Cole v. Haynes

| Vt. | Dec 15, 1849

The opinion of the court was delivered by

Royce, Ch. J.

The plaintiff seeks in this action to recover land formerly included in a highway. He derives his alleged title under the levy of an execution, made in 1831, and while the road, or highway, was in use as a public thoroughfare. The question in dispute is, whether the levy operated to pass a title in any portion of the highway ; and it arises upon the descripton of the third tract of land taken by the levy. The second line in that description extends the eastern boundary from a certain point north, nineteen degrees west, three chains and seventy five links, to the road; the northern limit is then described as running south thirty three degrees west, in the line of the road, three chains and fifteen links, — and thence the closing line runs south, six degrees west, eighty two links, to the place of beginning. It is contended by the plaintiff, that the line here given, as running to the road, must be taken to have extended to the centre of the road; and that the next boundary given, being the line of the road, musí be understood to mean the centre line of the road. The defendants insist, that the expression to the road means to the southern line or margin of the road, and that the same line or margin is intended by the line of the road; so that the highway, as then fenced out and used by the public, was wholly excluded.

It is unquestionably the ordinary presumption and inference of law, that the soil of highways, and the beds of fresh water streams not navigable, belong to the adjoining proprietors. And hence if one convey land as being bounded by a highway, or by such a stream, it will usually be intended, that he parts with his interest to the centre of the highway, or stream. The presumption is not, however, an invariable and conclusive one. For it is certain, that a party, in such a case, may so describe and limit the subject of his grant, as to constitute the highway, or stream, a boundary, without passing any portion of either by the conveyance. And whether this has been done in a given case will depend on the manner, in which the granted premises are described. Land does not pass as a mere appurtenance to other land; and, consequently, no portion of the highway, or stream, will be conveyed, unless the instrument of conveyance can, by reasonable construction, be made to include it. Where the owner of land conveys it by his deed, all general and ambiguous expressions are to be construed so as rather to enlarge than to restrict the conveyance. If, therefore, the conveyance is in terms extended to a highway, or bounded on or by a highway, with nothing to render the intention of the grantor more definite and certain, the grantee will take his interest to the centre of the highway, and this for obvious and satisfactory reasons; — first, because such terms of description may be applied as well to the centre as to the edge or margin of the highway, and no intention distinctly appears to exclude the grantee from that interest in the highway, which an adjoining proprietor is generally understood to have ; and secondly, because courts are bound to give this operation to deeds in such cases, whenever their terms will permit, on account of the manifest inconvenience of having the sites of discontinued highways left as gores, and owned by others than the proprietors on either side.

It is urged, that the same construction should be given to the descriptive words in the levy of an execution, as to those in a deed of the party. In the former case, however, the words of description used are not those of the judgment debtor, but of third persons, over whom he has Ho control. And it would therefore seem, that a construction operating to his prejudice, if to result from ambiguity of description,- ought not to be admitted.

But, without attributing to this distinction any decisive influence in the present case, we are convinced, that the levy in question should not be understood to have included any portion of what was recognized as the highway. Those concerned in making the levy were careful to limit the land taken by very exact admeasurements; and if the second line actually extended to the centre of the road, it was the officer’s duty to certify the fact in express terms. Uniform practice, under like circumstances, would require this. And if the third line was really the centre of the road, there was equal necessity for so describing it. The line of a road, in reference to adjoining land, is universally taken to denote a side line, unless somethin» appear, which clearly shows it to he otherwise. In reference to the course of the road, it may well he taken to mean the centre line. We think the only just or probable conclusion is, that the levy in this instance did not extend into the known highway.

Judgment of county court affirmed.