Obrázky stránek

street. Webber v. California & O. R. Co. (1876) 51 Cal. 425.

A description calling for a stated distance "to" a street carries the fee to the center of the street. Kittle v. Pfeiffer (1863) 22 Cal. 484.

In Goodeno v. Hutchinson (1873) 54 N. H. 159, the description under consideration carried the boundary line "to" a road, and thence to the side line of the granted premises. It was held that the grantee took to the center of the road.

In Winter v. Peterson (1854) 24 N. J. L. 524, 61 Am. Dec. 678, the fee to the center of a road was held to be conveyed by a deed wherein the line was described as beginning "along the middle of the road," and running "along the said road."

In Western U. Teleg. Co. v. Krueger (1905) 36 Ind. App. 348, 74 N. E. 25, the deed under consideration described the land conveyed by metes and bounds, "beginning on" a highway, and, after describing the other three lines, "thence easterly along said road to the place of beginning." It was held that the grantee took to the center of the highway.

4. "On" highway.

A description of the line adjacent to a highway as running "on" the highway carries the title to the center line of the highway. Chatham v. Brainerd (1835) 11 Conn. 60; Johnson v. Anderson (1841) 18 Me. 76; Newhall v. Ireson (1851) 8 Cush. (Mass.) 595, 54 Am. Dec. 790; Peck v. Denniston (1876) 121 Mass. 17. Thus, the fee to the center of both streets is given by a deed of lots "on the corner of" two streets, "being 75 feet on" one street and 90 feet on the other. Sherman v. McKeon (1868) 38 N. Y. 266.

A description of land as bounded "easterly on highway" gives title to the center of the highway. Chatham v. Brainerd (1835) 11 Conn. 60.

So, a description of land as extending "to" a road and "thence bounding on" the road gives title to the center of the road. Foreman v. Presbyterian Asso. (1894) Md. 30 Atl. 1114. See to the same effect, Reed's Petition (1842) 13 N. H. 381; Healey v. Babbitt (1884) 14 R. I. 533.

5. "With" or "by" highway.

Under a deed describing the property by metes and bounds, the call for one line being "thence with said road to starting point" the grantee takes the fee to the center of the road. Johnson v. Arnold (1893) 91 Ga. 659, 18 S. E. 370. See to the same effect, Blalock v. Atwood (1913) 154 Ky. 394, 46 L.R.A. (N.S.) 3, 157 S. W. 694. But in Hoffman v. Shepherdsville (1896) 18 Ky. L. Rep. 302, 36 S. W. 522, a similar description was held to give title only to the side line.

A description of a boundary line as running "to" a street, and thence "parallel with" the street to a place of beginning at the "corner of" that street and another, gives title to the cénter of the street. Re New York (1902) 73 App. Div. 394, 77 N. Y. Supp. 31.

A description of a boundary as running "to" and thence "by" a highway gives title to the center thereof. Oxton v. Groves (1878) 68 Me. 371, 28 Am. Rep. 75; Phillips v. Bowers (1856) 7 Gray (Mass.) 21; White v. Godfrey (1867) 97 Mass. 472; Lemay v. Furtado (1902) 182 Mass. 280, 65 N. E. 395; Everett v. Fall River (1905) 189 Mass. 513, 75 N. E. 946; Cochran v. Smith (1893) 73 Hun, 597, 26 N. Y. Supp. 103; Re White Plains Road (1808) 170 N. Y. Supp. 1018. Compare Clap v. M'Neil (1808) 4 Mass. 589 (overruled by later cases).

"To" a road, thence "by" the road to a stone wall, gives title to the center of the road, though the wall extends only to the side line thereof. Dean v. Lowell (1883) 135 Mass. 55, wherein it was said: "The side of the road is not mentioned in the deed; but the respondent argues that, as the stone wall terminated at the southeasterly side of the street, the line running to the wall must necessarily run on the southeasterly side of the street, otherwise it could not strike the wall. We think this consideration is not sufficient to rebut the ordinary presumption that the center of the way is the boundary; neither the end nor any other particular part of the wall is mentioned, and by considering the line on the road to run to the line

of the wall, rather than the end of the wall, harmonizes all parts of the description of the premises better than the construction urged by the respondent."

6. "In line of" highway.

In Healey v. Keely (1903) 24 R. I. 581, 54 Atl. 588, a description running the boundary "in the line of" a street was held to give title to the center thereof. And see Helmer v. Castle (1884) 109 Ill. 664 ("along the line of"). But in Cole v. Haynes (1849) 22 Vt. 588, a tract seized under a levy describing it as running "to" and thence "in the line of" a highway was held to extend only to the side line.

1. Call for side line of highway as

By the weight of authority if property is described as bounded by the side line of a highway, the grantee takes only to that line, and no right to the fee to the highway is conveyed. Severy v. Central P. R. Co. (1875) 51 Cal. 194 ("along the easterly line"); Warden v. South Pasadena Realty Co. - Cal. 174 Pac. 26 ("along the southerly line"); Cottle v. Young (1871) 59 Me. 105 ("running on the westerly line"); Grand Rapids & I. R. Co. v. Heisel (1878) 38 Mich. 62, 31 Am. Rep. 306 ("to" and "along" the east line); Betcher v. Chicago, M. & St. P. R. Co. (1910) 110 Minn. 228, 124 N. W. 1096; Hamlin v. Atty. Gen. (1907) 195 Mass. 309, 81 N. E. 275 ("in the east line"); Hamlin v. Pairpoint Mfg. Co. (1886) 141 Mass. 51, 6 N. E. 531 ("to the line of" and thence "in the line with"); Brainard v. Boston & N. Y. C. R. Co. (1859) 12 Gray (Mass.) 407; Wetmore v. Law (1860) 34 Barb. (N. Y.) 515, 22 How. Pr. 130 ("to the easterly line"); Fearing v. Irwin (1872) 4 Daly (N. Y.) 385 ("along the easterly side"); De Peyster v. Mali (1882) 27 Hun (N. Y.) 439, reversed in (1883) 92 N. Y. 262, 16 N. Y. Week. Dig. 566 (bounded by "the northerly side"); Mitchell v. Einstein (1905) 105 App. Div. 413, 94 N. Y. Supp. 210 (bounded by "westerly line" of road); Schonleben v. Swain (1909) 130 App. Div. 521, 115 N. Y. Supp. 23, affirming (1908) 109 N. Y.

Supp. 223, which is affirmed in (1910) 198 N. Y. 621, 622, 92 N. E. 1101, 1103 ("to the westerly side" of a street and thence "along the westerly side" thereof); Jacquemin v. Finnegan (1903) 39 Misc. 628, 80 N. Y. Supp. 207 (“along the northerly side"); Clark v. Rochester City & B. R. Co. (1888) 18 N. Y. S. R. 903, 2 N. Y. Supp. 563 (“on the south line"); Anderson V. James (1866) 4 Robt. (N. Y.) 35 ("to" a street and thence "along the southerly side"); Van Amringe V. Barnett (1861) 8 Bosw. (N. Y.) 357 ("to the side" and thence "along the side"); Jones v. Cowman (1848) 2 Sandf. (N. Y.) 234 ("by the northerly line or side"); Coster v. Peters (1867) 5 Robt. (N. Y.) 192 (bounded by "the easterly line"); Mead v. Riley (1884) 18 Jones & S. (N. Y.) 20, affirmed in (1886) 102 N. Y. 669 (beginning at the exterior corner of two streets and running "along the easterly line" of one of them); Deering v. Reilly (1901) 167 N. Y. 184, 60 N. E. 447 ("on the northeasterly corner of B. alley on the southeasterly side of” a road); Lough v. Machlin (1883) 40 Ohio St. 332 ("by the east line"); Hughes v. Providence & W. R. Co. (1853) 2 R. I. 508 (bounded "by the westerly side"); Iron Mountain R. Co. v. Bingham (1889) 87 Tenn. 522, 4 L.R.A. 622, 11 S. W. 705. See also Alameda Macadamizing Co. v. Williams (1886) 70 Cal. 534, 12 Pac. 530, wherein the same interpretation was given to an assessment describing a line as beginning with the intersection of the "westerly line" of one street with the "northerly line" of another, "thence westerly along said line." Compare Potter v. Boyce (1902) 73 App. Div. 383, 77 N. Y. Supp. 24, affirmed in (1903) 176 N. Y. 551, 68 N. E. 1123, wherein a deed describing a line as running "along the northwest side of" a street was held to give title to the center of the street.

In Baltimore & O. R. Co. v. Gould (1887) 67 Md. 60, 8 Atl. 754, the following description was held to give no right to the fee in the street: "Beginning for the same at the corner formed by the intersection of the north side of Winder street and the

east side of Johnson (street) and running thence easterly binding on the north side of Winder street 379 feet more or less to the corner formed by the intersection of Winder and Henry streets; thence northerly binding on the west side of Henry street 320 feet more or less to the corner formed by the intersection of Henry street and Wells street as now laid out and widened; thence westerly binding on the south side of Wells street 379 feet more or less to the intersection of Wells and Johnson street; thence southerly binding on the east side of Johnson street to the place of beginning,-containing 21 acres more or less."

In Lee v. Lee (1882) 27 Hun (N. Y.) 1, it was held that a deed describing the property as beginning "on the east side of" a road and then after various courses "to" and "along" the road to the place of beginning did not give so clear a title to the fee that a purchaser could be compelled to accept it.

In White's Bank v. Nichols (1876) 64 N. Y. 65, it was held that a description of land as commencing at the intersection of the exterior lines of two streets, and thence running along the exterior line of one of them, gave no title to the bed of the street. The court said: "The point thus established is as controlling as any monument would have been, and must control the other parts of the description; all the lines of the granted premises must conform to the starting point thus designated, so that while, but for this designation of the commencement of the survey or boundary, the lines along Garden street and Carolina street might, within the general principles before referred to, be carried to the center of those streets respectively, they are necessarily confined to the exterior lines of the streets, so as to connect at this starting point." See to the same effect, English v. Brennan (1875) 60 N. Y. 609.

A deed describing the line adjacent to an alley as running."southwesterly on the easterly bounds of the alley" does not convey the fee of the alley. Rupprecht v. St. Mary's Roman Catho

lic Church Soc. (1909) 131 App. Div. 564, 115 N. Y. Supp. 926, affirmed in (1910) 198 N. Y. 576, 92 N. E. 1101.

A description carrying a lien "to the corner of" two streets, and thence "along" one of them, gives no title to the fee in the latter street. Deering v. Riley (1901) 38 App. Div. 164, 56 N. Y. Supp. 704, affirmed in (1901) 167 N. Y. 184, 60 N. E. 447.

Where the termini of a line are stated to be on the side of a street, and the line is described as running "along" the street, the fee to the center is not conveyed. Patten v. New York Elev. R. Co. (1876) 3 Abb. N. C. (N. Y.) 306.

So, in Augustine v. Britt (1878) 15 Hun (N. Y.) 395, it was held that no right to the fee in the street was conveyed by a deed designating the property by lot number, and then giving its bounds as beginning at the exterior corner of two streets, and running along the westerly side of one of them.

A description of granted premises as running "to the side of" a lane and "thence along the same" excludes any right to the fee of the lane. Mott v. Mott (1877) 68 N. Y. 246.

In Kennedy v. Mineola, H. & F. Traction Co. (1902) 77 App. Div. 484, 78 N. Y. Supp. 937, 12 N. Y. Anno. Cas. 189, affirmed in (1904) 178 N. Y. 508, 71 N. E. 102, title to the side line only was held to be given by a description carrying the line "to a point on the northeasterly side of" a highway and thence along the highway to a place of beginning, described as being on the northeasterly side of the highway.

Where land lying mainly on the north side of a road is bounded by the southerly line thereof, the grantee takes the fee to the entire road. Williams v. Sparks (1873) 24 Ohio St. 141.

In Wallace v. Fee (1872) 50 N. Y. 694, a deed bounding the land by the "east line of Clyde street" was held to give no title to the bed of the street.

In Terrett v. New York & B. Steam Saw Mill & Lumber Co. (1872) 49 N. Y. 666, it was held that a deed bounding the property "by the southwester

ly line or side" of a street gave the grantee title to the center.

In Salter v. Jonas (1877) 39 N. J. L. 469, 23 Am. Rep. 229, it was held that a description of lands as beginning at the side of a street and running along that side carried the fee to the center. See also Hinchman v. Paterson Horse R. Co. (1864) 17 N. J. Eq. 75, 85 Am. Dec. 252, followed and explained in Salter v. Jonas (N. J.)


In Tuskegee Land & Secur. Co. v. Birmingham Realty Co. (1909) 161 Ala. 542, 23 L.R.A. (N.S.) 992, 49 So. 378, it was said: "The three lots were described as a whole, and not separately, and as described formed a parallelogram, the corresponding sides of which were, respectively, 100 feet and 140 feet. The northern boundary of the lots was described as the southern boundary of Avenue A, the eastern boundary as the western boundary line of Seventeenth street of such city, the southern boundary as the northern margin line of a '20-foot alley,' and the western boundary described as a straight line 140 feet long, and parallel with the eastern boundary and Seventeenth street. It will be observed that this property abuts Avenue A on the north, Seventeenth street on the east, and an alley on the south, but extends no farther than the southern margin of Avenue A, the western margin of Seventeenth street, nor the northern margin of the alley; thus rebutting what might otherwise be a presumption that the deed passed the fee, subject to the public easement of right of way to the center of the avenue, street, and alley, which were named as three of the boundaries of the property. While the avenue, street, and alley constitute three of the four boundaries, there is no presumption in this case, because of these recitals, that it was contemplated or intended to pass title to any part of the soil of such thoroughfares."

In two jurisdictions no distinction is made between a call for a street and a call for the side line of a street, and the designation of the side line of a street, as the boundary gives title to the center line of the street. Cox v.

Freedley (1859) 33 Pa. 124, 75 Am. Dec. 584; Lehigh Street's Appeal (1872) 81* Pa. 85; Ott v. Kreiter (1885) 110 Pa. 370, 1 Atl. 724; Pittsburg, V. & C. R. Co. v. Fisher Foundry & Mach. Co. (1904) 208 Pa. 73, 57 Atl. 191; Kneeland v. Van Valkenburgh (1879) 46 Wis. 434, 32 Am. Rep. 719, 1 N. W. 63. Compare Union Burial Ground Soc. v. Robinson (1839) 5 Whart. (Pa.) 18, wherein, however, it did not appear that the street had ever been opened.

In Paul v. Carver (1856) 26 Pa. 223, 67 Am. Dec. 413, the court said: "A rule founded upon policy, and tending to guard against inconveniences of the most alarming character, ought not to be frittered away by distinctions founded on differences in phraseology, which might readily escape attention. The paramount intent of the parties, as disclosed from the whole scope of the conveyance, and the nature of the property granted, should be the controlling rule.”

In Neely v. Philadelphia (1905) 212 Pa. 551, 61 Atl. 1096, a description carrying the line to the center of one adjacent street, and to and "along the side" of another by courses and distances very accurately marked, was held to give title only to the side line of the latter street.

In Woodman v. Spencer (1874) 54 N. H. 507, it was held that though the boundary was described as running "on the easterly side of said road," the grantee took to the center of the road. The court said: "In the case before us the language is, 'thence on the easterly side of the road;' and it is upon this expression that so much stress is laid, the contention being that the parties meant a different thing when they said on the side of the road, from what they would have meant had they said on the road. What is there in the nature of the thing described to suggest any such difference in meaning? I see nothing. The bounding of one piece of land by or upon another fixes the line at the margin of such other piece. Carrying the line over to the center of a strip used for a highway is, as we have seen, an anomaly in the construction

of deeds which rests upon a presumed intention not to exclude, or, perhaps, the want of a distinctly formed intention to exclude, what neither party may have known could come within the operation of the deed at all. It is manifest that, if we were to apply the usual canon of construction, the words 'on the road' just as clearly denote an intention to bound the land by the marginal line of the highway, as do the words 'on the side of the road.' Considering only the nature of the thing and the commonly received import of the words, the two expressions are substantially identical, and might be used interchangeably without altering the sense. Generally speaking, that portion of the land of a farm which is available for the purposes of husbandry in this state includes no part of the highways that cross it. Those strips of land are ordinarily and naturally looked upon as being, to all practical intents, withdrawn as well from the control as from the beneficial enjoyment of the adjoining owner, by the servitude to which they are subject. For this reason it is to be expected that the expressions, 'on the road,' or, 'on the side of the road,' will find their way into deeds, when, in fact, nothing was further from the minds of the parties than that they were in that way excluding from the operation of the instrument any part of the roads, or that the roads could in any event be affected by the deed one way or the other; and I confess it looks little less than absurd to me to attempt a distinction between two forms of expression evidently intended to convey the same idea, and which, in the common and correct use of the language, do convey the same idea to the professional as well as the unprofessional mind."

g. Failure to mention highway. Where property as described by courses and distances or metes and bounds actually abuts on a highway, the fact that the highway is not mentioned as a boundary does not indicate an intention that the grantee shall not take to the center thereof. Merchant v. Grant (1915) 26 Cal. App. 485, 147 Pac. 484; Champlin v. Pendleton

(1838) 13 Conn. 23; Florida Southern R. Co. v. Brown (1887) 23 Fla. 104, 1 So. 512; Sizer v. Devereux (1853) 16 Barb. (N. Y.) 160; Bissell v. New York C. R. Co. (1861) 23 N. Y. 61; Wise v. Curry (1901) 35 Misc. 634, 72 N. Y. Supp. 165; Pettibone v. Hamilton (1876) 40 Wis. 402; Wegge v. Madler (1906) 129 Wis. 412, 116 Am. St. Rep. 953, 109 N. W. 223; Hannon v. Kelly (1914) 156 Wis. 509, 146 N. W. 512.

In Van Winkle v. Van Winkle (1906) 184 N. Y. 193, 73 N. E. 33, affirming (1904) 95 App. Div. 605, 89 N. Y. Supp. 26, it was said: "Where a deed gives the boundaries of the land conveyed by courses and distances, without mentioning a street by which the same is bounded on one side, but where it appears that the distance given does in fact carry the boundary to the street and along it, it is the same as though the boundary were described as running to the street and along the same, thus extending the title to the center."

In Gear v. Barnun. (1870) 37 Conn. 229, the rule was applied to a deed describing the property merely as a "store building and the land it stands on."

In Warren v. Blake (1866) 54 Me. 276, 89 Am. Dec. 748, the fact that the highway was not mentioned was adverted to as indicating an intention to exclude it, but the decision was governed by a description which clearly excluded the street.

Where land is conveyed by metes and bounds without reference to a street, the grantee has no title to the fee of a street subsequently opened by the grantor adjacent to the granted premises. Knott v. Jefferson Street Ferry Co. (1881) 9 Or. 530.

With reference to the effect of a conveyance by lot or block numbers, see supra, V. b.

VI. Effect of particular circumstances. a. Failure to accept or open highway. Where property is conveyed with reference to a highway in such manner that the grantee would ordinarily take to the center thereof, it is held in some jurisdictions that the result is not affected by the fact that the dedi

« PředchozíPokračovat »