It has long been the settled law of this State, that a conveyance of land bounded upon a highway generally conveys title to the center of the highway. Since the decision of Bissell v.The New York Central R.R. Co. (23 N.Y., 61), it has been settled that the same principle applies to the streets of a city. The rule is not confined *Page 125 in its application to a road, highway or street, but applies to a river, a ditch, a wall, or other similar object. The boundary is considered a line merely. (3 Kent, 433; Child v. Starr, 4 Hill, 373, 381, 382; 1 Sandf. S.C., 337, 344.)
The rule is based upon the presumed intention of the party making the convevance. The ownership of the land between the line of a lot and the center of the street or highway would be of no presumable benefit as a reserved title in the grantor. So if the land, which is covered with water, between the bounds of theterra firma and the center of a stream or of a ditch, or of the space upon a wall forming a boundary line. Some convenience might arise to the grantee from the ownership of this space, subject to the public easement, but it was supposed that a title dissevered from the adjoining land which was conveyed, would be of no advantage to the grantor, and hence, it was presumed to be his intention that his conveyance should extend to the center of the street or river. (Auth. sup.) Found solely on presumed intention, it was always competent to the grantor to employ language which should indicate a contrary intention. Of this many illustrations are given in the books. (Auth. sup.; and 1 Sand., S.C., 337, 344.)
A conveyance of lots by numbers and by reference to a map on file, where said lots are designated on the map as bounded upon a street thereon laid out, gives title to the grantee, to the center of the street. (Bissell v. N.Y. Central R.R. Co.,supra; Glover v. Shields, 1 Barb., 374.
The decision in Bissell v. N.Y.C.R.R. Co. was made in reference to lots laid out upon a map platting another portion of the identical lands now in question. Mr. Mumford had divided his portion of the land into lots, representing them on a map as abutting upon a street extending from Kent street through the center of his tract, and through the adjoining tract to Jones street. This avenue was designated on the map as "Erie street." Mumford then sold his lots by numbers, referring to the map, but making no mention of this street by name. The grantees built upon their lots and used the strip designated as Erie street as a means of access *Page 126 to their lots, as far as Mumford's land extended. The street was never opened through the other half of the tract to Jones street. It was held, that as between the grantor and the grantee, this conveyed the land to the center of Erie street; that there was no difference in this respect between the ordinary highway and a street in a city, and thus the fact that the adjoining proprietor did not open his portion of the street, and that the same was therefore closed at one end, made no difference. The presumed intention of the grantor was held to be of a conveyance to the center of the street as designated on the map.
A street or highway is a portion of land set apart for passage or travel. When, therefore, lots are sold by reference to a map, on which such lots are designated as fronting upon a street then laid down, the transaction contains, in substance, a declaration by the grantor that the space designated as a street is, and shall continue to be, a street, and his presumed intention consigns title to his grantee, to the center of the designated street.
A "Park" is an inclosed space in a city or village, set apart for ornament or to afford the benefit of air, exercise or amusement. It is not by its terms intended as a passage way, or for the purpose of public travel. It is defined by lexicographers as an inclosed space, referring doubtless to the intention or expectation that it shall be inclosed, and not making its character to depend upon the fact whether it is inclosed at any particular time. If inclosed, or intended to be, of course the idea of passage or travel over it is excluded. Streets and highways have an established size, by the custom of the country, and the regulations of the statute, varying from ten rods to six rods in width. A park, on the other hand, has no customary size. It depends on the capacity of the land, or the liberal-mindedness of the person laying it out. The City Hall park, in the city of New York, contains but a few acres, and it is as large as the parks in the most of the cities of this State. The Central park, however, and the parks of some of the cities of Europe, contain nearly a thousand acres. Can it be said that a lot bounded upon one of *Page 127 these parks, conveys to the center of it all the title that the grantor might have thereto? Could such be presumed to be the intention of the grantor? I think not. There is or there may be sources of substantial benefit and enjoyment in the use of a park, not belonging to the owners of property bounding upon it. The advantage of the open air necessarily pertains to the adjacent property, but the right of entry, use and occupation, unlike that of a street or river, may be limited by the owners of the park, to persons not residing near it, and depending upon conditions altogether different.
A park is essentially different in its nature from a street, and is governed by principles of a different character. It could under no circumstances be considered as a line merely. A street becomes a street, as between grantor and grantee, by being so designated on the map by which the lots are sold. It is quite likely that a park may become a park in the same manner. But there is neither authority or principle for saying that lands may be made a street by designating them as a park. It would be as unreasonable as to attempt to create a park from what the owner should designate upon his map as a street.
I agree in the appellant's argument, that this is a question of law, arising upon the construction of the deed and map. Where the language of the deed creates an ambiguity, the surrounding circumstances may be shown to aid in the construction. (French v. Carhart, 1 Comst., 96.)
Here there is no ambiguity, and it is unimportant whether the early occupants used the park as a street, and called it a street, or whether they did neither. Those are circumstances which could not give title to them, or divert that of the real owner, unless continued during a period of twenty years.
Ejectment is the proper form of remedy for such a possession as that taken by the defendant of the premises in question. (Carpenter v. O. S.R.R. Co., 24 N.Y., 655.)
The judgment should be affirmed.
Judgment reversed. *Page 128