Chapter 34 - § 34.3 • COMMON-LAW DEDICATION


§ 34.3.1—In General

Although a county is required to adopt subdivision regulations and to require the preparation and presentation of a subdivision plat before land is developed,19 no procedure is provided for the dedication of streets and roadways. Thus, where the plat is for land not within a city or town, whether property is properly dedicated as a public street depends on the common law.20 A common-law dedication is limited to an appropriation for public use.21

§ 34.3.2—Express Dedication

Common-law dedication is established by demonstrating that a property owner unequivocally intended to make the dedication and that the dedication was accepted by the governmental authority.22 (A mortgagor cannot make a dedication without the consent of the mortgagee.23 ) A municipal corporation can make a common-law dedication of property held in its proprietary capacity and once the common-law dedication occurs, the title to the property dedicated vests in the municipality in its governmental capacity for the use of the public.24

Intention: A common-law dedication rests upon the actual intent of the owner of the property.25 Where dedicating language is not clear and unambiguous, parol evidence is admissible to determine the owner's intent;26 intent may be determined from the declarations and acts of the owner.27 A plat is evidence of an intention on the part of an owner to dedicate streets and alleys to public use, and when accepted by the authorities having jurisdiction over highways, or by the public by general use, it will constitute a common-law dedication, which confers upon the municipality an easement in the streets and alleys, i.e., an estate adequate to the accommodation of the public and the city for municipal purposes.28 But portions of a plat designated as "reserved" or which are left blank without any designation of purpose are not dedicated.29 Mere use by the public, not adverse, even for the prescriptive period, is not sufficient to establish intent on the part of the owner to dedicate.30

Acceptance: A dedication must be accepted within a reasonable time.31 In the absence of acceptance by the public, there can be no common-law dedication.32 A dedication without an acceptance is merely an offer to dedicate, which does not impose any burden, or confer any right, upon the public authorities.33 The public authority's acceptance of a dedication may be evidenced in any one of several ways. The acceptance may be by legislative act,34 or by the public entity's possession, improvement, or use of the land as a public road.35 The approval by the planning commission of a subdivision plan or plat is not an acceptance of a proposed dedication by the public; such acceptance, if any, must be given by action of the governing body of the municipality or by the board of county commissioners.36 A dedication is subject to pre-existing easements.37

Under certain circumstances the public may lose its right to accept the offer of dedication, and if before acceptance the offer is revoked, or the public has otherwise lost its right to accept, the municipality loses its right to the public places designated on the plat.38

A common-law dedication acts by way of estoppel in pais, rather than by way of grant.39 When a purchaser purchases a lot, marked on a plat of city property, designating streets thereon, the plat being referred to for a description of the premises conveyed, the popular understanding, and a reasonable construction of the intention of the grantor are, that the purchaser, by virtue of the purchase, is entitled to all the appurtenant advantages, privileges, and easements which the plat proclaims to exist, so far as the land embraced by it is owned by the vendor. A lot is bought as urban property, and with the conveyance of the land pass all the incidents necessary to a proper enjoyment of the grant. By the plat, the right which each lot-holder has in common with other lot-holders and the public in the streets of the city is exhibited.40 The rule set out above is effective only as between the grantor...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT