Irwin v. Dixion. 9 H.

Bridge, 21 Pick. 344; Stetson v. Faxon, 19 Pick. 147, 511; 1 Penn. St. R. 309; 6 Johns. Ch. 439; City of Georgetown v. Alex. Can. Co. 12 Pet. 97, 98; 2 Ld. Raym. 1163; O'Brien's case, 17 Conn. 372; and Bigelow's case, 14 Conn. 565; 3 Daniell, Ch. Pr. 1858; Spencer v. London and Birm. R. R. Co. 8 Sim. 193; and Sampson v. Smith, ibid. 272; 12 Pet. 98; 18 Ves. 217; 2 Johns. Ch. 382.

In cases of injury to individual rights by obstructions or supposed nuisances, an injunction is still less favored, and does not lie at all permanently, in England and most of the States, unless the injury is not only greater to the complainant than to others, and of a character urgent and otherwise irremediable at law, but the right or title to raise the obstruction is not in controversy, or is first settled at law. See cases hereafter. When all these prerequisites exist, an individual, rather than only a public officer, has been allowed in chancery to obtain a perpetual injunction, though for a supposed public nuisance. 2 Stor. Eq. Jur. 924; 6 Johns. Ch. 439. But it is better for him, whether the nuisance be public or private, when the injury is not great and pressing, to resort for redress to a private action at law; and such, though not the only course, is the one most appropriate and safe. See same cases, and others in Bac. Abr. Nuisances, B; Wynstanley v. Lee, 2 Swanston, 337. In this last case, much like the present, an injunction was refused. So Attorney-General v. Nichol, 16 Ves. 339; and Wilson v. Cohen, 1 Rice, Ch. 80. One reason for this is the peculiar damage to him beyond that to others, which must be proved, when the extraordinary remedy by injunction is sought in his name, either for a private or public nuisance. Another is, the great, pressing, and otherwise irremediable nature of the injury done, which must also be then proved, and which is not entirely without doubt in the present case.

But more especially is this form of remedy not expedient to be adopted, unless indispensable from the character of the damage, as an individual is not, in point of law, allowed at first any thing but a temporary injunction to preserve the property uninjured till an answer can be filed admitting or denying the right of the plaintiff, and, if doing the latter, till a trial at law can be had of that right, when desired by the defendant, or deemed proper by the court. And when the right or title to the place in controversy, or to do the act complained of, is, as here, doubtful, and explicitly denied in the answer, no permanent or perpetual injunction will usually be granted till such trial at law is had, settling the contested rights and interests

*

of the parties. *2 Swanst. 352; 2 Johns. Ch. 546, in John- [ 29 ] son v. Gere; Storm v. Mann, 4 Johns. Ch. 21; Akrill v. Selden, 1 Barbour, 316; Crowder v. Tinkler, 19 Ves. 622; Weller v.

Irwin v. Dixion. 9 H.

Smeaton, 1 Cox, 102. See Perry et al. v. Parker et al. 1 Woodb. & Minot, 280; 2 Story's Eq. Jur. §§ 927, 1479; 1 Ves. Sen. 543, Rider's case; 6 Johns. Ch. 46; 3 Daniell's Ch. Pr. 1850 and 1860; Woodworth v. Rogers, 1 Railroad Cas. 120; 19 Ves. 144, 617; Bac. Abr. Injunction, A; Anonymous, 1 Bro. C. C. 572; 3 Merivale, 688; 1 Bland, Ch. 569; 1 Vernon, 120-270; Ambler, 164; Drewry on Inj. 182, 238; 17 Ves. 110; 8 Ves. 89; 2 Bro. Ch. 80; 2 Ves. 414; 7 Ves. 305; Birch v. Holt, 3 Atk. 726; 3 Johns. Ch. 287; Higgins et al. v. Woodward et al. 1 Hopkins, 342; Attorney-General v. Hunter, 1 Dev. Eq. 12; 8 Sim. 189; 14 Coun. 578; Hilton v. Granville, 1 Craig. & Phil. 283; and Harman v. Jones, ibid. 299, 302; Ingraham v. Dunnell, 5 Met. 126; 6 Pick. 376; Wynstanley v. Lee, 2 Swanst. 333; Yard v. Ford, 2 Saund. 172; Birm. Can. C. v. Lloyd, 18 Ves. 515 and 211. The true distinction in this class of cases is, that, in a prospect of irremediable injury by what is apparently a nuisance, a temporary or preliminary injunction may at once issue. 1 Cooper's Sel. Cas. 333; Earl of Ripon v. Hobart, 3 Mylne & Keen, 169, 174– 179; 6 Ves. 689, note; 7 Porter, 238; Hart v. Mayor of Albany, 3 Paige, 213; Shubrick v. Guerard, 2 Dessaussure, 619; 1 Craig. & Phil. 283; 4 Simons, 565, in Sutter's case. But not a permanent or perpetual one till the title, if disputed, is settled at law. 1 Paige, 97; State v. Mayor of Mobile, 5 Porter, 280, 316. See authorities last cited. In some of the States it is understood that the practice in this last respect is otherwise. In the celebrated case of Osborn v. The United States Bank, 9 Wheat. 738, it will be seen that the answers (742, 743) did not deny the title of the plaintiffs, and the chief justice says (858): "The responsibility of the officers of the State for the money taken out of the bank was admitted." But a case entirely in point on this difficult question in this tribunal is The State of Georgia v. Brailsford et al. 2 Dall. 406-408. There, a temporary injunction issued, not to pay over money "till the right to it is fairly decided." And on an issue to a special jury, the trial was had before a final decision was made on a permanent injunction. 3 Dall. 1 and 5. This condition of things as to the form of the remedy adopted here, where the damage was so small and the right was in controversy, is very unfavorable to the correctness of the final decree in the court below, awarding a perpetual injunction to the plaintiffs on their private account, and more especially so far as it rested on any private rights to any part of the open space.

[ * 30 ]

*

But beside these objections to the course of proceeding followed in this case, the chief foundation for relief of any kind, which is set up here, seems to fail. It is the allegation and decree that a public highway exists in front of the warehouse of the

Irwin v. Dixion. 9 H.

plaintiffs. This seems to us unsupported by the evidence and the law.

There is no claim that such a highway was ever legally laid out by the city or county of Alexandria. But the plaintiffs in the court below rely for its existence chiefly, if not entirely, on a user of it by the public as a highway for more than thirty years. The counsel for the plaintiffs have placed it in argument, as is one ground in the amended bill, on the principle that it showed a dedication of the locus in quo to the public for a highway, as well as furnishing presumptive evidence, not rebutted here, of a title in the public of a right of way there by long user. First, as to the dedication. It is true that this may at times be proved by a use of land, allowed unconditionally and fully to the public for a period of thirty years, or even less. Cincinnati v. White, 6 Pet. 431; 22 Pick. 78-80. In Jarvis v. Dean, 3 Bingham, 447, the public use had been only four or five years, but with the owner's assent. See also 6 Pet. 513. "Such use, however," says Justice Thompson, in 6 Pet. 439, "ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment;" and if the time of the use by the public be long, as, for instance, over twenty years, and unexplained, the presumption is strong for a dedication. McConnell v. Trustees of Lexington, 12 Wheat. 582; 3 Kent's Com. 445; 6 Pet. 513; 10 Pet. 718.

There is, then, no difficulty here in deciding that the length of time of the user was enough, it having been twenty or thirty years.

But the dedication must also be under such circumstances as to indicate an abandonment of the use exclusively to the community by the owner of the soil. 4 Camp. N. P. 16; 1 Camp. N. P. 262; 11 East, 370; 3 D. & E. 265; Jarvis v. Dean, 3 Bingh. 447; 22 Pick. 75. Hence, there must not have been, as here, repeated declarations made by the owner inconsistent with any dedication. 7 Leigh, 546, 665; Livett v. Wilson, 3 Bingh. 116.

Nor must the acts and words be equivocal or ambiguous on that subject.

In short, the idea of a dedication to the public of a use of land for a public road must rest on the clear assent of the owner, in some way, to such dedication. Nichols v. Aylor, 7 * Leigh, [*31 ] 546; Johnson's case, 8 Adolphus & Ellis, 99; 1 Hill, 189, 191; 19 Wendell, 128; 3 Bingh. 447; 1 Camp. N. P. 262; 6 Pet. 431; 3 Kent's Com. 445; Sargent v. Ballard, 9 Pick. 256. This assent may be proved by a deed or unsealed writing expressing such assent, or, as no fee in the land, but only an easement generally is given, it may be by parol or by acts inconsistent and irreconcilable

Irwin v. Dixion. 9 H.

with any construction except such consent. 6 Pet. 437; 10 Pet. 712; 3 Kent's Com. 428, 450; 7 Johns. 106; 2 Pet. 508; 12 Wheat. 582; 9 Cranch, 331; 4 Paige, 510; 12 Wendell, 172; 19 Pick. 406; 4 Mason, 1.

Thus, it has been presumed, if one makes a plan of his land in a city with certain streets laid down between certain lots, and sells the lots accordingly, that he thus means to dedicate those streets to the public. See United States v. Chicago, 7 How. 196, and cases cited there from Wendell; White v. Cowen et al. 4 Paige, 510; Barclay v. Howell's Lessee, 6 Pet. 506; New Orleans v. United States, 10 Pet. 718. And more particularly is it so if the community are allowed to begin to occupy the streets accordingly. Cincinnati v. White, 6 Pet. 431; 10 Pet. 718. But a mere survey of such streets, without selling the contiguous lots, or letting the streets be occupied, is not enough. 7 How. 196.

It is not pretended that in any way has such consent been given here, except by the acts before referred to, and done under the explanatory circumstances accompanying them. Thus, though there is much evidence, that, from the warehouse eastward to the river and wharf, the land has been open or uninclosed for twenty or thirty years, and that people and carriages have usually travelled over it in going to and from the warehouse and wharf, yet during that time, till the sale of the warehouse to the plaintiffs, that and the open space and wharf have all been owned by one person, and he has used them in any manner deemed by him most proper.

On that sale, the titles to each became vested in different persons, and this controversy arose about the use of the open space from the warehouse to the wharf, an undivided share in which space and wharf remained in the respondent, and none of it eo nomine was conveyed to the plaintiffs. If any private right or privilege to use any part of it for any purpose passed to the plaintiffs, it must have been under the word "appurtenances," in their deed from Irwin of the warehouse and its appurtenances.

But as the construction of the deed in that respect, and of the facts, as showing any privilege used here by the owners of the [ 32 ] *warehouse as belonging to the warehouse, rather than to * their interests in the open space and wharf as separate property, cannot be now properly under consideration, as before explained, in a private application for perpetual injunction against an alleged nuisance, when the damage is not great nor clearly irreparable, and the right or title to erect it is still in controversy, we do not examine and decide on the merits, as to any private interests supposed to be obtained by that deed. And the question recurs on the other and

Irwin v. Dixion. 9 H.

chief ground for the application and decree, the existence of a public highway where the fence was erected.

The idea of a clear intent to dedicate the locus in quo for that purpose, which we have seen is necessary to sustain it by dedication, is further repelled, as before in part suggested, by the very circumstances, that this space while open and thus used was designed for the owner's purposes, rather than for the purposes of others; that it was while the owner of the open space and wharf was the owner of the warehouse also, and had a right to use both for himself; and that, the moment the new owner of the warehouse ceased to have a title to the soil itself in the open space and wharf, the right to use them freely, either by him or the public, was questioned and resisted. Besides this, the space, being open for many years, was manifestly convenient, if not necessary, for the accommodation and interests of the owners of all this property, the wharf without this open space being hardly susceptible of any profitable use, and the warehouse not so accessible.

While, then, anybody might be allowed to travel over this space from the warehouse east to the wharf and river, when convenient and not injuring the owner, it would not be because it had been intended to give to the public a right of way over these premises, but because he himself intended to travel over it, and while so doing, and so leaving it open, would not be captious in preventing others from travelling there.

This was not meant to give to others any exclusive rights or privileges there, but merely a favor in subordination to him and his rights, as will be clear from various other circumstances during the twenty or thirty years.

As proof of this, he and his father, before the sale, were accustomed to use this open space for other private purposes, such as piling wood and lumber, anchors, tobacco, &c., as well as for a passage to and from their wharf; they uniformly continued to pay taxes on it, as if entirely private property and not given to any public use, and the city continued to assess taxes on it to them as owners, rather than refraining to do it, as in case of highways generally; [* 33 ] they made repairs on it when needed, as if open for their own use and advantage, instead of its being repaired by the city, as was done with public highways; and they required persons to remove themselves, horses and carriages from it, when causing damage or giving offence, and, stating at the time virtually that no public privileges existed there.

As soon likewise, as William Irwin had no further occasion to keep open the western portion of this open space for his own use and 2

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