(dissenting). The material facts appear to be undisputed. In the year 1908 a petition for laying out the alleged highway was presented to the board of supervisors of Independence township. The plaintiffs, Wickre, Nordness, and Erickson, 'were among the six signers of the petition. The supervisors of the township made an order establishing a public highway in accordance with the demand of the petition. It is conceded that plaintiffs were the owners of the land over which the 'highway was-established, and that it extended over no other lands than those belonging severally to plaintiffs. The trial court found as a fact that a public highway existed at the point where the fences were erected by plaintiffs. The ground of the motion for new trial was insufficiency of the evidence to justify the finding of fact, in that the petition did not contain the requisite number of qualified voters. This is the only error assigned.
It is conceded that the petition was signed by only six persons, among them plaintiffs Erickson, Wickre, and one Amundsen; that Martha Erickson is a woman, and not a legal voter; that Amundsen did not own real estate, or occupy real estate under the Homestead or Pre-Emption Raws, or under contract from the state of South Dakota, within one mile of the road to be established; that Lars Boland, one of the signers of the petition, was a member of the board of supervisors of Independence township, and took part in the proceedings upon the petition; that no notice of hearing was served on plaintiff Wickre, and that he did not appear or take part in the hearing; and that no record appears in the office of the township clerk of" Independence township showing that any damages were paid, except to Martha Erickson.
Appellants contend that this evidence is insufficient to sustain the finding óf the trial court that a highway existed. Appellants’ full contention is that the board of supervisors had no power to act *631until a petition was presented to them signed by at least six legal voters, having the qualifications prescribed by section 1707 of the Political .Code. This section requires that the signers shall be legal voters. Martha Erickson was not .a legal voter, ’ and it is •contended the petition is insufficient to confer jurisdiction. The question of -the disqualification of the other signers becomes immaterial and need not be considered.
Respondent contends that plaintiffs, being the sole and exclusive owners of the real éstate over which the proposed highway was established, having signed and presented a petition requesting the laying out and establishment of the road, in view of all the surrounding circumstances, manifested a clear and unequivocal intention to dedicate the land described in the petition for use as a public highway, and such petition -and request, having been accepted and acted upon by the board of supervisors, and the highway established as requested by them, they are estopped from denying the existence of the highway. It will be assumed that if the evidence is 'sufficient to show an estoppel, it is sufficient to sustain the finding of the trial court. Appellants’ entire contention is founded upon want of jurisdiction, arising from the fact that the petition was not signed 'by six legal voters owning land, as required by statute. It is well settled that the doctrine of estoppel may apply even when there is want of jurisdiction. Stewart v. Com’rs, Wyandotte County, 45 Kan. 708, 26 Pac. 683, 23 Am. St. Rep. 746; Hutchinson & S. R. Co. v. Board of Com’rs, 48 Kan. 70, 28 Pac. 1078, 15 L. R. A. 401, 30 Am. St. Rep. 273; Mott v. Water Co., 48 Kan. 12, 28 Pac. 989, 15 L. R. A. 375, 30 Am. St. Rep. 267.
In the case of Farr v. City of Detroit, 136 Mich. 200, 99 N. W. 19, it was held that, though a petition for the improvement of a street was not signed by a majority of the frontage, estoppel may exist, though it was conceded there was an absolute want of jurisdiction. ( The decisions apparently are not in harmony as to the particular facts on which an estoppel may be founded. Each case necessarily depends upon its own particular facts. It is conceded in this case that the petition was not signed iby six legal voters as required by the statute. It is therefore impossible to assume that the trial court intended to base its finding as to the existence of *632the highway, upon the view that the proceedings were regular under the statute. But the ultimate conclusion of fact in the finding, to wit, 'that a public highway existed at the point where the obstructions were placed by' defendants, must have been 'based upon .the evidence in the record. The trial court must have proceeded upon the facts that the highway had been laid out and accepted according to and in compliance with the petition and request of appellants, and therefore held them estopped to deny the existence of the highway. No question is made by appellants but that the highway was laid out strictly as prayed for in the petition. The original record shows that plaintiff Erickson accepted and then returned damages, and signed a waiver; that a warrant for damages was sent Wickre, who returned the same, and Nordness was found by the township board to be benefited in excess of damages, because the old road angled across his land and the new road was on his line. With this change the new road took the place of former private roads over lands, of plaintiffs. It is conceded that the highway was upon lands owned exclusively by appellants, and that no other property owners had any interest in the proceeding. The 'highway petitioned for was absolutely complete in itself; so far as the record discloses the petition did not contemplate any necessity or expectation of its extension beyond appellant’s lands. Presumptively the proposed highway made satisfactory connections with existing highways. The trial court in the conclusions of law must have relied upon the doctrine of implied dedication.
In Elliott’s Roads and Streets, §137 (3d Ed.) it is said: “An implied dedication is one arising, by. operation of law, from the acts of the owner. It may exist without any express grant, * * * * nor does it necessarily presuppose one, but it is founded on the doctrine of equitable estoppel. As said by the Supreme Court of the United States, ‘the law considers it in the nature of an estoppel in pais,’ and holds it irrevocable. It may be established by evidence of conduct, and in many ways. In one case it was declared that, ‘The authorities show that dedications 'have been established in every conceivable way by which the intention of the party could be manifested.’ If the donor’s acts are such as indicate an intention to appropriate the land to the public use, then, upon acceptance 'by the public, the dedication becomes complete.” Sec*633tion 138: “If-the acts are such as would fairly and reasonably lead an ordinárily prudent man to infer an intent to dedicate, and they are so received and1 acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation.” The acts of the owner must be such -as indicate an intention to appropriate the land to public use. In this connection “a misconception of the true meaning of the rule that the intent to dedicate must be clearly shown has, it seems to us, carried some courts to erroneous conclusions. While it is true,that this intent must always appear to exist It is not true that it must always in fact exist in the mind of the owner, * * *. In -one of the familiar maxims of the law is expressed a principle that should 'be applied in cases of dedications, and that is that a man is presumed to intend the usual and natural consequences of-hi-s acts. There is no reason why sound general principles, found to be wise and salutary in other instances, should not apply to dedications. * * * ” Section 140, Id.
From the undisputed facts in'this case it appears that appellants requested that a public highway be laid out and established across their own lands; that the proposed highway was -complete in itself; that no others save the; petitioners and the public had any rights or interests which might be affected by the establishment of such highway — -the intent that so much of their own lands as were described in the petition should be ttsed by -the public as a highway is absolutely -clear. It might be suggested that this intent was conditioned upon the allowance of damages for .appropriation of the land. But upon the assignment of error no such question arises.
It is conceded that one of the appellants accepted damages, and none of them make complaint on that ground. If appellants relied upon any condition, such conditions should in some manner, have been made to appear in the record. It may be fairly presumed that damages were awarded to all even though accepted only by one, and that the adequacy of the allowance is not questioned. The authority of the township board to accept a dedication on behalf of the public is not questioned. That they did accept conclusively appears from the order establishing the highway, and their assertion of jurisdiction and/control over it in this action. Elliott, §§ 165-169; Atlantic City v. Snee, 68 N. J. Law, 39, 52 Atl. 372; *634Plumb v. City of Grand Rapids, 81 Mich. 381-392, 45 N. W. 1024. It is apparently well settled that an attempt to make a statutory dedication may operate as a common-law dedication, although defective and insufficient as a statutory dedication. See Elliott, § 126, and numerous decisions there cited; State v. Devall, 137 Mo. App. 587, 138 S. W. 667; Trickey v. Schlader, 52 Ill. 78.
In City of Burlington v. Gilbert, 31 Iowa, 356, 7 Am. Rep. 143, one of the distinguished judges of that state said: “And we are of opinion that, after having thus signed and presented the petition, to the city council, thereby inducing the city to enter upon the improvement requested in the petition, the defendant is estopped from objecting that his petition was not sufficiently signed.” This rule is followed by the Supreme Court of Missouri in Cross v. City of Kansas, 90 Mo. 13, 1 S. W. 749, 59 Am. Rep. 1. The same rule was applied in Bidwell v. Pittsburg, 85 Pa. 412, 27 Am. Rep. 662.
( The decision of the Iowa court is criticised by the Court of Appeals of New York in Petition of Sharp, 36 N. Y. 257, 15 Am. Rep. 415. In that case appellant with other owners of property signed a petition for repaving a street with Nicholson pavement, which petition was presented to the board, and a resolution passed to repave the street as prayed. The street was paved, and an assessment made to cover the cost. It was contended that petitioner was estopped. Apparently no other facts were relied upon. The court says: £ £Upon principle, there is no basis for such an estoppel. All that the petitioner did was as a property owner to petition the board to proceed and repave the street in the mode desired by him, as he lawfully might. H;e made no representation to the board that the signers constituted a majority of the owners of property fronting on the street, or anything to that effect; he had a right to rely upon the performance of its duty by the board, which was upon the presentation of the petition and before basing any action thereon to ascertain whether the numbers who1 had signed were sufficient to confer jurisdiction to act. Signing or presenting it was no assertion of its sufficiency in this respect. It contained a representation that the petitioner owned property fronting upon the street, and that he desired, in case a sufficient number of like owners united therein, to constitute a majority, *635that the street should be paved with Nicholson pavement. A party is estopped only when ’by his declarations or conduct he has induced another to act upon the supposed existence of a fact, and would be in consequence injured by showing its non-existence.” The case is authority for the proposition that one who signs a petition such as there described is not estopped merely by having signed; no other facts appearing tó aid an estoppel. The language of the Iowa court, when considered in connection with the facts, perhaps lays down no broader rule. But the New York case did not involve a question of implied dedication, and is not authority for the proposition that signing and presenting a petition is not competent evidence with other facts to establish a dedication. The distinction is suggested in the case of Philbrick v. Town of University Place, 106 Iowa, 352, 76 N. W. 742, wherein that court says: “But it is well settled that no particular form is necessary for the dedication of land for a highway. The vital question as against the owners is always whether animus dedicandi may be inferred from the facts proven. Philbrick will be presumed to have acted for some purpose in signing and presenting this petition to the board'of supervisors. If -that board had any jurisdiction over the street, it might do, to say -that he signed in consideration of all other property holders to be affected doing likewise. But, as appellants contend, he is presumed to know the law, and that whatever the board might do would be of no validity. * * * In other words, the circumstances connected with the signing and presentation of this petition may 'have been such as to warrant the conclusion that in doing so, he intended to yield the eight-foot strip of land for the public use.”
So in the case at bar appellant must be presumed to have known that Mrs. Erickson, one of the six signers of the petition, was not a legal voter, and that the petition was not signed as required by the statute. But, having this knowledge, appellants presented the petition to the board, praying the establishment of a highway across their own lands, knowing that its establishment affected no rights or interests save those of the public and themselves. The signing and presenting the petition and the attendant facts certainly were competent evidence upon the question of intent to dedicate their land to public use as a 'highway.
*636In Gray v. Haas, 98 Iowa, 502, 67 N. W. 394, that court said: “It is contended that the defendant signed a petition consenting to a highway over the disputed ground, and it is said this would amount to evidence of a dedication. It appears that defendant did sign such a paper. If this was done as an independent act on his part, there is no doubt the case should have gone to the jury to determine, from all the evidence, the intent of the defendant as to dedication.”
The case of Chase v. Cochran, 102 Me. 431, 67 Atl. 320, is cited as authority for the rule that signers of a petition for laying out a highway are not thereby estopped to deny the legality of its subsequent location. In that state it was the sole province of the Legislature to determine whether in such cases public convenience required the establishment of a highway. It is apparent that the owner of property in that case was without power to create a public highway by dedication. It was held that the municipal authorities were presumed to know the law as well as the petitioner, ánd that neither they nor the petitioner had power to dedicate, or to establish, the highway petitioned for. It was said also that the prayer of the petition was presumably conditioned that the consent of the Legislature -should be obtained before basing any action on the petition, and, that consent not having been obtained, the petitioners were not estopped to deny the legality of the subsequent location. In the'se cases are found conditions, direct or implied, in the petition itself, which cast upon the municipal officers the duty of ascertaining and determining some fact. But such conditions could hardly* be held operative as' to either party, where all the facts were known to both parties, as well as the law governing them.
In the case at bar the sufficiency of the petition presented to the board of supervisors was a matter of law, presumably a-s well known to appellants as to respondents. The petition not having the statutory number of qualified signers, and no - others than the signers having any interest in the highway, might it not be fairly presumed that petitioners intended to dedicate their land to public use, and to ask the board to accept the dedication and assume the responsibility of maintaining the highway? If the acts of appellants were such as operate as a dedication, the fact that fences *637were erected or permitted -to remain on the land dedicated is immaterial, and affects the rights of the public no more than if the dedication had been by a formal written deed. No error is assigned in respect to variance of findings from the pleadings, and the allusions to sufficiency of the pleadings to sustain the findings is wholly gratuitous.
I am satisfied there was sufficient evidence before the court to sustain the finding of. estoppel, and that a public highway existed, and that the judgment and order of the trial court should be affirmed.
GATES, J. I concur in the views expressed by SMITH, J.