
    Charles H. Johnson. Appellant, v. Samuel B. Grenell, Respondent.
    Fourth Department,
    May 2, 1906.
    Real property—when á conveyance of lands fronting street on hank of watercourse presumptively includes title to street and riparian rights.
    When the owner of an island in a navigable river divides the land into lots delineated on a map, lays out a street skirting the river, and then conveys a lot facing said street, the presumption is that the grantor does not retain title to the street or to the riparian rights of wharfage, etc., but that they pass to the grantee subject to an easement in other grantees to pass over the street. Williams and Hash, JJ., dissented.
    ■ Appeal by the plaintiff, Charles II. Johnson'from' a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 9th day of August, 1905, upon the report of a referee awarding .costs to the defendant. ,
    
      Virgil K. Kellogg and Howard H. Widner, for the appellant.,
    
      John O’Leary and Anson Harder, for the respondent.
   Spring, J.:

In 1886 Ltiey Grenell owned Jeffers island, in the River St. Lawrence, in the county of Jefferson, and the defendant, her husband, has succeeded ,to her title and interest. In that year Mrs. Grenell caused said 'island to be surveyed and laid out into 176 lots, with streets and boulevards, and in October of that year caused said map to be filed in the clerk’s office of said county designating said island Grenell Island Park.” Conveyances of said lots have since been made with reference to and in recognition of said map, South boulevard, one of the avenues or streets delineated upon said map, is about fifty feet in width, and-extends along the south- ■ erly shore of said island, reaching from, the lots northerly from said boulevard and fronting thereon to the river front. Lot 34, represented upon said map, is one of those adjacent to said boulevard, and-the'easterly half thereof is now owned by the plaintiff and is contiguous to lot 175.

One Eldredge G. Robbins, by mesne • conveyances from the Grenells on the 24th of July,. 1897, acquired by purchase lot 34, with the following description: “ All that tract -or parcel of land, situate in the town of Clayton, County of Jefferson and State of Mew York, being lot Ro. 34 as laid down on the map of Grenell Island Park, said lot laying on southeast shore and adjoining lot Ro. 175 on the west of lot now deeded to Widner, the lot one hundred and twenty-six feet front and sixty-eight feet deep, supposed to contain sixty by one hundred feet, more or less, and being the same premises conveyed by Samuel B. Grenell and Lucy M. Grenell to said Chauncey W. Hopkins and Ely Chamberlain by deed dated August 20th, 1894.”

Robbins, during his occupancy, built a pier and crib dock on the river shore in front of lot 34 and immediately south of the boulevard, extending into the river. Robbins erected a building on the westerly end of the dock, about twenty-eight by thirty-two feet. A year or'two later a man named Brooks constructed a boathouse on the easterly end of the dock and in front pf the premises now owned by the plaintiff. This 'boathouse was erected with the knowledge of the defendant and rent was paid to him therefor. In September, 1901, Robbins conveyed the easterly half of lot 34 to •the plaintiff, including the dock, dockage, boathouse ■ and water rights, and in. June, 1903, Brooks sold to him the building which he had erected upon the easterly end of the dock.

The defendant claims that no part of the boulevard passed by the conveyance, and this action was commenced in October, 1903, to determine the title to the street, and also to the wharf and the dock, which are south of the boulevard and below liigh-water mark.

The referee held that the plaintiff acquired by his conveyance the fee to the northerly half of the street in front of lot 34; that the defendant owns the southerly half thereof, each owning subject, to the easement of the lot owners; that the plaintiff owns the building at the easterly end of the dock, and “ that the defendant Samuel B. Grenell is the owner of the riparian rights and of the dock south of South Boulevard ’ in front of the easterly one-half of lot No. 34, subject to the rights of the State of New York, and subject to the rights of the plaintiff of free access to the navigable waters of the St. Lawrence River over the same.’,’

If a conveyance of premises adjacent tó a street is made, the presumption is that the title extends to the center of the street, subject to the public easement. (Hennessy v. Murdock, 137 N. Y. 317; Paige v. Schenectady R. Co., 178 id. 102, 110 et seq.)

And where a lot portrayed upon a map is sold in recognition of the map and a street is delineated thereon, but no reference is made to it in the conveyance, the plaintiff takes the fee to the center, even though the road be a private one or an alley used in, connection with the premises conveyed. (Bissell v. N. Y. C. R. R. Co., 23 N. Y. 64; Lowenberg v. Brown, 79 App. Div. 414; Gere v. McChesney, 84 id. 39 ; Hennessy v. Murdock, supra.)

This rule is founded on, the presumption that the owner’s title extends that far, and it is not reasonable to assume that having parted with the .title to the premises fronting on the highway, he will reserve the narrow strip which composes one-half of the road. If -his title embraces the whole street in front of his land, the reason for the presumption that he parts with his title thereto clear across the street is equally sound, and tli%$ presumption obtains. (Haberman v. Baker, 128 N. Y. 253.)

In "that case the court say (at p. 259): “ Where the highway has been, as in the present case, wholly made from and upon the margin of the grantor’s land, his subsequent grant of the adjoining land should be deemed to comprehend the fee in the whole roadbed; upon the same principle that exists for giving the fee to the center in the other cases. The grantor should' be presumed to have intended by his conveyance the full investiture of the grantee with all appurtenant property rights in the highway. What other intention could be consistently supposed ?" In the early case of Jackson v Hathaway (supra) it was observed that there was reason.f or intending that the parties to a conveyance, of property bounded along or upon a highway meant to the middle of thediighway. Would there pot be equally reason for the legal intendment that they meant the whole highway, where it was the property of the grantor in in entirety ? Can we suppose an intention in the grantor to reserve to himself, or to his heirs, the fee in half of the highway ? I think not.”

If a highway passes over a farm the owner by his conveyance of the whole farm grants the fee of the whole highway owned by him.

So where the riparian owner sells lots, delineatedi upon "a map, fronting upon a street extending along the bank of a navigable river, the title conveyed reaches across the street to the water’s edge transferring all the riparian rights of the vendor. (Stetson v. City of Bangor, 60 Me. 313; Wait v. May, 48 Minn. 453.)

There is no proof to show that. the presumption should not prevail in the present case. On .the contrary, there seems to be good reason for holding that the defendant or his predecessor in title never expected to retain this narrow strip.

When Mrs. Grenell laid out her land into lots she outlined one street which skirted along the river, extending clear to its edge. There was no land owned by her between the street and the river. There was no access to .the lots except by w-ater. Wharfage of some kind was almost a necessary adjunct to the proper use and enjoyment of these lots fronting on that avenue. They did not purchase anticipating that they were limited to the .use of the public dock owned by the defendant. ISTor did they expect that whenever they built a dock extending into the river and outside the avenue they must first obtain his consent, and, possibly, be compelled to attorn to him for its user or be forbidden any dock privilege at all.

These lots were to be built upon withsummer cottages and one of the chief enjoyments must be derived from boating and the use' of the docks. Northerly of lot 34 and the other lots similarly located in. that block or distinct parcel, are several lots which front on another avenue on the other side of the block. Whether the rights of the owners of these lots are affected in any way by the divesting óf the titlp from the defendant in the street does not appear. No right of way seems to have been reserved by the adjoining lot owner on the rear df the plaintiff over his lot, and the natural'access to the street or avenue from such rear lot is on the other side, not on the South boulevard.

The question of the rights of these other lot owners 'over the street is not important in this case. If their easement in the boulevard is interrupted they may have cause of complaint, but the plaintiff is not here asserting any paramount right to the use. of the street. So the question of trespassing on the lands of the State is not here for consideration. The controversy is between the grantor and her, remote grantee, and involves simply a question depending upon the conveyances, the location of the lot-with reference to the avenue, and the surrounding circumstances shedding light upon the probable intention of the parties.

We think the title "of the street in front of the easterly half of, lot 34 is in the plaintiff to the river, subject to the easement, and that he is "also the owner .of the boathouse and dock, but beyond that we do not go.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Williams and Nash, JJ., who dissented.

Judgment and order, reversed and new trial ordered, with costs to the appellant to abide event upon questions of law only, the facts having been examined and no error found therein. 
      
      15 Johns. 447.— [Rep.
     