
    Mary J. Woolf, Appellant, v. James A. Woolf and Others, Impleaded with Edward G. H. Burton and Elizabeth Burton, His Wife, Respondents.
    (No. 3.)
    First Department,
    April 8, 1909.
    Beal property—deed — fee of highway — when conveyed.
    The soil of a highway is presumed to belong to the adjoining owners and one owning land bounded on a highway is prima, facie the owner to the center thereof, subject to the public easement.
    Where the description in a deed identifies the property sold as lots shown on a map, which also shows abutting streets, the land conveyed will be presumed to extend to the center of the streets whether or no they had actually been opened at the time of the conveyance.
    Where a deed conveys certain lots by reference to a map and describes the boundary as beginning at the corner of certain streets shown thereon and running “ along ” the streets, the grantee takes to the center of the streets.
    
      Appeal by the plaintiff, Mary J. Woolf, from a judgment of the Supreme Court in favor of .the defendants Edward G. H. Burton and Elizabeth Burton, his wife, entered in the office of the clerk of the county of New York on the 28th day of November, 1908, upon the decision of the court, rendered after a trial at the New York Trial Term, certain questions of fact having been submitted to the jury, dismissing the complaint as to said defendants, with notice of an intention to bring up for review an order bearing date the 19th day of May, 1908, and entered in said clerk’s office.
    
      Tallmadge W. Foster, for the appellant.
    
      Gilbert W. Minor, for the respondents.
   Scott, J.:

This appeal by plaintiff calls upon us to determine the proper construction and effect of a deed executed in 1856 by Thomas 0. Woolf and others, ancestors of the plaintiff and the defendants Woolf, to Caroline Burton, ancestor of the defendant Edward G. H. Burton.

Prior to April 4, 1856, Thomas 0. Woolf, Joseph A. Woolf and John A. Woolf, plaintiff’s ancestors, owned a tract of land in what is known as the borough of the Bronx, then part of the county of Westchester, and which embraced the lands affected by this action. On February 14, 1854, they filed in the office of the clerk of Westchester county a map of said tract of land entitled “ Map of the Village of Mount Eden, near Upper Morrisania Depot, in the Town of West Farms, County of Westchester, N. Y.” On this map were laid out certain streets and avenues, and among other's Walnut street and Eighth avenue. On April 4,1856, by deed dated on that day, they conveyed to Caroline Burton, of whom the respondent is heir at law, lots numbered 17 and 18 on the aforesaid map, by the following description:

“ All those two certain lots, pieces or parcels of land situate, lying and being in the town of West Farms aforesaid and which are known and designated by the numbers (17) seventeen and (18) eighteen on a certain map entitled Map of the Village of Mount Eden near Upper Morrisania .Depot in the Town of West Farms and County of Westchester, N. Y., and which was filed in the office of the clerk of the County of Westchester February 14th, 1854; said lot Mo. (17) seventeen and (18) eighteen taken together being bounded and described as follows: Beginning at the northwesterly corner of Walnut Street and Eighth Avenue, thence running westerly along the said Walnut Street fifty feet, thence northerly parallel with Eighth Avenue one hundred feet, thence westerly parallel with Walnut Street fifty feet, thence northerly parallel with Eighth Avenue fifty feet, thence easterly parallel with Walnut Street one hundred feet to said Eighth Avenue and thence southerly along said Avenue one hundred and fifty feet to the corner aforesaid and place of beginning.”

The land in controversy consists of one-half of Eighth avenue and Walnut street, as shown on said map of Mount Eden, which lay in front of and abutted upon lot 17 conveyed by the foregoing deed and the question upon which this appeal turns is whether or not, by the deed to Caroline Burton, the grantors conveyed to her, or reserved to themselves the title in fee to one-half of the street and avenue shown on the Mount Eden map as lying adjacent to and bounding said lot Mo. 17. The question has become important because the city authorities, in pursuance of law, have permanently closed said street and avenue, so that they are no longer subject to any easements of use for street purposes. The question as to whether the description of a particular lot in a conveyance thereof, which refers to abutting streets, should be construed as including or excluding the half of said abutting streets has been frequently considered and discussed. The rule to be applied has recently been restated by the Court of Appeals as follows: “ The general rule both in England and in this State is that the fee of the soil of the highway is presumed to belong to the adjoining owners, and that a person holding land bounded on a highway between two estates is prima facie the owner to the center of such highway, subject to the easement of the public to the right of way, but that such presumption can be rebutted by an express provision in the deed to the effect that the fee to the highway was not intended to be conveyed, or by the use of such words as necessarily exclude the highway from the description of the premises conveyed, as where the description of the premises is bounded upon the exterior line of a highway, or commences at a point upon one side thereof and thence runs along the side to a point specified ; but where the premises are bounded by, on or along a highway, or running along a highway, without restricting or controlling words, the instrument must be construed as conveying the grantor’s title in the land to the center of the highway.” (Van Winkle v. Van Winkle, 184 N. Y. 193, 203.)

Turning to the description in controversy in the present case we find that the lots, in the first place, are described by lot numbers, with reference to the Mount Eden map, on which lot 17 appears as bounded by Eighth avenue and Walnut street. But for this reference to the map it would be impossible to locate the lots at all. It is well settled that in a description which thus identifies the property sold as lots shown upon a map, on which also appears abutting streets, the conveyance, will be presumed to include the abutting streets to the center line thereof, whether or not, at the time of the conveyance, the streets have been actually opened. (Bissell v. N. Y. C. R. R. Co., . 23 N. Y. 61; Potter v. Boyce, 73 App. Div. 386-389; affd., 176 N. Y. 551; Matter of Ladue, 118 id. 219.) Unless, therefore, the succeeding words in the conveyance in question serve to limit the effect of the reference to the Mount Eden map, the deed to Caroline Burton included and comprised the title in fee to one-half of the street and avenue abutting upon and lying in front of lot 17o. 17. "The particular description of the lots conveyed (still referring to the Mount Eden map) states the point of beginning as “ the northwesterly corner of Walnut Street and Eighth Avenue,” and then carries the boundary line “along the said Walnut street,” and later “along” Eighth avenue. The precise situation was considered in Trowbridge v. Ehrich (191 N. Y. 361). In that case the deed under consideration had placed the starting point of the description at the intersection of “the northerly line of One Hundred and Sixty-third street” with “ the easterly line of Stebbins avenue.” The court held that this fixed the starting point at the external line of the street, but said, “ had she (the grantor) commenced at the intersection of the two streets and thence ran along the street it would have been apparent that she intended to convey to the center of the street.” The appellant has cited a number of cases to us in which a description has been construed as excluding any part of the abutting streets. All of them are readily distinguished from the case at bar, because in each the description contained appropriate words to indicate an intention to exclude from the conveyance any part of the abutting streets. This feature is conspicuously absent from the deed we are now called upon to consider.

The judgment appealed from is, therefore, right and must be affirmed, with costs.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Judgment and order affirmed, with costs.  