[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 289 The title of the plaintiff, to the southerly half of what was formerly the Wallabout bridge road, on which the plaintiff's premises abutted, depends upon the construction of the deed from Garrett Nostrand, to Edward Sanford, dated January 20, 1835. Sanford is the common source of title to the premises of both parties. The defendant's lot also abutted on the Wallabout road, until its discontinuance, long after the conveyance of the respective lots, by Sanford. If Sanford acquired title to the southerly half of the road, under his conveyance from Nostrand, the plaintiff, as his grantee, acquired his title to the part, in front of its premises. Upon the assumption that the plaintiff acquired title to that part of the road, the right of the plaintiff to relief in this action, by injunction, would depend upon questions, not now necessary to be considered. If, however, the title to the southerly half of the road did not vest in Sanford, under his deed from Nostrand, then the action cannot be maintained. The fence torn down by the defendant, was built by the plaintiff, across the southerly half of the road-bed of the Wallabout road, which before that time was uninclosed, and over which the defendant was accustomed to pass, in going to and from her premises. The obstruction was removed immediately after it was erected, and there was no such prior possession by the plaintiff as would, in the absence of legal title, constitute the defendant, a trespasser, in entering upon the land and removing the fence. We come then to the question, whether Sanford acquired title to the road-bed under his deed from Nostrand. That deed purports to convey about seventy-four acres of land lying south of the Wallabout bridge road, described as, "Beginning at a point on the southerly side of the Wallabout bridge road, adjoining the *Page 291 land now or lately belonging to John Skillman," and after running certain courses and distances, the line ran along the land of one Jacobus Lott, "north, forty-eight degrees and nine minutes west, five hundred and ninty-four feet to the Wallabout bridge road," and from thence "along said road, twelve hundred and twenty feet to the place of beginning."
There is but little diversity in respect to the general principles governing the construction of grants of land on a highway, but there is much contrariety of decision in the several States, in respect to their application, in particular cases, and in the construction of particular language, as bearing upon the point, whether the highway is, by the descriptive language of the conveyance, included in, or excluded from, the grant. It is generally conceded, that a grantor of land abutting on a highway may reserve the highway from his grant. But the presumption in every case is, that the grantor did not intend to retain the highway, and such reservation will not be adjudged, except when it clearly appears, from the language of the conveyance, that such reservation was intended. But what language will be sufficient to exhibit such intent, is the point of difficulty, upon which courts have differed. It was settled in this State, inChild v. Starr (4 Hill, 369), that a boundary in a deed, "along the shore" of a fresh-water river, carried the grantee only to low-water mark, and that the bed of the river did not pass under the conveyance. So a boundary by the bank of a creek, has been held to confine the grantee, to the margin of the stream. (Halsey v. McCormick, 13 N.Y. 296.) In the SenecaNation, etc. v. Knight (23 N.Y. 498), the boundary was described as "beginning at a post on the north bank" of the Cattaraugus creek, and thence ran, by various courses and distances, to a post on the north bank of the creek, "thence down the same, and along the several meanders thereof, to the place of beginning," and it was held that the grant included the bed of the stream, to the center. The court, approved the remark of Chancellor WALWORTH, in Child v. Starr, that monuments in such cases are only referred to, as giving the directions of the lines to the *Page 292 river, or stream, and not as restricting the boundary on the river. The court also remarked, that in a case of boundary on a river, monuments are never located, in fact or in description, in the channel of a river, and that monuments were necessary, in order to mark the places of intersection with the stream. There is a close analogy, between conveyances bounded by fresh-water streams, and by highways, in respect to the point of construction of descriptive words. In the case before us, the starting point of the description is on the southerly side of the Wallabout bridge road, and the exact point of beginning, is fixed by the reference to the lands of Skillman. The other lines are described by courses and distances, and the third course gives the length of that line in feet, to the road, which we think fairly imports, that the measurement is to the side of the road, and the fourth course is along the road, etc., to the place of beginning. We think the road-bed was excluded by the terms of the description, within the cases of Jackson v. Hathaway (15 Johns. 447);English v. Brennan (60 N.Y. 609); White's Bank of Buffalo v. Nichols (64 id. 65). In Jackson v. Hathaway, the description was "beginning at a certain stake by the side of the road called the old Claverack road, etc., from which stake running east, twenty degrees south, two chains to another stake; thence south, twenty-two degrees west, seventeen chains, sixty-four links; and thence" by specified courses and distances "to the first-mentioned bounds, making twelve acres, two roods and ten perches of land." It was held that the highway was not included. In English v. Brennan, the court reached the same conclusion, where the description was: "Beginning at the south-westerly corner of Flushing and Clermont avenues, running thence westerly along Flushing avenue twenty-five feet, thence southerly at right angles to Flushing avenue, seventy-nine feet nine inches to a point distant forty feet seven and a half inches westerly from the westerly side of Clermont avenue, thence easterly on a line at right angles to Clermont avenue, forty feet seven and a half inches, thence northerly, etc., to the point of beginning." *Page 293 In White's Bank, etc., v. Nichols, the reasoning of ALLEN, J., is much in point. He says: "The grant under which the defendant claims title, describes the granted premises as commencing at the intersection of the exterior lines of two streets, of which Garden street is one, and so as necessarily to exclude the soil of the street. 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."
The cases of Sibley v. Holden (10 Pick. 249), Smith v.Slocomb (9 Gray, 36), and Cottle v. Young (59 Me. 105), are also in point. In Sibley v. Holden, the description was: "Beginning at a stake and stones on the southerly side of a town road," etc., thence by courses and distances "to said road, thence by said road easterly to the place of beginning," and it was held that the road was excluded. In Smith v. Slocomb, where the description was very similar to that in Sibley v.Holden, SHAW, Ch. J., said: "But when it starts at the side of the road, and comes back to the road, and thence on the line of the road to the point of beginning, the conclusion is inevitable, that the road is excluded." The words to and along the road, in the description now in question, if not controlled by the starting point, would, by well-settled construction, carry the boundary to the center; but it is to be observed that these words are not inconsistent with confining the boundary to the side of the road. It was held in Dunham v. Williams (37 N.Y. 251), that a deed bounded on a highway, is satisfied by title extending to the side of the road, when the title to the road-bed was not in the grantor, and according to the principle of that case, the absence of such title, where the description runs to andalong a highway, would not constitute a breach of the covenant of seizin. In this case no reason appears, why Nostrand should desire to retain title to the land in the Wallabout road. The Wallabout Bridge Road Company was a corporation created by special *Page 294 charter, by chapter 86 of the Laws of 1805, with authority to take land for its road, by private grant, or compulsorily, on paying the damages assessed, in which case the act declares the company and their successors and assigns forever, shall have and hold "the lands and tenements occupied by the said road." The side of the road may have been made the boundary of the land conveyed, upon the mistaken supposition that the company had acquired, by the proceedings for condemnation, the absolute title to the land taken, or some other reason may have existed for restricting the grant. But we have no guide in ascertaining the intention of the parties to the conveyance, outside of the language of the deed, and upon this language, as interpreted by the courts of this State, in analogous cases, we think the southerly side, and not the center of the Wallabout road, is the boundary.
These views lead to an affirmance of the judgment.
All concur.
Judgment affirmed.