
    Joseph C. Bingham v. David C. Doane. and William N. Mumford v. David C. Doane.
    The grant of a privilege to construct a wharf or dock in a public highway, does not authorize the erection of a warehouse.
    'Where the proprietor of lands adjoining a public highway, owns to its centre, he may maintain trespass for a direct injury upon it; but where his land extends only to the line of the highway, case is his only remedy.
    The first suit is case, and the second trespass. Prom Wood. The ■cases depend upon the same title, and the two suits are brought to .avoid the risk of defeat, by the form of action.
    By the treaty of Brownstown, in 1808, Swan’s Land Law, 484, the Indians, then possessing the lands in the north western part of our ¡state, granted to the United States a tract of land, for a road one hundred and twenty feet wide, from the Maumee Rapids, to the Connecticut Western Reserve, and all theland within a mile of said road on each side, for the purpose of establishing settlements. In 1823, Congress, to enable the state to construct this road, granted to the-state a tract of land one hundred and twenty feet wide, whereon to-locate it, and likewise the land lying a mile wide upon each side-Swan’s L. L. 152.
    The road was surveyed and laid out, and a superintendent appointed to effect its construction,,under the authority of the state. The line of its projection, commenced at the western line of the Connecticut Reserve, and extended to the shore of the Maumee River at Perrysburgh. By the Ohio act of 1824, 22 O. L L. 128, the superintendent-was authorized to enter into contracts for making * the road, and. likewise to sell the land adjoining thereto, upon certain specified conditions. By the act of 1824, the 23 0. L. 33, the superintendent was-further directed to make surveys and sales of lands belonging to the state in the reservation at the Maumee Rapids. By the 4th section of' that act he was “ authorized to convey to such persons as he should-deem proper, the privilege of constructing docks and wharves at the-point where the road terminates at the Maumee River, to be constructed on each side of the road, in such manner as that said road shall in norespec be incommoded in consequence.” On the 17th of March, 1825, the superintendent by deed conveyed to Seth Doane, the privilege of constructing docks and wharves at the point of termination, within the one hundred and twenty feet wide, leaving thirty-three feet in thecentre unobstructed. This privilege is now held by the defendant.
    On the 1st of January, 1827, the state conveyed to John Hollister, lot 774, which lies on the Maumee River, adjoining the one hundred and twenty feet set apart for the road. He had full knowledge of' Doane’s interests, at the time he took this deed. Bingham, one of the plaintiffs, held Hollister’s interest in this lot from 2nd February, 1836, until the 1st June, 1836 ; when Mumford, the other plaintiff; acquired Bingham’s title. In November, 1835, the defendant, Doane, began the erection of a warehouse upon that portion of the strip of one hundred and twenty feet wide, which lies outside of the thirty-three'feet in the centre.
    Bingham brings the action on the case against him, counting upon, the erection of the warehouse in 1834, in the street in front of his lot. Mumford brings trespass for the erection of the warehouse, and for his continuance since. The cases are submitted upon agreed facts.
    Stetson, and W. Silliman, for plaintiffs, made two points.
    1. That Ohio had no authority to permit obstructions to a road by buildings within its limits. 2. That she has not authorized such obstruction. They cite the several statutes, and 5 Ohio, 410 ; 6 Ohio, 298.
    J. C. Spink, and Coffinbury, for the defendant,
    insisted that neither of these suits could be maintained; even if the defendant’s ■.grant was imperfect. 8 Ohio, 38 ; 6 Ohio; 298. The plaintiff having neither title nor possession, can not maintain trespass. The state having parted with its title to Doane, had none to convey to Hollisterj and she did not convey to him any riparian rights. 15 Johns. 454; 5 Wheat. 374. As to the action on the case, the grant to Ohio was full to lay out and open the road, without restriction *as to any proper structure for its improvement and preservation. The grant to Doane does not impair this nor impugn the ordinance of 1787, or the decision in 5 Ohio, 140 ; See also Dane’s Ab. 149 ; 1 Co. Lit. 121, b.
   By the Court,

Lane, C. J.

The important question in this case is, whether Doane acquired a right to erect a warehouse, within the one hundred and twenty feet wide, granted for the road ? It is plain that all the laws and documents point to, and recognize this as set apart for a road.” The act of Congress conveys it to the state of Ohio, as -a tract whereon “ to locate a road.” The act of Ohio directs the commissioners to locate and survey said road one hundred and twenty feet ■“ wide,” between the terminating points. Under these circumstances, ■we shall look for some strongly decisive act of the state, before we admit their intention to devote it to any other use. We find none. The superintendent was appointed in 1824, to contract for the construction of the road, and to make sales of the adjoining lands. The next year, his discretion is enlarged as to the forms of survey of the lands belonging to the state within the reservations, but no intention is expressed, and no power is given, to affect the line of the road, or contract the rights of the public to it as a public highway. The privilege of docking and wharfing, are in no degree inconsistent, but in •furtherance of the object. The point of termination is a navigable river. A wharf is the extension of the road into the river. A dock •is a place for vessels, either excavated from the land, or surrounded by wharves. Both, in this situation, are subservient to the public, by facilitating the transit of passengers and burthens between the land iand the water, and thus both contribute to the object sought for, by the establishment of the highway. When placed in public highways, ¿although individuals may have interests in them, they are intrinsically public establishments, and a part of the highway, as much as turnpikes and toll bridges, and held under the" control of public regulation or of’ law. But a warehouse has none of these properties. Although convenient for public, accommodation, it is held by an individual for his private benefit only. It is not a part of a pier ; it is not devoted to a public use; it aids not, but obstructs the right of passage. It is,, therefore, expressly forbidden by the law, directing the wharf or dock to be so constructed, that the road shall in no respects be incommoded-in consequence.

We next enquire, if the plaintiffs have such rights as to recover in. these forms of action ? It is admitted that for an injury merely to * the public, no individual can support an action. But the-owner of a lot adjoining a road has a specific interest in the privilege of the road itself. Ordinarily his land extends to its centre, as it is presumed to be taken from his land ; and in those cases, where he does own the soil of the road, he has an interest in the incorporeal right itself. Its existence generally contributes to the enjoyment of his lot,, and confers additional value upon it, and any act of another, which, impairs that'value or interferes with that enjoyment, may be the subject of a suit. To sustain an action of trespass, the plaintiff must have a present interest in possession in the lands. Where all highways run over land of another, the creation of the easement does not extinguish all the interest of the owner ; he still claims all not incompatible with the right of passing. For direct trespasses, as for the cutting of shade trees, or the taking of stone or gravel, he may sue.. The owner of the adjoining land is presumed to own the highway, because it is presumed the land was taken from him; he is, therefore, permitted to recover for injuries like those in trespass. But where the title exhibited is such, as shows the owner of the adjoining land had no title to the land covered by the road, as is the case before us, he has no interest which is the subject of trespass. The easement — • the privilege of the road — the advantage it confers on his land, is his, but not the road itself. The right lies not in livery but in grant; is incorporeal only, and not the subject of this form of action. The suit, therefore, of Mumford v. Doane, is misconceived, and judgment must be entered for the defendant. The action on the case is not subject to this objection. It is adapted to recover for the injury sustained by Bingham, during the few months in which he held the property. This case will be remanded to try his right.

Judgment against Mumford — the other case remanded.  