dissenting. The importance of this case to the immediate parties would hardly justify me in making a formal dissent from the opinion of the court; and could I feel any assurance, that the decision made in this case will not hereafter be regarded, *494as having virtually set aside the well settled rule of law, that land bounded, by deed, or other conveyance, upon a fresh water stream, not navigable, or by the side of a highway, is to be regarded as extending to the centre of such boundary, I would surely not occupy the time of the court, or space in the reports, by making any dissent from the judgment of the court in this case.
But if I comprehend that rule, and also its application to the facts of this case, it must be regarded, hereafter, as virtually abrogated, in this state, for all useful purposes. The rule itself is mainly one of policy, and one which to the unprofessional might not seem of the first importance; but it is at the same time one, which the American courts, especially, have regarded as attended with very serious consequences, when not rigidly adhered to; and its chief object is, to prevent the existence of innumerable strips and gores of land, along the margins of streams and highways, to which the title, for generations, shall remain in abeyance, and then, upon the happening of some unexpected event, and one, consequently, not in express terms provided for in the title deeds, a bootless, almost objectless, litigation shall spring up, to vex and harrass those, who in good faith had supposed themselves secure from such embarrassment.
It is, as I understand the law, to prevent the occurrence of just such contingencies as these, that, in the leading, best reasoned and best considered cases upon this subject, it is laid down and fully established, that courts will always extend the boundaries of land, deeded as extending to and along the sides of highways and fresh water streams, not navigable, to the middle of such streams and highways, if it can be done without manifest violence to the words .used in the conveyance. And to have this rule of the least practical importance to cure the evil, which it is adapted to remedy, it must be applied to every case, where there is not expressed an evident and manifest intention to the contrary, — one from which no rational construction can escape. The rule, to be of any practical utility, must be pushed somewhat to the extreme of ordinary rules of construction, so as to apply to all cases, when there is not a clearly expressed intention in the deed to limit the conveyance short of the middle of the stream, or way. If it is only to be applied, like the ordinary rules of construction as to boundary, so as to *495reach, as far as may be, the clearly formed idea in the mind of the grantor at the time of executing the deed, it will ordinarily be of no utility, as a rule of expediency, or policy. For in ninety nine cases in every hundred the parties, at the time of the conveyance, do not esteem the land covered by the highway of any importance, either way; hence they use words naturally descriptive of the prominent idea in their minds at the time, and, in doing so, define the land, which it is expected the party will occupy and improve. This is the view taken by Wallace, in the American notes to Dovaston v. Payne, 2 Smith’s Leading Cases 90, where the cases upon this subject are collated and compared.
The general rule as to monuments undoubtedly is, that the centre of such monuments, stake, stone, tree, rock, &c., is intended, when lands are so defined. So, also, in regard to highways and streams, when referred to in deeds as the limits of the grant, or conveyance, the middle is to be presumed to be the limit, unless the contrary be clearly expressed. The real boundary, then, is the belt of land extending along the highway, or stream, between the margin and centre. And this will ordinarily be referred to, as extending to the road, or the stream, as to a wall, or stone, or tree, &c., — the intention being to convey' one half of the monument.
But if land be bounded, as extending to other land of the grantor, or along another strip of land, ever so narrow, owned by the grantor, it will be supposed the margin of the land is intended. Seventeenth Street, 1 Wend. 262. Lewis Street, 2 Ib. 472. Livingston v. Mayor of New York, 8 Ib. 85. But in this case there is no ground to suppose, that the party, while describing one piece of land, intended to convey half of another piece, as appurtenant to it. Land cannot be conveyed, as appurtenant to other land; if conveyed at all, it must be as parcel of the land conveyed. And it is this rule,-which the Massachusetts courts have attempted to apply to the case of lands bounded along the side of a highway. Tyler v. Hammond, 11 Pick. 94. Webber v. Eastern Rail Road Co., 2 Met. 147. The Massachusetts courts, too, have repudiated Chancellor Kent’s view,— 3 Kent 433, — in toto. But if any thing whatever is attempted to be made out of the rule, beyond mere show, the reasoning of the Chancellor is the only ground, upon which it can stand, that is, to treat it as a rule of policy merely, (and not one of intent chiefly,) to be *496applied to all cases, where there is not a clearly defined intention to the contrary.
This rule we find fully adopted in two elaborate and well considered cases in Connecticut, — Chatham v. Brainard, 11 Conn. 60, and Champlin v. Pendleton, 13 Conn. 23. The same rule is now fully established in New York, both as to highways and streams, putting them both upon the same ground; Starr v. Child, 20 Wend. 149; Canal Com’rs v. People, 5 Wend. 423; S. C., 13 Wend. 355; and this notwithstanding the decision in Starr v. Child was reversed by the court of errors, [4 Hill 369,] by a vote of eleven to ten, — the vote constituting the majority being perhaps that of some senator, who had acquired his knowledge of law in a counting room, or upon a canal boat. The New York courts have repeatedly refused to regard the decision of their court of errors as evidence of the law, in that state even, except as to the particular case; and it has never been regarded elsewhere as much evidence of the law of any case. This same rule has been adopted in many of the other American states. It only remains to inquire, how far it applies to the present case.
It seems to me, that there is no difficulty in applying the terms used in this conveyance in the manner for which I contend. The place of beginning is “ the intersection of the stream and the highway on the northerly side and nearly opposite my now dwelling house.” The mention of the dwelling house of the grantor is evidently referred to, to show in what vicinity the “ intersection ” is,— not to fix any particular point, as the point of beginning. The term is not the point of intersection, but the intersection of the whole stream and the whole highway. The northerly side of the stream is named, not to fix any starting point, but to show upon which side is the land, as the grantor owned land upon both sides, and the intersection was upon both sides. And it is evidently not a point upon the bank, which was intended to be fixed as a starting point, as the returning line of the circuit is expressly defined to be in the middle of the stream and to return to the “first mentioned bound,” — which would be impossible and absurd, if the bound were upon the bank of the stream. And every contract should be so construed, as to give every portion its just operation, when that can be done. “Thence on the easterly side of said road” is *497wholly consistent with the rule, for which I contend, and with the decided cases upon this subject. “ Until said road strikes the bank of said stream” comes next; and it does not seem to me, that there is any difficulty with this, upon the view I take of the case. If the side of the road means one half of it, and so of the bank of the stream, then when they come in contact it answers the call. And it is evident, the term bank is here used in the precise sense, for which I contend, as the description proceeds, “ Thence ” (that is, from the bank) “down said branch, in the middle of the channel, to the first mentioned bound.”
Now I submit, that the language of this description in general, as to the terms used, more strongly indicates an intention only to go to the margin of the stream, than it does to the margin only of the road, aside from the express provision in regard to the easterly side going to the middle of the channel. The ends of this line are defined to be on the “northerly side of the stream” and “ the bank of said branch,” and yet the line between these two monuments is expressly defined to be “in the middle of the channel”; thus showing, that the other terms are used to imply an extension to the “ middle of the channel.” Why, then, it may be asked, shall we not hold, that “ the easterly side of said road ” means the easterly half of said road, as well as of the stream. It does seem to me extremely difficult to escape from this conclusion by any satisfactory reasoning, which does not, at the same time, subvert all the leading cases upon this subject, and, in effect, overthrow the rule itself.
The consideration, too, that the ancestor of the plaintiffs had never made any claim to this land for more than twenty or thirty years, and had no suspicion of any such title remaining in him, goes very far, in my mind, to corroborate the view, which I have taken of the case. For these reasons I cannot concur with the decision of the court.