23 N.Y. 61, Bissell v. New York Cent. Railroad Co.

• Date: 01 March 1861
• Docket Number: .
• Citation: 23 N.Y. 61
• Parties: BISSELL et al. v. THE NEW YORK CENTRAL RAILROAD COMPANY.
• Court: New York Court of Appeals Court of Appeals

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23 N.Y. 61

BISSELL et al.

v.

THE NEW YORK CENTRAL RAILROAD COMPANY.

New York Court of Appeal

March 1, 1861

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[Copyrighted Material Omitted]

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COUNSEL

Henry R. Selden, for the appellant.

Theron R. Strong, for the respondents.

MASON, J.

The question presented for adjudication in this case is, whether the several deeds of conveyance executed by William W. Mumford, between the years 1828 and 1845, to different individuals, conveying lots on either side of Erie street, in the city of Rochester, carried the lands to the centre of that street. These deeds describe the lots invariably by their numbers; "reference being had to the allotment and survey made by Elisha Johnson. " In some cases the size of the lot is given: "being 33 feet front and rear, and 99 feet deep." There is no express mention of any street in any of the deeds. It appears that, before selling any of the lots, Mr. Mumford, the original proprietor of these lands, placed his map, or a copy of it, in the hands of agents engaged in selling his lots, and that they made sales in reference to the map. On this map the lands in controversy are laid down as "Erie street; " and these lots conveyed lie both on the north and south sides of "Erie street. The simple question, then, is, whether a conveyance of a lot bounded on a piece of ground thus laid out upon the map as a street, and called a street, but which is not, in fact, a public street or highway, carries the grantees to the middle of the street. The question, so far as it

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is here presented, involves merely the construction to be given to these deeds. The inquiry is as to the extent of the grant.

If the rule of construction in regard to such grants is not to be considered as settled in this State, I am inclined to hold that the inference of law is, that such a conveyance carries with it the fee to the centre of the street, as part and parcel of the grant. There is no more reason, it seems to me, to infer an intention in the grantor to withhold his interest in or title to the land covered by the street, after parting with all his right and title to the adjoining land, than there is in the case of a deed bounded by a public highway.

I have not been able to discover any reason which can be given in the one case, which is not equally applicable to the other. The rule of construction is well settled in regard to a deed bounded by a public highway. The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the centre of the road as part and parcel of the grant. (2 J. R., 363; 15 Id., 452; 1 Cow., 240; 3 Kent's Com., 433, 3d ed.) The rule seems to be based upon the supposed intention of the parties, and, it seems to me, upon a very reasonable intention. The idea of an intention in a grantor to withhold his interest in a highway to the middle of the street, after parting with all his right and title to the adjoining land, ought never to be presumed; and all the cases hold that, in such a case, it requires some declaration of such an intention in the deed to sustain such an inference. There is no reason for presuming a different intention in a case like the present. The grantor, Mumford, intended this as a street, and gave it the name of Erie street, and, as regards his grantees in these deeds, he dedicated it as a street, according to all the cases, whether the public ever accepted it as such or not. It was, as between him and his grantees, a street which they had a right to use as such, as soon as these conveyances were made by him. (1 Wend., 262, 427; 2 Id., 472; 8 Id., 85; 11 Id., 486; 17 Id., 650; 18 Id., 411; 19 Id., 128; 1 Hill, 189.) As regards the public generally, I admit it does not become a public highway until there has been an acceptance, either by formal

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act of the public authorities, or by common user under such circumstances as show an intent to accept it. (Holdane v. The Trustees of the Village of Cold Spring, 21 N.Y. 474.)This does not, in any manner, as I can perceive, affect the matter as between this grantor and his grantees. As between them and him, his conveyances, per se, dedicated it to their use as a street. I do not see, then, how, as regards these grantees, Mumford can be allowed to say it is not a street.

This being so, the rule of construction which should be applied to his...