dissenting:'
The principal question in this case, seems to be, whether the plaintiff below dedicated, to the use of the public, a portion of his land, called “ Fulton’s Addition to Dover,” which would be enclosed between parallel lines sixty feet apart, beginning at the northern edge of Cecil Street, and running in continuation by right line with Queen Street, of said town, to Clara Street, or even Mary Street, shown on the map attached to the brief, by him delivered in this court. He was the legal owner in fee of all the land enclosed by the outlines of the “ Addition;” and, like every other tenant in fee, could dedicate any part, or the whole, of his land, to public use. The respondents contend that the survey by the complainant of the “Addition ” and making a plot of it and recording that plot in the Recorder’s Office, with the descriptive notes upon it referring to defined or contetaplated streets, and the sale of some of the lots contained within the plan, of themselves constitute a dedication of the streets mentioned or referred to, as and for public streets or highways, of the aforesaid town, for the benefit of said town, or its inhabitants. The contention of the respondent is the contrary, or involves a contrary consideration. If there was dedication by the complainant of the part marked on his map aforesaid attached to his brief, as “ Proposed Extension of Queen,” then he had no case *107at all in the court below, and has none here : because, in the view that there was dedication, no formal steps whatever were necessary to be taken by the Town Council of Dover to open Queen Street, as projected, and shown by the dotted lines, on such map. The Chancellor has, in the reasons for his decree, taken the ground that the proceedings adopted by the Town Council for condemnation of the bed of this projected Queen Street from Cecil to Clara Streets, were invalid as not being in conformity with the statute giving them power of condemnation of ground for streets; and I agree with him entirely. In the view I take of this case, it is not necessary I should go into that question, nor into others raised by the complainant below. But while I agree entirely with the decision of the Chancellor upon the subject of nonconformity by the respondents with the requirements of the town law about taking land for streets, I am unable to reach the conclusion he has done—that this projected Queen Street so far north as Mary, was dedicated, by the acts of the complainant before stated, to the Town of Dover, as and for one of its public streets.
I think it may be safely laid down as law—that, in cases of dedication, to the public generally of a highway, for example, or to a municipal body, of a street, there must, to make the dedication complete, be some act of acceptance on the part of the intended donee of the grant. In the case of public highways, where no positive formal act of dedication is shown, but public user is relied on, it must not only appear that such user has been uninterrupted and continuous for at least twenty years, but that the public authorities have treated the way as a public one, by expending money in repairing it, or by some other unequivocal act indicative of treating it as a public road. While the fact that certain individuals, finding it to their convenience to do so, have used the way for such a period, would be evidence of a grant by the owner of the fee, of an easement of way, and therefore subject him to an action for hindering them in their use of it. Yet no public right grows out of like user—that is dedication of the way to public use until there has *108been, in the mode pointed out, acceptance of the donation, with the obligation of its consequent duties. If one divide his farm in two, laying down a road between the parcels and recording his plot of such partitions, and selling lots, fronting upon such road, to different purchasers, would the public at large thereby acquire any right of travel upon such road ? I think not. If, without objections on the part of the owner of the farm, the public treated the road as one of the highways of the county, and adopted it into, their books of roads as kept by the Levy Court, and committed the repair of it to an overseer—continuing this for a period of twenty years, a public easement, or right of way, would be created, which the owner could not afterwards challenge. But the public would derive no advantage from the fact that a plot of the road was recorded; as that, of itself, would show nothing, but that the seller of the lots and his purchasers intended to place upon record the precise location of their lots, and the way or road to them. The making of the plot, selling by it, with the road laid down upon it, would operate a contract between the seller and those claiming under him, and the respective buyers, and those claiming under them, that the road should, as between such parties, always be and remain a way or road for the benefit of the latter: but none would exist in behalf of the public at large, who would be in no sense a party to the implication of contract between the seller and his purchasers. With them, there would, upon the purchase, arise an obligation, or contract, for the perpetuity of the road, or way, for every use and convenience their ownership and residence of 'and upon their lots might—require, including the use thereof by all persons having occasion to go to see them on business, or otherwise: but with the general public there would be none, nor would such use by the lot-owners, or rather right of use by them and the others referred to, be ground for supposing any. The freehold of such a road, or way, would still remain in the seller of the lots, subject though it would be to a perpetual easement of open unobstructed way, in behalf of the lot-owners and their successors in title. It would surely be a *109great hardship upon an owner of land, if he could not sell a part of his ground and make proper means of access to it by roads, if in the county, or street, if in a town, without being held in the one case as having dedicated them to the public, or in the other to a corporate town. The lot buyers have no interest that the way shall be a public highway, but only that it shall be open to them for all their uses. When the public meant to make-it their highway, the laws furnishes them with the means of doing so. In a case like the present, there is no intendment of dedication in favor of the whole people 'of a town, by simply making a plot, with projected street upon it, and sale of a few lots, none on the street in question. It is rather that the streets are for perpetual use by the buyers and their successors in the title. Those persons are parties to the implied contract for streets; the general public, nor that of the town, are such in any sense. One may have a purpose of dedication of ground for a highway, or street, and may show it by making and recording or otherwise publishing maps; and yet, until some private individual has purchased property upon the proposed highway or street, no private interest in either has been created, nor do the public acquire any rights until some steps have been taken showing a purpose to accept the dedication. Until either purchase have been made by an individual, in the one case, or acceptance of dedication by the public, in the other, the ground owner may withdraw his scheme entirely (it being but in the nature of an offer) which could not be, if the making and publishing and recording of a map had any efficiency whatever per se. Now, while it is not contended that withdrawal can be made, after private purchase on the faith of the evinced purpose of making a street. Yet because of that hindrance, no public right accrues. Otherwise, all the legal idea of dedication to public use as expressed in the books, must be abandoned. And the reasoning of this opinion is entirely justified arid in harmony with, the true idea of dedication to public use, which is-—a contract implied between the dedicator and the public, the obligation of which upon the *110latter is, that it will accept the highway as such and maintain it in repair. It is quite obvious that in this case, the authorities of the town had, in the beginning, no idea of dedication at all; for they sent out a committee to view the premises and decide upon the expense of opening Queen Street, and kept their report under consideration for about ten months. It fixed nine hundred dollars as the amount of such expense. This did not meet the approval of the Town Council, who cut the amount down to the nominal sum of six cents; but this it is evident from the answer, was because it was believd the property of the complainant below would be actually enhanced in value to an amount greater than any damage he would sustain, by opening the street. All this shows, that the idea of dedication is an afterthought. Be that as it may, and it is not material either way, my opinion is that there was no dedication by the complainant of the proposed extension of Queen Street, to the public.
The first section oí Chap. 60 of the Revised Code, defines public highways as follows: “ All public roads, causeways and bridges, heretofore laid out as such, or made by lawful authority, or which have been used as such and maintained at the public charge for twenty years, are declared to be common highways.” In the case of Johnson v. Stayton, 5 Harr., 448, tried in Sussex at the October term, 1854. Judge Harrington in delivering the charge to the jury, said among other things—“The legislature has qualified the common law iq this State respecting roads claimed to be such by dedication. So many neighborhood roads exist by the indulgence of land owners, that the common law was considered harsh in reference to forfeiting private land by indulgence, and the legislature has required that such a road shall have not only been used, but maintained and kept up by the public for twenty years, to make it a public road against the owner of the land,” page 450. This settles, by a decision what is the evidence of dedication from public user; and it follows, that unless there be such user as the statute prescribes, and the charge recognizes as the law, there can be no in*111ferential dedication. Dedication must be by actual grant, or such declaration, or conduct, on the part of the land owner as would be treated as an estoppel in pais. Here there is neither grant, nor estoppel.
The case of Rowan’s Exrs. v. The Town of Portland, 8 B. Mon., 232, upon which that part of the decree of the Chancellor against the complainant below is chiefly based, is a different one in its facts from that before him—it being a case where an owner had founded and laid out a whole town, had made and recorded a map of it, with his declaration upon it, that all sales were to be regulated by the map. In such case there would seem to be no room for doubt, that all streets shown on such map should be treated as highways of such town for public use—the very consideration, it might—with perfect justice be assumed, which prompted buyers to invest their money, being that they were to be part of the body politic of a town, shown on the map. What the Kentucky Court would have said, in the case before it, if there had been on the statute book of that State, such a feature with respect to dedication as has been pointed out as being upon the pages of our Code, I can only conjecture. The rights of buyers of lots upon a plot, and those of the public, with reference to streets or highways, are by no means the same; for they do not rest upon the same support.
I am of opinion, upon the above view of the case, that the decree of the Chancellor dissolving the injunction granted by him as to that part of Queen street as projected between Cecil and Mary streets should be reversed; and that the injunction as it respects the whole of said street should be made perpetual; and that the respondent below pay the costs in three months.