53 N.Y. 44 | NY | 1873
A person through whose lands a highway is laid out may convey the land on each side, retaining the fee of the premises covered by the highway. (Jackson v. Hathaway, 15 J.R., 447, 454;Child v. Starr, 4 Hill, 378.) This result may be accomplished by so framing the description as to exclude the land covered by the highway, or by inserting in the deed proper and apt words to except such land from the premises conveyed by the general description. An owner who has thus retained his estate in the soil, incumbered by a road, has a right to sell it, subject to that incumbrance. (Jackson v. Hathaway, supra, p. 454.) In the present case, Tillou, the plaintiff's grantor, conveyed to Warner the premises through which the road in question runs, with the following exceptions: "saving and excepting from thepremises hereby conveyed all, and so much, and such part andparts thereof as has or have been lawfully taken for a public road or roads." It is claimed on the part of the respondent that this clause did not except the land covered by the road, but only the easement therein which the public had acquired by the laying out of the road, and that consequently the fee in such land, subject to the easement, passed by the deed to the grantee, notwithstanding the exception. After a careful consideration of the language of the exception, and of the authorities cited by the learned counsel for the respondent, in support of his interpretation of it, we are of opinion that the exception was of the land, and that it cannot be confined to the easement without doing violence to the language used. The exception does not purport to be of any particular estate or interest in the land, but is in terms of a certain part and parcel of the premises embraced within the boundaries set forth in the deed. It is not an exception from the estate of the grantor, but from thepremises, and specifies the portion excepted. For the purpose of identifying the excepted parcel, *47 it is described as that part of the premises which has been lawfully taken for a public road.
In this respect the exception differs from those which were adjudicated upon in the numerous cases cited on the part of the respondent, for the purpose of establishing that an exception of a "road" or of a "highway" does not exclude the fee of the land over which the road or highway is laid out. Peck v. Smith
(
In Leavitt v. Towle (
None of the cases referred to present the feature which exists in the present case, of an exception, from the premises described, of a specific portion of such premises.
It is argued that, because the portion excepted is described as that part of the premises which has been lawfully taken for a public road, and only an easement therein could be lawfully so taken, therefore an easement only was excepted. We cannot so understand the language; the word "premises," we think, clearly means, in the connection in which it is used, the tract of land described in the deed, and not the estate or interest of the grantor, and the exception was of a portion of such premises, and not of an interest therein. By describing the excepted part as that portion which has been lawfully taken for a public road or roads, lands used as private roads, or roads not lawfully established, were excluded from the exception. The purpose of the expression was manifestly to designate with accuracy what portion of the premises was intended to be excepted.
The court below found, that the premises in controversy, at the time of the conveyance from Tillou to Warner, were *49 included in and formed part of public roads passing over the property. We think that the fee therein was excepted from the conveyance, and remained in Tillou, and passed by his subsequent conveyance to the plaintiff, and that the court therefore erred in the conclusion that the plaintiff was not the owner thereof, or of any right, title or interest therein.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.