1. This court has jurisdiction to quiet the title to land, even though the land is not actually in the possession of complainant, provided possession is alleged by the bill and is not put in issue by the answer.
2. Every material allegation of fact in the bill of complaint which is not denied by the answer is deemed to be admitted. Where the bill of complaint sets forth the fact that complainant is in peaceable possession of the land, it is not sufficient to put the complainant's possession in question where the answer states that the land is a sidewalk and has been used as such for many years. Such a statement is a mere specification of the estate claimed by the defendant.
3. It is too late at the hearing to question for the first time the complainant's possession of the premises in question.
4. When all the evidence has been presented and the case comes on for argument, it is too late to ask for a jury trial. Had the defendant made timely application, an issue of law would have been directed to try the title.
5. Whether land has been dedicated to public use is a question of intention to be determined by the acts of the owner and the circumstances of the user.
6. The right of the public to land accrues by such acquiescence as carries with it the intention of the owner to subject his fee to the public use; and mere acquiescence for twenty years unaccompanied by any act which repels the presumption of such intention, is conclusive evidence of abandonment to the public. The use, however, must be a use by the public of the neighborhood — not a use confined to one or two individuals.
7. The evidence in this case discloses use of the footpath in question by passengers of the street railway company and the ferry company. The use of the footpath by the passengers is a use by the public, and this use, together with the evidence disclosing that anyone who cared to walk along the footpath had been permitted freely to do so, adequately proves a public user.
PER CURIAM.
The decree below will be affirmed, and, except for the following modifications, for the reasons stated in the opinion filed by the vice-chancellor.
The vice-chancellor, near the close of his opinion, speaks of the express dedication of 1908 and of the fence erected in 1926. We consider that the express dedication of other lands in 1908, executed jointly by complainant's predecessor in title and the railway company, was, actually or potentially, an entirely different transaction from, and with no bearing upon, the use of the footpath and does not repel the presumption of an implied dedication. We further consider that the rights of the public in the sidewalk had become established prior to the erecting of the fence in 1926 and that therefore that erection has no legal effect upon the present controversy.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.