24 Kan. 328 | Kan. | 1880
The opinion of the court was delivered by
The defendant in error was the owner in fee of the land on which Galena, a city of the third class, was and is located. It filed its plat, certified in the usual form, dedicating the streets and alleys to public use, but setting forth in such dedication that it reserved to itself all the mineral under the surface of such streets and alleys. Subsequently, it sold and conveyed to Tousley & Neal, plaintiffs in error, lots 354 and 355 in said city, by general warranty
The first proposition of counsel for plaintiffs in error is, that by the dedication under the statute, the defendant in error parted with the fee absolutely to the county, and that the reservation of the mineral was void as in contravention of the statute; and the second, that if the reservation were valid, all rights secured thereby passed by the deed to plaintiffs in error.
The first proposition turns upon the effect to be given to the statute concerning dedications. The first and sixth sections thereof are all that materially affect this question:
“Section 1. Whenever any city or town, or an addition to any city or town, shall be laid out, the proprietor or proprietors of such city or town, or addition,'shall cause to be made out an accurate map or plat thereof, particularly setting forth and describing: first, all the parcels of ground within such city or town, or addition, reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons, or other public uses; and, second, all lots intended for sale, by numbers, and their precise length and width.”
“Sec. 6. Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses, in the county in which such city or town, or addition, is situate, in trust and for the uses therein named, expressed or intended, and for no other use or purpose.”
On the one side it is argued that, whatever may be true of a parol dedication, a statutory dedication must pass the fee; that whoever would avail himself of the privileges of the statute, must take them cum onere; that if he would have his plat filed and recorded, he must consent that the fee of all streets, alleys, etc., pass to the county. On the
We do not deem it necessary to decide this question, for the other appears conclusive of the case in favor of the plaintiffs in error. Conceding that the reservation was valid, that the fee did not pass to the public, then it seems to us that the warranty deed of the lots conveyed all the grantor’s interest in the street up to the center. That such was the rule at common law, will not be questioned.
“The established inference of law is, that a conveyance of land bounded on a public highway, carries with it the fee to the center of the road as part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice. There is no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor.” (Peck v. Smith, 1 Conn. Rep., 103.)
“It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as the general rule, that a grant of land bounded upon a highway or river, carries the fee in the highway or river to the center of it, provided the grantor at the time owned to the center, and there be no words or specific description to show a contrary intenfa” (3 Kent’s Com., 433—4, and cases cited.)
“But if the space be a highway, that circumstance raises a strong presumption of an intent to pass the soil to the center of the highway, and it will so pass accordingly unless
“And to have this rule of the least practical importance to cure the evil which it is adapted to remedy, it must be applied to every case where there is not expressed an evident and manifest intention to the contrary, one from which no rational construction can escape.” (Buck v. Squiers, per Redfield, J., in 22 Vt. 484.)
In Kimball v. The City of Kenosha, 4 Wis. 331, the syllabus says:
“A grantee of a lot bounded by a street or streets in a village, laid out, platted and recorded in conformity with the statute, takes to the center of the street on which the lot abuts, subject to the public easement.”
The court also says, in the opinion:
“There can be no real difference between the conveyance of a lot or block numbered three, which is in fact bounded by a street, or in the conveyance of Black Acre, bounding it by a street or highway named. Unless the stréet or road is expressly excluded, the grantee takes to the center. It is unnecessary to cite authorities to this proposition. The dividing of land into lots, blocks and streets, and lots and blocks numbered, and all bounded by streets in fact, and described in the deed of their conveyance by number, cannot, by any means, be regarded as an express exclusion of the streets on which they abut, and without which the lots would be comparatively useless. So far from the streets being expressly excluded in conveyances of such- kind, there is the strongest possible implication that they were intended to be included, because the price of the lots depends upon their location with reference to streets, and the vendor receives a consideration, not only for the precise amount of land described in the lot, but also for that used'for the street on which the lot is bounded.” (See also City of Milwaukee v. Milwaukee & Beloit Railroad Co., 7 Wis. 76.)
But by statute, the common law remains in force in this state, “as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people.” (Comp. Laws 1879, §3, p. 10-13; K. P. Rly. Co. v. Nichols, 9 Kas. 252.) The rule, therefore, of the common law as to the effect of a conveyance of a lot bounded upon a highway
This conclusion compels a reversal of the judgment; for either the dedicator reserved nothing, or conveyed all it reserved to the plaintiffs in error.
The judgment will be reversed, and the case remanded with instructions to enter judgment for costs upon the agreed facts in favor of plaintiffs in error, defendants below.
