¶1Where an owner of land lays it out in lots and streets, and exhibits the streets upon a map by which he sells and conveys lots so laid out, as between him and the purchasers of such lots, the spaces so laid down upon the map as streets are dedicated as such to the public use. This I understand to be the law, and in conformity to the principles of natural justice. The mere act of selling and conveying by such a map binds the grantor to permit the land so laid down as streets to be used as such. As between the parties, their heirs and assigns, it fixes the servitude of a public way upon the land thus laid out as streets. It is perhaps unnecessary now to consider whether such a grant as between the grantor and the public would be a dedication. I think it would not. No question was raised on the trial of this cause as to the intervening of any public rights between the making of the partition deed of August 13, 1817, and that of September 19, 1822. In some of the cases conveyances of this class are spoken of as dedications of the streets to the public. This must be understood with some qualification. I take a dedication to the public of land for a public highway to be something more than the act of the owner of the land. The dedication is not complete or binding until accepted by the public by user, or some other indication of acceptance. As the acceptance of a deed by the grantee of land will be presumed from the beneficial nature of the act, so as to give effect to the delivery, *258 although there is no express evidence of an actual acceptance, so, as a rule of evidence, the acceptance of a dedication of land for public use may be presumed from the beneficial nature of the dedication. The transaction is, however, in the first instance, strictly a private one as relates to the streets, as much as it is a private one as relates to the land actually conveyed. The right to use, and to have used by the public, the streets laid down upon the map, has become an appurtenance to the parcel of land granted. And the same right belongs to each of the parcels granted upon the same terms. As between the original owner of the land, and the several grantees of parcels thereof, these rights are fixed, but until the public has in some way become a party to the transaction, the whole arrangement is subject to be rescinded by the joint act of the original owner and of all those who own and have the right to represent the land sold. The principle established is, that an owner of land may make any lawful disposition of it which he deems most beneficial. He may found a city, a village, or an agricultural or manufacturing community at his own free will, so far as the appropriation of his land may go to effect such purposes. He may adopt just such measures concerning his land as to his judgment may seem expedient. I suppose it would nowhere be doubted that a man owning a hundred acres of land through which there ran no highway would be quite at liberty to inclose it with a wall, and to erect a fenced town. He might lay out streets throughout the entire parcel, and collect a phalanx of socialists, having all the streets common and as among themselves public; as to the world beside exclusive and private. In other words, there might be impressed upon this mass of private property, by private contract, rights, in the strictest sense of the word, analogous to the ordinary public rights of highway, and yet these rights confined to the owners and representatives of the land forming the subject of the compact, and liable to be ended and rescinded by the mutual *259 consent of all who have an interest in the subject. The present case seems to furnish an illustration and a practical adoption of the principles to which I have alluded.
¶2In 1811 Charles Carroll, William Fitzhugh and Nathaniel Rochester became the owners of a tract of one hundred acres of land, with extensive water power, "at the falls of the Genesee river in the county of Genesee," and subsequently laid out this land "in village lots, mill yard, c.," and called it the village of Rochesterville, and caused a plan or plat of it to be made. They joined in the sale and conveyance of a part of the lots so laid out, and in contracts for the sale of other of said lots.
¶3In 1817 (August 13) they made and executed a deed of partition of the lots then belonging to them in the village of Rochesterville, to which deed was annexed the plan or plat of the said village above referred to, "with the lots numbered and marked" thereon. Upon this map is laid down the "mill yard" in front of the various "mill-seat lots" designated upon the map as numbers one, two, three, four and five, including a race-way next to the mill-seat lots. There are also other lots fronting on this mill yard. There is no apparent way of access to these mill-seat lots except through or over the land thus laid down as the mill yard. It may as well be remarked here as elsewhere that this is by no means a case of a way of necessity. It is apparent that the only way to these mill-seat lots was over this mill yard. The use of the term mill yard implies that the ground so designated was to be used for some purpose connected with the mills, being evidently intended as a convenient way to the mills for the ordinary purposes of a mill yard, where teams may not only pass and repass, but where they may remain for a sufficient length of time to perform the ordinary purposes of a place set apart for such a use. It was the evident intention of the parties to this plan, and to the deed to which the plan was annexed, that each should have the use of this yard for all the reasonable *260 purposes of his mill-seat lots fronting on it; and to have such use, not as a personal privilege or in the nature of a common in gross, but as annexed to the land. It was to be held in severalty and as an appurtenant thereto. There would be no sense in laying down this mill yard in front of these mill-seat lots, unless its use was to have some connection with the enjoyment of these lots. This deed confirmed to Carroll in severalty, among others, "mill-seat lot No. 5" fronting on the mill yard. The parties to this deed perfectly understood and agreed, what the purposes of this mill yard were. They reserved to themselves the right, by mutual agreement, to "sell and convey or otherwise appropriate such part of the mill yards as they may think will not benecessary for the accommodation of the mills or other water-workserected, or such part of the alleys hereinbefore mentioned as they shall think proper to divide among them or dispose of." While the rights of no other party intervened, they had a right to reconstruct, alter or modify the easements created and made appurtenances to parts of the land set off to be held in severalty by each. So they had equal power to reconstruct the plan of the lots, alleys and yards. The whole was their own and they might do whatsoever they would with it. But until they did mutually agree to the contrary, the mill yard remained a common way — common to those who had interests in the mill-seat lots fronting upon it — constituting to each lot an easement appurtenant to it; not by prescription, but by what a prescription implies, a grant.
¶4On the 19th September, 1822, the parties to the partition deed of August 13, 1817, together with their respective wives, executed a new deed of partition by which they in part reconstructed the plan of the village of Rochesterville. They laid off seven additional mill-seat lots on ground which remained undivided and which was designated on the plan as mill yard. These lots are not upon that part of the yard which now forms the basin. That part of the mill *261 yard which now forms the basin and the passage along its margin was the only outlet from the mill-seat lot number five and some others. A way of necessity would have been charged upon this part of the mill yard, if it had not been reserved and laid out as a way by the plan, as there appears to be no other way to reach the mill-seat lots. In this reconstruction of the plan, and, in part, new distribution of the land, mill-seat lot number five was set apart to Nathaniel Rochester. It was covenanted by the parties to this deed that a basin should be made as laid down upon the plat at the joint expense of themselves, their heirs and assigns, and that such basin should be the common property of such parties, their heirs and assigns forever. This deed also provides that "Nathaniel Rochester, his heirs and assigns shall forever have and enjoy the privilege of erecting and maintaining one or more warehouses from his mill-seat lots Nos. 5 and 6 across the same road and common way to the margin of the basin." The road to which the above recited covenant refers is provided for in other parts of the deed, and occupies the space between the basin and the mill-seat lots from Nos. 1 to 8. This road and the basin occupies the same ground as the mill yard, on the plan annexed to the deed of 1817, occupied. The only alteration attempted in relation to this ground is to convert it from an ordinary land way into one partly by land and partly by water. Although that part of the way which is to remain a way by land may be built over by the parties respectively to whom mill-seat lots were set off by the partition deed, their heirs and assigns, yet it must be done in a particular manner, and so as to allow of the full beneficial use of the way "to and from the mills and seats on the race-way, and to the basin and to the warehouses adjoining and over the same." The deed provides expressly for that, which if not expressed would be implied, i.e., "that nothing contained" in this deed of 1822 "shall interfere with or impair any right or privilege acquired by or secured to either of the *262 said parties under their former deed of partition, except so far as it is herein expressed or provided for."
¶5On the 8th day of October, 1822, Nathaniel Rochester made this deed to Jonathan Child the plaintiff, conveying a large amount of the property laid down upon the plans annexed to the two deeds of partition above mentioned, and among the rest of one equal undivided third part of the land designated upon said plat as "Basin," subject to the covenant of the grantor for the construction of the basin. The privilege of erecting and maintaining forever one or more warehouses from mill-seat lots numbers five and six across the highway running along the west side of the race-way to the margin of the basin, is also granted by this deed. By deed of December 10, 1823, Charles Carroll conveyed to the plaintiff one-third part of the mill yard, including the basin then excavated and walled, and adjoining the grand canal.
¶6On the 8th October, 1823, the said Nathaniel Rochester and wife conveyed mill-seat lot number five to Harvey Montgomery and Thomas H. Rochester. The defendant's title is derived from this deed. There is nowhere any indication of an intention to strip mill-seat lot number five of any of its appurtenances. The common way, called in one of the deeds highway, between the lot and the basin, is carefully preserved, and preserved, as I understand the deeds and plans, to the margin of the basin. Over that space the defendant had a clear right of way for the purposes of his milling business carried on upon mill seat number five. It was the exact purpose of the deeds of partition to secure just that right of way. The basin is a way of another class, but, as a way, having the same qualities. The defendant had a right to the reasonable use of these ways. But even if he had no right to use these ways, still the ways existed for some purposes, and he used them as ways and only as ways, assuming that he had a right to do so. That was not taking possession of the land, nor was it, I apprehend, *263 claiming an interest in the land within the meaning of the statute. He claimed a right to pass over the land, both that which was used as a road and that which was within the basin and covered with water. It was an incorporeal hereditament which he claimed, a thing incapable of livery of seizin. The sheriff could not deliver possession of a mere right of way. I am of the opinion that the judgment of the supreme court ought to be affirmed.
¶7TAGGART, J., dissented from the foregoing conclusions.
¶8All the other judges concurring,
¶9Judgment affirmed.