On Application eor Rehearing.
Bermudez, C. J.The appellants charge that the judgment here rendered is erroneous in four particulars which we will consider seriatim.
I.
It is not correct to say that, in the decision of this cause—in which pvMie rights are involved—we have been governed by and have applied laws relative to servitudes which regulate private individual rights.
Neither is it correct to state that we have held that the rights invoked for the public, to the use of the road or land in controversy, ■could be established only by written evidence, to the exclusion of any •other proof. 3
The rights set forth are made to rest on an averment of dedication to the public. In order .to succeed, the plaintiffs should have proved the •alleged dedication by either the quality or quantity of evidence required and adduced in such cases, which is either written proof, or when parol, of such significance and weight as to be equivalent to documentary evidence. In this they haye signally failed.
We did not rule that in the absence of written evidence, no other proof could be admitted. We said simply, that in those cases which we had examined and in which dedication had been claimed, the proof adduced was formal and direct, such as results from authentic acts or •from plans or plots.
*506The jurisprudence of this State is so firmly settled on the subject ■ that it cannot be questioned.
It is that to support the dedication of property to public use, it must affirmatively appear that the ground has been used with the assent of the owner for such public purposes, in such a manner as to exclude the idea of private ownership, and for such a length óf time .that the public accommodation and the rights of individuals would be seriously affected by the interruption of the use, or else it must appear unequivocally by some plan or writing that the owner has made a dedication —to violate which, would involve a breach of faith.
No one is presumed to give away Ms property. The burden is on-him who avers a divestiture of ownership to prove it clearly.
It is true that we referred to the laws on the subject of servitudes. For doing so we had good authority, as among those laws there exist-provisions concerning public roads, which themselves are generally nothing but highways or passages on the lands of individuals, in favor of the public, either by virtue of some general law or of some private concession j—the individuals retaining the ownership or fee according' to circumstances.
Wo showed that the plaintiff had no title to the road, as they had proved it to bo neither a public nor a private road. This was essential for a recovery.
II.
It is not because numerous bills are found in a record, that the court is bound to consider each and every one of them. There are instances in which bills are taken which are not entitled to notice, particularly in litigated cases in which much feeling is involved.
In the present instance it is claimed that we did not pass upon the bills taken to the exclusion of evidence to prove dedication.'
The ground upon which the district judge declined to receive the evidence is, that it was irrelevant.
• The fact is, that it was designed to prove act's find words which are-abundantly established, though abundantly contradicted or overbalanced.
As we considered that the judge was right in not admitting tlio evidence, which, at best, would only be cumulative and unnecessarily so,.
that, even if the evidence had been received, the result would not. be different, we deemed it unnecessary to notice the bills.
III.
We thought that the section line road had been established by public authority and we inferred that it was a good reason to conclude-*507that the road no w claimed to be a public road was not thus considered by that authority. But, whether the section line road was thus created or not, is immaterial after all, for the reason that the plaintiffs had to make out their claim to the road as a public road, by sufficient legal-evidence, and that reliance on the creation of the section line road by private authority, could not have proved a tittle to establish expropriation by dedication or otherwise. We are still of that opinion.
IV.
It is true that Act 63 of 1868, which was pronounced unconstitutional, was not charged with being such by the pleadings. The plaintiffs it was, who advanced its existence and validity in argument, thinking it could assist them in the recovery. They invited an expression of opinion as to its binding force and effect on the defendants. It was thus made by the plaintiffs themselves an important factor in this controversy. The defendants joined issue and we deemed preferable to acquiesce and set at rest the question of the validity of a law of such vital importance to the public.
We have devoted again much attention to a re-examination of the merits of the case; wo have considered every point made in the application for a rehearing, and, after due deliberation, could reach no conclusion to alter our previous views.
Interest reipublicce ut sit finis litmm.
Rehearing refused.
Poems, J., recused.