Halloway v. Delano

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 center of the highway ” (Wager v. Troy Union R. R. Co., 25 N. Y. 529 ).

“A conveyance of land bounded by an existing street carries the fee to the center, 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 out its greatest value” (In re Ladue, 118 N. Y. 219 ); and while this presumption is in every case that the grantor does not

“ 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 hy 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 center 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 center is much less strong in respect to lots 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 center 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 grants 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

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 Williami 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 “ land,” 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 Constablé’sland where it joined the land of the grantors. According to the presumption that we have seen exists, Constable owned to the center of the highway, subject to the easement in the public to use one-half of the highway as a.

The line then runs along the highway, and that, under-all 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.

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 or bed 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 ‘ by ’ or upon ’ or ‘along’ such highwayor 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 land, but that corner is not fixed by the deed or "by any monument at the side of the road, but is the corner of Constable’s line, 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

We think, therefore, that under the description of the-Shaw deed, tlv: 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-road 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 42 acres and 5 perches, according to a. map, etc., thereto annexed.

s 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 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 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 appellants to abide the event.

Van Brunt, P. J., concurs.