
    HALLOWAY v. DELANO.
    
      N. Y. Supreme Court, First Department;
    
    
      General Term, April, 1892.
    1. Evidence; presumption as to title to highway^ The presumption' is that the owners of lands abutting on a highway own the soft in fee to the center thereof, and upon a conveyance by such owner the presumption is that he intends to convey to the center of the highway in the absence of language in the "deed clearly indicating a contrary intention.
    
    2. Deed; description; bounding on highway.] A deed of lands. abutting on a country road described the property as “ beginning at the corner of William Constable’s land, on the north side of the Bloomingdale road, and running thence along said road, north,” etc., and thence, after several courses, to the place of beginning.—Held, that the presumption was that the grantor owned to the center of the Bloomingdale road, and as no intention to except the highway from the conveyance was discoverable, the title passed to the center line, the intent of the language being that it was William Constable’s land and not the point of beginning that was on the north side of the highway.
    3. Thesamel\ The same rule applies in the case of another deed by the same grantor which describes the property as “ beginning at the corner of a field, at the junction of the Bloomingdale road with the cross-road that leads to Harlem, thence running along the Bloomingdale road south,” etc., and thus, by various courses, to the place of beginning, the presumption being that the grantor owned to the center of the road, and the point of beginning being, therefore, the point formed by the center of the two roads.
    Appeal by defendants from judgment in favor of plaintiff entered on a verdict.
    
      This action was brought by James W. Holloway against Franklin H. Delano and others to recover possession of certain lands.
    
      William G. Choate, for appellant.
    
      James A. Deering, for respondent.
    
      
       See, also, the following case.
    
   Ingraham, J.

This was an action of ejectment to recover the one undivided one twenty-eighth part of the fee of what was formerly Bloomingdale road, now discontinued as a road by legislative authority, and the title of the plaintiff depends upon the construction to be given to the description contained in the two deeds executed by the heirs at law of Charles W. Apthorp, and dated, one July 19, 1799, and one August 6, 1799.

The plaintiff sues as heir at law of Charles W. Apthorp, and claims that the fee of the street was not included within the description in the deeds mentioned. The plaintiff’s cause of action must depend upon the strength of his title to the property.

Whether or not defendant has title is immaterial. In considering this question, we must start with a recognition of certain presumptions.

Thus it is an established inference of the common law that “ the proprietors of land adjoining a public highway are the owners of the fee of the said highway, and that the proprietors on each side presumptively own the soil in fee to the center of the highway ” (Wager v. Troy Union R. R. Co., 25 N. Y. 529).

“A conveyance of land bounded by an existing street carries the fee to the center, because a narrow strip, such as one-half of the street, is much more valuable to the grantee than to the grantor, and the parties are supposed to have so dealt with the property as to bring out its greatest value” (In re Ladue, 118 N. Y. 219); and while this presumption is in every case that the grantor does not intend to retain the fee of the soil within the lines of the street, such presumption may be overcome by the use of any terms in describing the property granted, which clearly indicates an intention not to convey the soil of the street or stream.

“ It is not sufficient to exclude from the operation of the grant the soil of the highway, usque ad medium filum that the grant is made with reference to a plan annexed ; the measuring or coloring of which would exclude it, or hy lines of measurements which would only bring the premises to the exterior line of the highway, or by any similar expressions. Although the highway is in one sense a monument, it is regarded as a line, and the center of the highway in such case is regarded as the true boundary, as is the case when a tree or stone or other similar object is designated as a monument, and, in the absence of any other indication, is regarded as giving the true boundary or limit of the grant ” (White’s Bank of Buffalo v. Nichols, 64 N. Y. 71).

“ This presumption that the owner of land abutting on a highway owns to the center is much less strong in respect to lots in large cities ” (English v. Brennan, 60 N. Y. 610).

And it is a universal rule that whether a grant of land that is bounded by a highway or running stream, extends to the center of such highway or stream, or is limited to the exterior line or margin of the same, depends upon the intent of the parties to the grants as manifested by its terms, so that the question as to the true boundary is in all cases one of interpretation of the deed or grant.

Applying these rules to the deeds in ¡question, we have to determine what was the intent of these parties, the grantors and grantees, in 1799, as to whether or not the fee of the road in front of these pieces of ground granted should be included in the grant or should remain the property of the grantors.

The two deeds included within the property conveyed the land on both sides of the Bloomingdale road, between Ninetieth and Ninety-first streets, in the City of New York. At the time of this conveyance, the premises in-, question was far from the city property; it was a country district; the Bloomingdale road was a highway, and the-property conveyed by the deeds included several acres of" land, the grantors owning a large plot of land through, which ran the highway in question. They conveyed the property upon the west side of the highway to John Shaw and upon the east side to' William and Mary Jauncey, the deeds being dated within a few days of" each other. The deed apparently first executed was that to John Shaw, conveying the piece of land on the west-side of the highway. The description in that deed is as. follows: “ Beginning at the corner of William Constable’s land, on the north side of the Bloomingdale road;, and running thence, along said road, north 38 degrees, east 8 chains 45 links and thence, after several courses,, to the place of beginning, containing 19 acres, 3 rods, 5, perches, according to a map thereto annexed made by Benjamin Taylor, one of the surveyors of the City of New York, etc.

It is impossible to find in this description any intention of the parties that the fee of the highway was not to-pass, so as to overcome the presumption before referred to. The point of beginning is “at the corner of Williami Constable’s land, on the north side of the highway.”

In the deed, as printed in the record, there is no-period or comma between the words Constable’s ” and “ land,” and a reading of the description makes it clear that it was William' Constable’s land that was on the. north side of the highway, and not the point of beginning. The point of beginning was the corner of Constablé’sland where it joined the land of the grantors. According to the presumption that we have seen exists, Constable owned to the center of the highway, subject to the easement in the public to use one-half of the highway as a. public road, and when a piece of land is upon a line that begins at the corner of Constable’s land, it must be presumed that the parties intended that the corner was the corner of the parcel of land owned by Constable in fee, and as Constable owned the land and the highway, it was the corner of that land and not the corner of the piece of land bounded by the highway.

The line then runs along the highway, and that, under-all the decisions, would mean the middle of the highway, and this construction of the description in the deed, as. showing the intention of the parties, is strongly confirmed by all the surrounding circumstances.

Here was a piece of land far from the settled portion, of the city; the land itself was at that time of little-value ; the highway was and had been for a long time a. public highway, and no possible reason appears whereby it can be inferred that these grantors at that time had the-slightest idea that this property in this portion of the city would become of much value, or that the fee of the highway would ever be of any use except to the owners-of adjoining property, and they sold at the same time the property on both sides of the highway.

It is inconceivable that there was any express intention at that time to retain the naked fee of the highway itself, or that the grantees in the deeds ever supposed that the fee of the road in front of their premises that, they had purchased was vested in others who had no-interest in the adjoining property.

In coming to this conclusion we have not overlooked the cases of English v. Brennan (60 N. Y. 609), White’s Bank, etc. v. Nichols (64 Id. 65), and Kings Co. Ins. Co. v. Stevens (87 Id. 287), upon which the court below relied, and which have been strenuously urged upon us as being-inconsistent with this conclusion upon this appeal. In those cases the principles before referred to have been expressly recognized, and the presumption of the intention to grant the fee of the highway has been held to. have been overcome, because in the description of the property conveyed by the grants, the highway itself was excluded, and particular stress appears to be given in these cases to the fact that the description contained in the deed commenced at a fixed point, which was upon the edge of the highway, so that the court could not say that it was the intention of the parties that the point of beginning was in the center of the highway, when the parties in express terms had limited it to the edge of the highway.

We are bound 'by these decisions and the principles there adopted, but are certainly not bound to extend them to a case where the description of the land is not limited by the outer edge of the road.

As was said by Allen, J., in the case of Mott v. Mott (68 N. Y. 252): “ When lands are granted, bounded by a highway or a stream not navigable, unless by the terms of the grant, or by necessary implication, the highway or bed of the stream is excluded, the title will pass to the center of the highway or stream. The reason is obvious. Ordinarily in a conveyance of that kind there is no purpose to be served in the retention by the grantor of the narrow strip of land along the boundaries between it and the land of other proprietors or in the bed of a stream, and the intent to grant them will, therefore, be presumed by the conveyance of the adjacent lands bounded ‘ by ’ or upon ’ or ‘along’ such highwayor stream or other equivalent phrases.”

And it seems to me clear that this expressly applies to the deed now under consideration.

The land granted commenced at the corner of Constable’s land, but that corner is not fixed by the deed or "by any monument at the side of the road, but is the corner of Constable’s line, and runs thence along the road.

As was stated in the matter of Ladue (supra), in considering the conveyance of a tract of land in the vicinity of the property in question : “ This case illustrates the importance of the presumptions upon which our decision rests. In early days, when land was cheap, Stillwell conveyed a part of a farm that is now in a crowded city and of great value. To hold that he intended to reserve the-fee of the street with reference to which, as laid down upon a map, he conveyed the property adjoining, would be in conflict, not only with his probable intention, but. with public policy as well.”

We think, therefore, that under the description of the-Shaw deed, tlv: plaintiff’s ancestor parted with his interest in the Bloomingdale road in front of and adjacent to the-property thereby conveyed.

What we have said in relation to the Shaw deed' applies with equal force to the Jauncey deed. That description is as follows : “ Beginning at the corner of a. field, at the junction of the Bloomingdale road with the-cross-road that leads to Harlem, thence running along the Bloomingdale road south 35 degrees, west 7 chains and 50. links,” and thus by various courses to the place of beginning, containing 42 acres and 5 perches, according to a. map, etc., thereto annexed.

s Here the point of beginning is at the corner of a field at the junction of Bloomingdale road with the cross-roads, that lead to Harlem, and the presumption that the owner of that field owned to the center of both roads would apply, and the point of beginning is therefore the point, formed by the center of the two roads.

The line thence runs along the Bloomingdale road, and it seems to us clear that by such conveyance the fee of half of Bloomingdale road in front of the property described was included in the property conveyed, and the fee passed to the grantees in the deed.

Many cases have been cited that have been examined,, but the principles before stated have been recognized in most of the cases, and are firmly established by decisions, of the highest court of this State.

To reconcile all of these decisions would be extremely difficult, if not impossible, and it will not be attempted.

To think that the conclusion to which we have arrived is founded upon principle, and is the application of the rules of law that have existed for centuries, and under which much property has been conveyed and is now held, and that this presumption of the intention of the parties to a deed, that upon a conveyance of land upon a street or highway, one-half of the street or highway should pass to the grantee, and be included in the conveyance, should always be enforced, unless, from the conveyance itself, it clearly appeared that such was not the intention of the parties, as where by the bounds of the property conveyed the fee of the highway expressly excluded.

As the title of the plaintiff, therefore, to the fee of Bloomingdale road failed, the complaint should have been dismissed and the judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event.

Van Brunt, P. J., concurs.  