a certain street in the parish of Islington had been dedicated to the public as a common public highway. Chief Justice BEST upon the trial told the jury that, if they thought the street had been used for years as a public thoroughfare with the assent of the owner of the soil, they might presume a dedication; and the jury found a verdict for the plaintiff, and the court refused to grant a new trial, but sanctioned the direction given to the jury, and the verdict found thereupon, although this street had been used as a public road only four or five years; the court saying the jury were warranted in presuming it was used with the full assent of the owner of the soil. The point, therefore, upon which the establishment of the public street rested, was whether it had been used by the public as such, with the assent of the owner of the soil; not whether such use had been for a length of time which would give the right by force of the possession, nor whether a grant might be presumed, but whether it had been used with the assent of the owner of the land; necessarily implying that the mere naked fee of the land remained in the owner of the soil, but that it became a public street, by his permission to have it used as such. Such use, however, ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment." In Case v. Favier, 12 Minn. 89, (Gil. 48,) the court says: "It is not necessary to establish dedication to show an adverse, exclusive, and uninterrupted possession of the premises for twenty years, with the actual or presumed knowledge of those interested. The right of the public does not rest upon a grant by deed, nor twenty years' possession, but upon the use of the land, with the assent of the owner, for such length of time that the public accommodation and private right might be materially affected by an interruption of the enjoyment. The length of time of the user is a fact for the jury to consider, as tending to prove an actual dedication and acceptance by the public." In this case the public had used the premises less than 10 years. Hobbs v. Inhabitants of Lowell, 19 Pick. 400; City of Chicago v. Wright, 69 Ill. 318; Cemetery Ass'n v. Meninger, 14 Kan. 312; 2 Dill. Mun. Corp. § 638, and cases cited; 2 Greenl. Ev. § 662; Elliott, Roads & S. p. 126. The facts in evidence in this case, when the offer by the defendants was made, were such as to raise a strong presumption of dedication of this avenue between First and Sixth streets to the public. The leaving a strip of land 66 feet in width by McClellan between his addition and the land of plaintiff; subdividing his westerly tier of blocks into lots facing the west; conveying a strip 66 feet in width between his two additions in 1884; the laying out of Cooper's addition so as to leave 66 feet between that and his other property,-all tended strongly to show that he intended that 66-foot strip for the public use. These facts, followed by the evidence offered, that the whole. 66-foot strip had been used before and since 1881 as a public highway, with the knowledge of and without objection by McClellan, might have been taken by the jury to establish at least a prima facie case of a dedication. But the evidence was clearly admissible upon another ground. As the plaintiff contended her property did not adjoin or abut upon Prairie avenue, because the city did not own the 33-foot strip in front of her property, it was competent for the city to show that this 33 feet was used by the public, as well as the easterly 33 feet adjoining McClellan's addition, and that it was exercising control over it by grading it the whole width. If such was the case, and the property was of such a character that the city could appropriate it or acquire an easement therein for the use of the public, the plaintiff could not defeat the city in its efforts to enforce the collection of the street assessments, on the ground that it did not absolutely own the 33 feet in question. Whether it had acquired the title or not was not material to the plaintiff, so long as the same was used by the public, and the right to so use it might be acquired by the city if it did not already possess the right by dedication or otherwise. The views expressed by the supreme court of Illinois in an analogous case (Holmes v. Village of Hyde Park, 121 Ill. 128, 13 N. E. Rep. 540) fully meet our approval. In that case the court says: "The question here is whether the owner of property * * specially assessed for the purpose of grading and paving a street of an incorporated village can interpose the objection, on an application to the court to confirm the assessment, that the village has not acquired title to the soil to be graded and paved as a street. Whether the compensation shall be made to the owner of the soil for the land taken for the street, before or after the assessment for its improvement, cannot make that assessment either larger or smaller; and so, whether title to the soil, entered upon for the purposes of the street, has been heretofore, or remains to be hereafter, acquired, is a distinct question from that of the benefits and damage to result to the adjacent land owner from the improvements of such street, and the latter has no dependance on the former. The owner or claimant of ownership of the soil covered by the street is not, as such, merely required to be made a party to the assessment proceedings, and manifestly could not, therefore, be con cluded or materially affected in his rights by the judgment confirming the assessment. It may be, if it were made to appear that there was probability that the village would not acquire title to the street, and so that the benefit of any improvement to be made by aid of the special assessment would be lost to the public, a bill in chancery would lie to enjoin the assessment proceedings until the title should be acquired; but then all the claimants to title would be parties, and concluded by the adjudication. The judgment is affirmed." Village of Hyde Park v. Borden, 94 Ill. 26. That case seems to lay down a just and proper rule. Cities cannot, in improving their streets, alleys, etc., be called upon by the citizen in every case to show that they have the legal title to the property they are seeking to improve before they can enfore the collection of assessments made for such improvements. It is sufficient for the city to show that the street, avenue, or alley sought to be improved is one that has, for a considerable length of time, been used as a public street, and is such property as can be appropriated by the city, and is, in the language of Chief Justice SHAW in Hobbs v. Inhabitants of Lowell, 19 Pick. 405, a street de facto. For the error of the court in excluding the evidence offered the judgment of the court below is reversed, and a new trial ordered. All concur. MASON V. CITY OF SIOUX FALLS et al. (Opinion filed April 5, 1892.) Appeal from circuit court, Minnehaha county. Hon. FRANK R. AIKENS, Judge. Action by Joseph M. Mason against the city of Sioux Falls and George R. Sammons, its treasurer, to enjoin the sale of certain real estate. From a judgment for plaintiff, defendants appeal. Reversed. Charles L. Brockway, for appellants. Keith & Bates, for respondent. CORSON, J. The facts in this case are the same as those in the case of Mason v. City of Sioux Falls, except as to the amount of the assessment. The two cases were tried together in the court below, by stipulation, and were presented to this court together upon one abstract and set of briefs. This case is therefore reversed for the reasons given in the opinion in the last above entitled case. (2 S. D. 640.) All the judges con curring. INDEX. ABANDONMENT. ABSTRACT. See Appeal, 1, 2. ABUTTING PROPERTY. See Municipal Corporations, 6. ACTION. See Landlord and Tenant, 5, 6, 7. 8; Necessity of Demand Before Suit, see ADJOINING LAND OWNERS. See Real Property. ALIEN. One of the locators of an unpatented mining claim duly and legally located APPEAL. See Reference 1; New Trial. 1. The rules of this court contemplate a carefully prepared abstract or ab- Noyes et al. v. Lane, 55. |