Johnson & Co. v. Arnold
91 Ga. 659
Ga.
1893
Check Treatment
Bleckley, Chief Justice.

1. Thе main question involved in this case is one of much interest and some difficulty. It is novel in the jurisprudence of this State, and we rule it by principle and sound legal analogy and not upon any direct authority. Various decisions, both English and American, bearing upon it in some degree, have been examined. They are not uniform, but point in different directions. Upon principle, and as best subserving public policy, we prefer the trend and tendency of those cases which treat a tract of land having upon its margin a road either public or private, and either actual or only contemplated, as embracing the fee in the road itself when the tract is conveyed and is described in the deed as bounded by the road, the maker of the deed being at the time of its exeсution owner of the fee in the road, and the deed purporting to convey the fee in the ‍‌​​​​​‌‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌​​‌‌‌​‌​‌​‌‌​​​‌​‌​​‍tract thus bounded. Perhaps the strоngest reason in favor of this construction of such conveyances is, that there ought to be some general and settled rulе applicable alike to all conveyances which bound the premises by a marginal road, and the best general rulе in behalf of public policy, and the one most likely to conform to the real intention of the parties in most instances, is thаt which we have just indicated. It is favorable to the general public interest that the fee in all roads should be vested either еxclusively in the owner of the adjacent land on one side of the road, or in him as to one half of the road, and as to thе other half, in the proprietor of the land on the opposite side of the road. This is much better than that the fee in long and narrow strips or gores of land scattered all over the country and occupied or intended to *667be occupied with roads, should belong to persons other than the adjacent owners. In the main, the fee in such .property under such detached ownership would be and forever continue unproductive and valueless. True it is ■that the fee in a road or in one half of the breadth of land occupied by a road is generally not of much value to an adjacent proprietor, but it goеs to enlarge his holding and probably enhances somewhat the value of his estate ; when a detached ownership would usually leave it of no value whatever. At all events, this much may be asserted confidently, that as the fee in roads has to reside somewhere, it is more desirable that it should be in the owners of the adjacent lands than elsewhere. And detached ownership bеing less desirable, or not desirable at all, any actual intention to establish it in a particular instance, or in the great mass of instances, is less likely to exist than is an opposite intention. When, therefore, the owner of the whole fee in a tract сonveys ‍‌​​​​​‌‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌​​‌‌‌​‌​‌​‌‌​​​‌​‌​​‍the tract, bounding it by a road, he not owning the land on the opposite side of the road, and not expressly declaring in the conveyance whether he retains the fee in the road or not, may very well be understood as intending to convey the whole tract with the exception of the road as a road merely; that is, as a way public or private, as the cаse may be. According to the better authorities, the bounding of a tract by the edge or margin of a road will pass the fee to the middle line of the road when the vendor owns the fee on both sides. Upon the like reason, if he owns the fee on one sidе only, and the whole road is upon the margin of his tract, the proprietor •on the opposite side not having any interest in its ownership, a conveyance of the tract as bounded by the margin of the road should, and we think would, pass the fee in the whole road. And as we have already stated, we think it makes no difference in this respect whether the road spoken of in the dеed is already in *668existence as a way in actual use, or is unopened and only a road in contemplation. To bound lаnd by a road in describing a tract is to say either that a road is already at the location indicated, or that there may bе one there hereafter at the pleasure of the vendor or of the vendee, either or both. When a road is mentioned as a boundary, it should generally be understood that the boundary intended is a road as a road or way, and not as embraсing the physical ‍‌​​​​​‌‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌​​‌‌‌​‌​‌​‌‌​​​‌​‌​​‍substance of the soil in and under the road, all the way down to the center of the earth. In other words, a road as a boundary is the road as an easement, together with such land, or interest in land, as is necessary to full enjoyment of the еasement, but no more. To such enjoyment the mere surface of the earth is always essential, and frequently the right to establish and maintain a new artificial surface by excavating in some places and embanking in others.

To discuss the present casе in detail, and pass under review all its facts, seems needless. What we have already said, read ‍‌​​​​​‌‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌​​‌‌‌​‌​‌​‌‌​​​‌​‌​​‍in the light of the official reрort and of the first head-note, will suffice in respect to the matter of that note.

2. As a necessary consequence of the construction which we have placed upon the two deeds made by Arnold, it results that he was not the owner of the stone quarried from the site of the contemplated road, and that he could recover for no damage done to the freehold as mere land, but only for such as may have been done to his ‍‌​​​​​‌‌‌‌‌‌‌​​​​‌​​‌​‌​​‌​‌​​‌‌‌​‌​‌​‌‌​​​‌​‌​​‍easement or some of its proper and necеssary adjuncts as an easement for present or future enjoyment. For instance, it would be some injury to his property in the easement to render it more expensive to open the road, now or hereafter, than it was when he conveyed, if this was оccasioned by mining and removing the stone.

8. The action was in part for the wrongful and unauthorized use of a private way elsewhere situated, which *669belonged to Arnold. What the court charged in relation to the measure of damages for this trespass was not correct. We have indicated our own views on this point in the third head-note. The verdict was not what it should have been, and the court erred in denying a new trial. Judgment reversed.