This case were decided in June 1860.
By the Court.By the deed of Sears and Gosley to Murray, a passage way fifteen feet wide was laid out in the middle of a lot of one hundred and fifteen feet,.over which the grantors reserved a right of way ; and this actually existed as a passage way when Murray made his first conveyance, and was described therein as fifteen feet wide. It was an open established way, to be used in common by the owners of the two lots of fifty feet wide, and by Sears and Gosley as owners of the premises in the rear. The fee of the soil under the way was granted to Murray; and when Murray sold one of the two lots bounded on the pas sage way, and retained the other, it was manifestly his intent that the way should be common to both, and his deed to Lane was a grant of the soil to the middle of the way, with a right of way in the southern half of the passage, and reserving to the lot which he retained a right of way in the northern half. This construction puts Murray upon terms of equality with Lane as to both the soil and the way. The title and interest then retained by Murray passed by his subsequent deed to Winslow and from Winslow to Greene. The demandants therefore have no title upon which they can maintain this action. Judgment for the tenant.