By the Court,
Willard, P. J.The facts disclosed by the evidence, present a plain case of dedication for the purpose of a public street. The adjoining lots were laid out and sold with reference to that object; and they have been improved by the *450present owners, by the erection thereon of permanent and elegant buildings. It is now one of the most important streets in the village of Whitehall. A dedication thus made and acquiesced in, can not be revoked. And it is not competent for the party making it, to reassert any right over the land; at all events, so long as it remains in public use. (In the matter of the Mayor of New-York, &c. 2 Wend. 472. 1 Id. 262. 8 Id. 85. 11 Id. 486. 6 Peters, S. C. U. S. 431, 498. 10 Id. 662. 4 Paige, 510. Hunter v. The Trustees of Sandy Hill, 6 Hill, 407. 2 Greenleafs Ev. § 662.)
The taking possession of the street by the defendants, for the purpose of constructing a tunnel for their railroad, occasioned a temporary obstruction of the use of it by the public, but afforded no ground for the plaintiff to bring this action, even if the ultimate fee of the land was in him. By the terms of their charter, the defendants had a right to construct their road across or upon a street; but they were required to restore the street to its former state, or in a sufficient manner not to have impaired its usefulness. (Laws of 1834, p. 442, § 13.) They had a reasonable time within which to build their road and repair the street. To allow a street in a city or village to be used for a railroad track, either upon its natural surface, or by tunneling, is not a misappropriation of it, provided such use does not interfere with the free and unobstructed use of it by the public, as a highway for passage and repassage. (Plant v. The Long Island Railroad Co. 10 Barb. 26. S. C. 9 N. Y. Legal Observer, 53. Hudson and Delaware Canal Co. v. The Erie Railroad Co. 9 Paige, 323. Hamilton v. New-York and Harlem Railroad Co. Id. 171.) The same doctrine is asserted in Drake v. Hudson River Railroad Co. (7 Barb. 508.) It was not shown that the street will be destroyed or materially injured by the railroad and tunnel, after they shall have been completed. It is a matter of notoriety that railroads pass through all oúf greatest cities, and many of our villages, without essential injury to the right of passage by teams or persons. Individuals residing in the street must sustain a temporary' inconvenience during the continuance of the work, but *451for this, in the absence of negligence and unskillfulness, the defendants are not responsible. It is a case of damnum absque injuria. Much less, therefore, can the original proprietor, who does not reside in the street, resume the grant and revoke the dedication, for this cause.
An action of ejectment is a possessory action, and can be maintained only by the party who has a subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof. (2 R. S. 303, § 3.) The plaintiff has no such right, until he first shows, that the whole purpose has ceased for which the dedication was made, and the ultimate fee remains in him. This the plaintiff failed to show.
These observations are enough to dispose of the plaintiff’s right to recover the premises covered by Church-street. But as the plaintiff’s counsel has strenuously insisted that the fee of the road is not in the adjoining owners, and that ejectment is the proper remedy, some additional remarks will be made upon these points.
I. The most embarrassing question which arises in the discussion of the law of dedication, is as to the party in whom the fee of the soil is vested, to which the easement of a public way is attached. The technical language of the common law is so firmly rooted, that the idea of an estate in fee simple can not easily be separated from that of an owner. The fee must rest somewhere, or be in abeyance. Whether, when the owner of a tract of land lays it out into village lots intersected by streets, he continues the owner of the fee of the soil of the street, after having sold the adjoining lots in fee; or whether the fee in the street is transferred by a conclusive inference of law to the proprietors of the lots; or whether it is vested in the public, are questions of great practical importance, and on which a diversity of opinion has been entertained. In the city of New-York, the legal title to the soil of the streets is vested in the corporation. (Drake v. The Hudson River Railroad, 7 Barb. 508.) In the country, and other cities and towns, the legal presumption is that the fee is in the owner of the adjoining lots. This has *452always been the law as understood and expounded by the courts of this state. (See per Thompson, J. in Cortelyou v. Van Brundt, 2 John. 363; per Savage, Ch. J. 1 Wend. 270, and 2 Id. 473; per Walworth, Ch. in Livingston v. The Mayor of New-York, 8 Wend. 106: Wyman v. The Same, 11 Wend. 486; The Trustees of Watertown v. Cowen, 4 Paige, 510, 513; Gidney v. Earl, 12 Wend. 98; Hammond v. M’Lachlan, 1 Sandf. S. C. R. 323; 2 Kent’s Com. 433.) The case of Jackson v. Hathaway, (15 John. 447,) is not in conflict with the above cases. In the latter the highway ivas expressly excluded by the terms of the deed, as appears by the admissions of the eminent counsel by whom the cause was argued. The learned judge who delivered the opinion of the court remarks that it was conceded on the argument, that the lands described in the deed did not include the space occupied by the road. After such a concession it would be idle to pretend that the grantee took to the center of the road.
The boundary of land upon a stream above tide water, stands, at common law, upon the same footing as a boundary upon a highway. The supreme court held, in Luce v. Carley, (24 Wend. 451, 453,) that when the grant is so framed as to touch the water of the river, and the parties do not expressly except the river, one half of the bed of the stream, if it be above tide water, is included by construction of law. If the parties mean to exclude it, says Co wen, J. they should do so by express exception. Ho case in this state, holding a contrary doctrine, has been brought to our notice.
The adjudged cases in' the neighboring states are, for the most part, in harmony with those of this state. (Peck v. Smith, 1 Conn. Rep. 103. Chatham v. Brainard, 11 Id. 60.) In Chatham v. Pendleton, (13 Id. 23,) the description in the deed brought the grantee to the highway, and it was held that he took to the center of the highway, although the highway was not mentioned as a boundary. In Johnson v. Anderson, (18 Maine Rep. 76,) a boundary on the highway was said to carry the grantee to the center of the road. The supreme court of Massachusetts, in Hunt v. Holland, (14 Mass. Rep. 149,) *453held that land bounded by a river extends to the thread of the stream.. But with respect to the boundary of a deed upon a road, a different rule seems to have been adopted in that state. (Sibley v. Holden, 10 Pick. 249. Tyler v. Hammond, 11 Id. 193. Van Olinda v. Lathrop, 21 Id. 292.) In the last mentioned case, Morton, J. concedes that there is a great analogy between a boundary upon a river, which he admits goes to the thread of the stream, and upon a highway; and yet he says that the cases in that state did not, in the latter case, carry the boundary to the center of the road. The case of Sibley v. Holden, and Tyler v. Hammond, (supra,) are believed to be opposed to the current of authorities in New England, as well as in this state and Pennsylvania. (Chatham v. Brainard, 11 Conn. Rep. 82. Bucknam v. Bucknam, 3 Fairfield, 463. Leavitt v. Towle, 8 N. Hamp. Rep. 96. Hart v. Chalker, 5 Conn. 311. Ball v. Ball, 2 Am. L. J. 499. N. S. Hammon v. M'Lachlin, 1 Sandf. S. C. R. 341. Child v. Starr, 4 Hill, 369. 2 Smith’s Lead. Cas. 173 and notes, and the cases before cited from New-York.)
The same rule prevails in England. (Dovaston v. Payn, 2 H. Bl. 527.) This case is made the subject of an elaborate note in Smith’s Lead. Cas. 2d vol. 173, to which the American editors have added a valuable review of the American cases. (See also Sir John Lade v. Shepherd, 2 Sir. 1004.)
It results from the foregoing observations, that after the opening and dedication of Church-street in 1806, the fee to the road remained in the original owner until the adjoining lots were successively sold and conveyed; and then vested in each successive grantee of the lots to the center of the street, so far in length as his lot extended thereon, there being no words in the grants expressly excluding the street. (6 Peters, 436, 498.) But whether the dedication operated by vesting the title in the successive grantees of the lots bounded by the street, or by way of estoppel of the grantor, so long as the purpose of the dedication continues, the plaintiff is, in either case, destitute of any right to recover. (See per Beardsley, J. in 6 Hill, 452.)
II. If the fee of the road be in the plaintiff, and the defend*454ants, without granting compensation and without license, have laid the track of their railroad, and constructed their tunnel upon it, ejectment will not lie for the street, unless the occupation, thereof by the defendants is wholly inconsistent with the public easement. The remedy of the plaintiff for his damages, is trespass. (The Trustees of the Presbyterian Church v. Auburn and Rochester Railroad Co. 3 Hill, 567.) The case of Goodtitle v. Alker, 1 Burr. 133,) is relied on to show that ejectment will lie by the owner of the soil, for land which is part of a public highway. That case was of a peculiar character. The person under whom the defendant claimed had encroached upon a public highway, running through the freehold of the ancestor of the lessor, by permanent erections, and it was then agreed by the parties that the party making such encroachment might occupy and enjoy the same at a certain rent, for one hundred years. A short time before the expiration of the term, the defendant erected another enclosure, embracing a few feet more of the soil of the said road, by a permanent erection, and the action was not brought until after the expiration of the said term of one hundred years. Here was an exclusive appropriation of the road by the defendant, which could not be used for passage or transit by any person, and in that respect, as well as in respect of the agreement, entirely differs from the present case. The use to which the railroad is to be applied, when completed, is not incompatible with the enjoyment of it by the public as a street. It can still be used by the inhabitants residing on it, and by all other persons, for all the purposes for which it was originally dedicated. Their enjoyment of light, air, prospect and social intercourse is not essentially impaired by any portion of the railroad, and in no respects by the tunnel. The business to be transacted by the railroad corresponds in its nature with that usually conducted by means of a public street. It is for the passage of persons and property, in a manner not anticipated by the age in which the common law had its birth. It is still.a public street, notwithstanding the railroad. The superior facilities for locomotion which are created by the instrumentali*455ty of steam, afford no countenance to the present claim of the plaintiff.
The case of Goodtitle v. Alker, (supra,) has been incidentally approved in this state by judges, without examination, but has never been sanctioned in a case where it was the direct question. It has been disapproved, if not overruled, by the supreme court of the United States, in 6 Peters, 436, 498; 10 Id. 662. The present case differs, too, in its circumstances, so much from it, that the latter can scarcely be treated as an authority to support the present action. That case has been followed in some of the states. (See 2 Smith’s Leading Cases, Am. ed. 183, 184, where the cases are collected.)
III. The plaintiff’s claim for that part of Church-street, covered by the land purchased by Jeremiah Adams of John Williams, in January, 1823, rests on no better footing than that for the portion we have been considering. He owns no land adjoining the street. The occupants of the lots, therefore, must be presumed to hold to the center of the street.
IV. The residue of the plaintiff’s claim was for the small part taken from the homestead. For this he was entitled to recover, unless the record of appraisal, introduced on the part of the defendants, afforded prima facie evidence that all the stejis had been taken to vest the title in the defendants, required by the ninth section of their charter. (Laws of 1834, p. 440.) The objections to the introduction of the record, have been so fully treated by Judge Cady in his able opinion on this subject, that I will merely add a few words. The plaintiff did not offer to disprove specifically, any one of the jurisdictional facts recited in the record. The record was at least prima facie evidence of the jurisdictional facts; and conclusive evidence of every other fact required to be and actually recited in it. (The People v. Harrington, 6 Barb. 607.) This court decided at the September term, 1850, in the case of Polly v. The Saratoga & Washington Railroad Company,(a) that a decree precisely similar to the present, afforded a complete bar to an action. *456The question in that case arose on demurrer to a plea, which set up the record as conferring the authority for the defendants to enter on the plaintiff’s land. That case is directly in point. The cases which go to prove that a record made in pursuance of a statute, and which is directed to be recorded as a muniment of title, is conclusive evidence of every fact recited in it, after jurisdiction has been shown, and is prima facie evidence of the jurisdictional facts, are, among others, the following. (Gray v. Cookin, 16 East, 13. Cowen & Hill’s Notes, 1014, 1016, &c. Burnett v. Burch, 1 Denio, 141. Jenkins v. Stebbins, 11 John. 224. Barber v. Winslow, 12 Wend. 102. Moody v. Thurston, 1 Str. 481. Steenburgh v. Bigelow, 3 Wend. 42. Bouchard v. Dias, 3 Denio, 242. Harrington v. The People, 6 Barb. 610.)
There is some apparent conflict in the decisions, both in this state and in England, but they have probably arisen from not discriminating between the effect of the record, when it comes up collaterally, and when the proceeding is by certiorari to reverse it. In some of the cases a question of pleading has been confounded with a question of evidence; and in others the distinction between its effect when used to protect the officer by whom it is made up, and its effect upon the rights of parties claiming under it, has not been sufficiently noticed. It is conceded in all the Hew-York cases, that the legislature may give to such recitals the form of conclusive evidence. (Bennett v. Burch, 1 Denio, 141.) They have done so in relation to insolvent discharges, in express terms. (1 R. L. 464, § 8. Jenkins v. Stebbins, 11 John. 224. Barber v. Winslow, 12 Wend. 102. Frary v. Dakin, 7 John. 75. Service v. Hermance, 1 Id. 91.) Full effect can not be given to the 9th section of the defendants’ charter, unless the record required to be made up, is at least prima facie evidence of all the facts recited in it. Why was the judge required to recite in the record all the facts necessary to a compliance with the ninth section of the act; and why was it required to be recorded, unless it was evidence of the facts there recited?
*457[Essex General Term, July 7, 1851.Willard, Hand and Cady, Justices.]
We think the decision at the circuit was correct, and that the motion to set aside the nonsuit, and for a new trial, should be denied.
9 Barb. 449.