
    36 N. Y. 120-Distinguished, 64 N. Y. 75.
    Darius Perrin v. The New York Central Railroad Company.
    Where town lote are sold, and described only by numbers, on the recorded map, by which they appear to be bounded on a public street, or highway, such lots are to be bounded by the center of such street.
    Where the open space on the map by which only such lots" can be approached is designated as “Park,” it is, nevertheless, to be deemed as a designed means of access to such lots; and they are to be bounded by the center of such space.
    These questions of boundary are to be determined by the palpable intention of the parties, as it appears from all the circumstances. Hunt, J., dissenting.
    This is an action to recover a strip of land in the city of Rochester. The following are the facts upon which the question arises: In 1849 the plaintiff was the owner of á small tract of land in Rochester, which he caused to be plotted and divided in lots numbered from 1 to 36, and caused the map to be filed in the county clerk’s- office of Monroe county. Upon said map was designated an open space, fronting upon what was laid down as “Jones street” on one side, and bounded on the other three sides by nine of said lots, numbered 19, 20, 21, 22, 24, 25, 26, 27, 28, and described as “ Park.” The plaintiff conveyed the said nine lots, at different times, to different purchasers, describing them in each conveyance solely by their numbers, and by reference to said map and its place of record. The defendant, by conveyances from such grantees, acquired title to the said nine lots and now owns the same, and has laid its tracks thereon, and occupies and possesses the same exclusively, claiming to be the owner of the same.
    Lots 24 and 28, above mentioned, front upon Jones street. The other lots mentioned have no means of approach by any public street or private way, except through the space designated as “ Park ” and the railroad tracks which run out to the public streets of the city.
    Dwelling-houses were erécted upon lots 19 and 26 after the sale of them by the plaintiff, and the space designated as “ Park ” was used as the only way of access thereto while the houses remained thereon and until the lots came into the possession of the defendants, who removed the buildings.
    In 1851 a dwelling-house was built on lot 28, which had not then been fenced; and after this, the premises in question were fenced on the north, west and south sides, but left 'open on Jones street, and so remained till defendant acquired title. Up to this time the premises in question were in their natural state, not graded or improved, and with no trees or shrubbery upon them. They were used for drawing wood, coal, etc., for the persons living there. The court decided as matter of fact, that when the plaintiff plotted this tract, he intended the space designated as “ Park ” to be a park, and not to be a mere passage way leading by and to the adjoin ing lots, and that such continued to be his intention when he ' sold the lots; that part of his design was to afford access to the contiguous lots, but this was subordinate to the principal and leading object of making it a park.
    The court further decided as matter of law, that the plaintiff was the owner in fee of the premises in question, and ordered a judgment in his favor for their recovery. This judgment was affirmed on appeal to the General Term of the seventh district, and the defendants, now appeal to this court.
    
      G. E. Mumford, for the appellant.
    
      F. A. Whittlesey, for the respondent.
   Bockes, J.

The entire and exclusive appropriation by the defendant, of the premises in controversy, laid down on the map, and there denominated Park,” was sufficient as a disseizin to entitle the plaintiff to recover in this action. (16. N. Y., 97; 24 id., 655; id., 658; 25 id., 526). The question here is whether the plaintiff, in conveying the nine lots which abutted on the strip called Park,” by numbers, referring to the map, passed the fee in this strip to the grantees, in the same manner and to the same extent as if the strip of land had been dedicated by him as a street for the use of the adjoining lots. .Had the strip been designated “ street,” on the-plaintiff’s mkp, .instead of.- “ Park,” the ease would be precisely that of Bissell v. The N. Y. C. R. R. Co. (23 N. Y., 61),. where it was. held that.as between grantor .and grantee, the conveyance of a.lot bounded upon a street in a city, carnes the Iand.to the center of. the street. This, too, was like, the present ease, where the strip, sought to be recovered was open upon a public street, at.one end only, and the conveyances. of the adjoining. lots were by. numbers referring to, the map, without any mention of or particular reference.to the street by name. • . ■

. In the .case cited, this .court held that .Mumford (under whom Bisseli claimed ..title) by his., conveyances, of the lots abutting on the strip, designated “ street,” on the map, passed the fee therein, to..his, grantees,' consequently that Bisseli ¡could not recover,against, the. defendants, who had become sole owners of all the adjoining lots.

As has been already suggested, the .only difference between the case cited and the. one under consideration is, that in the. former the strip of land sought to be recovered was designated “Street” on.the map, and in.the latter it was designated “Park.” In fact, is there - any difference which should require a different judgment in the two cases ? Bis-sell’s case was made to depend on the intention of the grantor, to be détermined from the conveyances themselves, considered in connection with the map which by reference was made part of them, the location of, the lots, and the use for which the strip of land in controversy was obviously set apart and dedicated. So it was reasoned that it was intended as a. street, because so designated on the map, and was intended as a .means of access from the public highway to the lots abutting on-it which had no -other common approach, public or private, and that it materially enhanced their 'value. • It- was therefore decided, that -such strip was intended for the exclusive use and enjoyment, so far as the grantor was. concerned, of the grantees of the.adjoining lots,' and that when the title.to all the lots centered in one person, he was entitled to its exclusive possession against any claim ■ the grantor could urge by way of action in ejectment. Let us now apply the reasoning adopted in that case, and which it seems was satisfactory to every member of the court who took part in its decision, to the one in hand. The .plaintiff with- a view to place his lands advantageously and profitably in market, caused them to be mapped, laid off in lots, and the lots to be numbered. He left on the map a narrow strip forty-three feet in.width, opening at-one end into the public street, and extending into .the plat one hundred and ninety feet. . On this he located nine, lots, seven =of which had no other access to the public street. Without the advantages afforded by. such passage way-, those seven lots would be comparatively valueless.

There was no indication on the map, on the. ground, in its subsequent use, or in the deeds of the adjoining lots afterward executed, of an intention to leave this strip of land open and vacant for ornament. On the contrary, the inference must be directly the reverse, for its form and location rendered it inappropriate for that purpose, while it was needed and became useful and valuable as a means of access to the lpts-in rear of those- fronting on public streets.

It is beyond controversy that this strip of land was to be left open and vacant for the .use of the owners and occupants of the. adjoining lots, for all the_purposes of a street; and there .is nothing to indicate- that the plaintiff entertained any other or different purpose. Then, to adopt the language of Mr. Justice. Mason, in .Bissell’s case, “ as between .these parties,- grantors and grantees, it is a public street to all intents and- purposes, except' that, the public authorities, are not .bound to keep it in repair. It is made, such by the plaintiff .himself in laying,out thestreet and putting it upon the map, and selling these lots upon either side of it with reference to,the--map and. street; and he .has- probably received the full, value of the street in the increased price of the lots sold upon it.” It is urged that the designation of “ Park” on the map was of controlling significance against the intent that the dedication was for a street. The. Supreme "Court adopted this view. The. learned judge .at the circuit found and decided “that when the plaintiff laid out and platted his tract, which included the premises in question, he intended the space of land in question to be what he has designated it on the map — a park — and not a mere passage way, leading by and to the adjoining lots.” This finding is based on the fact that he designated the strip of land “ Park” on the map. What it was called I think of very little importance, when its use and principal purpose is obvious beyond possible conjecture. It cannot be denied that it was to be used as a passage way or street. This became a necessity from the location of the lots abutting upon it. This necessity rendered it inappropriate as a park. Eor does it answer the strict definition of joa/rh as platted on the map. A park is, in its strict sense, a piece of ground inclosed for purposes of pleasure, exercise, amusement or ornament. This strip of land was uninclosed — open to the common and was intended so to remain — nor was it .set apart either for pleasure ground or for purposes of exercise, amusement or decoration.

Its shape and situation was unsuitable for either purpose. It was opened for use and use alone, and that use was as a passage way or street. This was its primary and chief design, and, so far as the case shows, its only design. Although called a. park, as we have seen, it was not a park, and its intended use as a street- was as much beyond question' as was the use of Erie street in Bissell’s case. The decision in that case must, therefore, control the judgment in this.

The judgment of the General Term and of. the Special Term should be reversed, and a new trial ordered, with costs, to abide the event.

All concur except Hunt and Scrttgham, JJ., who dissent.

Hunt J.,

dissenting. It has long been the settled law of this State, that a conveyance of land bounded upon a highway generally conveys title to the center of the highway. Since the decision of Bissell v. The New York Central R. R. Co. (23 N. Y., 61), it has been settled that the same prim ciple applies to the streets of a city. The rule is not confined in its application to a road, highway or street, but applies to a river, a ditch, a wall, or other similar object. The boundary is considered a line merely. (3 Kent, 433; Child v. Starr, 4 Hill, 373, 381, 382; 1 Sandf. S. C., 337, 344.)

■ The rule is based upon the presumed intention of the party making the conveyance. The ownership of the land between the line of a lot and the center of the street or highway would be of no presumable benefit as a reserved title in the grantor. So if the land, which is covered with water, between the bounds of the terra firma and the center of a stream or of a ditch, or of the space upon a wall forming a boundary line. Some convenience might arise to the grantee from the ownership of this space, subject to the public easement, but it was supposed that a title dissevered from the adjoining land which was conveyed, would be of no advantage to the grantor, and hence, it was presumed to be his intention that his conveyance should extend to the center of the street or river. (Auth. sup) Found solely on presumed intention, it was always competent to the grantor to employ language which should indicate a contrary intention.' Of this many illustrations are given in the books. (Auth. sup.; and 1 Sand., S. C., 337, 344.)

A conveyance of lots by numbers and by reference to a map on file, where said lots are designated on the map as bounded upon a street thereon laid out, gives title to the grantee, to the center of the street. (Bissell v. N. Y. Central R. R. Co., supra; Glover v. Shields, 1 Barb., 374.

The decision in Bissell v. N. Y. C. R. R. Co. was made in reference to lots laid out upon a map platting another portion of the identical lands now in question. Mr. Mumford had divided his portion of the land into lots, representing them on a map as abutting upon a street extending from Kent street through the center of his tract, and through the adjoining tract to Jones street. This avenue was designated on the map as Erie street.” Mumford then sold his lots hy numbers, referring to the map, but making no mention of this street by name. The grantees built upon their lots and used.the strip designated as Erie street as a means of access to their lots, as far as'Mumford’s land' extended. The street was never opened through- the other half of the tract tó Jones street. It was held, that as between the-grantor and the grantee, this conveyed the land to. the center of-Erie street; that there was no-difference in this respect between the ordi- 1 nary highway and' a street in á city, and thus the-fact that the adjoining propriétor did not open his portion of the street* and that the-same was therefore closed át one end, made ho difference. The presumed intention of the grantor was held to be of a conveyance to th:e- center-of the street as designated on the map. - ‘ 1 '■ ■

A'street or "highway is a portion ‘of land'set" apart for passage or travel.' "When, therefore, lots are sold ■ by reference to a map, on which such lots are designated as fronting upon a street then laid down, the transaction contains, in substance, a declaration by the grantor-that the space designated. as a street is* and shall continue to be, a street,' and his presumed intention consigns title to his grantee, to the center of the designated street.

A park ” is an inclosed ■ space in a city of village, set apart for ornament or to afford the benefit of air, exercise or amusement. It is not by its terms intended as a passage way, or for the purpose of public travel. It is defined by lexicographers as an inclosed space, referring-doubtless • to the intention or expectation that it shall be inclosed, and fiot making its character to depend upon the fact whether it is inclosed at any particular time. If inclosed, or intended-to be, of course the idea of passage or travel over it is excluded. Streets and highways have an- established size, -by-the custom of the country, and the regulations of the- statute, varying from ten rods to six rods in width. A park, on the other hand, has no customary size. It depends on the capacity of the land, or- the liberal-mindedness of the person laying it but. The City Hall park, in the city of Hew-York, contains but a few acres, and it is as large as the parks in the most of the cities of this State. The Central park, however, and the parks of some of the cities of Europe, contain nearly a thousand acres. Can- it be said that a lot bounded upon one of these parks, conveys to the center of it all the title that the grantor might have thereto ? Could such he presumed to he the intention of the grantor ? I think not. There is or there may be sources of substantial benefit and enjoyment in the use of a park, not belonging to the owners of property bounding upon it. The advantage of the .open air necessarily pertains to the adjacent property, but the right of entry, use and occupation, unlike that of a street or river, maybe limited by the owners of the park, to persons not residing near it, and depending upon conditions altogether different.

A park is essentially different in its nature from a street, and is governed by principles of a different character. ■ It could under no circumstances be considered as a line merely. A street becomes a street, as between grantor and grantee, by being so designated on the map by which the lots are sold. It is quite likely that a park may become a park in the same manner. But there is neither authority or principle for saying that lands may be made a street by designating them as a park. It would be as unreasonable as to attempt to create a park from what the owner should designate upon his map as a street.

I agree in the appellant’s argument, that this is a question of law, arising upon the • construction of the deed and map. Where the language of the deed creates an ambiguity, the surrounding circumstances may be shown to aid in the construction. (French v. Carhart, 1 Comst., 96.)

Here there is no ambiguity, and it is unimportant whether the early occupants used the park as a street, and called it a street, or whether they did neither. Those are circumstances which could not give title to them; or divert that of the real owner, unless continued during a period of twenty years.

Ejectment is the proper form of remedy for such a possession as that taken by the defendant of the premises in question. (Carpenter v. O. & S. R. R. Co., 24 N. Y., 655.)

The judgment should be affirmed.

Judgment reversed.  