(dissenting). — This suit against the city of Dubuque is for the value of a horse lost by plaintiff in consequence of a defect in a bridge alleged to be in and part of a highway which the city was bound to keep in repair.
It is denied by the city that it was bound to repair the bridge, and the way leading to it, where the injury occurred.
It did not occur on a street laid out and constructed by the city, but in a highway made by dedication, and no act by the city authorities in relation to the alleged highway is shown, except slight repairs made to the bridge and embankment leading to it after the injury to plaintiff’s horse.
The question is, Does the obligation devolve upon the municipal authorities charged with the repair of highways, to repair a highway that has become such by dedication, from and after the time dedication is made, without any act of acceptance on their part ? Or, to state the proposition in another form, Are municipalities equally bound to repair highways created by dedication as they are to repair the highways laid out in accordance with the statute law, which have been worked and opened by the authorities for public use ?
*89When a highway is laid out in the manner pro vided by the acts of the general assembly, the right to use it vests in the public, and the owner of the land upon which the road is laid is divested of his title to the extent of the easement required by the public, but there is no responsibility for neglect to repair until the highway is opened. Bowman v. Boston, 5 Cush. 1; Bliss v. Deerfield, 13 Pick. 102—cited by defendant’s counsel. The grading it, bridging it, making it passable, are an invitation to the public to use it, and from this time liability for negligence begins.
The owner of the land over which the highway is laid may fence it and throw it open to the public; but until the authorities invite the public to use it, by making it passable, those who use it use it at their peril.
Is it consistent that a greater obligation should rest upon the public authorities when a highway is made by dedication ?
In 4 Barnwell & Alderson, 448, this question first appears in the English reports, and Justice Bailey says : “ I do not accede to the doctrine, that because there is a dedication of the road by the owner of the soil, and the public use it, the parish is therefore bound to repair. I think there ought to be, in addition to this, evidence of an acquiescence by the parish in the dedication.
“ It would be most unjust, if, by the public use of what was not at first a public road, the burthen of repairing it could be removed from the persons to whom the use of it was at first confined, and cast upon the parish. Admitting, therefore, that in this case there was a dedication to the public, and that the road was found to be a public benefit, I think that, in consequence of the want of some acquiescence or act of adoption by the parish, they are not liable to the repair of the road.”
Afterward this rule was changed, and it was held by *90Denman, Ch. J., that when the public had acquired a right to use a way, the duty of repair devolves upon the parish; and this is the rule of England, and of the majority of this court.
The difference in the condition of England and our condition makes the earlier English rule more applicable to our circumstances, and it has received the endorsement of the courts of several of the states, and has been embodied in the legislation of Massachusetts and Rhode Island.
The law, as held by the majority of the court, points out no way by which the knowledge that a highway has been made by dedication can be brought home to the municipal authorities,' and it devolves upon the counties, towns and cities of Iowa the repair of highways of the existence of which they have no means of knowledge; and in this mode the responsibility is cast upon them of repairing roads which they would refuse to establish if applied to make them highways by the mode pointed out by the code, and which they have no power to vacate.
The rule that a dedication per se devolves upon the public the repair of roads so made, would make the municipal authorities liable forthwith for the opening and maintenance of the streets designated on every town plat, recorded according to law ; and there is not a city in Iowa equal to such a burden. ■
“To constitute a highway by dedication, by which the town is bound to repair, there must be dedication of the land by the owner, and an acceptance of the dedication by the town, otherwise it would be in the power of an individual to impose upon a town a liability to make and keep in repair a road nolens volens.” Hyde, Admr., v. Jamaica, 27 Vt. 454.
. “To make a town liable for the repair of a highway made by dedication, it must have been adopted by the town. And adoption does not mean a general use by *91individuals, which may be termed a public use, but an act or acts of the town in its municipal capacity. Blodgett v. The Town of Royalton, 14 Vt. 288. And it was held in Paige v. The Town of Weathersfield, 13 id. 424, that the action of the selectmen, who are in Vermont town officers, is necessary to constitute such an adoption as to ■make the town liable to repair.
In Oswego v. The Oswego Canal Company, 2 Seld. 263, Ruggles, Ch. J., says : “any individual may lay out thoroughfare through his own land. But such dedication does not impose upon the towns in which the lands lie the duty of improving or of keeping in repair as a public highway the lands so dedicated.” In the same-case, Edmunds, J.: “It requires something more than dedication to create the privileges and duties belonging to a public highway.”
In Holdam v. Cold Spring, 23 Barb. 103, it is held without qualification that a dedication and an acceptance by the most unqualified use of a highway does not make it a highway in its most extended signification.
This is the law of New York.
In The State v. The Town of Richmond, 1 R. I. 49, it was held that a resolution which was passed adopting the road was insufficient. In the case of a dedication in • this state of a highway, it is provided by statute that “ no town shall be liable to repair such highway until the town council thereof shall decree and order the same to be repaired at the expense of such town.”
In Green v. The Town of Canaan, 29 Conn., the court was divided in opinion; Storks and Hinman, JJ., holding with the majority of this court, and Elllworth and Sandeord, JJ., holding that a dedication did not devolve without an act of acceptance on the part of the authorities, upon the town the responsibility of repairs and a liability for neglect to repair.
*92After quoting Rex v. Parish of St. Benedict, 4 Barn. & Ald. 447, Ellsworth, J. says : “ This reasoning is veiy satisfactory to us, and the doctrine laid down is most reasonable and just.” He says, further : In this . state, and perhaps in all the states, there is a statutory system in relation to highways wholly unlike anything in England. We have in each town and county a domestic tribunal invested with exclusive and final authority, which is specially charged, upon personal inspection, to lay them out and establish them, and if now we are about to place roads by dedication upon the same footing with such roads in England, in disregard of our own peculiar system, the legislature will ere long be called upon to enact a law similar to that of Massachusetts, or our cities and towns will be grieviously burdened, through accidents on roads of which they have little or no knowledge, and over which they have assumed no control.”
I add, adopting still the language of Ellsworth, J.: “ If my brethren are right in their theory, no city or town is safe without watching all private roads, however made, to learn how much public travel there is on them, and whether they have been abandoned to the public — an inquiry to be conducted at their own risk.”
He adds : “We hold acceptance is necessary, and until it is made by the city or town, or by some act, of its officials having charge of the subject, the city cannot be liable for its defects.”
In Guthrie v. The Town of New Haven, 31 Conn. 308, the doctrine held by the majority of this court is sanctioned on the authority of Green v. Ganaan, in which the court were divided, and in which was delivered the dissenting opinion of Ellsworth, J., from which I have ■before quoted at length.
In Jennings v. The Inhabitants of Tisbury, 5 Gray, 73, a distinction is made between a. road by dedication and a *93road by prescription. This distinction was made to avoid tbe consequences of tbe Massachusetts statute concerning highways by dedication, for it was found the law would apply to many roads that had been worked and used for many years, of the establishment of which, according to the mode prescribed by statute, no record could be found. This distinction is not well founded. According to the better opinion, and in conformity with the clearly defined and recognized signification of the terms, the public can at common law acquire an easement in the lands of another by dedication. When an individual by user so acquires an easement, it is termed prescription. Angell on Highways, § 131.
In Todd v. Rome, 2 Greenl. 51, Mullen, Ch. J., rules that twenty years’ use of a highway imposes upon the town the duty to keep in repair the highway, and he deduces the obligation to repair from the right to use.
In the following cases,' referred to in the opinion of the majority of the court, the question of the liability of a town or city to repair a road made by dedication is not in issue, and the courts intimate no opinion upon it. Baker v. Clark, 4 N. H. 380; State v. Nudd, 3 Fost. 327; Cole v. Sprowl, 35 Me. 161; People v. Beaubien, 2 Doug. 256; Marcy v. Taylor, 19 Ill. 634; Boyer v. State, 16 Ind. 457; Morse v. Ranno & Robbins, 32 Vt. 600; Gwynn v. Homan, 15 Ind. 201; Holdam v. Cold Spring, 21 N. Y. 474; Leech v. Waugh, 24 Ill. 228; Connehan v. Ford, 9 Wis. 250; Daniels v. The People, 21 Ill. 439; Holdam v. Cold Spring, 23 Barb. 103; Bissell v. N. Y. Central R. R., 26 ib. 630; Hays v. State, 8 Ind. 425; State v. Hill, 10 id. 219; Smith v. State; 3 Zab. 130; State v. Sarton, 2 Strob. 60; State v. Atherton, 16 N. H. 202.
In this list of authorities the gist is, that a dedication may be inferred from public use — a proposition I do not understand the defendant combats, and to which I. assent.
*94As I understand the fact to be, the rule, as evidenced by reported cases, adopted by the majority of the court, prevails in Maine and Connecticut and England.
By the rule established by the courts, the contrary prevails in New York and Vermont, and by acts of the legislature in Massachusetts and Bhode Island.
We have no evidence that this question has been determined in other than the states mentioned. I do not claim that no decisions have been reported. My limited researches have not reached them. It seems, then, that the reasons that have been met with in this discussion and determination of questions involved in the suit at bar would sanction this conclusion: that municipalities are not liable to repair highways made by dedication until they have accepted and adopted them. That this acceptance need not be made by any formal act or resolution ; that the working, grading, bridging, opening, by removing obstructions, and acts of like import, are sufficient for this purpose.
In this suit there is no evidence of any act of recognition till after the occurrence of the accident and injury. Perhaps this might bind the city in the future, but to hold that this would create a retrospective liability, would be to hold that present acts of adoption tend to prove a prior adoption. It is needless to combat such a proposition.
The defendant asked the court to instruct the jury :
“ That, in order to make the city liable in this action, plaintiff must satisfy you from evidence that Sixth street extension, at the place where the accident is alleged to have occurred, had been accepted by-the city as a public street, opened for the public travel .prior to the time of the accident.” This was refused. It should have been given, and the refusal is error.