We do not think the court below erred in admitting the witness Dwyer to testify, over appellant’s objection, as to conversations which occurred between him and appellant’s intestate in regard to the dedication to the purposes of a street of the premises in controversy. The Revised Statutes, in Article 2246, re-enact the first section of the Act of May 10, 1871, which removed the restrictions against receiving the testimony of the parties to the suit, and of persons interested in the issue to be tried. The effect of Article 2248 is to except from the operation of the former provision parties to a suit in which the-representatives of a decedent or a guardian may be either-plaintiff or defendant, in so far as the testimony upon either side relates to any conversation or transaction with the decedent or ward. Ho mention is made of persons interested in the issue to-be tried, and hence they are not excepted from the provisions of the previous article. In the case of Simpson v. Brotherton, 62 Texas, 170, the wife of appellee, who was plaintiff in tie court below, was held incompetent to testify as to the declarations of appellant’s ancestor. There the suit was brought by the husband to recover an interest in land, which interest was claimed as community property of himself and wife. Her testimony was. not held inadmissible because of her interest in the proceeding, but upon the ground that, though not named as such, she was in fact a party to and would be bound by any judgment that might be rendered against her husband. In this case Dwyer was in no-sense a party to the proceeding, and will not be concluded by the judgment.
We are not prepared to say that the evidence was not sufficient-to show a dedication by plaintiff’s intestate of the land in controversy to the purposes of a street. His declarations to Dwyer, at the time he sold to him, and his subsequent declarations; his conveying the land upon both sides up to the disputed strip, leaving just the ordinary width of a street, and other circumstances, tend very strongly to show a dedication. The boundary was well defined, and his purpose clearly and unequivocally stated. This makes a dedication so far as he could make it of his *350own motion. (Oswald v. Grenet, 22 Texas, 94; Lamar Co. v. Clement, 49 Texas.)
But the controversy here is not between Gilder’s administratrix and those who have bought neighboring or adjacent property upon the faith of his acts and declarations. It is between the administratrix and the city, and we are of opinion, that before the city can set up any right of control over the property, it must show that it has accepted the dedication. The opening and repair of a street subjects a municipal corporation to expense and may subject it to liability to individuals for damages resulting from any failure to keep it in safe condition. This burden can'not be imposed by “the will of an individual who from motives of patriotism, convenience or gain, might lay off his land into town lots or streets or lay out a highway through his land.” (State v. Carver, 5 Strobhart, 217.) The authorities generally agree that in order to charge a municipality with the duty of repairs, either an express or implied acceptance of the dedication must be shown. (State v. Carver, supra; Tegarden v. McBean, 33 Mississippi, 283; Town Council v. Lythgoe, 7 Richardson, 435; Pope v. Union, 18 New Jersey Equity, 282; State v. Bradbury, 40 Maine, 154; Niagara Falls Bridge Company v. Bachman, 66 New York, 261.) And, it seems to us if it has no duty in regard to the street, it should have no control over it, whatever the rights of third persons with respect to the proposed dedication may be. It must be either a public street or not a public street. If a public street, the corporation is responsible for any damage that may result from its neglect to keep it in repair. If not public, then it is not perceived that the charter ordinarily granted to a town or city, would invest its council or officers with any authority over it.
But it is held that an acceptance may be implied. This is unquestionably so, when such acceptance is evidenced by acts clearly indicating that purpose, such as making repairs upon the proposed street or platting it upon the official maps. And it is also said in many cases that this implication may cease from long continued use by the public. This seems to be the doctrine in England, but in most of the American decisions* which we have examined in which this principle is announced, there was evidence of acts on part of the municipal authorities themselves tending to show adoption of the dedication, in addition to the long use by the public of the property in controversy.
In many instances the value of the property and its situation and surrounding may be such, and the long continued public'use *351so unequivocal, that after the ordinary period for the presumption of a grant, both a dedication by the owner and assent of the municipal authorities will be presumed.
Cases may arise in our own State to which the English rule should be applied, but in our opinion we should not hold it a general principal, applicable to every case. In a State in which much of the land is vacant, both in town and country, and every ■one feels at liberty to pass at will over any uninclosed premises, the presumption ought not to prevail that the proper authorities have .adopted a street or road from the mere fact of its long use as such by the public.
In the present case there is no evidence tending to show any acceptance of the dedication on the part of the city of Brenham. The strip in controversy was never worked or repaired by the ■city, and was not delineated upon the city map made by its authority. There being no enclosure for a long time on one side ■of it, it was passed over by the public in part, by roads or paths crossing it diagonally in different directions. There is no evidence of any use of the property that might not have been made if no dedication had ever been intended; and it is nowhere disclosed that the city ever claimed or recognized the property as a street until the year 1880, when the city council passed a resolution authorizing the mayor to relinquish any claim upon it, in the event that plaintiff would release all claims upon certain parts of Ant street, into which this disputed strip opened at right angles.
The charter of the city confers very enlarged powers upon the •city council over its streets (Special Laws 1873, sec. 6, p. 14), but it is not necessary for us to consider whether the authority to vacate a street is granted or not. It certainly had the power to refuse a dedication when the agreement was entered into between appellant and the mayor; and, there having been no formal acceptance or act on the part of the authorities from which such .acceptance could be presumed, up to the date of this contract, we think the council was authorized to relinquish under the ■circumstances, notwithstanding the equivocal use of the premises by the public for a long length of time. To hold otherwise would be to decide that private parties could force the acceptance of streets upon cities, with all their burdens, without the assent of the authorities duly authorized to assent to it; for we know of no power in a municipal corporation to prevent the use *352of any way as a street which the owner may see proper to leave open.
Conceding that the dedication here had been complete as to the city, it may still be a question whether the council was not authorized to compromise a dispute with appellant by enlargement of their claim upon the property in controversy, in consideration of an abandonment by her of her claim upon other property in dispute between them. (See Petersburg v. Mappin, 14 Ill., 193; 1 Dillon’s Municipal Corporations, sec. 477.)
But it is not necessary for us to decide this question. It follows from what we had previously said, that the city had no right or control over the premises in controversy, and appellant being in possession, is entitled to have it restrained from removing her inclosures. We decide nothing in this case as to the rights of Dwyer and others who own lands adjacent to the disputed strip. Their rights, if any exist, are distinct from those of the city, and are not concluded by this judgment. We merely hold that appellee can not now claim the premises as a public street.
The judgment will accordingly be reversed and here rendered in favor of appellant, and against appellee, restraining it from interference, with appellant’s possession and control of the premises in controversy, and for all costs, both in this court and the court below.
Reversed and rendered.
Opinion delivered February 11, 1887.