an appeal, and his failure to prosecute an appeal was a waiver of his right; and on the argument it was directly insisted that, notwithstanding the fact that the plaintiff in the former action dismissed the suit as to Altschul, asked the Court to strike out the evidence of his title, and then objected to the defense of his title being made, thus inviting the Court to make an error (if it were an error), yet, as Altschul, though no longer a party, did not appeal, he has had his day and is barred. We cannot accede to that proposition. We think that the bare statement of the proposition conclusively shows the answer.

The case of Windsor vs. McVeigh, 3 Otto, 274, though not similar in facts, is parallel in principle, so far as concerns the binding effect of the judgment. In proceedings before a District Court, in a confiscation case, monition and notice having been issued and published, the appearance of the owner, for which they called, when made, was stricken out, his right to appear being denied by the Court. Held that the subsequent sentence of confiscation of his property was as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect of striking out his appearance was to recall the monition and notice as to him. The Court says: "Wherever one is assailed in his person or property, there he may defend; for the liability and right are inseparable. A denial to a party of the benefit of a notice-i. e., to defend-would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, appear and you shall be heard, and when he has appeared saying, your appearance shall not be recognized and you shall not be heard. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. It was not within the power of the jurisdiction of the District Court to proceed with the case, so as to affect the rights of the owner after his appearance had been stricken out, and the benefit of the citation to him thus denied. Jurisdiction is the right to hear and determine; not to determine without hearing. And where, as in this case, no appearance was allowed, there could be no hearing, or opportunity of being heard, and therefore could be no exercise of jurisdiction."

The findings of the Court below on the other points made by appellant are sustained by the evidence.

Judgment and order affirmed.

We concur Morrison, C. J., Sharpstein, J., Ross, J., McKee, J., Thornton, J.

IN BANK.

[Filed August 13, 1880.]
No. 6478.

DAVID JONES, RESPONDENT,

VS.

S. J. CHALFANT, APPELLANT.

(See page 134, Vol. V, of this Journal.)

Appeal from the District Court of the Nineteenth Judicial District, San Francisco County.

Howe & Rosenbaum, for respondent.

George A. Nourse and J. D. Thompson, for appellant.
By the Court:

The opinion heretofore announced in this cause in Department No. 2 will stand as the opinion of the Court herein. The order appealed from is affirmed.

United States Circuit Court.

NINTH CIRCUIT-DISTRICT OF CALIFORNIA.

ALEXANDER B. GROGAN,

VS.

THE TOWN OF HAYWARD.

Andros & Page, for plaintiff.

Mastick, Belcher & Mastick, for defendant.

FIELD, J.:

This is an action for the possession of a parcel of land situated in the town of Hayward, Alameda County. The plaintiff traces title to the premises from one Guillermo Castro, to whom a grant of land, of which they are a part, was made by the former Mexican Goverment. The grant was confirmed by the tribunals of the United States under the Act of March 3, 1851, and a patent was issued to the confirmee. The defendant, the town of Hayward, claims that the premises are a part of a tract dedicated by Castro to the public use of the town previously to the conveyance under which the plaintiff asserts title. The main question for determination relates to the validity and permanence of the alleged dedication.

The facts of the case, as disclosed by the evidence, are briefly these:

In 1854, Castro being desirous of founding a village or town on his land, selected for that purpose a portion of it, which included his residence, as a site for the town, and caused it to be surveyed into blocks and streets, and had a map made on which the streets were named and the blocks numbered. Upon this map the town was designated San Lorenzo. The map showed that the streets were to be eighty feet wide, and that the blocks were to be four hundred feet in length and three hundred feet in width. One of the blocks-the one bounded on the north by Webster Street, on the east by Castro Street, on the west by Watkins Street, and on the South by Clay Street-was marked "Plaza" on the map. The premises in controversy are a part of this block.

One of the streets, called Castro Street, was coincident with the county road running between San Leandro, the county seat, and San Jose, the county seat of Santa Clara County. The map was filed by Castro for record on the 2d of December, 1854. Subsequently two sales of parts of blocks bounded by streets as laid down on this map were made by him. In 1856, for the purpose, as is said, of securing to himself a lawn or yard in front of his house, he caused the street bearing his name to be re-surveyed, and he located it sixty-six feet farther west than it was located according to the map of 1854. The block occupied by him as his residence was thus widened sixty-six feet, and all other blocks and streets west of him were pushed sixty-six feet to the westward. A new map was then made of the town, showing the streets and blocks as thus changed, and on the 8th of April, 1856, was filed in the office of the Recorder of the County. Soon afterwards Castro Street was opened, and the county road made to conform to it, and since then, now a period of over twenty years, has been continuously used as a street of the town, and as part of the public highway from San Leandro to San Jose. A copy of the map was exhibited in the office of Castro to parties seeking to purchase lots in the town, and lots were sold by him and his agent, and deeds executed with reference to it, or the lots were bounded by streets designated upon it. The block marked "Plaza" was spoken of by them as reserved for public use, and sales of portions of it were refused for that reason.

The plaintiff derives whatever title he has from the purchaser at a sale made in 1864 upon a foreclosure of mortgages upon the tract of land embracing the town of San Lorenzo, executed by Castro in 1858, 1859, and 1862.

The name of the town was subsequently changed from San Lorenzo to Hayward, and under this latter name was incorporated by the Legislature in March, 1876. The Act of incorporation authorized the Board of Trustees created by it "to provide for inclosing, improving, and regulating all public grounds at the expense of the town," and of course to take control of them for that purpose.

Sometime prior to January 5, 1877, Luis Castro, son of Guillermo, as County Surveyor, by direction of the Board of Trustees, made a survey of the town in accordance with the map of 1856, and the survey was finally approved and the map officially adopted by an ordinance passed January 6, 1877.

The plaintiff, Grogan, at the time claiming under conveyances from Castro and the holder of the mortgages mentioned, (subsequently the purchaser on their foreclosure,) constructed warehouses on a part of the block marked on the map as the plaza, and occupied them from 1864 to 1877. In the latter year these warehouses were burned down, and soon afterwards the authorities of the town took possession of the ground as part of its public plaza. Hence the present suit.

Upon this statement of the case there ought to be no doubt as to the judgment of the Court. In the light of adjudications almost without number in the Courts of the several States, and in those of the United States, the law as to what constitutes a dedication of private property to public purposes, so as to be beyond the recall of the original owner, would seem to be settled.

A dedication of land for public purposes is simply a devotion of it, or of an easement in it, to such purposes by the owner, manifested by some clear declaration of the fact. If nothing beyond the declaration be done-if there be no acceptance by the public of the dedication, and no interest in the property be acquired by third parties-the dedication may be recalled at the pleasure of the owner. But if the dedication be accepted by the public authorities of the place where the property is situated, or contracts for a valuable consideration be made by others founded upon a supposed appropriation of the property to the uses indicated, the dedication becomes irrevocable. In the one case the acceptance completes the transfer of the property, or easement in it, from the owner to the public; in the other case the contract with the owner estops him from asserting any interest except in common with the purchasers from him. In the present case the intent of Castro to dedicate the

streets and the block marked "Plaza" in the town of San Lorenzo was manifested in the most open and public manner. The filing in the office of the County Recorder of the map containing a designation of the streets and blocks, as set apart for public uses, was a public declaration of the fact. Whether, if nothing further had been done by him, there would have been any such interest acquired by the public as to forbid a subsequent assertion of ownership may be questioned. But when by the sale of property by reference to the map filed, or bounded by streets marked upon it, other parties had become interested in the property set apart for public uses, the owner was precluded from asserting his original rights. The sale by the map, or with reference to the streets upon it, was a sale not merely for the price named in the deed, but for the further consideration that the streets and public grounds designated on the map should forever be open to the purchaser, and to any subsequent purchasers in the town. This was an essential part of the consideration. The purchaser took not merely the interest of the grantor in the land described in his deed, but, as appurtenant to it, an easement in the streets and in the public grounds named, with an implied covenant that subsequent purchasers should be entitled to the same rights. The grantor could no more recall this easement and covenant than he could recall any other part of the consideration. They added materially to the value of every lot purchased.

No formal acceptance by the public authorities of the dedication, upon which the counsel for the plaintiff so much insist, was essential. No such acceptance could have been had until the town was organized by the Legislature. Until then there were no officers of the public to express an acceptance, and Castro held the legal title of the property dedicated in trust for the public, being precluded by his sales from the assertion of ownership freed from the public easement. A formal acceptance by the public authorities of a dedication may be necessary to impose upon them the duty of protecting the property and keeping it in a condition to meet the uses designed-as for instance to open and repair a street-but it is in no respect essential to complete the dedication and preclude the original owner from revoking it. The dedication is irrevocable when third parties have been induced to act upon it and part with value in consideration of it. Nor is this irrevocable character of the dedication affected because the property is not at once subjected to the uses designed. In many instances, perhaps the greater number, there may be no present