
    *City of Richmond v. Poe, Trustee.
    November Term, 1873,
    Richmond.
    Dedication—Evidence of—in a controversy between tbe city of Richmond and P, the owner of a lot on F street, as to the northern line of said street, P and those nnder whom he claims haying been in possession by actual enclosure, for more than sixty years, and there being no proof of actual dedication by R, the original owner of the land, such dedication cannot be shown by proof of the existence of stones on the corners of the cross streets on the line claimed by the city; it not appearing by whom they were placed there, or that R recognized them as marking the line; nor by m aps of the ground laid off by R. copied by order of the city, from an old map in the county court clerk’s office, since lost; it not appearing that R had any knowledge of said old map; nor by the records of the proceedings of the Council of the city, reciting an acknowledgment by a previous owner of the lot, that his enclosure encroached upon the street, and giving him permission to continue it for the present.
    In June 1871 John P. Poe, trustee for Mrs. Bradley T. Johnson, applied by bill to the judge of the Chancery court of the city of Richmond, for an injunction, to enjoin the city of Richmond from proceeding to widen Rranklin street b3T extending its northern line so as lo include a part of the lot held by him as trustee as aforesaid, lying between Jefferson and. Madison streets, at the corner of the latter and Rranklin street. The ground on which he rested his claim to enjoin the city, was, that he and those under whom he claimed had been in possession up to the present line of Pranklin street, certainly since 1809. That the enclosure of this lot had been where it is now ever since that - time, and the deed *from Alexander Stuart to Wm. Price, which bears date 11th day of April 1809, and was executed at that time, though not recorded until June 1815, under which the plaintiff claims, conveyed the lot as one-half acre, “as the same is now enclosed,” “it being the same lot on which the said Price now resides.”
    Notice of the application having been given to the city authorities, an answer was filed for the city. The ground taken by the city was, that Franklin street had been laid out long before the deed of Stuart was executed, and that it was of the uniform width of 'sixty-five feet four inches, from ninth street opposite the capitol square, to what was the western limits of the city at the date of Stuart’s deed; and that such is now its unobstructed width for that distance, except along the three squares from Poushee to Madison streets, as is shown by the oldest maps and surveys of the city, made by its authority and under its direction.
    It was further stated, that as appeared by certain proceedings before the council of the city, in the latter part of the year 1845, Charles Palmer and others, who were then the owners of these lots, sent in a petition to the city council, respecting the north line of Pranklin street from Poushee street west, in which they admitted they encroached on Pranklin street, and that a part of said street was embraced within their enclosures; and praying the council not to require them to take down their enclosures, and withdraw them to the proper line of Pranklin street. And the council upon their petition, granted the owners of the lots permission to retain their enclosures undisturbed for the present; and this was accompanied with the resolution, that nothing therein contained “shall be construed into a surrender by, the city council of any portion of Pranklin street as laid out and defined by the certain corner stones aforesaid, making *the said street in all its parts sixty-five and one-third feet wide.”
    The controversy in this case relates to Pranklin street and a lot lying within what is known as Rutherford’s addition to the city. All the land west of first and south of Broad streets, extending south beyond Canal street and west beyond the city limits, was owned by Thomas Rutherford, who laid it off in streets and squares; the squares containing each four half-acre lots. The streets running east and west were extensions of the streets of the city, as Grace, Pranklin, Main, &c. The cross streets running south and north, were, beginning from First and running west, named Poushee, Adams, Jefferson and Madison. About 1795 Mr. Rutherford built a house on the lot at the north-east corner of Pranklin and Adams street; and he lived in this house until his death in 1851 or 1852.
    It was proved by two witnesses, that the plaintiff’s enclosure on Pranklin street was on the same line that it' was sixty years before. It was there when they first knew the lot, and the knowledge of one of them went back to 1810, and the other nearly as long; and a thirid witness not so old as the others, but who had been in the city and had known the lot ever since he was old enough to notice such things, expressed the opinion that no change had been made in the location of the enclosure on Pranklin street since he had known the lot.
    The city introduced a plat of Rutherford’s addition to the city, made in 1835 by Micajah Bates, the surveyor of the city, copied, as stated on its face, from a map then in the clerk’s office of Henrico county court, but now lost, which laid down Franklin street as of the same width of sixty-five feet four inches, from Ninth to Madison streets; but there was no proof, except the necessity of such a map, for his purposes, to connect Mr. Rutherford *with it. There was proof also of stones on Adams and Madison streets, on the line of what the city claimed to be the north line of Pranklin. These stones had been in their present position a long time; but it did not appear who placed them there.
    The proceedings of the council in 1845, referred to in the answer of the city, were before the court; but the petition of the property owners was not to be found. These proceedings recited the reception of a petition from tlje property owners, and referred it to a committee. This committee reported, recommending the adoption of certain resolutions,. by which the true boundarjr of Pranklin street, as called for by the stones before mentioned, and making it sixty-five and one-third feet wide, was declared; that the petitioners were declared to have admitted their encroachment on Pranklin street; and giving them leave to retain their enclosures as they were for the time; but with the proviso stated in the answer. And these resolutions were adopted by the council:
    There was no doubt that the north line of Pranklin street, if continued straight from ninth to Madison street, would throw into the street a few feet of ground from Poushee to Madison streets.
    The cause having been set for hearing, came on to be heard on the 31st of October 1871, when the chancellor—Fitzhugh—delivered his opinion as follows:
    This is an application for an injunction to restrain the authorities of the city of Richmond' from taking a portion of the lot of the plaintiff, at the corner of Pranklin and Madison streets, for public use, as a part of Pranklin street, except after proper legal condemnation of the same.
    The city has answered the bill, and claims the right to have Pranklin street of the uniform width of 65 feet *4 inches; and that it was so laid out and established long prior to the deed under which the plaintiff claims. That the records showing its establishment have been destroyed, but the oldest map of the city now extant, traces the street to the western limits of the city as of that uniform width. That three stones which are old land marks, show the same thing, and that so much of the plaintiff’s lot as is necessary to make Franklin street of the uniform width aforesaid, and which is now embraced within his enclosure and fence, constitutes a part of that street, and to that extent is an encroachment on the street of the city. And that it will appear from certain proceedings before the council of the city in November, 1845, that the owners of lots on the north side of Franklin street in that part of the city, and among others Charles Palmer, who then owned the lot in controversy, sent in a petition to the city council, respecting the north line of Franklin street from Foushee street west, in which they admitted that they encroached on the street, and that part of it was embraced within their enclosures ; but praying the council not to require them then to take down their enclosures and withdraw them to the proper line of Franklin street. That the council granted the prayer of the petition and permitted the enclosures to stand as they then were, “for the presentbut with the distinct declaration, that nothing in , that permission should 1 ‘be construed into a surrender by the city council of any portion of Franklin street, as laid out and defined by the corner stones” before referred to, making the said street in all its parts 65%feet wide.
    That the said petition has been lost, but its substance and purport can be easily gathered from the proceedings of the council. And the city insists that the present owners of these lots are estopped from denying that 65 feet 4 inches is the true width of Franklin street.
    *It seems that Thomas Rutherford, in 1794, purchased of Buchanan the parcel of ground now known as Rutherford’s addition to Richmond, and afterwards laid it out into lots with squares and streets. It is not known when this was done; but perhaps it was soon after Rutherford built his own house, in which he resided until his death, in the year 1795; and it is probable the lots were laid out about that time. Afterwards Mr. Rutherford conveyed the lot in question to Alexander Stuart, by a deed, the date of which is unknown; and Stuart and wife, by deed dated in 1809, recorded in 1815, conveyed it to William Price for life, with remainder in fee to Sarah Price, his wife. She devised it to Charles Palmer for life, with remainder in fee to William P. Palmer.
    Charles Palmer died in 1867, and it then passed to William P. Palmer, who conveyed it in 1869 to Bradley T. Johnson, and he to the plaintiff.
    It appears that Franklin street has never been wider at the point opposite this lot than it now is. The enclosure binding on the present line of the street, have been where they now are for more than sixty years; and during that whole period of time the strip of land fronting on Franklin street, now claimed by the city as a part of the street, has been uninterruptedly i a the actual occupation and possession of its several owners. It has been enclosed, and the deed from Stuart and wife to Price and wife in 1809, calls for “one half acre lot of ground as the same is now enclosed. ’ ’ And Mr. Drew testifies that the fence stands now where it did sixty years ago. And it is clear, from the testimony, that Franklin street, from Foushee to Madison streets, remained at its present width from at least 1805, and most probably from about 1795, when Mr. Rutherford built his house at the corner of Adams and Franklin streets, until his death, which occurred in 1851 or 1852; that is, *for a period of from 50 to 55 years. And during all that time he must have known, not only that Stuart and other parties to whom he had sold lots, had encroached upon the street, if the claim of the city be just, but that he himself was in the occupancy of ground to which the public had a right as a street, and which he had appropriated for that purpose.
    I think there can be no question that Franklin street, in its present width at the points above indicated, was dedicated as a street by the owner of the land; for he had opened it and sold lots to third parties abutting upon it; and there have been so many acts of control by the city, and it had been used as a street by the public so long, that the use sufficiently evinced its acceptance by the public. The intention and acts of dedication concurring with the acceptance on the part of the public, made the dedication complete. Washburne on Fas. top p. 188-9, Marg. pp. 139, 140.
    But the claim of the city to the strip of ground on the north side of Franklin street, presents «. different question. It is one having reference to the extent of the dedication. Did Thomas Rutherford ever dedicate more land to a public use than is shown by the present boundaries of Franklin street, between the two points in which it is narrower than 65 feet 4 inches? In other words, did he ever dedicate the strip of ground in controversy to a public use?
    To constitute a dedication of land to a public use, there must first be an intention to do it on the part of the owner; and this must be unequivocally and satisfactorily proved. The intention may be manifested by writing, by declaration, or by acts. Washburne on Eas., Marg. p. 133, top p. 180. If not in writing, the acts and declarations of the land owner, indicating the intent to dedicate his land to the public use, must be unmistakable *in their purpose, and decisive in their character, to have that effect. Harris’ Case, 20 Gratt. 833.
    The city, to maintain that there was a dedication of this strip of ground, relies upon some stones which had been set up as landmarks, upon certain maps, all of which show that Franklin street was of the uniform width of 65 feet 4 inches, and upon admissions claimed to have been made by the owners of this and other lots, where the encroachments are alleged to exist, recognizing the right of the city to a street 65 feet 4 inches wide; and further, that it is shown by a survey of the lot in question, that the plaintiff has half an acre, which is all his deed calls for, after taking off the strip of land in dispute.
    1. As to the land marks: Mr. Pleasants speaks of some old stones on the south side of Franklin' street at Monroe and Henry streets, and an old stone now standing on the north side of Franklin street and the west side of Madison, (adjacent to the lot in controversy,). 65 feet 4 inches from the south line of Franklin street at that point. It is not known when they’ were originally placed where they are, nor by whom; but Mr. Pleasants supposes by Thomas Rutherford, as some of his deeds call for stones at the corner of his squares. Mr. Pleasants has only known them since 1845, and he says that at the corner of Madison and Franklin streets was an old one then. But who placed them where they are, whether Rutherford or the city, or whether by the joint action of the two, is now' matter of conjecture; there is no proof on the subject. If by Rutherford, ór by him and the city, before any conveyance by him to a third party, it was an equivocal act on his part. For though taken by itself it would amount to strong evidence of an intention to dedicate the 65 feet 4 inches as a street; yet when he held on to this strip of land throughout the *whole of his addition from Foushee -to Madison street, embracing a part in front of his own house, and afterwards permitted those to whom he sold to do the same thing without objection or complaint for so long a series of years, it would seem to negative the idea of a dedication of that strip of ground *as a part of the street. For the .simple planting of a land mark, assuming that he did it himself, without a' surrender of the land, would not amount to a dedication. On the other hand, .if it was planted by Rutherford, after his sale of the lot in question to Stuart, and the latter had enclosed it and held it under Rutherford’s deed, it would have been too la-te for Rutherford to dedicate it as a street ; for he could not appropriate Stuart’s land to that purpose; and there is no evidence that Stuart or any subsequent owner had any thing to do with placing the stone where it is. But the absence of proof when it was placed where it is, and by whom it was so placed, and especially the absence of proof that Rutherford had any thing to do with it, and the positive proof that it has never formed any part of the street, and that it has been enclosed and' held as it now is for upwards of 50 years during Mr. Rutherford’s lifetime, without complaint on his part, create a very strong presumption against a dedication by him, and certainly is wanting in that unequivocal, unmistakable and decisive character of proof which it has been seen the law requires to establish a dedication.
    2. As to the maps. It seems from the testimony of Mr. Pleasants, that a copy of a map of Rutherford’s addition was in the city engineer’s office, purporting to have been made by Micajah Bates, city surveyor, in November 1842, from a copy on file in the clerk’s office of Henrico county court. Mr. Pleasants never saw the original. It is not to be found in the regular book of records of plats. There is no evidence .of any sort that *it was ever ordered to be recorded. Pleasants thinks it must have been filed loose and has been lost. There is no evidence, either, when or by whom it was filed, or that Rutherford had any thing to do with it. Bates certifies his copy to be “a copy of a plat of Rutherford’s addition to the city of Richmond, taken from a copy filed in the office of the clerk of Henrico county court. ’ ’
    If the paper filed with Mr. Pleasants’ deposition be a true copy of the original, the presumption is that the paper from which Bates made his copy was itself made long after Rutherford’s addition had been laid out; for, among other things of subsequent date, it has reference to Gwathmey’s lot, and the deed to him is dated in July 1817. Mr. Pleasants, however, suggests that Bates’ copy may have been made for a specific purpose. See his certificate at the bottom of the map. And it maybe that these subsequent matters found on Bates’ copy were not in the original, and they may have been inserted on Bates’ copy after it was made. But this is all conjecture now; for Mr. Pleasants says he never saw the original, and it is lost and cannot be produced. It is claimed for the city, in argument, that Bates’ map is a copy of an ancient document too old to be proved by living memory, but found in its proper place of deposit; and that it shows Franklin street to be 65 feet 4 inches wide, and is entitled to great weight as one of the evidences of the intention of Rutherford to dedicate to public use a street of that width. But in order to have effect as evidence at all, it must be cotemporaneous with the transaction to which it relates, must be genuine, and must come from the proper custody. See 1 Greenl. Fv., I 142. Now, in view of the remarks just made, there is room for grave doubt as to whether the map in the clerk’s office was cotemporaneous with the laying out of Rutherford’s plan.
    And also whether it came from the proper place of deposit. *If it had been recorded, the clerk’s office would have been the proper place of deposit for the record, but it was not; and therefore the proper custodian of the loose paper, if it was an authentic and genuine original map, would have been Mr. Rutherford. But there is no evidence that he ever saw it. He lived until 1851-’52, a date so recent, that there are doubtless many living witnesses of transactions with him in regard to property in his addition, who could testify to his use of this map or plan, or to his knowledge of its existence, if such had been the fact. And. these doubts are strengthened by the fact to which Mr. Pleasants testifies, that in the deeds made by Mr. Rutherford for property in his addition, the calls are generally for the streets, occasionally for stones at the corners of the squares, but never in any instance for a map or plan.
    From the testimony, I have no doubt that Bates’ copy and that he found in the clerk’s office, were generally accurate maps of Rutherford’s addition, with the exception of the strip of ground in controversy. But there is great doubt whether the paper in the clerk’s office was made from a survey of the ground, after it had been staked off and partially improved, or whether it was the original plan or paper from which the ground itself was subsequently laid out as it now is; too much doubt, to authorize a court to dispossess a man of his property of which he and those under whom he claims have been in actual adverse possession for over 60 years. On this subject see Missouri v. Kentucky, 11 Wall. U. S. R. 395, 402-3, 410.
    It seems there have been three maps of the city made in which Rutherford’s addition is embraced; one by Young in 1809, or about that time; another by Bates in 1835, and a third by Pleasants in 1845; and in all of *them Franklin street, through Rutherford’s addition, is of the uniform width of 65 feet 4 inches.
    But these maps are not entitled to much weight as evidences of Rutherford’s intention to dedicate a street of that width, when they stand confronted by the uninterrupted adverse possession of those under whom the plaintiff claims, and of Mr. Rutherford himself, from a period anterior to the date of the oldest map, and when the city itself acquiesced quietly in their possession, so far as the record shows, without objection or claim until 1845; that is, for over 35 years. In Poole v. Huskinson, 11 Mees. & W. R. 827, cited in Harris’ Case, it is said a single act of interruption by the owner is of much more weight upon the question of intention than many acts of enjoyment on the part of the public; the use without the intention to dedicate it as a public way, not being a dedication. If a single act of interruption will produce such an effect, the continued possession by the owner of the land, and the absence of all use or enjoyment by the public, should be absolutely conclusive on the subject. It is upon this ground of want of intention to dedicate it to the public, that no man ordinarily loses his right to enclose a strip of land lying between his buildings and the highway, though suffered to remain open for ever so long a period of years. Wash, on Fas., top p. 184, Marg. 135.
    But in this case the ground was enclosed, and there was adverse possession for over 35 years, acquiesced in by the city; and this would have destroyed the right of the city, if it ever existed. Idem, p. 642, Marg. p. 553, citing Yeakle v. Race, 2 Whart. R. 123.
    For these' reasons I am of opinion that neither the land marks, nor the maps, nor all combined, furnish ground up to the year 1845, upon which the court can dispossess the plaintiff of his ground, which it will in effect do if the injunction be refused. *3. The consideration of the question whether any acts or admissions have been done or made which during the year 1845 or since give to the city a title to the strip of land in question as a street, brings me to the consideration of the third point.
    Mr. Pleasants says that he used the stone at the corner of Madison and Franklin streets as giving the line for the curbstone on Franklin street in 1845; and while he was engaged in giving the curb line on the north side of that street, between Adams and Madison streets, in 1845, the property-holders between these points discovered that there would be a very narrow footway, if any, between their enclosures and the curb ; and upon their application the council directed the curb to be placed where it now is.
    This seems to have been the cause which induced the property-holders between these points to present a memorial to the city council on the subject.
    The memorial is lost, and the only evidence of its contents is a recital contained in an order of council of Nov. 10, 1845 referring it to the commissioners of .streets to examine and report. That recital represents it as a memorial ‘ ‘from Charles Palmer and others, owners of lots on Fra nklin street west of Foushee street, requesting that the existing width of the said street may be established as its legal width, and the enclosures and trees on the north side thereof permitted to remain undisturbed in (he improvement of said street. ’ ’
    On the 13th November 1845, the commissioners of streets made their report, and recommended the adoption of the following preamble and resolution:
    The committee to whom was referred from the city council, the memorial of Charles Palmer and others respecting the north line of Franklin street, from Foushee street west, having duly considered the same, unanimously *adopted the following preamble and resolution, which they direct to be reported to the council, and recommend to its adoption :
    Whereas, the owners of lots on the north side of Franklin street, from Foushee street westward, acknowledge the encroachment on the street by fences and trees, as indicated by the corner stones there fixed, as the true line and bounds of the streets and lots; and whereas, the removal of the same at this time would materially interfere with the convenience and comfort of the owners, without present adequate advantage to the city at large, and also to preserve the uniformity of the line of enclosures; therefore:
    Resolved, That in laying down the line of curb stones on the north line o f Franklin street, the same shall be continued from the present curb as fixed on the northeast of Franklin and Foushee streets, a straight line to a point fourteen feet »six inches, south of the corner-stone on the north-west intersection of Franklin and Adains streets; and thence a straight line to a point twenty feet six inches south of the corner-stone planted at the north-east corner of Franklin and Madison streets; but nothing contained in this resolution shall be construed into a surrender by the city council, of any portion of Franklin street, as laid out and defined by the corner-stones aforesaid, making the said street in all its parts 65% feet wide:
    And on the 17th of November, 1845, the preamble and resolutions were adopted by the council.
    To enable the city to acquire a title to the use of the strip of land in question, as a part of the street, it is incumbent upon it to show that the right was acquired either by condemnation on the part of the city, or grant or dedication on the part of the owners and acceptance by the city, or by contract between the owners and the city.
    *In the view I have taken of this case it has been seen, that from the evidence now in the record, no right to it had been acquired by the city up to 1845; and the question remains to be determined whether, upon the facts just stated, the city had acquired such a right during or since that year, in either of the modes just announced.
    It is riot pretended that the land was ever condemned, and there has been no express grant or' contract in writing between the parties', unless the memorial and the preamble and resolution adopted by the city council can be construed- to . be such a contract, or the' admission of a previous contract or dedication.
    It will be observed from the recital made by the city council, of the memorial, that there was no acknowledgment in it of any pre-existing right in the city to this ground, nor to any willingness on their part to grant or dedicate it to the city; on the contrary, they evinced a desire to retain the undisturbed possession of their property as it was then enclosed; for their prayer was, that the then existing width of the street might be established as its legal width, and the enclosures and trees permitted to remain undisturbed in the improvement of the street.
    They did not wish to have the curb-stone so placed as to leave them no sidewalk or footway or one too narrow, or that the city should exercise its undoubted right to condemn so much of their ground as would be sufficient for a footway. Mr. Pleasants says Mr. Samuel Taylor, who owned a part of the'ground, told him he would make no claim 'to that part within his enclosure which the city claimed, when the city required him to move his enclosure back. But this admission is not binding on the other property-holders, nor upon himself, if made *withóut full knowledge of the facts affecting his rights in the premises.
    The sole ground upon which the city places its right, so far as it is claimed under the proceedings of the council in 1845, is upon the report of the street commissioners stating that the owners of lots on the north side of Franklin street westward from Foushee street, acknowledged the encroachment on the street by fences and trees, as is indicated by the corner-stones there fixed as the true lines and bounds of the streets and lots. And that the granting of the prayer of the memorial should not be construed into a surrender of any portion of the street as laid out and defined by the corner-stones making the street 65% feet wide in all its parts.
    This is the only evidence of such an acknowledgment. Is this sufficient to fix a litle in the city?
    It is argued on behalf of the city, that the books which contain the official proceedings of corporations and matters respecting their property, if the public at large is concerned with it, are admissible as evidence of municipal acts; and the counsel of the city cites 1 G-reanl. Ev. sects. 484-493.
    This is true as to municipal acts of a public nature relating only to persons under its government; but it is not applicable to strangers, nor I suppose, to corporate acts affecting private rights. See Wilcock on Municipal Cor., Marg. p. 343. Corporation books containing an account of the privileges or public transactions of the body are evidence in a suit between the several members. But they are not evidence in favor of a corporation to support a claim of right against a stranger; as where a right to certain tolls is claimed by a corporation, entries in the corporation books respecting payments made by individuals in former times are not admissible on the *part of the corporation, against a party who contests the right to tolls; for such entries relating to the private interests of the corporation and being of a private nature cannot be evidence for the party to whom the books belong. 1 Phil. Ev. 422.
    Municipal corporations in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly. Bailey v. Mayor of New York, 3 Hill’s R. 54. Now in this case the acknowledgment reported to have been made by the owners of the lots was their private act, and the report of the acknowledgment and recording of the same on the corporation books did not divest it of that character, or stamp it as a municipal act of such a public character as to make it evidence in favor of the corporation.
    The corporation was dealing with persons in relation to land in their possession. If it had no title and wished to acquire one by private contract it was just as necessary for the corporation to have some writing as it was for an individual. And on the other hand, if it set up a claim which they acknowledged, it was not more in the power of the corporation to make the acknowledgment evidence by recording it on their official journal of proceedings than a private individual could. For neither has it in their power, as to such matters, to manufacture evidence in their own behalf; which would be the case if such a record by a corporation could be used for that purpose. And although the high character of the gentlemen composing that commission at that time precludes the idea of any unfair dealing in the present case, yet that does not affect the legal principle. And in my opinion it is as incumbent on the corporation to prove such an acknowledgment independently of their own books, as it is on a private individual.
    * Again, the property-holders are said to have acknowledged that they encroached on the street. Concede ex gratia, that they did make such an acknowledgment. According to the view I have taken of this case there never was an encroachment, and the acknowledgment being made in ignorance of their rights would not have given rise to an estoppel. See Smith’s Beading C. top 753, 757, edition of 1866. Where there was a transaction between two co-terminous neighbors who differed about their boundaries, and there was no promise to convey, nor any contract between them, but merely an acknowledgment by one of them of the right of the other to the land, he will not be bound by such acknowledgment if afterwards he finds himself mistaken. 2 Bomax Dig. Marg. p. 68; Stuart v. Buddington, 1 Rand. 403. As to the quantity conveyed, I think the conveyance to Stuart and the subsequent conveyances were in gross for the quantity within the enclosures and not a conveyance by the acre.
    Upon the best consideration of the whole case, I am of opinion that the injunction should be awarded.
    The landmarks, the maps, and the proceedings before the council combined, leave so much to conjecture, and the possession of the plaintiff, and those under whom he claims, has been so long, that I do not think a court would he justified in refusing the injunction. And that so much is left to conjecture, is owing, perhaps, to a want of proper diligence on the part of the city authorities in bygone years in protecting its rights, if it ever had any, to this ground. And now, although it may be the misfortune rather than the fault of the present generation, that the long lapse of years has deprived it of full evidence in regard to these transactions, during which a former generation might have established whatever rights the city had, and did not, it is a misfortune *to which the plaintiff in no way contributed, and the consequences should not he visited on his head.
    As to the question of jurisdiction, see Washburne 668, Marg. p. 575-6; 2 Story E)q., sect. 929; Render v. Jones, 17 Ves. R. 110.
    As to security in bond, see Bomax v. Picott, 2 Rand. 266, and sect. 10 Code, ch. 179, p. 737.
    In pursuance of this opinion the court made a decree that the city be perpetually enjoined and restrained from taking, or otherwise interfering with, the property of the complainant, in the bill mentioned, for the purpose of widening Pranklin street, unless, and until, the defendant, the city, shall acquire the legal right to do so in the manner prescribed by law. Prom this decree the City of Richmond applied to this court for an appeal; which was allowed.
    Page, for the appellant.
    Ropalt, for the appellee.
    
      
      Dedication—Evidence of.—See on this point, Skeen v. Lynch, 1 Rob. 186; Harris v. Com., 20 Gratt. 833; Taylor v. Com., 29 Gratt. 780; Colbert v. Shepherd, 89 Va. 401, 16 S. E. Rep. 246; Buntin v. Danville, 93 Va. 200, 24 S. E. Rep. 830; Taylor v. Philippi, 35 W. Va. 554, 14 S. E. Rep. 130; Teass v. St. Albans, 38 W. Va. 1. 17 S. E. Rep. 400; Pierpoint v. Harrisville. 9 W. Va. 219; Wheeling v. Campbell, 12 W. Va. 63, citing the principal case; Yates v. Town of Warrenton, 84 Va. 337, 4 S. E. Rep. 818, 10 Am. St. Rep. 860: City of Richmond v. Stokes, 81 Gratt, 713; Talbott v. R. & D. R. R. Co., 31 Gratt. 685; Norfolk v. Nottingham, 96 Va. 34, 30 S. E. Rep. 444.
    
   Moncure P.

delivered the opinion of the court.

This is an appeal from a decree of the Chancery Court of the city of Richmond rendered on the 31st day of October 1871, perpetually enjoining the said city from taking, or otherwise interfering with, the property of the complainant in the hill mentioned, for the purpose of widening Franklin street; unless, and until, the defendant shall acquire the legal right to do so in the mode prescribed by law.

The said property consists of a narrow strip of land lying on the north side of Franklin street, between Jefferson' and Madison streets, inside of the complainant’s enclosure; and which has been within the enclosure of the complainant, and of those under whom he claims, continually for more than sixty years last *past; of which the city has never had the possession or enjoyment, for any purpose, for a single instant; but which it claims to be entitled to as a part of Franklin street, under an alleged dedication thereof, made more than seventy years ago, by Thomas Rutherford, in his addition to the city of Richmond. The learned chancellor who decided the cause in the court below, delivered at the time a very able opinion, which is referred to in the decree appealed from, and thereby made a part of the record in the cause. That opinion covers the whole case, and strongly presents the principles on which it rests; and as we entirely concur in it, we deem it sufficient to express such concurrence, without adding anything to what is there said, or saying substantially the same thing in different words.

Therefore, for the reasons assigned by the chancellor as aforesaid, we are of opinion that there is no error in the said decree and that it ought to he affirmed.

Decree affirmed.  