dissenting: I agree that the plaintiff’s rights depend primarily upon whether rights of access, light, air and view were conveyed to the State by the deed of his predecessor, Charles J. McKee, under date of November 1, 1948. RSA 236:1,2. However, I can find in the record no evidence that McKee either conveyed or intended to convey such rights. Cf. Wiseman v. Merrill, 99 N. H. 256.
The project originated in 1945 as a relocation of a short section of the two-lane Daniel Webster Highway, or Route 3, in Concord, under the statute pertaining to class I highways. R. L., c. 90, Part 4 (Laws 1945, c. 188). In such a proceeding it is not questioned that McKee would have retained his rights of access, light, air and view unless he expressly conveyed them. Cram v. Laconia, 71 N. H. 41, 52; Tilton v. Sharpe, 84 N. H. 43; Webb v. Maine-N. H. Bridge Authority, 102 N. H. 91. So far as the record discloses, the first notice which he received of any purpose to create a limited access highway was a “note” appended to a copy of an ineffective resolution adopted by the Governor and Council on May 10, 1948 purporting to appoint commissioners under Part 7 of chapter 90, R. L. This stated that “a section” of the relocation was intended to be limited access, but that the commissioners were previously appointed under the wrong statute.
After McKee’s deed was given, new proceedings were instituted, for alteration of the location of the Daniel Webster Highway, under the limited-access highway statute, in the course of which a return was ultimately filed on February 10, 1949., This stated that land had been purchased or taken from McKee and others, for the highway, and for a traffic circle “with only such entrances as are shown on the plan”; and that the commissioners had acquired slope and drainage rights on abutting lands. But there was no mention of the acquisition of any rights, limited or otherwise, of access, light, air or view, the taking of which the governing statute authorized if the design of the highway required. RSA 236:2,3. Kostrelos v. Merrill, 101 N. H. 317.
Thus I see no warrant for assuming that in November 1948 McKee intended to convey all or any part of his rights of access, light, air or view. There is no evidence that the State then sought them, or later claimed to have acquired them in the return of taking filed in proceedings authorized well after the deed was given. See Department of Public Works v. Finks, 10 Ill. 2d 20.
*146The language of the deed itself should be controlling. It is my understanding that a deed of land for a highway, unlike a deed to a private owner, need not reserve easements of access, light, air, or view in favor of abutting land retained by the grantor (see Wenton v. Commonwealth, 335 Mass. 78, 80), and does not operate to convey or release such rights unless they are expressly mentioned. 3 Nichols, Eminent Domain, ss. 10.221 [2], 10.221 [3]; 2 Thompson, Real Property (Perm, ed.) s. 596. Cf. Id., s. 594. See also, Webb v. Maine-N. H. Bridge Authority, 102 N. H. 91, supra. Cf. Wiseman v. Merrill, 99 N. H. 256, supra. I would therefore answer the first question in the affirmative. In view of the contrary answer returned by my associates it would serve no purpose for me to express my views with respect to the second question.