Title in tbis case is' claimed under a deed in which the description reads, “ Beginning at tbe southeast corner of the premises on the south side of Worcester Street at land of Daniel Wight; thence running westerly on said street about 26 rods to a leading way; thence northerly on said leading way as the fence now stands about 63 rods to land of Eleazer G. Wight.” The examiner reports that the petitioner has title to the center of Worcester Street, but to the line only of the old leading way, and without any rights in the latter. This is also the contention of the respondent.
The whole policy of the law in this Commonwealth with regard to boundaries on streets and ways has undergone a marked change and development since the early cases on the subject, in the course of which some confusion and apparent conflict in decisions has been inevitable.
At first it seems to have been assumed that it was the ordinary intent of the parties to convey to the side line only of a street or way, and this was the rule of construction in the early cases. Tyler v. Hammond, 11 Pick. 193. O’Linda v. Lothrop, 21 Pick. 292. Morgan v. Moore, 3 Gray 319.
As the country developed, however, and towns and cities grew, the use of streets and ways greatly increased, and the change in character, as well as the nature and effect, of the ownership in the fee of a street or way became more clear. The policy of the law steadily developed in favor of a construction which would carry a fee in that portion of a street
Later came the rule laid down by Judge Holmes that the whole matter is purely one of the intention of the parties in each particular case, the presumption being, not a fixed rule of law like the Rule in Shelley’s Case, but merely a rule of construction adopted in the absence of any better evidence as the best means of determining the intention of the parties. Crocker v. Cotting, 166 Mass. 183.
So far as the boundary on Worcester Street is concerned, the grant, in accordance with modem presumption, clearly carried to the middle of. the street. The older decisions like Tyler v. Hammond, and O’Linda v. Lothrop must be deemed to be overruled. Newhall v. Ireson, 8 Cush. 595. Phillips v. Bowers, 7 Gray 21. Boston v. Richardson, 13 Allen 146, 152. Crocker v. Cotting, 166 Mass. 183. And see McKenzie v. Gleason just published, 184 Mass. 452, 457.
Hor will the mere use of distances which stop at the side of the way be sufficient to exclude the fee in the way to the middle line thereof. Newhall v. Ireson, 8 Cush. 595. Clark v. Parker, 106 Mass. 554. Dean v. Iowell, 135 Mass. 55.
It is said that the law is otherwise, however, where measurements are governed by a monument standing on the side of the way, and that this distinction explains the apparent contradiction between the cases cited above and those in which the fee has been held to be controlled by the monuments, and therefore limited to the side of the way. Sibley v. Holden, 10 Pick. 249. Phillips v. Bowers, 7 Gray 21.
A rule more consistent with the trend of the modern authorities, and suggested by some of the more recent cases, is that “ it is a common method of measurement in the country, where the boundary is a stream or way, to measure from the bank of the stream or the side of the way,” using the natural and really only available monuments substantially as a surveyor uses his base line, not as a boundary line, but as a means supplied from the natural monuments from which the boundary line may be ascertained and determined. Dean v. Lowell, 135 Mass. 55. Dodd v. Witt, 139 Mass. 63.
It would seem that there is no good reason why, in the natural course of development, cases like Sibley v. Holden and Phillips v. Bowers should not also fall by the wayside like Tyler v. Hammond, and title be carried to the center of the way unless barred by something stronger than the mere fact that a fixed monument on the side of the way was adopted for the purpose of measurement. So far, however, the cases have not gone to that extent. But where a deed expressly bounds by the line of the street, there seems to be no doubt that the fee in the street is excluded. Smith v. Slocomb, 9 Gray 36. Holmes v. Turners Falls Co., 142 Mass. 590. McKenzie v. Gleason, 184 Mass. 452.
In the case at bar, the boundary is expressly run “ as the fence now stands,” and that was by the side of the road. The accompanying words “ On the road,” as in the case of McKenzie v. Gleason, seem to be “ obviously used for the purpose of description only*” and the deed cannot fairly be held to import a grant of anything beyond the boundary named. The examiner’s report is confirmed, and registration must be by the line of the fence on the side of the old leading way, and without any appurtenant rights in the way.
So ordered.