This case was tried and submitted to the jury upon the theory that the defendant was the owner in fee of the land upon which the tree in question stood. When the case is examined upon that theory, the only question which bears upon the plaintiff’s right to maintain this action is whether he could recover for cutting the tree upon lands to which the defendant had the title, although it was in the highway in front of the plaintiff’s premises. At common law the owner of the fee over which a highway is laid has all the usual rights and remedies of the owner of a freehold, and, as such, has the exclusive right to the soil and its productions, including the herbage and trees, subject only to the easement or right of passage over it by the public and the incidental right of properly fitting the way for use. Elliott, Roads & S. 519, and cases cited; Bliss v. Johnson, 73 N. Y. 529, 533. Hence it is manifest that the plaintiff had no right to plant the tree in question upon the defendant’s land, or to maintain it there without his con- ■ sent, unless there is some statute which has conferred that right.
The only statute which it is claimed or pretended has any application in this case is chapter 93 of the Laws of 1863, which provided:
“All persons owning lands fronting upon any highway, (except in cities and incorporated villages.) may make and have sidewalks along such land in the highway and plant and have shade trees along the roadside of such sidewalks.”
It was in effect held by the court below that this statute conferred upon the plaintiff the right to plant trees upon the land of the defendant in the public highway upon which the plaintiff’s lands fronted, and that he so far became the owner of the tree, and entitled to the use of the defendant’s land to maintain it, as to make him a trespasser in cutting it. If this be true, I can see no reason *897why the same rule would not apply to any case where the statute has provided that the highway may be used for other than highway purposes, including telegraph and telephone lines and street and steam railways. The weight of authority, however, is to the effect that, where the fee is in an abutting owner, the appropriation of a street for the use of a steam railway is a new and additional burden, for which the abutter is entitled to compensation. Williams v. Railroad Co., 16 N. Y. 97; Mahon v. Railroad Co., 24 N. Y. 658; Henderson v. Railroad Co., 78 N. Y. 432. The same principle is applicable in case of a horse railroad (Craig v. Railroad Co., 39 N. Y. 404); and to the setting of poles in the street upon the land of an abutting owner, by a telephone or telegraph company (Dusenbury v. Telegraph Co., 11 Abb. N. C. 440; Metropolitan Telephone, etc., Co. v. Colwell Lead Co., 67 How. Pr. 365; Johnson v. Electric Co., 54 Hun, 469, 7 N. Y. Supp. 716; Telegraph Co. v. Barnett, 107 Ill. 507; Smith v. Telegraph Co., 2 Ohio Cir. Ct. 259; Willis v. Telephone Co., 37 Minn. 347, 34 N. W. 337). So, too, neither public officers nor individuals other than the owner can remove or disturb the soil in the highway, except so far as is necessary for its construction or repair. Robert v. Sadler, 104 N. Y. 229,10 N. E. 428.
The statute of 1863 was simply permissive, and was not intended to interfere with or change the property rights of individuals as between themselves. I am of the opinion that a proper construction of this statute requires us to hold that its purpose was to give the abutting owners the right to plant trees upon highways where the title to the land was in them, or perhaps where the title was in the public, and that it ought not to be construed as vesting authority in the owner of abutting land to appropriate the adjoining land of his neighbor to his own use for that purpose. That construction is consistent with the rights of all parties, while an opposite one would be inconsistent with the rights of a landowner, and render the constitutionality of the statute doubtful. Such a construction should not obtain. The presumption is that the legislature did not intend to violate the constitution, and the statute should be so construed as to uphold its validity and maintain the common-law rights of the defendant.
Nor can I concur in the conclusion that this court should assume that the plaintiff had title to the land to the center of the highway, upon the theory that the law presumes that the conveyance to the plaintiff passed the title to the center, because it was bounded by the highway. It was practically conceded upon the argument, as well as upon the trial, that the title to the land was in the defendant. The respondent does not dispute this proposition. If there had been any contest over this question, it may well be that the defendant would have proved that the condition and relations of the parties and the situation of the land were such as to completely repel and overcome such presumption. The evidence fails to show that the plaintiff’s grantors ever had any title to or interest in the land over which this portion of the highway was laid. If his grantors had no title, it is difficult to imagine how the defendant’s title could be divested by such a presumption, when the conveyance was be*898tween other parties who had no title whatever to the. land in question. The question whether the title passes to the center where lands conveyed are bounded by a highway is one of intent, and the intent is to be gathered from the description of the premises in connection with other parts of the grant, and by reference to the situation of the land and the condition and relations of the parties to the land conveyed and other lands in the vicinity. Mott v. Mott, 68 H. Y. 246. Moreover, this presumption has no existence where the grantor is not the owner of the fee of the land in the highway. 2 Devl. Deeds, § 1024.
I am of the opinion that the court erred in charging the jury that the defendant was liable, although the owner of the land (Village of Lancaster v. Richardson, 4 Lans. 136), and that for such error the judgment should be reversed.