
    (73 Hun, 597.)
    COCHRAN v. SMITH.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    1. Deed—Description—Land Abutting on Street.
    A deed to plaintiff described the land conveyed as beginning at the northwest comer thereof, “at the junction of” F. avenue and the B. road; thence south, “by” F. avenue; thence east to the land of defendant, etc. The lands of plaintiff and defendant were parts of the same tract, and conveyed to them by the same grantor. If plaintiff’s west line was in the middle of F. avenue, the description would include the quantity of the land intended to be conveyed, with the dividing line where defendant claimed it to be; but, if plaintiff’s west line was along the east side of F. avenue, the description would not contain the quantity intended to be conveyed, without encroaching on defendant’s land. Held, that plaintiff’s west line was the middle line of F. avenue.
    2. Boundaries—Province of Jury.
    Though it is the province of the court to construe written instruments, yet it is the province of the jury to determine the boundaries of land in controversy from all the evidence, including the descriptions in deeds.
    Appeal from circuit court, Suffolk county.
    Action by Emily Cochran against Oscar C. Smith for trespass on land. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Timothy M. Griffing, for appellant.
    Wilmot M. Smith, for respondent.
   DYKMAN, J.

This is an appeal by the defendant from a judgment entered upon a verdict directed by the court in favor of the plaintiff. The action is for trespass on land, and its decision requires the location of the boundary line between the lands of the parties, which originally belonged to Sarah Smith, the mother of the plaintiff and defendant. In June, 1883, Sarah Smith conveyed to the defendant the land which he now claims, bounded northerly by Bayport highway, 4 rods and 16 links; westerly by lands of Sarah Smith, the grantor, 20 rods; southerly by her lands, also, 8 rods and 5 links; and easterly by land of Edgar Gillette, 20 rods and 10 links,—containing about 1 acre of land. Locust boundary stakes were placed at the corners of the premises so conveyed. In November, 1885, Sarah Smith conveyed to the plaintiff a parcel of land, of which the boundaries will be given hereinafter. Our task is the location of the boundary line between these two parcels of land," and that location depends upon the true interpretation of the two deeds. Although such is the general rule, yet there are some aids to be invoked in the construction of these instruments. The land conveyed to the plaintiff fronts upon two roads. Bayport highway is on the north, and Fairview avenue is on the west, and they form a junction at the northwest corner of her lot. The Bayport highway also lies north of the land of the defendant, which is east of the land of the plaintiff. The land of the defendant is bounded on the east by land of Edgar Gillette. 60 that the two parcels lie between Fairview avenue on the west, Bayport road on the north, the land of Gillette on the east, and other land of Sarah Smith on the south. The east and south lines are undisputed. It is the center line between the two which is- in dispute.

It was the design of the grantor of these parties to carve out between those lines two parcels which should each contain one acre of land. We must now divide the land as the grantor intended to do, and that requires the location of the center line. To fix this line, it will be necessary to determine whether the conveyance to the plaintiff included any portion of Fairview avenue, and that question requires some examination. In approaching it, we shall find it useful to observe some well-recognized presumptions. In the first place, it is an established inference of law that the proprietors of land adjoining a public highway are the owners of the fee thereof. Wager v. Railroad Co., 25 N. Y. 526. Also, that a conveyance of land bounded by a highway carries with it the fee to the center thereof, as part of the grant. Bissell v. Railroad Co., 23 N. Y. 61. Of course, such presumption may be surmounted by evidence. When a road or an unnavigable steam of running water is used as a boundary in a grant, the title will pass to the center of the road or stream, unless there be something in the grant to indicate a contrary design. A road is regarded as a line, and its center, in such cases, is the true boundary, in the absence of other indications. Mott v. Mott, 68 N. Y. 252; Bank v. Nichols, 64 N. Y. 71.

It will be in order now to consider the language employed in describing the land conveyed to the plaintiff, and, preliminarily, we may state that the location of the line between these parties is dependent upon the westerly line of the plaintiff’s land. If we can locate that westerly line, the problem is solved. The language of the description in the plaintiff’s deed is this:

‘‘Commencing at the northwest corner thereof, [i. e. the land conveyed,] at the junction of Fairview avenue with the main road running through Bayport; thence running southerly, by Fairview avenue, 20 rods; thence running -easterly 8 rods to lands of Oliver C. Smith, [the defendant;] thence running northerly, by land of Oliver C. Smith, 20 rods, to the main road running through Bayport; thence running westerly, by last-mentioned road, 8 rods, to the place of beginning,—containing just one acre of land.”

So it is that the place of beginning is the junction of the two roads, and the line runs “by” Fairview avenue, then easterly, then northerly “to the main road,” then westerly “by last-mentioned road;” and the employment of the words “by,” “upon,” or “along” a road manifests an intention to include the road in the grant, to the center line. Mott v. Mott, supra. Here the place of beginning being the junction of Fairview avenue and the Bayport road, and the presumption being that the grantor of the plaintiff owned to the -center of both roads, the place of beginning is the point at the- junctian of the center line of the two roads. Holloway v. Delano, (Sup.) 18 N. Y. Supp. 700. From that point the line runs southerly “by” the avenue; and, so in obedience to the rule we have stated, it runs with the center thereof. Then, returning, when the Bayport road is reached, the line runs “by” that road, and so by the center line of the same. The language is plain, and free from obscurity, and our conclusion from it is in accordance with all the adjudicated cases and the elementary writers.

This result is strengthened by some undisputed facts: When the plaintiff’s lot was measured, the measurements commenced in the middle-of Fairview avenue, at the north end of his westerly line, and a bolt was driven in the ground at that spot. Again, in the fall of 1890, the surveyor located the line now in dispute, in the presence and with the assent of the plaintiff. His survey commenced in the middle of Fairview avenue, and gave the plaintiff one acre of land west of that line, and gave the defendant all east of that line to the land of Gillette. Again, if the center of the avenue is taken as the plaintiff’s westerly line, she will have just an acre -of land west of the line claimed by the defendant; but, if Fairview ■avenue be excluded from the competition, then she will not have an ■acre west of the line claimed by her. Moreover, when the defendant received his deed, and when the parties had no reason for misrepresentation, stakes and irons were placed at the corners of his property, as he now claims it. Our-conclusion is that the direction •of a verdict for the plaintiff was erroneous. While it is the province of the court to construe written instruments, it is yet the province of the jury to determine boundary lines of land in controversy in legal proceedings, from all the evidence. In our view, the evidence requires a verdict in favor of the defendant, but the question •of fact must be left to the jury, under proper instructions, the legal -effect of the deed of conveyance, and the evidence adduced by each party. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.  