The opinion of the court was delivered by
Woodward, J.The case of Paul v. Carver was twice before this court, and is twice reported, 12 Harris 207, and 2 Casey 223.
On the last hearing, it came' down to the question, whether the owner of a city lot, whose deed is bounded “ along the northerly side” of a particular street, has title to the centre of the street, so that after vacation of the street by public authority, he may recover in ejectment the ground lying between the northerly side and the centre. In deciding this question in favour of the plaintiff, we admitted that the intention of the parties was to control the construction of the deed, and that they might define their intention to be bounded by the side of the street so explicitly as to limit the right; but we held, that such intention was not to be inferred from the words “ along the northerly side,” nor from measurements of the rectangular lines that would terminate at the side.
That the decision was well supported by reason and authority, was fully shown by the learned judge who delivered the opinion. I relieve the present case of much discussion, by reference to what was said when that case was before us, especially the last time.
We have here for construction the words contained in the deed of John Freedley to Abraham R. Cox, of 5th November 1849.
It describes a lot in the borough of Norristown, by courses and distances, and by streets and lanes. “Along the north-east side of Egypt street” and “along the south-east side of Race street,” are two parts of the description. The measurements to these streets would terminate at their sides respectively.
Now applying the ruling in Paul v. Carver to this description, *128is it not perfectly manifest that we must say Cox took to the middle of Egypt and Race streets ?
And why should not the doctrine of that case he applied ?
It was maturely considered and unanimously pronounced. It was shown to be agreeable to the general principles of the common law, as laid down by Chancellor Kent and other text writers, and as they had been applied in numerous cases, in England and our own country. It was shown also, to be sanctioned by the general sense and understanding of the people — and that any doubt or denial of it would introduce intolerable inconvenience, confusion, and litigation.
It was well known, that there were cases in the books inconsistent with this doctrine. Our own case of the Union Burial Ground v. Robinson, 5 Wh. 18, was relied on then, as it is now, but that case, if confined to its circumstances, is not authority here. The street in question there, never had any existence, except on paper. Though laid out, it was never opened through the land that was in controversy, and it would seem, could not have been, without a previous order made and granted by the supreme executive council, directing it to be done, which did not appear to have been applied for or obtained.
The court held, that the grantee should be limited by the very precise measurements expressed in his deed, which brought him to and not into this imaginary street, and they left the right of soil in the whole street in the grantor — a doctrine, this last, which is not to be applied to streets actually opened and used by the public, as is shown by the case of the Penny Pot Landing, 4 Harris 89. That was the case of an addition made to the width of Vine street, in the city of Philadelphia, by the agents of William Penn, in 1690, and this court held, that the rights of the adjacent and neighbouring lot-holders, as well as the public, to Vine street so enlarged, were vested rights of which they could not be divested by William Penn or his successors. And this is the general principle in all towns. The dedication of streets, lanes, and alleys divests the proprietor of his right of soil therein, and purchasers of lots bounded on streets acquire title usque ad filum medico, unless there be a very express limitation of their grants to the margin of the street.
The law with respect to public highways and unnavigable streams is the same, in respect to the presumptions that arise from grants bounded thereon; and the general principle is, that there must be a reservation or restriction expressed or necessarily implied, which controls the operation of the general presumption, and makes the particular grant an exception, or else the grant carries the grantee to the middle of the stream or highway: per Nelson, J., in Howard v. Ingersoll, 13 Howard 421. In the elaborately considered case of Child v. Starr, 4 Hill 369, overruling Starr v. *129Child, 20 Wend. 149, it was held by the court for correction of errors in New York, that lines running to a monument standing on the bank, and from thence running by the river or along the river do not restrict the grant to the bank of the stream: see also the note to Ex parte Jennings, 6 Cowen 536.
On the other hand, there are not wanting authorities to the effect that when the descriptive words are “by the side of,” “by the margin of,” or “ by the line of” the stream, the underlying soil is excluded: 10 Pickering 249; 5 Denio 599; 6 Mass. 435.
But it was with a knowledge of such authorities, Judge Lewis remarked, in Paul v. Carver, that the circumstance of being bounded by the side of a street, instead of the street itself, was entirely too insignificant to produce a result so inconvenient, and so contrary to the practice of the people.
And when it is considered, that the laying out and dedication of streets in a town, divests the proprietorship of the original owner —that every purchaser of a town-lot buys with reference to the existing highways — would not pay the price he does, if it were not for those highways — and yet, that power exists in the government to vacate every such highway — this doctrine becomes a most reasonable and necessary one.
Without it, any lot-owner who has built on the line of his lot, may be shut into his house without the possibility of stepping out, except he trespass on his neighbour.
It is not probable, that any lot in the borough of Norristown would have been paid for and built on in the manner it has been, if it were not for the understanding, that the owner was for ever to go out and come in on the ground in front of him. He may or may not have adverted to the precise phraseology of his deed— he may or may not have remembered the public right to vacate the street in front of him, but he has looked from the first to the ground of that street, for his means of ingress and egress; and we should carry consternation into that flourishing town, and into all our boroughs and cities, if we should tell the people that their rights in the streets which bound them terminate with the public franchise of passage.
Deeds may expressly exclude the streets, but unless they do, the implication is, from such terms as are found in this deed, that half the street is included. Unless we say this, we must reverse Paul v. Carver, and we see no ground for reversing or questioning a case so carefully decided. It can scarcely be said to be in conflict with the case of the Union Burial Ground, and though it is inconsistent with some extra state adjudications, it seems to us more worthy to be followed than they are.
Terms of description such as these, may be regarded, therefore, as having a technical meaning, and as importing a grant to the *130middle of the street, unless controlled by something else in the deed.
The only thing the learned judge found to control them was the word stakes. At the north-east corner of Egypt and Race streets, and at the south corner of Penn and Race streets, stakes are mentioned. These the learned judge considered fixed monuments. If they were such, they could not he in the street, any more than, in some of the water cases referred to, the marked trees or stakes could have stood in the middle of the stream.
Where surveys are hounded on streams or streets, the marks which denote them, if higher than the surface of the water or ground, must necessarily stand on the margin. Sometimes a stone and ring are planted beneath the surface, and then they are expected to be at the very corner or line.
But what sort of a monument is a stake ? It is so unsubstantial, that in country surveys, it usually indicates a corner which the surveyor never visited, and which exists only on paper. Artificial boundaries which are meant to be fixed monuments, are made with more care than merely sticking a stake, which the next wind may blow over, which one of a thousand accidents may destroy, and which must rapidly decay, if not otherwise obliterated. So frail a witness is scarcely worthy to be called a monument, or to control the construction of a deed in so important a particular as that under consideration.
Nor can we regard the intention of the parties, as found by the jury, the true criterion of construction. There was no ambiguity on the face of the deed. The question raised was, what were the legal import and significance of the words employed by the parties ? That was a question for the court, and not for the jury. The jury were no more to measure the legal effect of these terms, than they would be permitted to judge of words of inheritance or perpetuity in a deed.
The intention of the parties, as deduced from the language of the instrument, was the criterion of construction, and in making that deduction, the court would look at the circumstances in which the conveyance was made — at the fact that Mr. Freedley might naturally desire to retain the proprietorship of Race street for the protection of the head-race of his mill; and on the other hand, that Cox was buying town property with reference to surrounding streets. In reference to Freedley’s interest in the head-race of his mill, the principle decided in Seybert v. Levan, 8 Barr 383, should not be lost sight of, in settling the construction of the deed; for if he retained the right to enter for repairs notwithstanding his conveyance, there would be less reason for restricting the descriptive words to the margin of the street.
The judgment is reversed, and a venire facias de novo awarded.