Apparently no deed or written conveyance of any kind has ever been given to the State, of any right, title or interest in or to either the tract described in the complaint, or to the land purchased from the trustees of Trinity College upon which the State-house now stands.
The right of the State to use the tract upon which the memorial in question is intended to be placed, and the extent of the control which the State may properly exercise over that tract, which are the only questions with which we are at present concerned, can only be determined from the facts above stated, showing the various resolutions passed by the General Assembly, by the court of common council of the city of Hartford, and by its voters at city meetings, the acts of the agents and appointees of the State and city pursuant to such resolutions, and the use and control which the State has been permitted to make of, and exercise over, this tract.
The facts so found show that it was intended that the State might, if necessary, make some use of the plot in controversy.
The tender made and accepted September 8th, 1871, was of the high ground of West Park, or so much thereof as might be necessary as a site for a State-house. The court has found that the site so tendered and accepted embraced the tract in question, and that the resolution tendering the same was never rescinded. For more than twenty years the State has made a certain use of said tract, and exercised a certain control over it, without objection by the city, and apparently without further permission from the city than that given by the tender. The resolution of the court of common council of April, 1872, appointing a committee to *Page 609 tender to the State commissioners so much of the Trinity College grounds as might be necessary and acceptable to the commissioners as a suitable site for a State-house, did not direct that those grounds should be tendered in lieu of the land previously tendered and accepted. Neither the records of the common council nor those of the State commissioners show that the tender was in fact so made, nor does the court find that such was the fact. While the facts found indicate that the Trinity College tract was tendered with the understanding that the State-house itself should be placed upon that ground, they are not inconsistent with an intention upon the part of the city authorities that the State might use some part of the land first tendered and accepted, if it should be found necessary to use it in order to erect the State-house upon a suitable site.
The understanding of the city and of the State as to what part of the land first tendered might be used by the State, and as to the purpose for which it might be used, is sufficiently clearly shown by the facts before us.
The language of the resolutions passed by the General Assembly, by the common council, and by the citizens of Hartford, show that it was the arrangement between the city and the State that the city should provide for the use of the State, and free of expense to the State, not only the land upon which the State-house was to be placed, but land sufficient for the laying out of suitable grounds around the State-house. This clearly includes both the providing of land sufficient for the construction of suitable approaches to the State-house, and the placing of the land to be used for all of said purposes, so far within the control of the State, as to enable it to properly use and maintain said grounds, for said purposes.
The State availed itself of the offer made by the plaintiff. The State commissioners, in the discharge of their duty, fixed the present site of the State-house a few feet south of the north boundary line of the Trinity College property, as the most suitable one. This location of the State-house made it necessary to use a small strip of the southerly *Page 610 part of the land first tendered, for the purpose of constructing suitable approaches to the north entrance of the Capitol. In building the driveway on the north of the Capitol, and other ways, as necessary approaches to the Capitol on the north, the tract in question was necessarily included and laid out as a part of the Capitol grounds. It became, in the words of the finding, "of absolute necessity to the State for convenient and proper approaches to the north entrance of the Capitol building."
At great expense to the State, as well as to the city of Hartford, the State-house has been erected upon the site so chosen on the Trinity College tract, and the plot described in the complaint, in connection with other land northerly from the Capitol and south of the north driveway, has been laid out and for many years maintained and used by the State, as stated in the finding, as land required to be used by the State in the proper construction and maintenance of necessary approaches to the Capitol. For this purpose, in the language of the finding, "for more than twenty years this piece of land has been . . . under the exclusive authority and supervision of the State, with the full knowledge, consent, and acquiescence of the city."
We think all these facts show that it was intended that that part of the land first tendered and accepted, which has been thus used by the State, including the tract in controversy, might be used by the State, as necessary for the purpose of constructing suitable approaches on the north of the Capitol, and that for the purposes of such use it might be laid out, maintained and controlled by the State as part of the Capitol grounds. The nature and extent of the right intended to be given to the State may properly be considered as commensurate with the right thus actually enjoyed by the State. City of Hartford v. County of Hartford,49 Conn. 554, 562.
The court of common council of Hartford had authority to devote the tract in question to the use by the State for the purposes for which it was accepted. The city procured an unconditioned and unrestricted title to the land in fee. *Page 611 Having afterwards lawfully dedicated it, with other lands, to the purposes of a public park, it held it in trust for such public use; Driscoll v. New Haven, 75 Conn. 92,101; the power to lay out, alter or discontinue such parks, in the manner described in the charter, being vested in the court of common council. Whether the city through its common council, or otherwise, could thereafter, without legislative authority, devote such land to another use inconsistent with the first, we have no occasion to inquire. The use to which it was in fact devoted was not inconsistent with its use by the public as a public park. The court has not found, nor does it appear from the facts of record, that the proper enjoyment by the public, of this part of the park, has been, or will in any manner be, curtailed by such use by the State. Before the tender to the State in 1871, the right of the public to use it as a park was subject to such reasonable restrictions, as to the manner of enjoyment, as might be imposed by the common council or the board of park commissioners. Practically the only effect of joining this land to the Capitol grounds was to place under the control of the General Assembly part of a public park which had before been under the management of the city authorities.
But the control of public parks belongs primarily to the State. The authority which the common council or park commissioners of a city may exercise in the control and management of public parks is not derived from the citizens of the municipality within the limits of which such parks are situated, but from the legislature. Such public parks are held not for the sole use of the people of a particular municipality, but for the use of the general public which the legislature represents. Municipalities in controlling and managing such public parks act as governmental agencies, exercising an authority delegated by the State, and are always subject to legislative control. Commonwealth v. Davis,162 Mass. 510; West Chicago Park Comrs. v. McMullen,134 Ill. 170; People ex. rel. Bryant v. Holladay, 93 Cal. 241. Regarding, as we do, the use which the State has made of the tract in question as consistent with that to which it was *Page 612 first dedicated, the offer of such land to the State as a part of the Capitol grounds was no more than a voluntary surrender to the State of the control which primarily belongs to the State over such property, and which the city had before exercised with the consent, or by the direction, of the State.
If, on the other hand, such use by the State ought to be considered as inconsistent with that to which this land was first dedicated, the legislature possessed the power to authorize the court of common council to devote it to such other and higher public purpose as would render its enjoyment by the public more extended and general; and such authority might be granted either by express words or by necessary implication. Evergreen Cemetery Asso. v. NewHaven, 43 Conn. 234, 242; Driscoll v. New Haven, 75 id. 92, 101. Such authority from the State is sufficiently shown by the language of the resolutions of the General Assembly above referred to, by the fact that the land was tendered to the State itself for such use, and that it was accepted and used by the State for that purpose. It was not necessary that the question whether the land should be so used should be submitted to a popular vote. Whitney v. New Haven,58 Conn. 450, 459.
By the tender and acceptance as before described, it was evidently not intended to convey the fee of this property to the State. Whether such tender and acceptance be regarded as a transfer or surrender of the control of a portion of a public park to the State, or as a dedication of the land to a new public use, no deed or written conveyance was required to be given to render such transfer or dedication effective. The resolutions of the court of common council, of the General Assembly, and the acts of the officers and agents of the city and of the State, clearly showing not only an intention on the one hand that the land should be used for this public purpose, and on the other to accept it for such public use, but a long continued use for such purpose, acquiesced in by the city, were sufficient to constitute either a valid express or implied dedication and transfer of the control of said property for such purpose. Kent v. Pratt, *Page 613 73 Conn 573, 578; Pierce v. Roberts, 57 id. 31, 39; Meriden v. Camp, 46 id. 284, 287.
The erection of the memorial in question is a proper exercise of the right so surrendered to the State to control and manage this land as a part of the Capitol grounds. The same power which is given by statute to the city and its board of park commissioners, "to lay out, . . . plant and otherwise at their own discretion improve and adorn the parks," may, by the State, through the General Assembly, be exercised over this land as a part of a public park. It is neither alleged in the complaint nor shown by the finding that the monument to be erected is in any respect inappropriate for such public grounds, or that its character or its proposed location will in any way interfere with the enjoyment of such grounds by the public.
In authorizing the erection of this memorial, the State is not granting to the regimental association a right to occupy or control a part of the Capitol grounds. The memorial is to be erected by the association for the State, under the supervision of a State officer, and either wholly or in part at the State's expense. After its erection upon the Capitol grounds it becomes the property of the State, with no interest in it or right of control over it remaining in the association.
The trial court admitted in evidence, against the plaintiff's objection, a diagram showing the Capitol and grounds as they existed at the time of the trial, and as they had been occupied by the State; the resolution of the common council of August 28th, 1871, tendering to the state commissioners the high ground of West Park, and the minutes of the State commissioners of September 8th, 1871, accepting the same, the resolution of the court of common council of March 15th, 1872, submitting to popular vote the question of purchasing the Trinity College ground, with the record of the city meeting of March 19th, 1872, authorizing the purchase of the same; the reports to the General Assembly in 1882 and 1883 of the commissioners appointed to lay out and grade and complete roads and walks in the Capitol grounds; the *Page 614 resolution of the court of common council in accepting the opinion of the city attorney as to the duty of the State to repair the roadway north of the Capitol, and directing that notice be given of the same to the State comptroller; and testimony of State comptrollers and superintendents of the Capitol as to grounds over which they had exercised control.
The substance of the objection made to such evidence was that these facts did not tend to prove that the State possessed the right to control the tract in question as a part of the Capitol grounds. All of this evidence was admissible as tending to prove that the State had used and controlled the tract in question as a part of the Capitol grounds, with either the express or implied consent of the city.
For the purpose of proving that the tender to the State of the Trinity College grounds on the 27th of May, 1872, was a tender of such grounds in lieu of the high ground of West Park, tendered August 28th, 1871, the plaintiff, having offered evidence showing that the court of common council on January 22d 1872, had received a communication from a meeting of citizens, at which there was an animated discussion, and that the court of common council in the following March voted to purchase said Trinity College grounds, inquired of witnesses who were present at said city meeting what the animated discussion was about, with the view of showing as a matter of traditionary evidence the general understanding of the citizens as to the substitution of one site for the other. For the same purpose the plaintiff also offered in evidence an article from the Hartford Courant of May 28th, 1872, stating that the second site had on the previous day been tendered and accepted in lieu of the site first tendered.
This evidence was properly excluded by the trial court. This was not a case for the admission of what is termed traditionary evidence. The records of the action of the citizens at the meetings of March 19th and March 30th, 1872, and of the court of common council of March 11th, March 15th, April 22d and May 27th, 1872, show sufficiently *Page 615 clearly the purpose for which the Trinity College grounds were purchased by the city, the tender which the committee of the court of common council were directed to make of these grounds, and that the committee in making the tender did all that they were authorized to do.
The evidence was apparently not offered for the purpose of proving that the second tender when made was actually expressed to be in lieu of the first, but to show that the citizens of Hartford understood that such was the real purpose for which it was to be, and was in fact, made. As the facts before stated, showing the purpose and intention of the parties interested in the purchase and tender of Trinity College property were before the court, it was the duty of the court to determine the purpose of the tender and its effect upon the rights of such parties, from such facts themselves, rather than from statements of citizens at a public meeting, of their understanding of the purpose for which the second tender was to be made, or from the understanding of the public as to the legal effect of the second tender.
If the evidence was offered to prove that the second tender was in fact expressly made in lieu of the first, it was open to the further objection that it was hearsay.
The exception to the general rule excluding hearsay evidence, which permits in certain cases the reception of what is called traditionary evidence concerning facts of public or general interest affecting public or private rights, is limited to proof of declarations of deceased persons, or persons supposed to be dead or who are not available as witnesses, as to ancient rights of which they are presumed or are shown to have had competent knowledge, and which rights are incapable of proof in the ordinary way by living witnesses; and this exception is not to be favored or extended. 1 Greenleaf on Ev. (13th ed.) §§ 128-130; Thayer's Cases on Ev. pp. 409-428; Merwin v. Morris, 71 Conn. 555, 572; SouthwestSchool District v. Williams, 48 id. 505, 507; Wooster v.Butler, 13 id. 309, 315; Brown v. Crandall, 11 id. 92, 94;Higley v. Bidwell, 9 id. 447, 451.
The discussion at the public meeting of January, 1872, *Page 616 occurred before the second tender was made, and could not therefore show in what form it was in fact made.
The article from the "Courant" does not show a declaration concerning an ancient matter by an ancient person having knowledge of the fact of which he spoke, and who could not be called as a witness. It does not appear who wrote the article, nor that its author had either personal knowledge of the fact of which he wrote, or had heard declarations concerning it from persons having such knowledge; nor does it appear that the author of the article could not himself have been called as a witness, nor that there were not other living witnesses who might have testified as to how the second tender was in fact made.
The trial court did not err in overruling the plaintiff's demurrer to the second defense. There were no "conveyances, leases, contracts or other instruments," showing how the State acquired exclusive authority and supervision over the land described in the complaint, the omission to plead which rendered the second defense demurrable. Further discussion of that ruling is, however, unnecessary, since the facts relied on by the defendants as proof of such control and authority have been found by the trial court, and the ruling of that court by its final judgment, as to the sufficiency of such facts for that purpose, is the principal question raised by this appeal.
The fact claimed by the plaintiff to be shown by the evidence before us, that the present location of the memorial near the corner of Capitol Avenue and Trinity Street is only temporary, and that it is still intended to place it upon the site originally designated, could not, if made a part of the finding, affect the plaintiff's right to the relief asked for. It is therefore unnecessary to consider the plaintiff's request for a correction of the finding in respect to that fact.
There is no error.
In this opinion the other judges concurred.