By the Court,
Dixow, C. J.The record, in this case presents numerous exceptions taken by the plaintiff in error, who was the plaintiff below, to the rulings of the court upon the evidence introduced by the defendants, to establish their defense, as well as to the instructions given to the jury. Our views of what we deem the real merits of the case render it unnecessary for us to pass seriatim upon them. It is sufficient for us to say, that they are one and all predicated upon the notion that in no case, except where, by lapse of time and use by the public, the statute declares that a highway shall be deemed to exist, can its existence be shown by parol; that, with this exception, in no case can the owner of the soil part with his right of possession, or the public acquire a right of way, except it be by some instrument in writing signed by the owner, or by some matter of record showing that the provisions of the constitution and statutes relative to highways, have been complied with. This view was entirely erroneous and unfounded.
In addition to the modes already mentioned, highways may also be created by dedication. This last mode is so old and so well established by authority, both ancient and modern, that jit cannot now admit of doubt, or discussion. It is a part of the common law of England, adopted and acted upon, not only by the federal courts, but by the courts of nearly every state in the Union. In the case of Gardiner vs. Tisdale, 3 Wis., 153, it was declared by this court to be a part of the common law of this state. As the law and authorities upon this subject were then fully and ably discussed by the learned judge, who wrote the opinion, we shall not, after briefly answering the position that it violates the statute of frauds, feel called upon to do more than to refer to that case
*244Dedication is defined to be the act of giving or devoting property to some proper object, in such a way as to conclude the owner. Although it is apparently in conflict with the statute, because by it, the public do in fact acquire an interest in lands, which the statute says shall not be done, except by conveyance in writing, signed by the party, &c. Yet it is not supported upon the ground that it is a grant, but because the law considers it in the nature of an estoppel in pais, which debars the owner from recovering it. The law does not presume a grant, but rather the contrary; nor does it deprive the owner of his title to his land; but while the dedication continues, says to him, that he shall not, in violation of good faith to the public, and by a dishonest or immoral act, assert his right of possession, to the exclusion of the public. It will not tolerate such a breach of faith and sound morals. In order to constitute a dedication it should clearly appear that the highway had been used as such by the public with the assent of the owner; and when this is shown the dedication is established. Lapse of time and long use by the public as such, are not necessary to its existence; though in the absence of more direct proof, they are circumstances of more or less force according to the facts of each case, tending to establish it. Acts of an unequivocal nature on the part of both the owner and the public may establish it in a very short space of time. It is always a question of fact, to be left to the jury deciding upon the circumstances of each particular case. More strong and indisputable proof of a dedication on the part of Butler, the plaintiff’s grantor, than this case affords, cannot well be imagined. He and several other witnesses testify that in May, 1855, while he was the owner of the premises, at his request, and with the approbation and consent of the supervisors of Westport, the highway was staked out, opened and fenced, and used as such by the traveling public from that time up to the latter part of June, 1858, *245when the present plaintiff fenced it up. He and the other witnesses also testify that, by agreement between him and the supervisors, he received from them ten dollars as a consideration for the road being laid there. This fact, although it does not add to the validity of the dedication, does materially enhance the dishonesty of attempting to deprive the public of an easement, for which they in good faith had paid a valuable consideration. These facts are not contradicted or denied. It likewise as conclusively appears that the plaintiff had actual knowledge of the dedication at the time of his purchase. He was informed by Butler. If he had not received actual notice, the existence of the highway at the time, as described by the witnesses, was sufficient to charge him with constructive notice, and to put him upon inquiry.
Although the question of dedication was not as clearly and distinctly submitted to the jurors, as we should desire, and although the court might with great propriety have withdrawn from their consideration the record evidence produced by the town clerk, when it was discovered that it was not applicable to the case; yet we are not of opinion that the judgment should, for these reasons, be reversed. They must have founded their verdict upon the testimony showing that there was a dedication, and, as intelligent men, must have disregarded the record evidence which was before them by mistake. Where a new trial must inevitably result in the same verdict, it ought not to be awarded except for material errors.
The objection that the answer does not set up a dedication, is wholly untenable. It is true that it. is not alleged that Butler “ dedicated ” the land as a public highway, but the facts which in law constitute a dedication, are accurately and fully stated, and this makes it a better pleading.
The judgment of the county court is affirmed.