to judicial control only when legislative acts transcend constitutional limitations.11 DELEGATION. 129. The legislative control over streets may be, and usually is, delegated to the municipality, and the power thus conferred upon it to open, graduate, improve, regulate, and close its own streets. This municipal power to control its own streets depends entirely upon the provisions of the charter or the general statutes.12 In some cases the power granted has been held to be unlimited, and the municipality vested with all the inherent power of control over the streets primarily possessed by the state.18 The grant is usually expressed in general terms, such as to lay out, open, grade, and otherwise improve streets and 11 Where the legislature has vested in a village board discretionary power to vacate streets of the village, the courts will not ordinarily look into the motives influencing such board in doing such discretionary act. Village of Bellevue v. Improvement Co., 65 Neb. 52, 90 N. W. 1002; People v. Fields, 58 N. Y. 491; OLIVER v. WORCESTER, 102 Mass. 489, 3 Am. Rep. 485; Leeds v. Richmond, 102 Ind. 372, 1 N. E. 711. 12 Municipal corporations have no inherent power to regulate and control streets therein, for streets and highways belonging to the state are under its control. Raynolds v. Cleveland, 24 Ohio Cir. Ct. R. 215. See Kean v. Elizabeth, 55 N. J. Law, 337, 26 Atl. 939; McGrew v. Stewart, 51 Kan. 185, 32 Pac. 896; Citizens' St. R. Co. v. Memphis, 53 Fed. 715; Shirk v. Chicago, 195 Ill. 298, 63 N. E. 193. Municipal corporations have the power to grant franchises to use streets for street railway purposes only by delegation from the state. Allen v. Clausen, 114 Wis. 244, 90 N. W. 181. See, also, State v. Yopp, 97 N. C. 477, 2 S. E. 458, 2 Am. St. Rep. 305; Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 Pac. 714. 13 City of Terre Haute v. Turner, 36 Ind. 522; Illinois Cent. R. Co. V. Galena, 40 Ill. 344; Sinton v. Ashbury, 41 Cal. 525; City R. Co. V. Railroad Co., 166 U. S. 557, 17 Sup. Ct. 653, 41 L. Ed. 1114. keep them in repair; 14 or to have power over its streets; 15 or to have the care, supervision, and control of its streets.16 These general grants of authority by the state over its own streets, to its duly authorized general agent, to do whatever the state might do in controlling them, are held to confer plenary powers upon the municipality." The grant of power may, however, be partial, so that the state shall reserve to itself the sovereign power of exercising the right of eminent domain,18 or the power to determine what streets may be occupied by street cars or common railways, 10 and also the designation of particular limits within the city wherein certain trades or business may be carried on.20 It has been held that a state may delegate its control to two public corporations within the same territory; 21 but, because of the confusion and conflict likely to result from this double delegation of power, the courts will recognize it only when expressed in unmis 19 14 But a grant of power to establish, regulate and control streets, given at a time when street railways were not contemplated, does not give a municipality power to regulate and control the construction of street railways therein. Raynolds v. Cleveland, supra, note 12. People v. Wilson, 62 Hun, 618, 16 N. Y. Supp. 583; Burr v. New Castle, 49 Ind. 322. 15 City of Hannibal v. Railroad Co., 49 Mo. 480. 16 Shelton v. Mobile, 30 Ala. 540, 68 Am. Dec. 143; White v. Kent, 11 Ohio St. 550. 17 Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Spokane St. Ry. Co. v. Spokane, 5 Wash. 634, 32 Pac. 456; North Pacific Lumber & Mfg. Co. v. East Portland, 14 Or. 3, 12 Pac. 4. 18 West v. Blake, 4 Blackf. (Ind.) 234; Kerrigan v. West Hoboken, 37 N. J. Law, 77. 19 Protzman v. Railroad Co., 9 Ind. 467, 68 Am. Dec. 650; CITY OF CLINTON v. RAILROAD CO., 24 Iowa, 455; Gulf, C. & S. F. R. Co. v. Eddins, 60 Tex. 656; City of Knoxville v. Africa, 77 Fed. 501, 23 C. C. A. 252; City of Houston v. Railway Co. (Tex.) 35 S. W. 74. 20 2 Dill. Mun. Corp. § 656. 21 City of Norwich v. Story, 25 Conn. 44; Town of Bennington v. Smith, 29 Vt. 254; Wells v. McLaughlin, 17 Ohio, 99; Baldwin v Green, 10 Mo. 410. takable language.22 The judicial inclination also generally favors such construction of charters and general law as will vest the municipality with the control of its own streets. DEDICATION AND ACCEPTANCE. 130. Dedication of property for street uses may be made by any legal or equitable owner, either in writing or orally, or by conduct, or acquiescence in public user, such as will suffice to estop claim to the contrary. A dedication at common law is the appropriation and setting apart of private property to the use of the public.23 It consists of both act and intention, and may be either express or implied; 24 express when the owner, either in writing or by parol, declares his intention to donate and surrender the property to the use of the public; 25 implied as when this intention is signified by a public platting of property and lots with open spaces apparently for street uses, 26 or when the public for a long time uses the property for a street with the knowledge. of the owner, and without his objection.27 Slight circumstances of assent do not suffice to constitute a dedication, nor long user without the owner's knowledge; 28 but, when the public 22 City of Indianapolis v. Croas, 7 Ind. 9; State v. Jones, 18 Tex. 874; Cross v. Morristown, 18 N. J. Eq. 305. 23 Black, Law Dict., in verb. 24 Ellsworth v. Lord, 40 Minn. 337, 42 N. W. 389; Village of Princeville v. Auten, 77 Ill. 325; McKee v. Perchment, 69 Pa. 342; State v. Woodward, 23 Vt. 92. 25 Forney v. Calhoun Co., 84 Ala. 215, 4 South. 153; Cook v. Harris, 61 N. Y. 448; Smith v. Navasota, 72 Tex. 422, 10 S. W. 414; Village of Winnetka v. Prouty, 107 Ill. 218; City of Shreveport v. Drouin, 41 La. Ann. 867, 6 South. 656; Cummings v. St. Louis, 90 Mo. 259, 2 S. W. 130. 26 Darker v. Beck, 56 Hun, 650, 11 N. Y. Supp. 94; Waugh v. Leech, 28 Ill. 488; Waltman v. Rund, 109 Ind. 366, 10 N. E. 117; Arrow-Smith v. New Orleans, 24 La. Ann. 194. 27 McKenna v. Boston, 131 Mass. 143; Faust v. Huntington, 91 Ind. 493; Hoole v. Attorney General, 22 Ala. 190. 28 Gerberling v. Wunnenberg, 51 Iowa, 125, 49 N. W. 861; McKey use has been continuous and notorious for a long time, knowledge and assent may both be presumed.29 Who May Dedicate-Common-law Dedication. 80 Dedication may be made not only by a legal owner, but also by the owner of the equitable interest,31 or by a married woman,32 but not by her husband.33 The common-law dedication does not pass the title, but only a public easement,3 the title still remaining in the owner, who, upon abandonment of the easement, may resume possession. A dedication for v. Hyde Park, 37 Fed. 389; People v. O'Keefe, 79 Cal. 171, 21 Pac. 539. 29 Smith v. Inge, 80 Ala. 283; Shea v. Ottumwa, 67 Iowa, 39, 24 N. W. 582; City of Cincinnati v. White, 6 Pet. (U. S.) 431, 8 L. Ed. 452. 80 Lawe v. Kaukauna, 70 Wis. 306, 35 N. W. 561; Forney v. Calhoun Co., 84 Ala. 215, 4 South. 153; Town of Edenville v. Railway Co., 77 Iowa, 69, 41 N. W. 568.. 81 City of Hannibal v. Draper, 15 Mo. 638; Johnstone v. Scott, 11 Mich. 232; Williams v. Society, 1 Ohio St. 478. 32 Todd v. Railroad Co., 19 Ohio St. 514; Schenley v. Commonwealth, 36 Pa. 29, 78 Am. Dec. 359. 83 City of Indianapolis v. Patterson, 112 Ind. 344, 14 N. E. 551; City of Marshall v. Anderson, 78 Mo. 85. 34 City of New Orleans v. U. S., 10 Pet. (U. S.) 662, 9 L. Ed. 573; McConnell v. Lexington, 12 Wheat. (U. S.) 582, 6 L. Ed. 735; City of Winona v. Huff, 11 Minn. 119 (Gil. 75); Donovan v. Allert. 11 N. D. 289, 91 N. W. 441, 58 L. R. A. 775, 95 Am. St. Rep. 720; Stevenson v. Chattanooga, 20 Fed. 586; City of Dubuque v. Maloney, 9 Iowa, 450, 74 Am. Dec. 358; Bliss v. Ball, 99 Mass. 597; Brakken v. Railway Co., 29 Minn. 41, 11 N. W. 124; Baker v. St. Louis, 75 Mo. 671. Where the city owns the land included within a street, the subsequent narrowing of such street does not give title to the abutting owner of the narrow strip of land. Watson v. New York, 67 App. Div. 573, 73 N. Y. Supp. 1027. Under a common-law dedication, where a street is vacated by a city, the vacated portion reverts to the abutting owners, subject to such rights as other abutting property owners on the street may have therein. Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 62 N. E. 341, 87 Am. St. Rep. 600. street uses does not authorize the appropriation or conversion of the same to any other use, public or private.35 Acceptance. 86 A common-law dedication for street uses is only consummated by an acceptance thereof by the municipality. Acceptance can be made only by a duly authorized municipal agency; but acceptance, like dedication, may be either express or implied. Implication of acceptance, however, is not to be made from mere public user; but it may be implied from municipal appropriation for the street, or work done upon it under municipal authority. The matter of acceptance becomes important sometimes from the municipal duty to care for and repair the public streets. When, however, the dedication is 38 35 Gilman v. Milwaukee, 55 Wis. 328, 13 N. W. 266; City of New Orleans v. Leverich, 13 La. 332; Warren v. Lyons City, 22 Iowa, 351. A city cannot authorize a private corporation to construct a railway track for its use on a public street. Schwede v. Brewing Co., 29 Wash. 21, 69 Pac. 362; Heineck v. Grosse, 99 Ill. App. 441. 36 Village of Winnetka v. Prouty, 107 Ill. 218; City of San Francisco v. Canavan, 42 Cal. 541; Holdane v. Cold Spring, 21 N. Y. 474. 37 Baldwin v. Springfield, 141 Mo. 205, 42 S. W. 717; Abbott v. Cottage City, 143 Mass. 521, 10 N. E. 325, 58 Am. Rep. 143; Guthrie V. New Haven, 31 Conn. 308. 88 Steel v. Borough of Huntington, 191 Pa. 627, 43 Atl. 398; Brabon v. Seattle, 29 Wash. 6, 69 Pac. 365; In re Hunter, 163 N. Y. 542, 57 N. E. 735, 79 Am. St. Rep. 616; Morrison v. Conshohocken, 17 Montg. Co. Law Rep'r (Pa.) 47; Parsons v. University, 44 Ga. 529; 514, 9 Atl. 234, 57 Am. Rep. 346; 3 S. W. 309; Shartle v. Minneapolis, 17 Minn. 308 (Gil. 284). Folsom v. Underhill, 36 Vt. 580; The existence of a highway must be proved either by record, or by immemorial use and repair, or by dedication and acceptance. Stone v. Langworthy, 20 R. I. 602, 40 Atl. 832. See City of Chicago v. Sawyer, 166 Ill. 290, 46 N. E. 759. 39 Requa v. Rochester, 45 N. Y. 129, 6 Am. Rep. 52; Wisby v. Bonte, 19 Ohio St. 238. A municipal corporation is bound to use ordinary care to keep its streets and sidewalks in a reasonably safe condition for public use. Town of Norman v. Teel, 12 Okl. 69, 69 Pac. 791. But the duty |