
    GEORGE DUMMER ads. DEN EX DEM. THE BOARD OF SELECTMEN AND INHABITANTS OF JERSEY CITY.
    1. In the dedication of land to the public, no particular form is necessary; nor is it essential to preserve its validity, that the land dedicated shall be taken into actual possession and use by the public.
    2. The title to the fee will not pass by a dedication, where its conveyance is not essential to effect the purposes and intent of the dedication ; in such cases the right to the possession and use of the land vests in the public, and the fee remains in the grantor or his assigns, subject to such right of possession and use.
    3. Whether a dedication alone will pass the fee, even where a conveyance of the fee is essential to carry into effect the purposes of the dedication QuEere ?
    4. Where land has been dedicated to the use of the public, an action of ejectment to recover possession of it will lie against the legal owner of the fee.
    5. Such action is properly brought by and in the name of the corporate authorities of a city, whose inhabitants constitute the public, to the use of which the land was dedicated.
    6. It is not necessary that any act should be done or ordinance passed, by the public or the authorities representing it, appropriating the land to the purposes designed in the dedication, before the action is commenced.
    This was an action of ejectment tried at the Circuit Court of the county of Bergen, in September 1838. By the direction of the court, a verdict was rendered for the plaintiff, and liberty given to the defendant to move this court to set it aside and enter a nonsuit.
    In 1804, Anthony Dey purchased as a site for a city, a tract of land, known as Powles Hook. He immediately caused it to be surveyed by Joseph F. Mangin, a surveyor, who laid it out in lots and squares, with streets and avenues. On the 15th of April following, a map was made by Mangin, exhibiting the plan and arrangements of the intended city. Portions of the land laid out are marked on this map as reserved for public purposes, aud withheld from sale. The premises in controversy, form part of the tract laid out and at that time were covered by water in whole or in part. They appear upon the map among the reservations designed and set apart for public purposes and have ever since been called by the people, the “ Market Ground.”
    In order to carry the plan of the city into effect, the property was divided into shares, which were parcelled out or sold to a number of persons, who, on the 10th of November 1804, were incorporated, by act of the Legislature, under the name of “ The Associates of the Jersey Company.” By their charter, this company were empowered to lay out streets and squares upon the property and to establish such as had been already laid out, with the privilege of-building such docks, wharves and piers as they might deem necessary. On the first of February, 1805, this company became the owners and possessors of all the lands laid out, by virtue of a deed of conveyance from Anthony Dey, subject however, to certain contracts made by the grantor for the sale of a number of lots mentioned in a schedule annexed to the deed.
    The map made by Mangin was so far adopted by the “ Associate Company,” that it was left by them in the office of their clerk to be examined and inspected by all persons who wished to purchase lots, and in all the conveyances made by the company, was recognized and continually referred to. In 1812, the associates conveyed a large number of squares, blocks and lots to Fulton and Colden, and in the deed, referred in express terms to the map, reserving soil to fill up the market reservation aud declaring that the same, if filled up, should remain for the uses and purposes for which it was originally appropriated.
    In 1820, the freeholders and inhabitants of a district, of which the property laid out and the premises in controversy form part, were incorporated by the name of “Jersey City,” with power to elect annually five freeholders to conduct their affairs, under the denomination of “ The board of Selectmen of Jersey Citywith authority to pass and enforce ordinances, relating among other things to public markets, within the limits of the incorporation ; provided that nothing in their charter should interfere with the powers or rights of the “ Associates of.the Jersey Company.”
    In January 1829, this charter was repealed, and they were in corporated anew, under the name of “ The Board of Selectmen and Inhabitants of Jersey city.” To the new corporation, like power, to pass and enforce ordinances relating to streets, public grounds, market houses &c. was given.
    In 1824, and before the passage of the latter act, the associates, among other property, conveyed to the defendant the premises in controversy, but as appears by the deed, “ without prejudice to the rights and privileges of any other person or persons and subject to all such rights and privileges.”
    At the time of this conveyance the defendant knew that this land was marked on Mangin’s map as a reservation for public purposes and at one time said, if the public should want it, he would give it up, and at another time remarked, they would not want it in fifty years. The premises were never enclosed or used by the public, either for a market or any other purpose, but have been filled up and otherwise improved by the defendant, who is now in actual possession.
    Upon the return of the postea, a rule was granted, requiring the plaintiff to show cause why the verdict should not be set aside.
    
      A. S. Garr and George Wood in support of the rule.
    This ejectment is for a plot of ground in Jersey City, set forth on Mangin’s Map, 15th April, 1804. The legal title is unquestionably in the defendant, conveyed to him by the Jersey Associates.
    The consideration in the deed to Dummer, applies as well to these, as to the other premises mentioned in the deed. And the individuals who participated in the sale, are estopped from denying the consideration, especially when they come forward to show, by parol, that they were guilty of the absurdity of conveying premises which they now pretend they knew at the time, they had no right to convey.
    
      The corporation of Jersey City, the lessors of the plaintiff, have never passed an ordinance or taken any other steps for establishing a market on any part of the premises in question, nor have they by any corporate act, or in any other way, evinced any intent, to use and apply any part of the premises in question, to market purposes, for the use of the public.
    No demand has been made by the lessors of the plaintiff, upon the defendant, to deliver up possession of any part of the premises, for any purpose.
    The lessors of the plaintiff claim a legal right, and they claim to recover upon that legal right, and to apply the premises after such recovery to any purpose they may think proper.
    On the other hand, the defendant claims to be the legal owner of the premises subject only to an equitable right, if any, on the part of purchasers of lots on Mangin’s Map, to have so much of those premises applied to Market purposes, if they should be so required, (such requirement to be manifested by the action of the Corporation) without any assessment upon themselves or their lots, for such appropriation. This equitable claim is the loosest of all claims to real property, and rests upon the ground, that they purchased upon the faith of such premises being set apart on the map. In this case the premises are not marked on the map —and there is no written agreement or appropriation of the premises to any such purposes.
    
      First. — The legal title to the premises in question is in the defendant, having been conveyed to him by conveyances set out in the state of the case.
    
      Second. — The lessors of the plaintiff claim by a dedication by the former owner of the premises, for a right of market. But such claim, even if valid, will not sustain an ejectment, more especially against the owner of the legal title. Because—
    1st. — Such a public right for the use of the market, is not a legal, but an equitable right, being a public use, such public uses being usually calk'd charitable uses, because the greater part of them are of a charitable nature. Garden St. Church v. Mott, 7 Paige 77. Curd v. Wallace, 7 Dana R. 192. Howe v. Chapman, 4 Vesey 542. Eltham Parish v. Warreyn Collison Hobart 136. Jones v. Williams, Ambler 651. Attorney General v. Brown, 1 Swanston 297. Attorney General v. Earl of Lons
      
      dale, 1 Simons 105. Newland v. Attorney General, 3 Merrivale 684. Attorney General v. Brown, 1 Swanston 205. Cogshell v. Pelton and others, 7 Johns Ch. R. 292.
    2d. — These public uses should be kept distinct from legal rights, and the remedy for them is in equity. Garden St. Church v. Mott, 7 Paige, R. 77. Curd v. Wallace, 7 Dana 192, and the cases above cited.
    
    3d. — A. court will not carve out new rights or estates in law or equity to suit the views or caprices of owners or claimants. Per Lord Brougham in Keppel v. Bayley, 2 Myl and Keen 535.
    4th. — The plaintiff must recover in ejectment on his legal title. Adams on Ejectment, 18, 19, 20.
    
      Third. — The only public rights, at common law in real estate, are ways and Urban Pleasure grounds, which are Footways for the purpose of recreation. Post v. Pearsall, 20 Wend. R. 111.
    
      Fourth. — Supposing a right to a market, to be a legal right analogous to a public right of way, ejectment will not lie for it— especially against the owner of the soil. It is an incorporeal right, and the remedy would be by action on the case for disturbance or by injunction. The legal owner of the soil can use it for all purposes not conflicting with the public right of enjoyment. Peek v. Smith, 1 Cowen 109. Lade v. Sheppard, Strange 1004.
    
      Fifth. — Supposing a dedication by the former owner of the premises in question, to have been made for public uses, for a market. The right thereto is not vested in the lessors of the plaintiff. They are not the public — They might by a valid corporate act (if their charter authorizes them to pass such act) appropriate the premises to such purpose, as they would open a street, but such an appropriation would not vest in them any legal title, either to the market-ground or the street.
    
      Sixth. — The premises in question have not been dedicated to the public use for market purposes. Because—
    1st. — To constitute such a dedication, according to the most relaxed modern rule, there must be an instrument in writing or a parol dedication, followed by actual user. The public use is the criterion. 3 Kent Com. 451. 6 Peter’s U. S. R. 431. 8 Wendell 105.
    2d. — The extent, to which the rule has heretofore been carried in Yew Jersey, has been to allow a public parol dedication after a user by the public for forty years. Ward v. Jolly, 2 Southard 42. “ Parties cannot compel the public to take easements, and
    the only evidence of their acceptance is a continued user by the public.”
    
      Seventh. — The only right (if any) acquired against the legal owner by the making of the map accompanied with parol declarations, is a right in equity in the purchasers of lots, upon the faith of the map, to have the premises applied when required, and to the extent required for market purposes; such requirement to be manifested by an ordinance of the corporation, without any assessment therefor to be made upon their lots — which equitable right rests on the ground, that the breach of confidence in assessing them upon such an appropriation of the premises, for the benefit of the legal owner thereof, would be a fraud on them as such owners of lots, and which in equity would take the case out of the statute of frauds. In the matter of 17th street, 1 Wendell 262. In the matter of Lewis street, 2 Wendell 473.
    
      Eighth.- — Law and equity in New Jersey have been heretofore kept distinct, and the Courts of Law have allowed the Chancellor to administer equitable rights, accompanied with those modifications and terms, which are peculiar to the practice of that court, and essential to give complete relief — And if the plaintiffs should be allowed to recover at law, the defendant would be deprived of his right to use the premises, except as subject to the equitable rights above mentioned.
    
      Ninth. — Although in one case in the Supreme Court of the United States, the plaintiff was allowed to recover on an equitable right, upon a case arising in Pennsylvania, yet that decision is not obligatory upon the courts of this state, which are the appropriate organs to settle the laws of the state, especially in regard to real property. Elmendorf v. Taylor, 10 Wheaton 156. Green v. Neal, 6 Peters 301. Bell v. Morrison, 1 Peters 359, 360.
    
      P. Bently and I. II. Williamson contra.
    The lessors of the plaintiff claim the ground in question as having been dedicated by the proprietors from the very foundation of the city, for public use, as a place for a market-house, and which from that time has been publicly known as the market ground.
    
      I. The fact of dedication is fully and completely made out by the evidence of Mangin’s map having been adopted by the Associates as the plan of their city, and the constant reference thereto, in all their conveyances of lots; and by the representations made by them to purchasers; and particularly by the deed set out in the state of the case, from the associates to Fulton and Golden,' in which the market reservation is not only recognized, but it is there expressly declared, that the same “ shall be and remain' for the uses and purposes for which the same was originally appropriated.”
    The evidence proves not an intention merely, to make a dedication of the ground in question to the public, for a market place; but that their intention to do so was actually carried into execution.
    The acts and conduct of the Associates and their 'agents, and the manner of laying out the streets, and reserving the grounds for public use, amounted to a full and complete dedication of the land in question, to public use for a market place. No particular form or ceremony is necessary in the dedication of land to public use, 6 Peter’s 440. Nor any deed or-written instrument, 6 Peter's 437. All that is necessary to the validity of a dedication, is the assent and intention of the owner, to appropriate it to public use. Nor is the fact of its having been used by the public essential to the validity of the dedication, or that the ground should be in a condition for immediate use, by the public, 6 Peter’s 505, 506.
    There are two modes of establishing by evidence the fact of dedication: one by length of public use; the other, by some unequivocal act, demonstrating the.owners having so appropriated it, 8 Wendell 105; 6 Peter’s 506. In Woodyer v. Hadden, 5 Taunton 137, Mr. J. Chambers says, when speaking of use or evidence of dedication, “no particular time is necessary for evidence of a dedication; it is not like a grant presumed from length of time. If the act of dedication be unequivocal, it may take place immediately.”
    
    What is time enough from usage to presume a dedication, does not appear to be definitely settled. 11 East, 375 n.; 19 Eng. Com. Law R. 45; 6 Peter’s 438, 513. The right of the public does not in such cases depend upon twenty years user, as is requisite to establish a right by possession against a hostile claim. All that is necessary to the validity of the dedication, is satisfactory evideuoe that the owner of the land has appropriated it to public use; and his having so done, may be made out by evidence of any act amounting to a dedication, or of public user, with the assent of the owner, for such a reasonable length of time as affords a presumption of his having appropriated it to public use. Use by the public is not the dedication. The assent or act of the owners’ appropriating it to public use, is the dedication ; and public use, can be nothing more than presumptive evidence of its having been dedicated by the owner to the public, for the purpose for which the public has used it. The putting up a bar, or doing any other act which destroys the presumption of an intention to give the land to the public, is sufficient to defeat the claim of dedication arising from public use, no matter how long that public use may have continued. Rex v. Llord, 1 Campl. N. P. R. 260, 262, and notes. As public use with the assent of the owner is only presumptive evidence of dedication, evidence of any act amounting to a dedication must be as satisfactory, if not more so, than presumption arising from public use alone.
    It is true there has been no public use of the ground in question ; but user by the public is not necessary for the purpose of showing an acceptance by the public; for an acceptance is to be presumed until the contrary be shown. Thompson v. Leach, 3 Mod. 296. And all the purchases having been made with reference to the map, is sufficient evidence of an acceptance by the inhabitants of Jersey City, for whose use and accommodation the reservations were made.
    We do not pretend that non user may not be used as an argument against the fact of a dedication having been actually made; bnt we do insist, that use by the public, or that the ground should be in a condition to be used at the time of the dedication, is not essential to the validity of a dedication. And we further deny that until the ground is so used, or put in a condition to be so used, the original owners may revoke the dedication, and re-assert their right of dominion over it. The establishment of the adverse doctrine would be extremely dangerous and alarming to most of the villages and towns in this state; as many of their new streets have not been laid out and opened under the road laws, and the public have no right to them, but their having been dedicated by the owners of the land, to public use.
    But whether the fact of dedication was made out in evidence or not, was a question for the jury, and must be considered as settled by the verdict. All questions of law were reserved at the trial for the opinion of the court at bar, but as respects the facts of the case, there could be no such reservation ; and there can be no question but that the evidence on this point was fully sufficient to warrant the finding of the jury, unless there must be an instrument in writing, or a parol dedication, followed by actual user, as is contended on the part of the defendant.
    II. The next inquiry is as to the legal effect of a dedication to public use.
    It is contended on the part of the defendant that such a public right is not a legal, but an equitable right, being a public use ; and that supposing a right to a market to be a legal right, analogous to a public right of way, ejectment will not lie for it, especially against the owner of the soil; and that the legal title to the premises is now in the defendant.
    In opposition to that doctrine we contend, that by a dedication, the former proprietor divests himself as well of the fee as of the use and possession, and parts with all his estate and interest in the land, and deprives himself of all power to grant and dispose of it.
    The common objection made to the legal title’s passing from the grantor in the case of a dedication, is the want of a competent grantee to take the.title. But dedications must form an exception to the rule, that to a valid grant there must be a grantee in esse able to take the fee, as in the case of a private grant, 6 Peters 436. That rule applies only to private grants and conveyances, and it has been well observed by Mr. J. Thompson, “ the law applies to them (dedications) rules adapted to the nature and circumstances of the case; and to carry into execution the intention and object of the grantor; and to secure to the public the benefit held out, and expected to be derived from and enjoyed by the dedication,” 6 Peter’s 435. The public must necessarily be the only grantee, and the fee, if it cannot pass to them, must be considered in abeyance until there is some legal body created by law capable of taking the fee for the purpose designated, 6 Peters’ 439.
    The principles of law applicable to private grants and conveyances, cannot be applied to dedications, and were never intended to be, for they are not within the reason of the rule. In the case of a private grant, to render it valid, there must be a written instrument to pass the title; and not only a grantor capable of granting, but a grantee capable of taking the title. But in cases of dedications, neither written instrument, nor a competent grantee to receive immediately the title, is necessary • nor can there be from the nature of the case; and cases not within the reason of a general rule, are consequently not within the rule.
    This subject has been a number of times under the consideration of the Supreme Court of the United States, and has undergone great consideration in that Court, and we find the rules of law applicable to cases of this kind, very clearly and satisfactorily settled by that Court. In Beatty et al. v. Kurtz et al. 2 Peter’s 566, a lot of ground had been marked out upon the original plan of an addition to George Town “ for the Lutheran Church,” and had been used as a place of burial from the time of the dedication. The principal objection relied on was, that there was no grantee capable of taking, the Lutheran Church not being a corporation ; but the court sustained the dedication. The case of the city of Cincinnati against the lessee of White, 6 Peter’s 431, was an ejectment. The equitable owners of the land where the town of Cincinnati has since been built, before they obtained the legal title thereto, laid out the town, and upon the map and plot of the town, they laid out and designated the ground in question as a public square or common for the use of the inhabitants of the town ; this was held to be a sufficient dedication of the land to public use, and to vest the title to this common or public square in the city of Cincinnati, although the city was not incorporated until many years afterwards, and the lessor of the plaintiff derived his title from the equitable owners, after they had obtained the legal title. That case was in several respects like the present one. The case of Barclay and others against Howell’s lessee, 6 Peter’s 498, tvas also very much like the one now under consideration. And the court held that it was not necessary to the validity of the dedication, that it should have been used by the public, and that it would most clearly have been error if the court below had instructed the jury, as they were requested to do, that unless the ground claimed was in a situation to be used by the public, and, had been so used, there could have been no dedication ; and it was expressly held that the right to the public square by the dedication, vested in the corporate body for the benefit of the citizens, upon the incorporation of the city. In the subsequent case of New Orleans against the United States, 10 Peter’s 662, 712, the cases of Cincinnati against White; and Barclay and al. against Howells lessee, were again examined and the doctrines there laid down most distinctly re-affirmed; and it was considered by the court a well established principle of the common law that property may be dedicated to public use : and they held, that in order to dedicate property for public use in cities and towns, and other places, it is not essential that the right of use should be vested in a corporate body. That it may exist in the.public and have no other limitation than the wants of the community at large.
    The court instead of applying to those cases a technical rule of law, which had its origin in the doctrine of tenures, and established for other purposes, held cases of dedication to be an exception to that general rule, and in sp doing no rule or principle of the common law was violated, for it was held before the statute of Elizabeth relating to charitable uses, that grants or dedications of land for charitable or religious purposes, and for public highways, were valid without any grantee in whom the fee could immediately vest, 6 Peter’s 135, 136.
    In New York, relative to the dedication of lands in the city of New York for the purpose of streets, it is held that when the owner of land has laid it out into lots binding them on the streets, as laid down on a map, but not actually opened, the owner of the land does not part with the fee, but the purchasers acquire a legal right as against their grantor, to have the streets kept open to the width delineated on the map, and that when the streets are subsequently opened by the corporation, under the act relative to the opening of streets in that city, all the owner can claim is, the value of the streets to him, subject to the right of the grantees to have them permanently kept open, which is nom
      
      inal damages only, 1 Wendell, 262; 2 Wendell 473; 8 Wendell 85. The doubt seems to have been in those cases, in whom was the fee of the land covered by the streets, whether in the original proprietor after he had sold the lots, or in the purchasers of the lots; and the court considered the streets not common highways until opened under the order of the corporation, and that the fee remained in the original owner of the land until acquired by the corporation. But in New Jersey there is no such mode of proceeding to acquire the legal title, and the rule of the common law is, that the fee of highways belongs to the owners of the adjoining ground; and if it is to remain in the person making the dedication, and the lot owners have nothing but a legal right to have the streets kept open for the purpose of travel, they cannot plant an ornamental tree before their doors without being trespassers. Those decisions upon the statute law of the stale of New York relative to the mode of opening streets in the city of New York, cannot be considered as authorities in the present case, or safe guides to be followed. And in Livingston against the Mayor of New York, 8 Wendell 106, Mr. Senator Sherman, in referring to the case of the matter of Seventeenth street, 1 Wendell 262, says “ my opinion in that case is, that he (Mr. Byard,) has parted with the fee as well as the right of way.” There certainly can be no good reason why the owner of the land in such a ease, after he has sold and conveyed the lots adjoining the streets, should be considered as retaining the fee in the land covered by the streets, when he has parted with the use and possession of the laud itself forever, and when it can be of no real value to him, and may prove of great prejudice to the public in the full enjoyment of the dedication. And if the dedication gives to the public nothing more than an easement or right of way, and no right to the soil itself, serious doubts may be entertained whether the public have any power to level and grade the streets, or to pave them, without the consent of the persons having the fee; for it appears to be a settled principle of law that an interference with the soil of a road, or the cutting down a tree growing on the same, by one person, when the fee is in another, is a trespass, 8 Wendell 103. Jackson against Hathaway, 15 John’s. Rep. 447.
    There appears to be a wide difference between the case of a dedication of land for public use as a highway, and a dedication for a public square or market place for the use and accommodation of the inhabitants of a town or city. In the case of a highway, the easement or right of way is all the use the public requires ; and every use to which the land may be applied, and all the profits which may be derived from it, consistently with the continuance of the easement, the owner can lawfully claim, 6 Mass. P. 454; but in the case of a dedication to public use as a public square or market place, a much more enlarged right over the land may be necessary for the public, and the person making the dedication cannot make any use or derive auy benefit from the land, without conflicting with the public right of enjoyment. All dedications must be considered in reference to the use for which they are made, 6 Peters’ 438.
    The only reasonable effect which can be given to a dedication to public use is to consider the person making it as thereby granting or relinquishing to the public, by operation of law, all his estate and interest in the land for the purpose for which the dedication is made. The fee may be considered for the purpose intended, as in the public; or in abeyance until there is a corporate body in which it can vest; or the law may consider the dedication “ in the nature of an estoppel in pais, which precludes the original owners from revoking such dedication,” in violation of good faith to the public. 6 Peters’ 438.
    The defendant is not a bona fide purchaser for valuable consideration without notice. It was known to him at the time he obtained his deed from the Associates of the Jersey Company that the premises in question had been long previously dedicated by them for public use for a market place, and had been so reserved for near twenty years, and he agreed to take a conveyance subject to that public right, and it was upon his assurance that if the public should ever want the ground for a market place he would give it up that the Associates made him a deed for the premises, without consideration.
    As to the vacant grounds left for churches, they have been from time to time, conveyed to different denominations of Christians as they were applied for, for the purpose of building.
    Nor was it necessary for the lessors of the plaintiff to demand possession of the defendant, or to pass any ordinance, or to take any other steps for establishing a market on the premises, or to do any other corporate act to evince their intention to use and apply the premises to market purposes, for the use of the public, as any such act would have been useless, if not ridiculous, as long as the premises were held avowedly by the defendant, adversely to them, and their right was openly and expressly denied by him. The first step to be taken by them was to assert and maintain their right to the property and to obtain possession of it, and when that object is effected, it will be time enough to pass an ordinance to raise the funds, and for building a market house on the premises.
    III. But “ supposing a dedication by the former owners of the premises in question to have been made for public uses for a market,” it is insisted “ that the right thereto, is not vested in ihe lessors of the plaintiff.” That “ they are not the public.”
    It was for “ market ground,” for the use, convenience and accommodation of the inhabitants of Jersey City that the dedication was made; and it is the inhabitants of Jersey City that the Legislature has incorporated. The Legislature has given them a legal existence and called them into being, in their corporate capacity ; and they have the care and management, and are invested with a legal right to all their common property, and may sue for, defend, or dispose of it, and it is the same inhabitants in their corporate capacity, who are the lessors of the plaintiff. The moment the charter was passed and the corporation was organized, we maintain that the corporation became vested, by operation of law, with all the rights of property previously belonging to the inhabitants of that city, as their common property.
    There wanted no conveyance of the property from the inhabitants to the corporation, and there could be none in the nature of things.
    It was for public use as a place for a market for the convenience and accommodation of the inhabitants of Jersey City that the dedication was made, and the lessors of the plaintiff are the only legal competent body to bring an action to recover the possession of the property in question. In the case of the public square in the city of Cincinnati, the Supreme Court of the United States held that the title to the land vested in the corporate body, for the benefit of the citizens, upon the incorporation of the city.
    The dedication was of itself a gift or grant to the inhabitants of Jersey City, and when they become incorporated, the right to the land in question vested in the corporate body, for public use, as much as the right to the public square. If the lessors of the plaintiff are not the public, nor the legal representatives of the public, in respect to the ground in question, and the proper party to assert and maintain the public right to them, who can maintain an action on the case for disturbance, or a bill for an injunction to protect the public in the enjoyment of the possession of them.
    But this cause does not depend upon the question, who is entitled to the fee in the land. The true question is, who is entitled to the possession ? the defendant for his private use or the lessors of the plaintiff for the public use ?
    An ejectment is a possessory action — not a real action to try the abstract question of right, but the right to the possession of the land, and a defendant to defeat a recovery, must prove a right of possession as against the plaintiff. This action cannot be sustained by a person claiming title who has no right of entry, 3 Bl. Com. 430; 6 Peters’ 441. Nor can a defendant defeat the action by proving that the fee is in him — he must go further and prove that he has the right of possession as against the plaintiff.
    The defendant’s possession is inconsistent with the public use of the ground, for a market. The use by the public, and the use by the defendant, are incompatible. They cannot exist together. The one or the other is entitled to and must have the exclusive possession.
    If by the manner of dedication, the Associates did not, in law, part with all right and interest in the land, they did with the right to the possession and use. The dedication was in the nature of a contract with the public, that the land should remain for public use as long as the public needed it, and neither the Associates nor any person claiming the fee under them, can defeat or pút an end to that contract. And such public right is a legal, not an equitable right, and can only be asserted in a court of law. There can be no remedy in equity by injunction; an ejectment is the only adequate remedy. But if the objection is well taken, that the lessors of the plaintiff have no vested right; if “ they are not the public,” there can be no remedy in any court; for there is no person competent to maintain either an action at law or a suit in equity. And if the Associates or any person should take possession of the public square, and the adverse doctrine is to prevail, the inhabitants of Jersey City would have no remedy. If the dedication did hot divest them of the fee, public user never can, and the fee must remain in the Associates, unless ¿hey alien it. The true doctrine, we apprehend, is that by a dedication to public use, the proprietors do, in law, part with all interest and estate in the land, and we respectfully submit to the court, that the lessors of the plaintiff are entitled to recover in this action.
    
      A. 8. Garr and George Wood in reply.
    There is a distinction between a vested public use, or easement, and an executory right thereto by individuals, purchasing according to a map or diagram, upon the faith of the vendor’s representation that streets, squares, and other public allotments, for markets, court-houses, &c. shall be laid out, opened and appropriated to such public purposes, whenever called for by the public.
    In these and other cases, there arc in reality no streets or other public grounds until actually taken in due form, and appropriated by the public. All that is acquired by the respective purchasers of lots upon the diagram, is a right as against the vendor, to have them thus opened when called for by public convenience, without any objection on the part of the vendor, and without any assessment for the opening, against them, for the benefit of the vendor.
    Still, however, the city authorities may not deem it necessary or proper to open such streets, or public grounds, and if so, they will not be opened. It often happens in such cases, that the city authorities reject the plan of streets and public places, as laid out upon the diagrams of individual owners, and open them in a different way.
    The Yew York cases referred to in the argument in this case, illustrate this distinction, which appears to have been lost sight of by the plaintiff’s counsel.
    
      It was held in 1 Wendell 270, in the matter of Seventeenth street, that although grants of lots bordering on streets, go to the middle of the street, when the owner of the lot owns also the fee of the street, yet this rule did not apply to plots of streets laid out on diagrams, when the owner disposed of lots bordering thereon, because they were not streets in fact.
    To constitute an actual street on public ground of any kind, it must either be opened and appropriated by the regular public authorities, or be actually dedicated by the owner to the public, so as to give them a vested public interest. Such actual dedication can be effected only by a grant in writing, or by a parol intention to dedicate, followed' by actual user.
    
    It is alleged on the other side, that any unequivocal parol act, amounting to an intentioh to dedicate, without user, is sufficient.
    The cases cited do not sustain this assertion. In 8 Wend. 105, and 5 Taunt. 137, there was actual user by the public. In the case in 6 Peters 506, there were letters furnishing written evidence, signed by the original owner, showing the grant and dedication. There was also an actual user fo.r thirty years and upwards — see p. 512. In 6 Peters, 431, it is laid down that to constitute a dedication there must be the assent of the owner, and the/aci of its being used for the public purposes intended by the appropriation. The case cited from 1 Camp. 210, showing that the evidence of dedication is rebutted by putting up occasionally, a bar or gate, establishes the importance of user, and shows that the user, to be effective, must be continued.
    
    Look at the consequences of the doctrine maintained on the other side. There are hundreds of plots of cities and towns laid out, sometimes in the country and at other times in the suburbs of other cities. A few lots are sold off and the city falls through. Can it seriously be maintained that the making of the map, and selling a few lots, has the effect of an actual dedication to the public, of all the streets, highways and other public grounds laid out on such map ? These paper cities are converted again into farms; but if all these public squares and streets exist, the ground is altogether useless for agricultural purposes.
    Mere user of itself must continue twenty years, in order to give a vested public interest. The degree and extent of use must, of course, be regulated by the character of the property In a public square, a liberty pole, with occasional resorts for recreation by the community, is sufficient to sustain the user. A user for a less period than twenty years will suffice, when it is accompanied with acts of the original owner, amounting to an explicit manifestation of his will to make a permanent abandonment. The shortest period of time when this has been allowed, is six years, and modern cases have found fault with that decision as too lax. This doctrine will be found illustrated and supported by authorities, in 3 Kent’s Com. 451, already referred to. It is said that dedications to public uses are exceptions to the general rule, in regard to the disposition of real property. This is true; but when we consider the cautious policy of the common law, in throwing safeguards around the disposition of real estate, it must, I think, be manifest that the relaxation to the extent laid down by Chancellor Kent, is amply sufficient.
    ISTo ease has been cited, or can be found, to show that an actual dedication to public uses has rested on mere parol declarations, or on the mere making of a diagram and sales of lots thereon, not followed with actual user by the public of the public allotments for a period of time, and that time amounting, at least, to six years.
    It is said that the public ought not to be precluded from using these public grounds, when they want them, because they may not have used them before they wanted them. But this remark, if true, is a mere begging of the question. It takes for granted, that the grounds in question are public property ; whereas, on the other hand, when user is necessary to effect the dedication, without such user they are not public property. The public sustain no injury, when they have not bought the property they may want for public use. It is further said that the fact of dedication was a question for the jury, and they had passed upon it. But the real fact was, that the jury rendered the verdict, under the charge of the Chief Justice, made -pro form a in favor of the plaintiff, with a view to bring up these legal questions before the court at bar. It is admitted on the other side, that there was in this case, no user of the premises by the public. It cannot be pretended there was any evidence!, under the signature of the original owner, manifesting a dedication, or grant, to the public, so as to satisfy the statute of frauds. What then is the consequence? The verdict was without evidence and against law.
    
    But suppose in the next place, that there had been a dedication by the original owner, of these premises to the public use for the purpose of a public market. What would be the character of such a public interest ? It would clearly belong to equity, and not law. The cases referred to in the opening argument show fully that it is a public use, over which equity has cognizance. The only common rights in real property are highways and urban pleasure-grounds, which partake of the character of highways. Post v. Pearsall, 20 Wendell 111. See also Shelford on Public Uses, published in the Law Library.
    A case in 6 Peters’ 435, 6, is cited for the purpose of showing that a dedication to public use passes the legal title. Now this case, when examined, will be found to sustain no such-doctrine. True, it states that dedications are governed by rules peculiar to the nature of the case, and that a grantee is not required. This is all true. There cannot be a grantee in the case of a common right, whether legal or equitable. But in that case, what interest thus passes? Not a legal estate, but a mere incorporeal right, cognizable at law, in the case of highways or interests of that character, as urban squares, and in other cases, under the control of equity. The legal estate either passes to a trustee, by grant, it requiring a grantee; or remains in the original owner, subject to 'the dedication. In page 436, the Justice remarks, “ In this class of cases there may be instances, contrary to the general rule, where the fee may remain in abeyance until there is a grantee capable of taking, when the object and purpose of the appropriation look to a future grantee in whom the fee is to vest.” It is only then when the object and purpose of the appropriation holes to a future grantee, that the fee is in abeyance. But even in that case, I think it must be manifest that the remark of the Justice, was inadvertently made. The fee in such case would not be in abeyance, but would abide with the original owner. In ordinary cases, a dedication to the public does not contemplate a future grantee, and when it does the estate passes to such grantee as other titles pass, by deed.
    In the above case in 6 Peters, the ejectment was brought by the legal owner against the corporation as trustees for the pub-lie. The corporation and the public enjoyed the premises for which the ejectment was brought only to the extent of the public use, and of course no ejectment would lie against them, if they had really such public use, which was in the case of ways a legal incorporeal right. But this case by no means proves, that when the public have a claim to a public use like this, they can sustain ejectment against the legal owner, when he has the exclusive possession. An ejectment cannot be sustained in New Jersey upon a mere equitable incorporeal right, though it may be in States having no court of Chancery. The case of Barclay against Howell’s lessee, 6 Peters 498, was of the same character, the Corporation being made defendants. In the case of New Orleans against the United States, 10 Peters 662, 712, the proceeding was under the civil law practice of that State, and was more properly applicable to equitable than legal rights. The court in that case considered the King of Spain as holding the legal title for the use of the City, and that this title passed in the cession, not to the United States, but to the Colony. See page 736. The relief given was upon a public equitable right, and not upon a legal title.
    I will next suppose that a dedication to the public for the use of a market, has been established, and that this use is a legal and not an equitable right. How can this corporation, even on that supposition, maintain this ejectment? It seems to be admitted on the other hand, that the original owner and his grantees have a right to use and enjoy the premises until wanted for the purpose designed, and that an injunction would issue to restrain the corporation from the use of the premises, if they should attempt to apply them to any other purpose. This would seem to be a recognition of the equitable character of this right in the public.
    We contend that an ordinance should be passed or some other official act adopted appropriating so much of the premises as may* be wanted, to the purpose of a market, before any steps can be taken to deprive the original owner or his grantee of the use and enjoyment. How are the wants of the public in this respect to be made known ? Clearly in some regular official form. It is objected on the other side, that they must recover the land first and then resolve in a regular official way, that it is wanted in wffiole or in part afterwards. But the public right, whatever it may be, depends upon the previous action of the competent authorities. No instance can be found in the books, of sales of lots according to a plot or diagram, having in it public allotments marked out, where such allotments have been held to be actual public property until an actual official appropriation thereof, in some official and regular form, by some public and competent authority, has been made. In the case of decided and continued public user for a competent time, the use is evidence óf such antecedent official appropriation.
    What then, in conclusion, is the true character of the claim against the defendant, if there be after the long lapse of time, any claim left? There is no public right of any kind. But the original owner having sold lots, and purchasers having bought upon an understanding that this plot in question should be used for market purposes, those individual purchasers have aright to have it so applied as against the original owner and his grantee, whenever the city authorities by some competent official act, shall set it apart, or so much as may be needed for the purpose, for that special object; and such grantee can claim no allowance or compensation for such appropriation. But this right and this remedy is in equity, and equity would relieve the owner or his grantee against any fraudulent or collusive appropriation of the whole where only a part should be; wanted, if such should be made.
    Such a right is in perfect harmony with the rights of the original owner or his grantee, and is reconcilable with all the evidence. The grantee can use it, till wanted for that special purpose, and can continue to use so much as is not wanted.
   The opinion of the Court, was delivered by

Nevitjs, J.

From the facts of the case it is clear, that Dey the owner of these lands in 1804, intended to appropriate the premises in dispute to some extent, to public purposes. That this iritent was carried out as far as the situation of the property and other circumstances connected with it, at that time, admitted. He caused it to be laid down as a square reserved for such purposes, and not for sale as other lots, in a map or plot of his new city which contained a delineation of the avenues, streets, alleys, and public squares which were to remaiu open for public use, church grounds &c. In his conveyance to the associates in 1805, this map is referred to as the plan or plot of the contemplated city, and this particular lot declared to remain for the uses for which it was originally appropriated. In all the subsequent conveyances of lots by the associates, this map was referred to, recognized and adopted, thereby carrying out as fax as called for, the design of the original proprietor. Although it was not in the actual occupation of the public, or perhaps in a condition to be used for a market, yet the acts and conduct of Dey and his grantees, The Associates of the Jersey Company, amounted to a dedication of it to the public for a market place. Yo particular form of dedication is necessary, 6 Peters 440, nor is it essential to the validity of a dedication, that the land shall be in the actual use or occupation of the public.

Here an important question arises, what is the nature and extent of such a dedication ? Does it extend to the fee of the land, or is it only a right in the public to its use. The plaintiff contends, that it is a dedication of the whole interest or estate of the owner; whilst the defendant insists, that if there was a dedication at all in this case, it extended to the use only and that the fee of the land remained in the associates. In support of the position assumed by the plaintiff, the counsel have referred us to the case of The City of Cincinnati v. Lessee of White, 6 Peters 431, being a leading case upon the subject of dedications. Upon a careful examination of' that case, I do not find it to maintain the doctrine contended for. The court there say, “ that the law applies to dedications, rules adapted to the nature and circumstances of the case; and to carry into execution the intention and object of the grantor and to secure to the public the benefit held out, and expected to be derived from and enjoyed by the dedication;” Id. 435, “that the public must necessarily be the only grantees, and the fee if it cannot pass to them, must be considered in abeyance until there is some legal body created by law, capable of taking it for the purpose designated.” Id. 439. This last remark if true at all, of which I entertain serious doubts, may be considered as applicable only to cases of dedication v here the legal title to the fee may be necessary for the enjoyment of the use, or for the purpose for which it was dedicated. As where lands are dedicated and directed to be sold and the proceeds applied to the erection of a church or other public building. But even in that case I should rather incline to the opinion, that the fee remained in the grantor, and that the public when enabled to take it, should appeal to a court of equity for aid in perfecting their title, in case the grantor should refuse to make it perfect, by a conveyance of the fee. But in the case before us, it seems to me by no means necessary to construe this dedication as carrying the fee of the land out of Mr. Dey, or the “ associates.” The public could enjoy the premises for the purpose intended, as fully without as with it, and I can see no difference between the dedication of this market place and the dedication of lands for public streets. They were designed only for the purposes specified and if the whole project of the contemplated city had failed, no streets, public squares, or market places, would in that case have been needed and Mr. Dey or his grantees would have remained in possession of the lands by virtue of their original title and might have disposed of them as they saw fit. But suppose the doctrine of the plaintiff is true and at some future day the inhabitants of Jersey City should by a legal and conclusive act, abandon this land for market purposes, how are the grantor’s to become reinvested with their former title, if the fee passed out of them? Will it revert by mere operation of law? I think not, and cannot doubt but that the fee of the land thus dedicated remained in Mr. Dey, till he conveyed it to The Associates of the Jersey Company and that they held it and had a right to grant it to such person and for such consideration as they pleased, and that a legal right to the possession and use of the land for the purposes intended, vested in the public, and that the defendant took his title subject to such right of possession and use.

The next question is, whether the plaintiff can maintain this action for the recovery of the possession of this land. By the act of incorporation, the lessors of the plaintiff, represent the public or the inhabitants of Jersey City, and the rights of the public in common property, are vested in them and if such rights cannot be enforced in their name they cannot be enforced at all.

But is ejectment the proper remedy, or if it is, under ordinary circumstances, can they maintain it under the circumstances of this case ? The defendant contends, that this is not the proper remedy in the present ease. 1st, Because their right is only an equitable right, and that in this action no recovery can be had against the owner of thelegal estate; and 2d, If in ordinary cases this action would lie, it cannot be sustained here until the public or the corporation have by ordinance or some public act appropriated the premises to the purpose of a market or signified their intention to do so. I do not think either of these objections well taken. Ejectment is a possessory action and if the lessors of the plaintiff are entitled to the possession, and they must be if they are entitled to the use for they are inseparable, it is a legal and not a mere equitable right, and they may recover it against the legal owner of the fee. JMor were the lessors of the plaintiffs bound to pass any such ordinance before suit brought, their right to the immediate possession did not depend upon doing so. And it would seem more proper, that they should first obtain the power of converting the land to the purposes designed, by getting the possession, than to make an appropriation while it was adversely held by another.

Rule discharged.

Cited in Smith y. The State, 3 Zab. 720; State v. Platt, 4 Zab. 117; Hopkinson v. McKnight, 2 Vr. 426 ; Trustees M. E. Church, Hoboken, v. May., &c., Hoboken, 4 Vr. 17-19-20-25; Hoboken L. & I. Co. v. Hoboken, 7 Vr. 543 ; Mor. Can. & B. Co. v. Cent. R. R. Co. of N. J., 1 C. E. Gr. 436-437; Att'y Gen. v. Mor. & Es. R. R. Co., 4 C. E. Gr. 391; Mayor of J. C. v. Mor. Can. & Bk'g. Co., 1 Beas. 553; Inhab. of Greenwich v. Easton & A. R. R. Co., 9 C. E. Gr. 221.  