
    James W. Holloway, Resp’t, v. Franklin H. Delano et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    1. Deed—Presumption that grant extends to center op highway.
    The presumption oí 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 is expressly excluded.
    S. Same.
    A description beginning at the corner of a neighbor’s land “on the north side of ” the highway, or at the junction of the highway and a cross-road, and running “along” said highway, is not sufficient to overcome the presumption, and conveys the fee to the center of the highway.
    Appeal from judgment entered upon the verdict of the jury.
    
      William G. Choate, for app’lts;- James A. Deering, for resp’t.
   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 centre of the highway. Wager v. Troy Union R. R. Co., 25 R. Y., 529.

A conveyance of land bounded by an existing street carries the fee to the centre, 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 it its greatest value, In re Ladue, 118 N. Y., 219; 28 St. Rep., 821, 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 by 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 centre 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 centre is much less strong in respect to lands 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 centre 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 grant 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 street in the city of New York. At the time of this conveyance the premises in question was far from the city proper; 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, 8 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 William 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 “ lands,” 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 Constable’s land, where it joined the land of the grantors. According to the presumption that we have seen exists, Constable owned to the centre of the highway, subject to the easement in the public to use his own 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 ail 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 orbed 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"1 by ’ or ‘ upon ’ or ‘ along ’ such highway or 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 lands, but that corner is not fixed by the deed, or by any monument as the side of the road, but is the corner of Constable’s land 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, Stilwell 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, the 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 roads 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 forty-two acres and five perches according to a map, etc., thereto annexed.

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.

We 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 is 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 appellant to abide the event.

Yan Brunt, P. J., concurs.  