
    *Dunham and another v. Williams and another.
    
      Deed.—Boundaries of land conveyed.
    
    Where the bed of an ancient road belongs to the government, a conveyance of land bounding thereon, does not carry the title to the centre of the road. Dunham v. Williams, 36 Barb. 136, reversed.
    Appeal from the general term of the Supreme Court, in the second district, where a judgment had been entered upon a verdict in favor of the plaintiff. (Reported below, 36 Barb. 136.)
    This was an ejectment by Austin Dunham and George Beach, Jr., against Stephen C. Williams and George W. Parker, for the recovery of a portion of the bed of an abandoned road, which formerly led from Jamaica and Flatbush to the Brooklyn ferry.
    On the trial of the same, before Emott, J., the learned judge directed a verdict in favor of the plaintiffs; the facts, whieh were undisputed, are fully stated in the opinion of this court. The exceptions taken on the trial were directed to be heard, in- the first instance, at the general term, where a motion for a new trial was denied, and judgment entered upon the verdict; where» upon, the defendants took this appeal.
    
      Parsons, for the appellants.
    
      Reynolds, for the respondents.
   Porter, J.

The plaintiffs owned the premises on the west side of the road, and they claimed half the roadbed, on the ground, that, in the grants through which they deduced title, their lands were bounded on the highway. It is a familiar rule of law, that, in such a case, the adjacent proprietor is prima facie owner of the soil, subject to the easement in favor of the public. It is founded on the rational presumption, that the ground was originally taken from the adjoining owners, and for the sole purpose of being used as a thoroughfare. (Stiles v. Curtis, 4 Day 333, 336; Woolwich on Ways, 5.)

*A deed bounded on a highway primd facie carries the title of the grantee to the centre of the road, on the assumption that the grantor owns it; but when it appears .that it was, in fact, owned by another, the terms of the deed are satisfied by a title extending to the road-side. The presumption in favor of an adjacent proprietor, and of his successors in interest, is not a presumptio juris et de jure, but yields to other evidence displacing the grounds upon which it rests. The effect, in this respect, of a given deed, depends on the actual state of the title. A conveyance, bounded on a village street, would ordinarily include the soil to the centre; but it would be otherwise with a like conveyance, bounded on one of the streets in the upper part of the city of New York, where the right of soil is vested in the public authorities. So, the same language, in a deed of lands bounded on a river, which would embrace half the bed of a stream, not navigable, would carry the title, in a different case, only to the line of low-water mark:

In the present instance, the presumption in favor of the adjacent owners was repelled by affirmative and decisive proof, that the fee of the road-bed was not vested in them nor in the parties through whom their title was deduced. The highway vras ancient. It was laid, out when New York was a province of the States General, and when it was in the possession of the original settlers, and subject to the dominion and laws of the Dutch government. It was originally an Indian path from Midwot (now Flatbush) to the crossing, afterward known as the Brooklyn ferry. In 1634, the Dutch settled in Flatbush, which afterwards became the county seat of Kings. In 1654, they erected a church, at which the people of Brooklyn were in the habit of worship-ping, until ten or twelve years afterwards, when they-completed their own. In 1656, the court-house was erected; and these, and the other old buildings at Flatbush, fronted on the road in question. The church at Brooklyn was built, in accordance with a common practice of the colonists, in the centre of the highway, thus serving as a convenient post of observation for *sen^ne^s’ arL^ a rallying point for defence, in case of Indian hostilities.

It is entirely clear, from the evidence, that this was the road, and the only road, between Flatbush and Brooklyn. The land belonged" to the government, which widened an Indian footpath, through the forest, to the dimensions of a modem highway, and thus opened, between two of its settlements, a convenient avenue of communication, which continued to serve every essential purpose, for the two succeeding centuries. It was laid out, before the settlement of the intermediate lands, and when there were no adjacent proprietors. It was recognised, by a colonial statute, in 1721, as having been in use, as it then was, “for, at least, these sixty years last past.” (1 Van Schaick 125.) It was a familiar and ancient landmark of the Dutch government. Governor Peter Stuyvesant described it as “the highway,” in a grant made by him in 1654, In the letters-patent to Jochem Garritson Cocke, granted in 1656, it is spoken of, as “the public highway, twenty-five rods east of the burying-ground.” In the patent issued from the office of the secretary of stale to T.vuyn Barentsen, in 1658, it is described as “the great load” between Flatbush and Brooklyn. This was six years before the capitulation of the Dutch, who made it a condition of surrender, that they should remain in the enjoyment of their own customs, concerning their inheritances, and that all differences of contracts and bargains, made before the 27th of August 1664, should be determined according to the manner of the Dutch.

The highway having been laid out long prior to the capitulation, the title of the government to the roadbed was absolute. This was the rule of the civil law, which prevailed in all the colonial provinces of the Dutch. Every grant was subject to this paramount and absolute royalty; and no one could' claim a present or reversionary title in the soil of a public highway, on the ground that he was the grantee of the lards through which it was laid. (Hoffman’s ’ ’eat1' / on the Corporation of New York, 263, 265, 291, and authorities there cited; Mr. Q’Conor’s argument in Wetmore v. Story, *22 Barb. 433, 439; Rewthorp v. Bourg, 4 Mart., La., 97, 137.)

It is evident, too, that this was so understood by all parties. On the assumption that the title of the Dutch government in the town highways passed to the British crown, we find them granted by Governor Dongan, in his subsequent letters-patent, to the freeholders repre» senting the corporation of Brooklyn. In 1721, this particular road was protected from threatened encroachment, by a colonial law, which declared that it should be and remain the common road or king’s highway for ever, after the same manner and regulations as it has been heretofore. (1 Van Schaick 125.) In 1809, a law was passed, authorizing the conversion of the highway into a turnpike-road; and it appears by the inquisition of the appraisers appointed to assess the damages of the owners, that the adjacent proprietors made no claim, but the damages were assessed in favor of the corporate authorities of Brooklyn and Flatbush, as the claimants of the fee in the road-bed..

Twenty-five years before, the commencement of this suit, the turnpike company, under the authority of an act of the legislature, and on the assumption that it had acquired title to the road, transferred it to the Brooklyn and Jamaica Railroad Company. That corporation, under like legislative authority, sold it to other parties, through whom the defendants claim by intermediate conveyances. Though the use of the road for highway purposes had been discontinued, five years before this action was brought, the plaintiffs seem to have made no claim to it, until a year or more after the property was purchased, inclosed and built upon by the defendant Williams.

We think, the presumption in favor of the respondents, from the fact that their lands adjoined and were bounded on the road, is clearly repelled by the evidence, and that their claim of title must, therefore, fail. This conclusion on the vital point in the case, renders it unnecessary to consider the question, whether an absolute fee was acquired by the turnpike company, through the assessment proceedings under the *highway. acts. As it is clear, that the plaintiffs cannot recover, we are not called on to express an opinion as to the. validity of the defendants’ title. The judgment should be reversed, and a new trial should be ordered.

Judgment reversed, and new trial awarded.  