Opinion of the Court-Truitt, J. appeal as to the part thereof deemed unfavorable to it. In regard to the appeal of the city, the following stipulation was made and filed: "It is hereby stipulated by and between the parties to the above-entitled action, by their respective attorneys, that the defendant, the city of Lewiston, may take its cross-appeal in said action entirely upon the record to be furnished by the plaintiff in said action, and that said defendant will not be required to take any steps to make up the record in said case, and shall be required duly to file its briefs within the time required of a respondent. "Dated at Lewiston, Idaho, this 25th day of February, 1914. "DWIGHT E. HODGE, "Attorney for Plaintiff. "FRED E. BUTLER, "Attorney for Defendant." Whether the judgment of the trial court in regard to the rights of the respective parties to the said strip of land is correct or not depends upon the correctness of its findings of fact upon which said judgment is based. And for that reason we deem it proper to give said findings to which objections are made by either party in their respective assignments of error. No objection is made to the first one of said findings, and No. 2 simply finds the plaintiff to be the owner of the land described in her complaint, and then adds that said land is "subject to easement of the defendant for street purposes hereinafter described." And to this part of said finding appellant objects. Findings Nos. 4, 5, 6, 7, and 8 are as follows: "(4) That prior to the year 1881 one William Phillips was the owner of the tract of land described and referred to in paragraph No. 2 of these findings; that at that time one S. C. Thompson was the owner of the land lying immediately south for a distance of more than forty rods; that while the said William Phillips was the owner of said land described in paragraph No. 2 of these findings, and while S. C. Thompson was the owner of the land lying immediately west Opinion of the Court-Truitt, J. and adjoining the land of the said William Phillips, the said William Phillips and S. C. Thompson agreed to give and dedicate, and did offer to give and dedicate to the public a highway extending from the highway now known as Main street southerly twenty-five feet in width on each side of the west line of section 32, township 36, north, range 5 west of Boise Meridian for a distance of forty rods. "(5) That said highway was continuously, openly and uninterruptedly traveled by the public as a highway, for a distance of 540 feet southerly from the south side of Main street for a period of more than ten years prior to January 1, 1893; that there was a fence upon each side of said highway so traveled for more than ten years prior to the year 1893. "(6) That the remainder of the strip of land in controversy in this suit, viz., a strip of land twenty-five feet in width and about 125 feet long, measured along the west line of said property described and belonging to the plaintiff in this action and southward from the strip of land last described, and never having been used by the public as a highway, was never accepted by the defendant as a highway and never used by the public at all as a highway but was always in the open, notorious and continuous possession of the plaintiff and her predecessors in interest. "(7) That prior to the year 1898 said strip of land twentyfive feet by 540 feet hereinbefore found to be used as a public highway has been fenced by J. D. C. Thiessen, the husband of the plaintiff, in his lifetime and by said J. D. C. Thiessen, since the time of the erection of the said fence, and this plaintiff, claimed openly, notoriously and continuously, that the telephone poles in said Twenty-first street were erected along the line of said fence; that the said defendant, since the inclusion of the property belonging to the plaintiff within the corporate limits of the city of Lewiston, has done no work upon said twenty-five strip as a public highway until the year 1913. "(8) That ever since the erection of said fence by the said J. D. C. Thiessen, as in the preceding paragraph found, that portion of said public highway and Twenty-first street Opinion of the Court-Truitt, J. lying immediately west of said fence has been continuously used by the public as a highway and street." There were a large number of witnesses called at the trial of said case and the testimony is quite voluminous. Some of the witnesses testified from their memory regarding the strip of land in controversy and the length and direction of the old traveled road between the lands of Thompson and Phillips and other matters in connection therewith, twentyfive or thirty years ago. After so many years they could not be expected to remember very clearly about these matters. However, after reading and considering all the evidence taken together, we conclude that it is sufficient to support the finding of the lower court in paragraph four of said findings to the effect that William Phillips, the owner of said land, at that time dedicated as a public highway said strip of land twenty-five feet wide and forty rods in length off the west side of the land now owned by appellant. The question of the dedication of a street by the owner of the land to the public was before this court in Boise City v. Hon, 14 Ida. 272, 94 Pac. 167, and the whole subject carefully considered and numerous authorities bearing upon the proposition were referred to and reviewed. The conclusion of the court in that case is stated as follows: "It is useless for us to cite other cases upon this proposi tion, but there are many well-considered cases holding that dedication is complete when a plat is filed showing streets and alleys thereon and sales are made with reference thereto, and that such dedication is irrevocable, and does not require an acceptance on the part of the city, and we will content ourselves with citing a few of those cases: Steel v. City of Portland, 23 Or. 176, 31 Pac. 479; Hogue v. City of Albina, 20 Or. 182, 25 Pac. 386, 10 L. R. A. 673; Carter v. City of Portland, 4 Or. 339; Evans v. Blankenship, 4 Ariz. 307, 39 Pac. 812; Bartlett v. City of Bangor, 67 Me. 460; Great Northern Ry. Co. v. City of St. Paul, 61 Minn. 1, 63 N. W. 96, 240." However, the facts in the case at bar are very different from the facts presented in Boise City v. Hon, supra, for in that case the land in controversy had been dedicated as a Opinion of the Court-Truitt, J. street by being marked as such on a plat of a certain addition to Boise City. This plat had been regularly filed and sales made of lots in the addition; but in this case the dedication as claimed by the respondent, and as stated in the findings of the trial court, was an oral dedication of a strip of land for the purpose of a rural or country highway near the city of Lewiston, and as there is no writing or record in regard to a dedication of this kind such as there is in case of a dedication by the plat of a city or town, or by a written instrument of some kind, from which the intention of a dedicant can be definitely ascertained, it is sometimes difficult to determine his real intention in regard to the dedication, and the same difficulty also exists as to ascertaining the intention of the public in regard to the acceptance of such dedication. But when properly established by evidence an oral dedication is valid and binding upon the person making it when duly accepted by the public. It is announced in a note to the case of Morgan v. Chicago & A. R. R. Co., 96 U. S. 716, 24 L. ed. 743, that "A parol dedication is good, as well as one by deed or by unsealed writing. . . . . An acceptance may be proved by parol, by long public use, and by acts of recognition on the part of proper public officers; or it may be presumed from the beneficial nature of the dedication." And in Rector v. Hartt, 8 Mo. 448, 41 Am. Dec. 650, it is held that, "The doctrine seems well-settled in America, that an owner of land may, without deed or writing, dedicate it to public uses. No particular form or ceremony is necessary in the dedication: all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation." However, the respondent contends that the dedication in this case included the entire strip of land in controversy and that the trial court erred in only giving to it the said 540 feet thereof mentioned in the judgment. This presents a rather novel question, viz.: Could the public accept such part of the dedication as it might use or need for the purpose intended at that time, and tacitly decline to accept such part as it could not under the existing circumstances use? The au Opinion of the Court-Truitt, J. thorities all hold that to complete the dedication, it must be accepted, but, as in the matter of the dedication, no formal acceptance is required. "User by the public is a sufficient acceptance of a dedication for the purpose of a way to invest a right of way to the public." (Buchanan v. Curtis, 25 Wis. 99, 3 Am. Rep. 23; Holdane v. Cold Spring, 23 Barb. (N. Y.) 103; Green v. Canaan, 29 Conn. 157; Hanson v. Taylor, 23 Wis. 548; State v. Tucker, 36 Iowa, 485.) Now, if user is a sufficient acceptance of a dedication and the public only sees proper to use a portion of the land dedicated to it, and the person making such dedication acquiesces in such partial acceptance thereof, we think the dedication is complete and irrevocable as to the part of the land accepted and that the unoccupied part is not affected by the unaccepted offer to dedicate it. In State v. Trask, 6 Vt. 355, 27 Am. Dec. 554, touching this point, it is said: "From what has already been said, it will be inferred, that to render a dedication to public use binding, it is necessary, not only that there be some act of dedication on the part of the owner, but there must also be something equivalent to an acceptance on the part of the public. . . If this position be correct, it follows that there may be an acceptance and appropriation in part, and not for the whole. A piece of land may be dedicated to public use and yet the public convenience may not require the whole of it; a part may be in fact appropriated, and the residue may by common consent, be relinquished." In the case at bar, it was not practicable for the public to make use of the entire length of said strip of land as a road at the time of said dedication, for the reason that a steep bluff or hill obstructed the travel at a point about 125 feet from the southern end thereof. The 540 feet extending from the north end of said strip down to that point was accepted and traveled as a road continuously by the public, but at that bluff or hill the roadway turned abruptly off to the southeast away from said strip of land, and extended on in a southwesterly direction, or, according to some testimony, it passed around the bluff and then swung back and Idaho, Vol. 26-33 |