kept them between the lids of that portfolio book. They were not in any way attached to the book. Bailey was register the 10th of August, 1840, and 24th of September, 1839.”
    The defendant called all the other registers succeeding "Williston, to the present time, who gave the same testimony, (against the same objections of plaintiff') except that in 1849 anti 1850, the minutes of survey were kept in a table drawer, and not in the book.
    ■ The defendant then offered in evidence the said portfolio book of records of maps, and the loose sheets purporting to be maps of Beloit, not attached in any way to the book ; also, copies of the field notes or survey minutes of one Doolittle, in the hand writing of Bailey, former register, on one sheet of foolscap paper. The following is an extract:
    “ A survey of the town of Beloit, including the S* E. and N. E. fractional qr. of sec. 35, town one, 1ST. of range 12 E., and that part of sec. 36 represented on the map. Beginning at the northwest corner of B. a I'0’^ an<^ S^ie- ^8 N. side, 6.88 ch., E. side 3.99 ch., S. side, 7.69 cli., W. side, 3.93 cli. Broad ¡^-eet one iuiu¿recx feet broad. B. 49 N. side S cli.
    « j certify that tlie above map and notes of tlie survey are true and correct, according to tlie best of any knowledge and judgment.
    “A. W. Doolittle,
    “ Surveyor of Racine Go., W T.
    
    
      “Beloit, March, 1839.
    “Deceived for record September 25th, 1839.
    “ W. II. H. Bailey, Register.”
    In the above survey there is no mention of “ public landing,” or description or survey of it. The Hop. kins minutes of survey, in the hand-writing of W. II. II. Bailey, were on nine half sheets of common foolscap papei', tied together at the top with tape. The following extracts from, the same are deemed suffi- ■ cient:
    “ Survey of the village of Beloit, in Rock county, Wisconsin Territory, made in the month of June, eighteen hundred and forty. Courses given according to the true meridian; variation of the compass, six and a half degrees.
    “The survey begins at the State and Territorial line, at the corner of section thirty-five and thirty-six of town one north, in range twelve east, of the fourth principal meridian ; thence bearing north one and three-fourths degrees east to the quarter stake between said sections. On this course it is eight chains and one link to the south side of Race street, one chain and one link across said street, three chains and ninety-four links across block fifty, one chain and forty-eight links across Broad street, three chains and ninety-five links across block fifty-six, one chain and twenty-one links across School street.”
    Then follow descriptions of streets and blocks. • Block fifty-four is thus described :
    “Block fifty-four is bounded and described as follows : It begins at a point south 88 1-4 deg. east five chains and twenty-six links from the center of the east line of block fifty-three ; from this point its south line bears S. 88 1-4 deg. east to center of Turtle street; beginning again at the beginning of the last line, the line bears north one and a half degrees east, five chains and eighty-one links ; thence north 83 1-4 degrees east, five chains; thence north seven degrees east, five chains ; thence ■ north seventy-one and a half degrees east, six chains and thirty-five links to the east line of the village plat; thence south one and a half degrees west to the center of Turtle street; thence down- the same the several courses thereof to where the line from the first point eastward shall in tersect it, which last méntionedrblock fiftyfowr is known .and designated, as land reserved for hydraulic purposes?
    
    The public squares are thus described:
    “ The public square lies between College and Main streets and School and First streets. Mechanics’ Green lies west of block fifty-four, east of Mechanics’ street and south of block eleven. The land lying between block fifty-four and First street, and Canal street and east of the east line of the village plat, is also ' reserved for hydraidic purposes? ■
    
    Block 59 is thus described:
    “ Block fifty-nine is five chains and eighty links on Turtle street, six chains and three links on Broad street, three chains and 22 links on Mill street, two chains and ninety links north along Public landing, and lies on the river.”
    (This is the only instance in which the words “Public Landing” occur in this whole survey.)
    “ I hereby certify that the foregoing survey, description and plat of the village of Beloit, Rock county, W. T., is correct, according to the best of my knowlege and belief.
    “ Beloit, July 28, 1840.
    “ John Hopkins, Cmniy Surveyor?
    
    “The undersigned, owners and proprietors of the land in the foregoing survey, plat, and description of the village of Beloit, in Rock county, W. T., hereby certify that we have caused the same to be surveyed, platted and described in the foregoing manner, and and have done the same in good faith, and believe it to be correct.
    “ Beloit, July 28, 1840.
    
      “ R P. Crane, [l. s.]
    “ Otis P. Bioknell, [l. s.]
    “ Horace White, [l. s.]
    “ In presence of
    “ Selvy Kidder,
    “Horace Hobart.”
    “ The undersigned, the original owners and proprietors of lots number five, sis and seven, in section thirty-five, in town one, north of range twelve east of the fourth principal meridián, and of the west half of the northwest quarter of section thirty-six, in said town and range, hereby certify that we did cause a survey of a part of the village of Beloit to be made out of said described lands, by A. W. Doolittle, the description of which was returned in blocks only, and was dated March, 1839, and we have caused this additional survey into lots to be made now, 031 the same principle Doolittle’s survey; and all former and' subsequent de-seription of lots and blocks will, in our belief, be found explicit and correct by the plat and description hereby accompanied.
    
    
      ' “Beloit, Modi county, ¿Tidy 28,1840.
    “ R. P. Ceame, [l. s.]
    “ Otis P. Bioxíteld, fn. s.]
    “ In presence of
    “ Selvy Kiddee,
    ■ “IioEAOE IXOBAET.
    “ Wisconsin Teeeitoby, ) . “ Hock Gowrtiy. 5 SS'
    “On the 6th day of August, 1840, personally appeared before me, Horace White, R. P. Crane, and Otis P. Bicknell, and acknowledged the execution of ike foregoing papers to be their voluntary act, for the use and purpose therein mentioned.
    “ ITobaob Hobakt, Jus. Peace?
    
    [This acknowledgment was not endorsed on the back of the map; but was appended to, or followed the certificate.]
    The plaintiff objected to the introduction of the copies of said surveys, on the ground that they did not purport to be, and were not records ; that by law the minutes of survey could not be recorded in the office of the register of deeds, consequently the pretended records thereof were not -evidence ; and that the evidence was immaterial and irrelevant. Objections overruled; plaintiff excepted. '
    . To the introduction of the loose sheets, purporting to be maps of Beloit, the plaintiff objected, that the same did not purport to be, and were not records, or parts of a record ; that they show that such maps as they purport to "be copies of, could not by law have been recorded in the office of register of deeds, and C01isepnently the pretended records could not he read *n evi¿ence ; and because there is no record of the certificate of a surveyor, nor record of the certificate of acknowledgment by the persons or officers taking the same; and that the testimony was irrelevant. Objections all overruled; plaintiff excepted.
    The defendant then offered to prove by a witness, that there was an agreement between Crane and others, in relation to the entry of the land on which the village of Beloit is laid out, and dividing it among them ; and that the agreement was made before the land was entered. The witness stated that there was an. agreement in writing ; and the defendant then offered to show that other persons than Crane were interested in the land, at the time of the surveys made by Doolittle and Hopkins : to which the plaintiff objected, that in this action parol proof of the interest of other persons in the land could not be given ; that the patent to Crane was conclusive of his title, and if he had conveyed any part of, or interest in the land to any other persons, that could not be shown by parol, and also that the evidence was irrelevant. The objection was overruled, and the witness went on to testify that Crane agreed to enter the land for the benefit of the Hew England Company, and others interested, but did not know whether he paid for it with his own money or not. That Crane and others agreed that the land should be platted, and that a rough plat was made before Crane entered the land; that it was agreed that when the plat was finished, there should be a division thereof among those interested, according to their interests ; that those interested liad many meetings about laying out the town, fore the land was entered ; that at these meetings the plan subsequently adopted was agreed upon before the land was entered. The witness- also stated that the land called “Public Landing” had, since 1837, been used mostly as a depository’ of lumber taken from Rock river, a lumber yard, ¿fee. At a meeting, there was a division made, and the property platted. Witness was present; there was ^'memorandum then made, showing how much each, was to have. It was divided by lots and blocks, according to the plat then made. This was in 1838, after the land was entered, but before Doolittle’s or Hopkins’ surveys. On the plat at that time there was land designated as “ Public Landing.”
    On cross-examination, the witness states that he had never known the land in controversy in this suit used as a deposit for lumber, or for a landing place. It is so situated that it could not be used for that purpose.
    The defendant called another witness, Lucius Gr. Pisher, who stated he had resided in Beloit since 1837; and after the plaintiff had objected, his objections been overruled, and he had excepted, witness stated in substance that the money to. enter this land with was made up and furnished to Crane by different individuals ; Le furnished some, Horace White some for Hew England Company, and others the balance. The witness also stated (after objections and exceptions by the plaintiff) the nature and purpose of the meetings held in Beloit in 1837 ; that Crane attended; seemed interested; a plan was agreed to, and there was to be a aPublie Landing" left as public ground; and the uses to which this land had been put since 1836.
    
      The wib1688 was then cross-examined by the plaintiff, and the plaintiff offered to show by the witness that Rock river, between Janesville and Beloit, and Beloit and Rockton in Illinois, was not capable of being navigated by steamboats, and had not been for the last five years. Defendant objected; objection sustained, and plaintiff excepted.
    The defendant also offered in evidence an agreement signed by R. P. Crane, dated the day the land was entered, by which he agreed to convey it to different individuals in ten days. Objection was made, but overruled, and the evidence received.
    The defendant then calls R. P. Crane, who testified, against the objection of the plaintiff, among other things, that the land called “ Public Landing ” was embraced in Doolittle’s survey and plat; that he assented to the survey and plat; that it was within the limits of Plopkins’ survey ; that at the time of executing the deed to the plaintiff, he had conversation with the plaintiff about his (C.’s) title-; he told plaintiff it had been designated as a public landing on a map. Plaintiff said his (C.’s) title to the public landing was good, and he would give something for it; told plaintiff he had deeded other parts of the village, by the plat, to sundry individuals.
    The defendant also proved that the village property was divided according to the interests represented in the agreement of Crane to convey. The division was made according to the Doolittle survey; that Crane made conveyances of said interests to the persons named in the agreement, or according to their directions, and gave in evidence the record of some twenty-five deeds by Crane to sundry persons, describing tlie'lands conveyed, by dots and blocks, and referring to a recorded map for a particular description thereof
    To all of this evidence, objections were made seri-aiim, as the questions were propounded, or evidence offered; the objections’ overruled and exceptions taken. The testimony being closed, the defendant requested the court to charge the jury : “ That the record testimony introduced by the defendant, was in compliance 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 E. P. Crane, the plaintiff’s grantor, previous to the deed from Crane and wife to the plaintiffj and that the defendant was entitled to a verdict; which was given by the court, and to which the plaintiff excepted.
    1st. The plaintiff requested the court to instruct the jury, that if they found from the testimony that -the land in question was conveyed by the United States to Eobert P. Crane, by patent, on the 9th day of May, 1842 ; and by said E. P. Crane and wife to the plaintiff* by common quit-claim deed, on the 2d day of September, 1852 ; and that the defendant was ■ in possession of the premises at the time of this suit, the plaintiff wsb prima facie entiled to recover, which was given.
    2d. The plaintiff also requested the court to charge ■the jury that if the plaintiff had established a prima facie case, according to the foregoing instruction, then the plaintiff was entitled to his verdict.
    3d. That there was no evidence from which the said jury could find a grant of the land in contro ver-^is SU^ fí’om P- P. Crane to any other person than the plaintiff.
    4th. That if they found from the testimony that, p}aqpGj ff had made out a prima faoie case, it was in law no defence to this action, that the said land in controversy in this suit had "been dedicated to the public as a public highway, or as a public landing-place from the river, provided they also found from the testimony that the defendant, before the commencement of this suit, built and occupied a tenement thereon, to the exclusion of all other persons.
    5th. That if the defendant claimed to defeat the plaintiff’s title to the land in controversy in this suit, by showing a dedication thereof by E. P. Crane to a public use, it was incumbent upon the defendant to show to what public use said land was dedicated ; and if they found from the testimony that said land could no longer be used for the purpose for which it was dedicated, then said land, and all the rights, privileges and appurtenances thereof* reverted to said Crane, or his grantee or assignee.
    Cth. That to establish a dedication of the land in question by E. P. Crane, to any public use, so as to prevent his subsequently resuming the exclusive use of said land, it must be shown that other persons had become interested in adjacent lands, in consequence of the inducement held out to them by said Crane that said land was to remain to such public use, who would be injured if said land should be reclaimed, and exclusively occupied by said Crane or any other person; or that at the time said Crane sold other lands adjacent thereto, he received enhanced prices for such lands so' sold, in consequence of such inducement ; or that other persons had embarked in enterprises or made investment -which would be rendered less productive or valuable if the land in question should be occupied by said Crane or any other person; and that the mere fact that said Crane might have represented said land on a map or plat as public ground, was not of itself sufficient to establish a dedication of said land to the public for such public use.
    7th. That the owner of land cannot by parol dedicate the same to the public, to use as a public landing, for the landing and deposit of lumber or other merchandise from the river.
    8th. That a rig-lit to land lumber or other merchandise from a river, and deposit the same upon the land of another, is an interest and profit in such- land that cannot be enjoyed by the public at large, and is not capable of .being- dedicated to the public, as land may be dedicated to be used as a highway.
    9th. That if they found from the testimony that R. P. Crane entered or pre-empted the land in question, in his own name, at the land office of the United States, but for the benefit of other persons, and agreed to convey the same to them, and not having-done so, did convey said land to the plaintiff, yet these facts will form, and be no objection to, the right'. of the plaintiff to recover in this action.
    All of which instructions asked by the plaintiff, except the first, were refused by the court, and exceptions taken. The jury found for the defendant, who had judgment accordingly, and the plaintiff brings his writ of error.
    
      M. H. Carpenter, for plaintiff in error.
    I. The court below erred in receiving as evidence the pretended record of maps of Beloit, and charging the jury as requested by the defendants, that they were sufficient in law to pass the fee of the land in question from It. P. Crane. Vide Old Stat.,p. 159.
    Sections 1, 2 and 8 of the act referred to, sj>ecify how the map shall be made. Section 4 provides “that the map, after having been completed, shall be certified by the surveyor,” and the proprietor “ shall, at or before the time of offering such map for record, acknowledge the same before any person authorized to take the acknowledgment of deeds. A certificate of such aclmoioledgment shall, by the officer taking the same, be endorsed on the map, which certificate of the survey and acknowledgment shall also be recorded, and form a part of the recordSection 5 provides that “when the map shall have been made out, certi-ed, acknowledged and recorded, as reqidred by this act” it shall be deemed evidence of a grant to the public, or individuals, <fec., “ and the land intended to be for the streets, alleys, ways, commons, or other public uses, in any town or city, shall be held in the corporate name thereof, in trust to and for the uses and purposes set forth and expressed, or intended.”
    This statute points out what is to be done by the proprietor to effect a grant, and it is quite certain the statute must be substantially complied with, or no title will pass.
    The case of The People vs. Beaubien, 2 Doug. {Micld) 256, was decided under just such a statute, and the map was held void as evidence of a grant, because it had not been acknowledged, although the owner had deeded other lands by deeds duly acknowledged and recorded, and referring to said map as of record.
    
      The maps said to have been made by the owners of the land in question, did not at all comply with the statute, if the pretended records thereof duly represent them. Neither of them “ particularly described all the streets, alleys, commons, or jmblic grounds, giving the names, widths, courses, boundaries and extent of all such streets and alleys,” according to section 1. Neither of them designated a point or jooints -jyhere a monument might be found, according to section 3. Neither of them bore a certificate of the surveyor, according to ^section 4 nor did either of them show who was the surveyor, or whose land was surveyed ; nor wdiere it was situated ; and there ■was no evidence on the trial, from the records or otherwise, that they liad ever been seen by the owners of the land; and neither of them bore a certificate of acknotoledgment. The certificate of acknowledgment must be on the map. Montague vs. Smith, 13 Mas-s. 396 ; Saco vs. Hoplsinton, 29 Maine M. 2*79 ; Thurman vs. Gameron, 24 Wend.-92 ; Hartwell vs. Hem-mentoay, 7 Pick. 11'?; 2 Bur rill's Law Die. title “ In-dorsements Pendleton vs. Butlei\ 3 Conn. 412. Nor was any certificate of the surveyor or of the acknowledgment recorded with the maps, according to section four.
    These maps not having been made out according to the statute, certified and acknowledged, were not entitled to registration, and the pretended record thereof is a nullity. Vide Ishcwn Ad. vs. Benning-ton Iron Go., 19 Vt. 130, 235; Pridge vs. Tyler, 4 Mass. 541; Greenl. Fd. of Cruise,-note to chap. title 32, sec. 26 ; Troop vs. Haight, lHopls. 61; Frost vs. Beadsman, 1 I. Ch. 300; Carter vs. Champion, 8 
      0()nn- 549 ; Herndon vs. Kimball, 7 Geo. R. 432 : Papot vs. Gibson, id. 530.
    ^he certificates of Crane and others at the foot of the survey were not papers entitled to registration, (Jackson vs. Richards, 6 Goto. 617) nor were they in fact recorded.
    A deed conveying land is valid as between the parties thereto, without being acknowledged or recorded, on the ground; that the only object of registry is to give notice to subsequent purchasers. The making and delivery of the deed passes the title. But not so in a case like this. It- is only after the map has been made out, certified, acknowledged and recorded, that it becomes evidence of a grant.
    The plaintiff, by virtue of his quit-claim deed, was a subsequent purchaser (Rev. Siat.,p. 326, sec. 3), and the record of a deed from his grantor, thus defectively executed, would not have been notice to him. Vide Troop vs. Haight, Frost [vs. Beahnan, Garter vs. Champion, cited above ; Latouche vs. Gnnsan, 1 Shoales óa Be Frog’s Rep. 157 ; Sugden on Vendors, 527 ; Stephens vs. Brown, 3 Vt. 420 ; Montgomery vs. Do-rion, 6 H. H. 250, 255 ; McNeil vs. Magie, 5 Mason, 265 ; 1 Story’s Eg. Fur., sec. 494 ; Astor vs. Wells, 4 Wheat. 466 ; Morecock vs. Dickens, Ambler Rep. 678: James vs. Morey, 2 Cow. 246, 296 ; Blood vs. Blood, 23 Pick. 80. The record of a deed, in all respects formally executed, if it admit the certificate of acknowledgment, is no notice to a subsequent purchaser. Bellas vs. McCarty, 10 Walls, 13 ; Skimmer ei al. vs. McDaniels ei al., 5 Vt. 539.
    II. The evidence tending to show a dedication of the land in question to a public use, was improperly admitted; such dedication, if established, being no answer to an action of ejectment against a permanent incumbrancer. Vide Goodiiile ex dem, Chester v. Air 7cer et al, l Burr, 138; Oro. Jao. 21, 150; 2 Bac. Abr. 170 ; ivolAm.JM. Bog. Mr., Title Highway]1 (B.); 8 Com. Dig, 27, Title “ Cheminf (2 Pi.); 8 'JCenSs Qom. 432 ; 2 Smitlfs Lead. Cases, 183-4; Hancock et al. v-s. Wenmorih, 5 _M?i. 446 ; Cooper et al. vs. Smith, 9 /Sb’y. ds Maude, 26 ; Allen vs. Murdoch, 13 Mass. 256 ; Billing vs. The Mayor of Pe-tersburg, 3 Ilandolph, 563 ; Thompson et al. vs. The Proprietors of the Androscoggin Bridge, 5 Greenl 62 ; Pomeroy vs. Mills, 3 Vi. 279 ; Wooster vs. Butler, 13 Conn. 309. In all the above cases this point was dirertly in judgment. Vide also the dicta of Sedgwick J. in Com. v. Peters, 2 Mass. 125 ; Parsons, C. J., in Parley vs. Chandler, 0 Mass. 454-6 ; Putnam, C. J., in Staclcpole vs. Healey, 16 Mass. 33 ; Plait, J., m Jackson vs. Hathaway, 15 J.M. 447 ; (Jomen, J, in Pearsall vs. Post, 20 Wend. Ill, 126.
    A majority of the court of Connecticut tried to establish a different doctrine ; Stiles vs. Curtis, 4 Day, 318 ; and Peck vs. Smith, 1, Conn. 103 ; hut have given up in despair. The case of Wooster vs. Butler, 18 Conn. 309, virtually overrules the other cases, and Connecticut has fcillen into line. with the other States upon this subject.
    The owner of land over which a highway has been established, may maintain trespass for an injury to the soil, herbage, shade trees, &c. Perley vs. Chandler ’6 Mass. 453 ; Staclcpole etal. vs. Healey, 16 Mass. 32 ; CortéT/youvs. Van Bnmt, 2 J. 357 ; Gidney vs.Pa/rle, 12 Wend. 98 ; Avery vs. Maxioell, 4 N. H 36. The ■point is conceded by the judge in the question under consideration.
    
      -^0Mr ^ f° maintain trespass, possession and riglit of possession are indispensable, and tlie owner of land over -^bicli a highway has been established may main-trespass for an injury affecting such land, does it not follow by logical deduction, that the owner of land over which a highway has been established, is entitled to the ¡oossession of such land?
    But it is said, “the plaintiff cannot have the exclusive possession delivered to him by this action, for that would be inconsistent with the public right”
    We apprehend this-is a great mistake. The public have no right to the possession of. such land ; Bab-cock vs. Lamb et al., 1 Com. Dig., Title “ Trespass,” (B-3) ; Stools vs. Booth, 1 T. ,R. 428-30; Gidney vs-Earle, 12 Wend. 98. The establishing of a highway over land does not disseize the owner, and the existence of such highway is not a breach of the covenant of seizin. WhitbecJsvs. OooJc, 15 J. At 483. The public' have only an incorporeal'hereditament,- and of that there can be no seizin, and ejectment will not lie to recover it. Judd, vs. Leonard, 1 Chip. Vt. 204 ; Black vs. Hepburn, 2 Yeates, SSI ; Ben vs. Craig, 3 Greene, (N.«71) 191 ; Idenenge vs. Ellioiie, 9 Walts, 258. Trespass guare claysim fregit cannot be maintained by one who has an incorporeal hereditament in the lands of another, for an injury to such lands affecting such hereditament. Baer vs. Ma/riin, 8 BUc. 317. But admitting the proposition would not move us from our position. It is not indispensable to maintain ejectment, that the plaintiff should be entitled to the exclusive possession. A tenant in common may maintain ejectment against a stranger, and yet he is not entitled to the exclusive possession. His co-tenant is equally entitled. A tenant in common may maintain ejectment against his co-tenant if disseized by him, yet be is not entitled to the exclusive possession as against the defendant, even. White vs. Sayre, 2 Ham. 110; .Adams vs. Emerson, G Pick. 56 ; Goodtitle vs. Alker, 1 Burr, 133.
    III. A right to land lumber or other merchandise from a river, and deposit the same upon the land of another, is an interest and profit in such land that cannot be enjoyed by the public at large, and is not capable of being dedicated to the public, as land may be dedicated to be used as a highway. Vide Pearsall vs. Post, 20 Wend.'Ill; and the following authorities cited and commented on by Cowen, J., in Pearsall vs. Post: 2- H. Black. 393 ; 4 'T. E. 417 ; 3 Alcl. & Ellis, 554 ; 4 Pick. 145-48; .1 Yeates, 169; 9 Serg. cb Eawle, 26 ; 2 J.E. 357 ; 17 Wend. 9 ; 3 Watts, 219 ; 14 S. <& E. 71 ; 5 A. ds E. 758. The case of Pear-sall vs. Post was affirmed in the Court of Errors, (22 Wend. 425.) Vide also 6 Bander, 265. In Maine the same doctrine has been established, (1 Greenl. Ill ; 81 Maine, 134.) The same in Rhode Island, (1 E. I. 106.)
    We believe no adjudication can be found against this position. The case in 6 Peters, 498, wras only the dedication of land for a highway. The fact that it was near a river does not alter the nature of the dedication, and that case is no authority against; us. The Cincinnati case, and others upholding the dedication of a square, proceed upon the ground that a square is a highway. In The State vs. Wilkinson, 2 Vi. 480, which was an indictment for encumbering a public square, Prentiss, J., says “ a highway, according to the common law, is a place in which all the people have . a right to pass. A common street and public high-are ^10 same5 an(l any wa3r; which is common to all the people, may be called a highway. A naviga-jqe rjvei. may ‡>6 termed a common highway, and any o^gtpuction to the passage upon it may be redressed by indictment. * * _ * * * If a way is used for passing mid repassmg, and is common to all the people, it is a highway, whether it is called a road, street, or public square.” The dedication of land for a burying ground rests upon different principles, and is watched over by the courts of chancery as a charitable cmd pious use. ■
    
    IV. The'objection to the evidence offered to prove that the land in question was known as “Public Landing,” was well taken. The Old Kevised Statutes, page 99, section 4-, requires the county surveyor to “keep a correct and fair record of all surveys made by him or his deputies, in a book or books to be provided by the county commissioners for that purpose,” a copy of which shall he furnished to any person requiring the same. The court permitted the defendant to prove by parol what the statute requires to be matter of record, without in any way accounting for the absence of the record. Even conceding, which we do not, that the survey contemplated by the act in relation to the laying out of towns, may be made by a private surveyor, yet, as this survey was in fact made by a county surveyor, the survey was matter of record, and should not have been proved by parol.
    There are hut two ways of proving matters of record ; by producing the record itself, and by a certified copy. When the records are produced, no parol proof can be given concerning the same, except that they come from the. proper repository. 1 Greerd. Ik. •sm 484; 13 Serg. c§ Mmole,'2?>L It was contended in the circuit, and may Le liere, that the testimony aauis proper to show a resulting trust in favor of those who furnished the purchase money, and that our Statute of Uses and Trusts, (liev. Stat. chap. 57,) abolished the trust and invested the ■ equitable owners with the legal estate.
    If this be seriously insisted on, there are many answers to it.
    1. None of the statutes of Great Britain are in force in Wisconsin. Old Stat., p>. 407, sec. 8 ; Const, of Wisconsin, Art. 14, see. Í 3. All trusts, therefore, were, until the passage of chap. 57 of the Kevised Statutes, subject to and regulated by the principles of the common law, and so remain, except as our Statute of Uses and Trusts otherwise provides. This trust, if any there was, resulted by operation of !mo. .1 Foster, (W. tí.) 3.07 ; 4 AC H. 337 ; and to such trusts our statute does not apply. Sec. 6 expressly exempts them from the effect of the statute. So the common law still controls, and the legal estate is sufficient to maintain this action even against a cestui que trust. 81T. 11. 880 ; 8) id. 422, and cases cited; Adams mi (Eject. 32 ; 8 T. 11.118 ; 2 A Oases, 321; 9 Goto. 88; 4 Wend. 369 ; 2 Greerd-. Eo., sec- 331.
    2. The plaintiff in this action is a subsequent bona fide purchaser, Avithout notice, and cannot be affected by this trust, even in a court of chancery. 1 J. Gh. 5G6, and cases there cited/ 2 Stm'tfs Eq. Jur. sec. 977.
    8. The contract Avas to convey, according to a division of land made in February, 1848'. The testimony of L. G. Fisher, under exception 42, shows the land in question aaus not embraced in that division.
    4. The plaintiff establishing a legal title, is entitled to reeoAmr against any but the cestui que trust, accord-ins; to all the cases, and the defendant does not connect himself in any way with the equitable interest.
    After the court had decided that the papers offered py the defendants were records, and they had been read, it was improper to prove by parol what the records had already established.
    The fee remained in Crane if the land had been dedicated, and the easement was discharged, if it could no longer be enjoyed. 2 Vt. 480 ; 11 Pióle. 193 ; 12 Vt. 15 ; 1 Shep. Touchstone, 121 et seep
    
    Dedication of land to a public use does not rest upon the presumption of a grant. Its sole basis is an estoppel in pais upon the owner of the fee, and it is of the essence of an estoppel m pais, that the party estoj>ped has done an act or made an admission inconsistent with the claim asserted, and some other must have acted upon such admission that would be injured by allowing the claim asserted. PLa/mmoncHs Nisi Prius, 193, Am. Bd. 1823 ; 6 Peters, 438 ; 19 Oorni. 265 ; 19 Pick. 409 ; 3 Vt. 521-536.
    
      T. A. Sleeper, for defendant in error.
    I. There could be no objecton to proving by the witness that he did a particular act for any particular person or persons, even though the act itself is required to be made matter of record, and might be proved by the record, if one had been kept. The records might not prove for whom, or at whose request, the act was done.
    II. The evidence sought to be obtained by answers to the questions, was proper to go to the jury. It was important for the defendants to show, if they could, that Crane had made a survey of the land in controversy, platted it into a town or village, and that the survey and platting- were made and done in pursu-anee of the statute. Hence, inasmuch as the certificate description of the survey was detached from the map or plat, it was proper to show that they were both made and executed at the same time, and did in fact constitute one instrument. A deed may he written on two or more sheets of paper or parchment, the signing- and sealing are necessarily on the last sheet; it clearly is competent to prove, that the two or more sheets belong together and constitute one instrument, one transaction ; in other words, that the instrument contained in or upon the two or more sheets, was the one made, executed and delivered ; and when thus proved, the deed or instrument would be as valid and effectual as if the sheets had in fact been tied together, sealed together, or otherwise attached.
    III. The evidence in regard- to the portfolio book was not improper; perhaps it was unnecessary, for inasmuch as the portfolio book was proved to be a book kept in the office of the register of deeds of the county of Rock, for the purpose of recording town plats, that proof was undoubtedly sufficient to entitle the defendants to read from it, to the jury, any of the town plats contained in it, without accounting for the dilapidated or torn condition of its leaves.
    IV. The Circuit Court committed no error in permitting the said portfolio book, the loose sheets purporting to be maps of Beloit, though not in any way attached to the portfolio book, the survey and certificate made by Doolittle, as well as the certificate and survey of Hopkins, to be given in evidence to the jury. These were the acts of Crane, the gx-antor of the plaintiff; and all his acts and declarations made and done while the owner of the land, were proper to given tlie jury. Besides this, they were in fact, legal records kept in the register’s office of the coun-Q£ anx] a8 suc]3) were notice to everybody of ¿jgpQg^jQjj^ which Crane had made of the land in controversy.
    V. The objection, that the register in recording the map, description of survey, certificate of surveyor, statement of proprietors, and certificate of acknowledgment, copied the plat or map on to large broad paper, suitable for that purpose, and the description of survey, certificate of surveyor, statement of proprietors, and certificate of acknowledgment, on foolscap paper, which ire placed in the book, thereby making it a part thereof, will not be looked upon with great favor by the court.
    Crane having acted in good faith, as he declares, in laying out the town, his intention cannot be defeated, and public or individual rights impaired or in any way affected by any act of the register, so as to enable him to reclaim the land which had been granted to a public use by him, he having done all required to be done by him to render the grant effectual. lie could not record it, nor could he dictate to the register how he should perform his duties required by law.
    YI. It was proper to give evidence and show the intent and purpose with which Crane made the plats and maps, survey and certificates, and how he had in all things acted in relation to this land on which Beloit is situated, and in particular the premises in question.
    To show that at most he was a mere naked trustee ? of a passive trust, holding, until the Revised Statutes executed it, for the benefit of his cestioi que trusts / and therefore could, in fact, convey nothing by his quit-claim deed to the plaintiff.
    
      . VIL The first charge of the court, given at the request of the defendant, was correct; the record testimony introduced "by the defendants did comply with the statute in force in Wisconsin Territory in 1839 and 1840, in relation to town plats, and of course the legal consequences resulting therefrom were exactly in accordance with the declaration of the court. Vide Stat. Wis. Ter. 160.
    VIII. Although the plaintiff,had made out a prima facie case, yet in this case he was not entitled to recover, because the defendants by their proof had established beyond controversy, that the plaintiff had no title in the premises, without which he could not recover, even though the defendants had no right or title whatever in the same.
    ITe must recover on the strength of his own title, not upon the weakness of the defendant’s title.
    If the court should be of opinion that the survey and map were not made and executed in compliance with the statute, then it is contended that the acts of Crane constituted a grant of that land for the public use, to the public, and divested Crane of all title thereto. These acts were not unknown to the plaintiff when he took the quit-claim deed; but he relied upon the want of compliance with the statute as the ground upon whieh he expected to take possession of this public landing, to the exclusion of the public, and regardless of the public right.
    As authorities to sustain this second point, vide City of Ciñcinnati vs. Lessees of’ White, 6 Peters, 431; Toion of Paidett vs. Clark, -9 Cramch, 292 ; McConnell vs. Trustees of the Toivn of Lexington, 12 Wheat-on; 582 ; Barclay et al. vs. HowelVs Lessee, 6 Peters, 498 ; The Mary or, Aldermen and Inhabitants of Nm 
      
      Orleans vs. The United States, 10 Peters, 662. These cases fully sustain the position assumed.
    an additional reason why the plaintiff could ^ recovei.; the proof clearly established, was, that when Crane entered the land, he did not purchase for himself, but for others exclusively, they furnishing the money for the purpose; and to make the matter more clear, he executed and delivered the agreement referred to, and copied at length in the record.
    He had executed that trust by conveying all the land to his cestui que trusts, or to others by their directions, except the streets, alleys, and commons, or public grounds, and those he had disposed of in exact accordance with their directions ; in fact, they acted themselves in the matter, and had placed the whole control of this property out of and beyond Crane’s reach.
    But even if any title remained in Crane to these lands, the Revised Statutes, chapter 57, have divested it, executed the trust, and the equitable title of the cestui que trusts has vested in them as a legal estate. JR. S. 318, chap. 57, sections 2, 3 and 4 ; Matter of Pe Kay, 4 Podge JR. 403 ; Ghesney vs. Henry, id. 345.
    And the deed of Crane to plaintiff being a mere deed of release, conveying only the title which Crane had, which was nothing, the plaintiff obtained no right, title or interest therein. In any mew, therefore, the rulings of the court on the trial, as well as the charge to the jury, was correct, and the verdict and judgment ought to be affirmed.
    Where instructions are asked which are mere abstract propositions of law, but which have no application to the facts of the case in which they are requested to be given, the court should not give the instruct!ons, even though as legal propositions they are correct. Nor should the court give an instruction, which, as a whole, would he improper, though parts of it might he correct.
    All the instructions asked hy the plaintiff are subject to one or the other of these objections, and for that reason, if for no other, were properly refused.
   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.  