
    KETTCHEN PUTZEL, Plaintiff and Appellant, v. ELLEN M. VAN BRUNT, Defendant and Respondent.
    i. deeds.
    1. Description, construction of.
    (as) Intention of parties to be ascertained.
    1. Sow ascertained.
    
    
      (a) Not only by the language of the description in the deed itself, but by reference to extrinsic facts, which may consist qf cotemporaneous writings relating to the same subject, or prior deeds through which the title has come down and writings cotemporaneous therewith and circumstances relating to the premises described in them, and of the facts of undisturbed use on the one hand, and unqualified acquiescence on the other.
    
      (¥). Running to the centre, although bounded along the side of a highway,
    
    1. Eastern Post Road in the city of New York.
    («) “Thence 1,009 feet to a monumental stone marked K, ’ placed in the easterly side of the Eastern Post Road aforesaid, thence along the easterly side of said, road," contained in a deed of a part of the Turtle Bay Farm.
    HELD,
    upon above principles, that under the facts appearing in the evidence the deed carried the grantee to the centre of the Eastern Post Road.
    
    Before Speir and Sanford, JJ.
    
      Decided March 20, 1876.
    This action was brought to recover the sum of five hundred and fifty-one dollars and fifty cents, the amount paid to the defendant, and an attorney for professional services m searching the title to premises, under a contract for the purchase of a house and lot in Forty-eighth Street, in the city of New York, by the plaintiff of the defendant, upon the ground that defendant had no title to a portion of the premises agreed to be conveyed.
    The making of the agreement is admitted, and the payment of the money. A good and sufficient deed of the premises was executed and tendered, which was refused for the alleged reason that the title to a portion of the premises was defective. The case was referred. The referee dismissed the complaint, and gave judgment for the defendant.
    The plaintiff appeals from the judgment.
    
      Nelson Smith, attorney, and of counsel for appellant, on the questions discussed by the court, urged :
    I. While we do not admit that the deed from William H. Winthrop to Barclay conveyed that part of the premises in question lying in the Old Post Boad, we refrain from making any point that it did not. We will venture to say that if the defendant could have made as good title to the premises as Henry Barclay had we never should have troubled the court with this suit. What we dispute in defendant’s alleged title is, that the- deed from Henry Barclay to Samuel Thompson did not convey any part of the premises which were formerly within the limits of the Old Post Boad. This deed conveys a piece of land lying on the easterly side of the Old Post Boad, and by its express limitation to the easterly side did not embrace the road to its centre, upon the well-settled and long-recognized principle that where a deed conveys land lying upon a road, and by its terms the land conveyed is described as being upon the side of the road, and the boundary is limited to the side and along the side, instead of running to the road and along the road. then, and in such case, no part of the land within the road is embraced in the conveyance. This principle is well settled, and is decisive of this case (Jones v. Cowman, 2 Sandf. 234 ; Van Amrige v. Barnett, 8 Bosw. 357 ; Whitman v. Law, 34 Barb. 515 ; Anderson v. James, 4 Robt. 35; Child v. Starr, 4 Hill, 369 ; Halsey v. McCormack, 13 N. Y. 296). In such a case there is no distinction between city and county roads (Hammond v. McLoughlin, 1 Sandf. 323 ; Anderson v. James, 4 Robt. 35). STor does the grant 66 of all the right, title, and interest,” “appurtenances, &c.,” pass the title to the road. These only pass an easement ; no title to land can pass except that expressly described (Jackson v. Hathaway, 15 Johns. 447). The deed from Thompson to Lawrence is open to the same objection, and does not embrace any part of the road.
    II. The defendant does not pretend to have any record or paper title to that part of the premises in question lying within the limits of the Old Post Road unless the easterly side of the road was covered by the deed from Barclay to Thompson, and from Thompson to Lawrence. For it is conceded that a portion of the premises in question are situate on what is known as the Old Post Road.
    III. There is no evidence that either Barclay or Thompson or Lawrence ever entered into posesssion, or claimed to enter, or have ever taken possession, of any part of the land situate within the limits of the Old Post Road; and their deeds not embracing the road, even if there were evidence—which there is not—that they entered into possession of the land conveyed to them, still that possession could not avail them or the defendant anything, because of the well-known presumption of law that when a person enters into the possession of land under a deed, his claim of title is limited to the premises described in thv deed (Bowie v. Brake, 3 Duer, 35).
    
      IV. The only evidence from which the defendants’ counsel could pretend a title to be established is that which tends to show that in 1859 one Fox was in possession of the premises, living in a small shanty built thereon. If this could be relied on, it only shows possession for about fourteen years. Possession for that length, even though under a claim of title, being short of that prescribed by statute, is of no effect whatever. The rightful owner—as appears by the evidence—of that part of the premises in question located in the Old Post Road, is Henry Barclay. And if Fox were actually, as Mr. Sexton states, in possession of the premises, the presumption would be, in the absence of proof, that he, Fox, was in under Barclay, and not under any person who was not the owner of the premises (Fosgate v. Herkimer Man. Co., 9 Barb. 287; Jackson v. Thomas, 16 Johns. 293). But there is no evidence when Fox entered, nor how he entered. The presumption would be that he was a mere squatter, not entering or claiming under anybody.
    V. We confess that we do not comprehend the force of reasoning by which the referee makes the reservation of the piece conveyed by Barclay to Gates a ground for holding that, such deed, on account of such reservation, is to be enlarged or extended so as to convey to Thompson any part of the easterly half of the Old Post Road. It is the first time that we have ever heard it suggested that the reservation of any part of land embraced in a description could be said to operate to enlarge the description. Had the description in this deed from Barclay to Thompson stopped where the reservation began, it is difficult to see, upon the authorities, how it could be said to embrace any part of the Old Post Road, it being expressly limited to a line wholly on the easterly side of the road. The authorities cited by the referee, viz., Luce v. Carley (24 Wend. 451), and Bissell v. N. Y. Central R. R. Co. (23 N. Y., 61), do not sustain any such proposition. In Luce v. Carley (24 Wend. 451), the premises were bounded by a monument standing on the easterly bank of the river, from which the course was given as running ££ along the river as it winds and turns ” to.another monument, and the court held that the grantee took usque ad filum aquee, but had the deed given the course from the monument as running along the easterly side of the river as it winds and turns, instead of along the river, the grantee would not have taken to the middle of the stream. The case is an authority in favor of the plaintiff, and shows the converse of what it was cited by the referee to show (Child v. Starr, 4 Hill, 269 ; Van Amrige v. Barnett, 8 Bosw. 357).
    
      George W. Palmer, attorney, and of counsel for respondent, among other things, urged:
    I. 1st. The presumption of law is that every owner of land bordering upon a road, owns to the centre thereof, unless the language of the deed under which said owner claims the title, by precise language, excludes the road (Child v. Stair, 4 Hill, 382; Hammond v. Mc Lachlan, 1 Sandf. S. C. R. 341; Herring v. Fisher, Id. 344; Dunham v. Williams, 36 Barb. 136; Gredney v. Earl, 12 Wend. 98; Woolrych on Ways, 5, 6 ; Bissell v. N. Y. Central R. R., 23 N. Y. 61). 2d. ££ Thp construction ought to be made on the entire deed, not on any particular part of it; and such construction should be given that, if possible, every part of the deed may be operative. If a deed can not operate in the manner intended by the parties, such a construction should be given that it may operate in some other manner so as to effectuate the intention ” (Angell on Highways, 298; Moore v. Jackson, 4 Wend. 58 ; Jackson v. Blodget, 16 Johns. 172 ; Long Island R. R. Co. v. Conklin, 32 Barb. 381). 3d. “ Also, where it appears to be the intention of the parties that the land shall pass, the form or mode of conveyance is not material, but the intent should be effectuated by every legal means” (Jackson v. Myers, 3 Johns. 388 ; French v. Carhardt, 1 N. Y. (Comst.) 96). 4th. Again: “ Every uncertainty is to be taken in favor of the grantee, and every presumption. The burden is on the plaintiff to show the road was excluded.” (Bissell v. N. Y. Central R. R., 23 N. Y. 61; Adams v. Saratoga R. R. Co., 11 Barb. 414; Luce v. Carnley, 24 Wend. 451; Lozier v. N. Y. Central R. R., 42 Barb. 465). 5th. Again: “The terms of every written instrument are to be understood in their plain, ordinary, and popular sense, unless they have, generally, in respect to the subject-matter, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the same words ; or unless the context evidently points out that in the particular instance, and in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar sense.” “ This rule does not restrict the court to the perusal of a single instrument or paper; for while the controversy is between the original parties, or their representatives, all their contemporaneous writings relating to the same subject are admissible in evidence” (Greenleaf on Evidence, vol. 1, secs. 278 and 283). The main question in this case is to ascertain the intent of Henry-Barclay at the time of making the transfer to Thompson, in respect to the ponveyance and alienation of his interest in the old Eastern Post Road. This intent is to be gathered not only from the language of the deed itself from Barclay to Thompson, but also by reference to those deeds, and the circumstances attending them, which brought the title of the land to Barclay, and the deed to which reference is made in the conveyance from Barclay to Thompson, which conveyed a portion of the premises to Gates.
    II. This intention is further shown in that portion of the description in the deed from Barclay to Thompson, which makes an exception of a certain portion of the land before described, which had been previously deeded by Barclay to George Gates. ‘c An exception is something reserved by grantor out of that which he has before granted. It is indispensable to a good exception that the thing excepted, should be part of the thing previously granted, and not of any other thing” (Cook v. Haight, 3 Wend. 632; Craig v. Wells, 11 N. Y. 321). A grantor may except lands either because he does not own and can not convey them, or because he does not intend to convey them if he is the owner ” (People, &c., v. Rector, &c., 22 N. Y. 53). It therefore must follow that the line bounding the property deeded to Gates and that bounding the property deeded to Thompson by Barclay, must be a continuous one, and hence it must have been the intention of Barclay to alien his entire interest in the Eastern Post road aforesaid adjacent to said premises.
    III. Besides all this, the acts done under these deeds serve to show that the foregoing views are correct. There is no pretense that any claim of any kind, from any source whatever, has ever been made for any part of the eastern half of the old post road in question, in opposition to that of those in possession and holding title under the aforesaid deeds. Houses have been erected upon, and titles passed, by good lawyers, for many years past to this portion of the old post road, without question or doubt, until this sale by the defendant to the plaintiff of the premises in question.
   By the Court.—Speir, J.

The portion of the premises alleged to be defective in the title was formerly included in the easterly half of the old post road adjoining the Turtle Bay Farm, and included in subdivision Wo. 6 of the farm belonging to Francis B. Winthrop, and known as the Turtle Bay Farm.

In 1820, the co-heirs of Francis B. Winthrop, excepting William H. Winthrop, executed a deed to the latter, and in the recitals it is stated that the parties to the deed caused the farm to be surveyed and divided by Mr. Randall, a surveyor, into six different farms or subdivisions. This deed was made for the purpose of conveying to the grantee in severalty his proportionate share of the entire farm. The subdivisions were numbered one, two, three, four, five, and six, and William H. Winthrop took Wo. 6, which includes the premises in question. It follows from the declaration in the deed, that the Turtle Bay Farm, without any reservation, had been, by the Randall survey and division, included in the sixth parcel or subdivision. The fact being thus established by the parties themselves furnishes the best evidence of intention.

Moreover, the above conveyance being a friendly partition of the whole farm among the heirs, and the land conveyed, being described not alone by metes and bounds, but also as “subdivision or farm Wo. 6 of the said Turtle Bay Farm,” it may be assumed that the portion of the old post road belonging to the farm, and adjoining Wo. 6, was included in the conveyance. Besides, it is a familiar rule that the grantee of a lot bounded on a street prima facie takes to the centre of the street, and there must be language expressly excluding the street to prevent the grant having this effect. Henry Barclay, by deed dated 1826, became the owner in fee, by boundaries identical in the deed, to William H. Winthrop, and is referred to as being the same premises. This deed, therefore, carries all the interest of the grantors, whatever it may have been, to the centre of the road.

In tracing the title down thus far, there seems to be no controversy, and the plaintiff's counsel, although admitting the effect of the above conveyances, at this point, interposes his objection to the title. His claim is that the deed of 1832, from Barclay to Samuel Thompson did not convey any part of the premises which were formerly within the eastern post road, that the land conveyed is described as being upon the side of the road and the boundary is, limited to the side and along the side, instead of running to the road and along the road.

The importance of examining the foregoing deduction of title and the character of the several transfers is plainly manifest. The intention of the several parties is to be ascertained not only from the language in the description of the deed itself, but must ever have reference to relative extrinsic facts. These facts may consist of co-temporaneous writings, relating to the same subject; by reference in this case to the deeds and circumstances relating to the premises described in them, which brought the title down to Barclay. As a clue to this intention and the import or effect of conveyances, we are permitted to look to the undisturbed use of the right contested, on the one side, and the unqualified acquiescence, on the other, down to the time of the purchase of the premises by the defendant.

When the survey of the Turtle Bay Farm was made, this eastern post road was in public and common use. The intention was to convert the entire Turtle Bay Farm into six holdings in severalty, which should iüelude the entire area of the farm. In this amicable partition Ho. 6 had for a portion of its boundaries this road, and it was impracticable and unusual to place the monuments “K” and “nineteen” elsewhere than on the side of the road ; while it is apparent that the measurement of land extended to the centre. This results from the fact that the division Ho. 6 starts at the most northerly corner of subdivision Ho. 5, which corner is in the centre of the old post road, and then runs to the monumental stone “ K.” It is well-known that in the rural districts it is the custom in the survey of lands to mark courses and distances by artificial monuments, and in case the boundary is made by the highway these monuments are placed on the side of the road between the exterior line enclosing the street and the road-bed, while the quantity of land conveyed extends to the centre. Where, therefore, the road is the limit and boundary the expression is both natural and common “to the side and along the side,” thereby defining in common parlance that portion of the road lying between the exterior limit and the centre.

Intention is further manifest in the description in the deed from Barclay to Thompson, which contains an exception of a certain portion of the land before described which had previously been deeded by Barclay to Grates. The excepted portion is situated on the post road directly north of the land in question, and on the same continuous line with it. Barclay's deed to Grates uses words which carry the land in the road to its centre. As Barclay therefore conveys a parcel of land in the road to Gfates, with the land adjoining thereto, and also in the deed to Thompson conveys a large parcel of land which, in terms, includes land sold to Grates, it seems to follow that Barclay intended to convey to Thompson his right to the land in the road adjacent to the tract in question.

The rules which govern the interpretation of grants of land in the country are- strictly applicable to the present case. This was a public highway at the time, and the -reasons for the construction of the deeds are based upon principles of great public convenience, and do not permit that one should be the owner of a farm and another of a road or stream running through it.

Although the road has been closed for twenty-five years, it does not appear that either Thompson or his representatives have since the date of his deed claimed the right to be in possession of any portion of the land in controversy, and have never made any claim or demand upon any one who has held the same since that time. The question, then, is simply in whom is the fee in the soil vested to which this easement of a public highway was attached ?

The fee must rest somewhere, or be in abeyance. If the views above expressed are correct, it follows that these several conveyances commencing with the partition of the co-heirs of Francis B. Winthrop carries the fee of the premises in dispute to the centre of the road down to the defendants.

An abstract of a decision referred to in the present number of the Albany Law Journal, p. 145, February 26, 1876, in the case of White’s Bank of Buffalo v. Mchols, has just come to my notice. The opinion is by Mr. Justice Allen, of the court of appeals. That experienced and learned judge has so fully and pointedly stated the doctrines relating to boundary upon a highway, construction of grants, &c., that I can not do better than refer to the case as authority. He says: ‘ ‘ Whether a grant of lands bounded by a street, highway, or running stream extends to the centre of such street, highway, or stream, or is limited to the exterior line or margin thereof, depends upon the intent of the parties to the grant as manifest by its terms; and while the presumption is in every case that the grantor does not intend to retain the fee of the soil within the lines of the street or under the water, no particular word or form of expression is necessary to overcome such presumption. It is not sufficient to exclude from the operation of the grant the soil of a highway usque ademedium ftlum that the grant is made with reference to the plan annexed, the measuring or coloring of which would exclude it; or by lines and measurements, which would bring the premises only to the exterior line of the highway; or that they are bounded generally by the line of the highway, or along the highway ; or by any similar expression.”

The judgment should be affirmed with costs.

Sanford, J., concurred.  