(concurring specially): I concur in the result. The controlling features 'of this case lead to a definite conclusion and leave no room for speculation as to what might have been intended.
It is the settled law in this state, and generally, that in the absence of special statutory authority, acting under the general statutes to lay out streets and highways, municipal and county officials have no authority to lay out a street or' highway longitudinally upon the right of way of a railroad company. (U. P. Rly. Co. v. Kindred, 43 Kan. 134, 135, 23 Pac. 112; City of Bridgeport v. New York & New Haven R. R. Co., 36 Conn. 255; New Jersey Southern R. R. Co. v. Long Branch Commissioners, 39 N. J. L. 28; Road from Great Bend to Great Bend Village, 2 Penn. Co. Ct. Rep. 335; Nanticoke Bridge, 40 Penn. Super. Ct. Rep. 345; Portland Ry. Light & Power Co. v. City of Portland, 181 Fed. 632, 634; City of Fort Wayne v. The Lake Shore and Michigan Ry. Co., etc., 132 Ind. 558, 15 Cyc. 619, 10 A. & E. Encycl. of L., 2d ed., 1096; 3 Dillon on Municipal Corporations, 5th ed., § 1020; 3 Elliott on Railroads, 3d ed., § 1566.)
It is also the general rule that, in the absence of anything in the report of the viewers, or of the report and plat of the surveyor accompanying the report of the viewers, to show a different intention, where the location of a road is described by a line, the line is presumed to be the center of the road. (Freshour v. Hihn, 99 Cal. 443; Quim v. Baage, 138 Iowa 426; Terrell v. Tarrant County, 8 Tex. Civ. App. 563); but there is no statute requiring such a construction. (Cloud County v. Morgan, 7 Kan. App. 213), and such presumption is overcome by anything in the report of the surveyor or the viewers showing that a different meaning was intended. So, where *833the viewers’ report and the map to which it refers show that the line given was intended to mark the northern and western line of the road, it was held in Graham v. Bailard, 157 Cal. 96, that the line given, marked the side of the road and not the middle. In like manner, where the viewers’ report gave the width of the road and its location along the north bank of a stream, it was held in Hays v. The State, 8 Ind. 425, that the north bank of the stream was the south line of the road and not the middle line, it being evident that the viewers did not intend to locate one half of the road in the river; and where the viewers’ report gave the width of the road and described the line (after stating the point of beginning), as “running thence easterly along the north line of the said Michigan Central Railroad,” it was held, in McDowald v. Payne et al., 114 Ind. 359, 364, that the whole width of. the highway was north of and adjoining the right of way of the railroad, as the right of way of the railroad cannot be appropriated for highway purposes.
The report here in question is very like the case last cited and falls clearly within the rule of it. The surveyor locates the line of the road thus: (after stating the point of beginning) “running thence northerly parallel with the railroad track and at a distance of fifty feet from the center of the same” and the viewers’ report was “that the said road should be changed as petitioned for and recommend that it be confirmed and opened as located and surveyed for the width of sixty feet” as the old road.
It will be seen there is nothing ambiguous about the surveyor’s description of the location of the road. If a road was stated as being located fifty feet from a house, the natural meaning would be that the distance was fifty feet from the house to the nearest part of the road. Hence, it is perfectly clear, in view of the authorities above cited, and from the wording of the report of the surveyor itself, that the fifty feet from the center of the railroad track was intended to and did, in fact, mark the west line of the road. The road being sixty feet wide, all of it lies east of that line. I think the report of the surveyor and viewers in this case is open to no other interpretation, and that this is determinative of this case.