Cunningham v. Hendricks

NewMAN, J. Whether there was a dedication of the locus in guo to the public for a highway is purely a question of the intention of the owner of the lands, for dedication must rest on the clear intention of the owner of the lands to make such dedication. If the intent to dedicate is absent, there is no valid dedication. Bushnell v. Scott, 21 Wis. 451; Buchanan v. Curtis, 25 Wis. 99; Cahill v. Layton, 57 Wis. 600; Lawe v. Kaukauna, 70 Wis. 306; Irwin v. Dixion, 9 How. 10; Chicago v. C., R. I. & P. R. Co. 152 Ill. 561; Elliott, Roads & S. 92. The intention to dedicate must be made to .appear clearly. It may be made to appear by deed or by parol, by words or by acts. Rut it cannot be made to appear with sufficient certainty by either words or acts which are themselves equivocal or' ambiguous. If by acts, they must be such acts as are inconsistent and irreconcilable with any construction except the assent of the owner to such dedication. Irwin v. Dixion, supra. [635] Here no declaration of the owner showing an intent to ■dedicate is shown or relied on. It is the act of Armstrong in fencing the road clear through, so as to make it a thoroughfare, and its use by the public, which are chiefly relied on. The fencing out of the road, if really the work of the owner of the land, might well be quite suggestive of an intention to dedicate. But it is much less so when it is ■considered in connection with that evidence which shows it to have been the work of Armstrong and without the knowledge or assent of Pease. It then suggests quite the contrary. It .then seems to show that Pease, while willing that Armstrong should have a private way fenced out for access to the land which he had sold him, was unwilling to give a highway to the public. His statement to Armstrong that he would not give a highway, and his direction to Hoffman to fence it up, are altogether inconsistent with any ■such purpose. The fact that the overseer of highways and the supervisors of the town, a year later, debated whether it was a highway, seems to argue the absence of a clear act of dedication. These facts were all competent as evidence upon the question of the intention of Pease to dedicate. Bushnell v. Scott, 21 Wis. 451; Lawe v. Kaukauna, 70 Wis. 306; Irwin v. Dixion, 9 How. 10. On the entire evidence, it is not only not clear that Pease intended to dedicate a highway and opened and fenced a thoroughfare for that purpose, but the contrary is quite clear. He neither had the intention to dedicate nor opened the thoroughfare. And this is the only act of dedication claimed. The evidence falls short of showing, either clearly or by a preponderance, that Pease intended' to dedicate a highway. If there was no intention to dedicate, the public gets no rights by user. Buchanan v. Curtis, 25 Wis. 99. At least, orot by user of less than ten years’ duration under sec. 1294, R. S. And it is quite immaterial that highway taxes were [636] expended upon it. State ex rel. Lightfoot v. McCabe, 74 Wis. 481. It is not intended to deny that there can be a valid dedication of a highway contrary to the intentions of the landowner. Doubtless, there may be circumstances which establish a dedication on the principle of estoppel. The public has a right to rely upon the conduct of the owner, as well as upon his declarations, as indicative of his intention. If the open and known acts of the owner are of such a character as to naturally induce the belief that he intended to dedicate a way to the public use, and there was nothing to explain or qualify such acts, and the public acted upon such appearance and would lose valuable rights if the owner was allowed to reclaim the land, in such a case it might well be held that there is a dedication, notwithstanding a secret intent of the owner not to dedicate. But the acts from which such dedication is to be inferred must be unequivocal and unexplained, and must be the acts of the owner himself or authorized by him. To illustrate: If, in the instant case, the thoroughfare had been opened and fenced by the order or with the assent of Pease, the owner of the land, without explanation of his purpose, or restriction, the 'case would then present some of the elements of dedication by estoppel. Elliott, Roads & S. 92; Wilder v. St. Paul, 12 Minn. 192. The verdict is clearly against the weight of the evidence. The motion for a new trial should have been granted. By the Oowrt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.