
    JOSHUA D. SPAINE v. TENNESSEE & ALABAMA RAILROAD.
    (S. C., Thomp. Cas., 253-258.)
    Nashville,
    December Term, 1865.
    EMINENT DOMAIN. Owner of fee in public ways entitled to damages.
    If a grant or deed calls for a street, alley, highway, or stream not navig-able, the lines will extend to the center thereof, and the medium filum will become the Doundary, unless there are words in the deed showing a clear intention to restrict the boundaries to the edge thereof. The purchaser takes the right in fee to the soil to the said center, subject to the public easement, and he may eject a trespasser or recover damages for a trespass. [See notes 5-9 under sec. 1867 of the Code; notes 1-18 under sec. 1808.]
    Cited with approval: 3 Kent’s Com., 433; Chatain v. Branard, 11 Law Com.; Peck v. Muke, 10 Law R.; 3 Pairf. (Maine), 463; 33 N. H., 381; 38 Me., 195.
    Cited and disapproved: Jackson v. Hathaway, 15 John., 447; 11 Pickering, 194; 5 Wharton (Pa.), 18; Harris v. Elliott, 10 Peters, 25.
   Shackleford, J.,

delivered the opinion of the court:

This is brought in the circuit court of Davidson by the plaintiff in error against the defendant in error, by a petition under the provisions of the charter of the defendants, to recover damages for tailing the lands of plaintiff in the construction of their line o-f railroad. By the consent of the parties, John Trimble and E. H. Ewing, Esq., were appointed commissioners to assess and report the damages sustained by the plaintiff, which was done, and-amounted to seven hundred dollars for the one-half of the alley of plaintiff in error. It appears the late Judge Whyte was the owner of a large lot in the city of Nashville, fronting-on High and Broad streets. This lot was sub-divided into- lots, with alleys laid out between them for the use of the public and convenience of purchasers. The plan was registered in the register’s office of the county; at the sale the plaintiff became the purchaser of the three lots. The descriptive part of the deed is as follows:

“Being that part of ground lying on Broad street, belonging to the late Judge Whyte, and known and described in the division of said property as lot No. 22, fronting on High street 31 feet, and running back 200 feet to a 20-foot alley; also two lots, 23 and 24, fronting each 32 feet on High street, and running back 200 feet to a 20-foot alley,” etc. The alley was appropriated by defendants in error, in the construction of their road in bringing it into the city, under the provisions of the charter of the company. The court charged the jury in substance as follows: “This was a remedy created by statute for landholders on the line of the road where lands have been taken by the company, that incidental damages could not be recovered by persons under this proceeding, whose lands had not been taken.” The question before them of vital importance was to ascertain -whether the lands of the plaintiff had been appropriated by the defendants. The plaintiff claimed under a purchase from the late Judge Whyte, and his deed calls for 200 feet, running back to a twenty foot alley, and he was of opinion the calls of plaintiff’s deed stopped at the edge of the twenty foot alley. A judgment was rendered for defendants, from which the plaintiff in error has appealed to this court.

This case presents a question fo-r our determination whether lines of a deed calling for an alley, street or highway, go to the center of the alley, street or highway, or stop at the termination of the calls of the deed.

Upon this question there is much conflict of authority in the different state courts of the union. By the common law, it is well settled where the calls are for a highway or to a river above tide water, the grant or calls of the deed run to the center of the road or stream. This principle seems to be as old as the common law. This court held in the case of Elder v. Burrus, 6 Hum., 366, the common law principle was not applicable to navigable streams in this state, and was not in force, but by that decision the principle is not changed as to streams not navigable, and tlie boundary extends to the medium filum. Chancellor Kent, in his Commentaries, 433, vol. 3, says: “The established inference of law is that a conveyance of land bounded on a public highway, carries with it the fee to' the center of the road as a part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed.” This principle is fully sustained in the case of Chatain v. Branard, 11 Law. Com.; also in case of Peck v. Muke, Law R., vol. 10; also, 3 Fairf. (Maine), 463; 13 New Hampshire Rep., 381; 38 Maine, 195. Erom these authorities the principle may be declared that a grant of land described as bounded on a highway carries the fee to the center of the grant owned.

A different principle has been settled in Massachusetts and New York. In the case of Jackson v. Hathaway, 15 Johnson’s Reports, 441; 11 Pickering, 194; 5 Wharton, 18 (Penn.). Also the case in 10 Peters, 25, in which it was held that the highway or street was excluded. Hpon an examination of some of these authorities, which are cited as controlling this principle; it will be found other circumstances entered into and influenced the judgment of the court. In the case in 10 Peters, 25, of Harris v. Elliott, the property was assessed by a jury, and the conveyances were made in pursuance of the assessment, and the court held the streets were not included. The principle seems to be well settled in Mássachusetts and News York that the highway or street will be excluded when the grant calls for the highway or alley. In this state it is a settled principle in matters’ of boundary, a reference to natural objects on land, controls courses and distances. It is a rule founded in reason and sound policy. No other principle could have been adopted under our peculiar system of land law. A highway, street or alley, is a natural monument visible to all, as much as a wall or any other natural object. By a reference to monuments on the soil the purchaser can see and identify the land; his deed extends to the natural objects that are visible, his rights become fixed and definite, and do not depend on mathematical descriptions; courses and distance's yield to these objects.-

Holding his title fixed by natural monuments for seven years under his grant or deed, his title becomes perfect under our laws. It is a settled principle in the law of a wall that the lines extend to the center. Of a stream not navigable' the line extends to the medium filum. This principle is recognized and adopted in all those states that have held that boundaries on a street do not extend to the center. We can see no reason for changing the rule as to highways, streets or alleys. The principle is alike applicable to them.. It is a rule of common law, and no sufficient reason has been presented as to hold the rule not in force in Tennessee. The party purchasing land bounded on a highway, street or alley takes the property subject to the public easement. He has the right of soil and can eject trespassers from it. The citizens are entitled to the use of it as a passway, or the purpose for which it was given to the public. The owner has no right to- close it without the assent of those having municipal control, nor without the assent of those who are immediately interested in its use.

We are of opinion if a grant ol deed calls for a street, alley or highway, unless there are words in the deeds showing a clear intention on the part of the grantor to restrict the boundaries to the edge of the road, street or alley, the lands of the deed will extend to the center, and the medium filum becomes the boundary. The right in the fee to. the soil passes to the grantee subject to the public easement. The principle, in our opinion^ is in accordance with the common law, and is sustained by the weight of authority of the courts of our sister states, and is founded in reason and sound policy. In this case the lines of the plaintiff’s deed extended to the center of the alley, and the medium filum became the boundaries; the fee vested in him subject to the public easement, and he has the right to recover damages in this suit from defendant in error. The ruling of the circuit judge, being in conflict with the principles of the law as announced in this opinion, was error.

The judgment of the circuit court will be reversed and a new trial awarded.

Judgment reversed.  