I dissent, and think that under the authorities the deeds in question cannot be said to convey to the center of the lane; that the descriptions of the deeds expressly limit the boundary to the side of the road, and that the surrounding circumstances show that in the partition the parties purposed to reserve to themselves the fee of the crossroad or lane.
The prevailing opinion concedes.the rule of law "that where a deed states that the starting point or boundary of the land conveyed is “ on the side ” of a road, the inference that the grantors intended to *612exclude the fee thereof is justified. Thus, in Kings County Fire Ins. Co. v. Stevens (87 N. Y. 287) it was said (p. 292): “In the case before us, the starting point of the description is on the southerly side. of the Walla,bout 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 roadbed 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 ’ -x- * *. in English v. Brennan * * * the description was: ‘ Beginning at the southwesterly corner of Flushing and Clermont avenues * * In White's Bank, etc., v. Nichols * * * the grant * * * describes the granted premises as commencing at the intersection .of the exterior lines of two streets * * In the Nichols case 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.”
When we examine the descriptions in the deeds • under consideration we find that each refers to a definite point which is by the side of the road.. Thus, in the conveyance to Charlotte Vandenheuvel, the words are: “ Beginning at a stake by the fence on the cross road leading to Harlem fifty links from the southeastern . corner of the fence, thence running north * * *‘ parallel to the boundary fence * * * to lot number five; thence * * * to the eastern boundary of lot number four; thence * * * south * * * ten chains sixty. links to the public road; then * * * along the road * * . * to the place of beginning.” This description is almost identical with that stated in the Stevens Case (supra); for although there the words used are “beginning at a point on the southerly side of the Wallabout bridge road,” and thus the side of the road is mentioned, here the point is by the fence on the crossroad, which fixes it none the less *613definitely on the side of the road. Here, as there, the third course is a measured distance “to the public road,” and the fourth, “ along the road * * * to the place of beginning.” It follows that the deed did not in terms convey to the center of the lane, but that the north half of the roadway was, by the description of the deed, expressly excluded, and hence the fee thereto did not pass to Charlotte Vandenheuvel. The plaintiff, therefore, acquired no title to the northern half, of the property here in dispute.
The descriptions in the two deeds conveying land on the south side of the road are equally explicit in excluding the roadbed. The land conveyed to Ann Apthorp is described as “beginning at a stake by the fence on the public cross road, the corner of Hr. Jauncey’s land, thence running south; ” and, finally, “to the public road, then * * * west along the public road * * * to the place of beginning.” This deed not only shows the starting point of this land to have been on the side of the road, but it fixes “ the corner of Hr. Jauncey’s land” also at the stake by the side of the road, so that the following description in the Jauncey deed is made clear and certain: “ Beginning at the corner of a field at the junction of the Bloomingdale road with a cross road " * *; thence running along the Bloomingdale road south * * * then * * * east * * ■ * then north * * *; then * * * east # . * * *; then north * * * eight chains ninety-two links; then * * * to the beginning.” Evidently the “eight chains ninety-two links” terminated at the “stake by the fence on the public cross road ” mentioned in the Ann Apthorp deed.
In Holloway v. Delano (139 N. Y. 413) this Jauncey deed was under consideration with respect to rights acquired in the Bloomingdale road thereunder, and Judge Geay, writing the opinion, says: “ We are inclined to the view that the descriptive monuments or starting points for the boundary lines cannot be fixed in the center of the Bloomingdale road without straining too much the language used.” The case was decided, however, upon other grounds. The court was divided, four to three, and one of those who concurred was of the opinion that title to the center of the Bloomingdale road passed under the deed. In that case, however, the Jauncey deed with respect to the Bloomingdale road was not as clear in its meaning as it is with respect to the crossroad or lane, when exam*614inéd in the light of the Ann Apthorp deed. As said in Potter v. Boyce (73 App. Div. 383; affd., 176 N. Y. 551) “ whether or not the fee of an adjacent' street passes by a conveyance of abutting property is a question of intention, and the courts are justified in looking at the situation of the property and the cotemporaneous acts of the parties, including the conveyances they have made of adjoining property, as well as the description contained in the conveyance in question, to determine the intention of the parties making the conveyance.”
With respect to the general situation as showing intention, the map in the statement which precedes the prevailing opinion is suggestive in showing that the parties to the partition purposed to reserve to themselves the fee of the crossroad or lane. Although ■the recitals in the conveyances state the intention to distribute all the estate, the location of the lots was such that there was an object in retaining the fee of the roadbed, and evidently the intention was to distribute all save that included therein. It will be seen from the map that, in addition to the lots of land herein directly involved, which were conveyed in the partition to the Jaunceys, to Ann Apthorp (No. 8) and to Charlotte Vandenheuvel (No. 6), there were other lots numbered 2, 3, 4 and 5, conveyed respectively to Charles, James, Rebecca and Eliza Apthorp; and that lots 2, 3 and 4 abut on the crossroad or lane; whereas lot No. 5, belonging to Eliza Apthorp, is north of lot No. 6, belonging to Charlotte Vandenheuvel. The map' shows a road leading from Eliza Apthorp’s lot past the Vandenheuvel lot to the crossroad or lane; and this road or way, forming a means of access to the lane, was provided for in the deed to Charlotte Vandenheuvel. It was essential to Eliza Apthorp that this right of way should be preserved, and to the other lot owners also it was important that the crossroad should remain always unobstructed.
In view, therefore, of the general situation and the location of the lots, the map in evidence and the descriptions in each of the deeds, which refer to the side and not to the center of the road, I think that the fee of the lane did not pass under the conveyances, and hence that the plaintiff has no title to the property in dispute.
From this conclusion, however, it does not follow that the defend*615ants have title to the land. That question would turn upon whether the heirs of Williamson or the heirs of Apthorp were the owners. This depends upon whether Williamson, when he gave the deeds, held title in his nwn name or as trustee* The trial court directed the jury to find that he was not the agent or trustee of the heirs of Apthorp; but, in view of all the evidence presented on the other side, there was, I think, in any event, a question of fact which the jury should decide.
For the reasons stated, I dissent and am in favor of reversal of the judgment and a new trial.
Judgment affirmed, with costs.