Paine v. Consumers' Forwarding & Storage Co.

• Decision Date: 09 December 1895
• Docket Number: 256.
• Citation: 71 F. 626
• Parties: PAINE et al. v. CONSUMERS' FORWARDING & STORAGE CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

71 F. 626

PAINE et al. v. CONSUMERS' FORWARDING & STORAGE CO. et al.

No. 256.

United States Court of Appeals, Sixth Circuit.

December 9, 1895

This action was brought by George E. Paine in his lifetime against the Consumers' Forwarding & Storage Company and the Pennsylvania Dock Company to recover two pieces of real estate in the village of Fairport, Lake county, Ohio. The land in controversy consisted of two parallel strips about 17 feet wide and 571 feet long, lying within the boundaries and on the east and west sides of a vacated street known as 'Water Street.' The village of Fairport was first known as the town of Grandon, and was laid out in lots on the east bank of the Grand river and the south shore of Lake Erie by the original proprietors. The public grounds and streets were duly dedicated by executing and recording a plat in 1812. In 1815, before any of the lots south of Fourth street were sold, all the streets and public grounds south of Fourth street, except High street, were duly vacated by proper proceedings and decree in the proper common pleas court. The location of the two strips in controversy may be seen from the following diagram, showing a part of the vacated portion of the plat.

(Image Omitted)

Water street is described on the plat as five rods in width. The plat continues: 'All the lots laid out in said town between the numbers hereinafter mentioned, inclusive, are of the length and breadth annexed to them, viz. * * * from 137 to 152 are each twenty-four rods long and four rods wide ' The measurement excludes from the lots any part of Water street as platted. By deed, the title to the entire tract was vested in one of the proprietors, samuel Huntington, to hold for the benefit of all. Division was made among the proprietors, and lots were sold by deed pending the trust. Huntington died before the execution of the trust, and in 1836 a bill in equity was filed in the proper common pleas court by those in interest against his heirs to compel a partition, and the conveyance of the legal title in accordance with the previous divisions and sales. Prior thereto, by division and transfer, Seymour Austin, one of the original proprietors, had become the owner of that part of the vacated tract lying between Fourth and Fifth streets. He died, leaving a widow, to whom he devised all his real estate in Fairport. His estate proved insolvent, and on a proceeding to sell land to pay debts all but two of the lots abutting on Water street between Fourth and Fifth streets were assigned as a dower to his widow, and the residuary interest in them was sold to Lemuel Storrs. The widow subsequently quitclaimed to Storrs all land owned by her in the town of Grandon. Austin's administrator and his widow and devisee were made parties to the bill in equity already described, as well as Lemuel Storrs, the purchaser and grantee. By decree, it was found and declared that Storrs had the legal title to all the vacated part of the plat lying between Fourth and Fifth streets, except lots Nos. 145 and 146, which had been conveyed by Seymour Austin in his lifetime to Elihu Spencer and lots 148 and 149, which Storrs had conveyed before the decree to one Dexter Knight. The Spencer deed described the land conveyed as follows: 'Lots 145 and 146, according to the survey of the town plat of Grandon which was first recorded, but now lying in the vacated part of said Grandon and for a more particular description of said lot, reference must be had to said first recorded survey of said town plat. ' The Knight deed described the land conveyed as 'lots 148 and 149, according to the original map and survey of said town plat, and being in the block between Fourth and Fifth streets in said town plat, subject to all the streets and highways laid or to be laid out on or through the same. ' Storrs, after the decree, quitclaimed to one Wurts, 'lot 150, according to the original map and plat and survey of the town plat of Grandon aforesaid. ' He deeded to Henry Williams 'lots 151 and 152, and also water lots opposite to and westerly of lots 149, 150, 151, and 152 in the original town plat of Grandon (now Fairport), according to the original town-plat survey and maps of the town plat of Grandon aforesaid, subject to all highways. ' Storrs, by similar descriptions, conveyed lot 145, and water lots opposite to and west of lots 147 and 148. The only remaining lot abutting on Water street not thus disposed of was water lot opposite lot No. 146, which it appeared that the plaintiff Paine had himself conveyed to one Paige. Thus it appeared by undisputed evidence that plaintiff had no title to the lots abutting on Water street, and the question was whether by the deeds of those abutting lots taking the title out of Storrs and himself title to land lying in Water street also passed. There was some evidence tending to show a public use of part of Water street between Fourth and Fifth streets at various times, but it had been completely abandoned, and the defendants were admittedly in exclusive possession of it at the time suit was brought. The learned judge at the circuit instructed the jury that the deeds from Austin, Storrs, and Paine, conveying the lots abutting on vacated Water street, carried title to the middle line of Water street opposite the lots specifically conveyed, and therefore that neither Storrs' heirs nor plaintiff had any title to land in Water street or the particular strip in suit. This instruction is made the basis for the chief assignment of error.

R. B. Murray and L. W. King, for plaintiffs in error.

J. B. Burrows, for defendants in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT Circuit Judge (after stating the facts).

Seymour Austin owned the title to the strips here in controversy. Against his devisee and legal representative, the decree of the common pleas court established that Lemuel Storrs had acquired title to the same two strips. If Storrs did not convey the strips here during his lifetime, they descended on his death to his heirs by whose quitclaim deeds they passed to the plaintiff below. It is conceded that Storrs did not convey any part of Water street to any one by specific description. Did his deeds conveying the lots bounding on vacated Water street convey the fee to the center line of that street? If they did, then the charge of the trial judge was correct; if not, the judgment must be reversed. When Water street south of Fourth street was vacated in 1815, the original proprietors had sold none of the lots abutting thereon. The effect of the vacation, therefore, was to vest the fee in Water street in those who owned the abutting lots. It is well settled that where a grantor bounds the lot conveyed on a described street, and is the owner of the land embraced therein, he is estopped to deny the right of the grantee to use the land for street purposes whether it be in fact a street or not. Thomas v. Poole, 7 Gray, 83; Rodgers v. Parker, 9 Gray, 445; Stetson v. Dow, 16 Gray, 373; Emerson v. Wiley, 10 Pick. 310; Cox v. James, 45 N.Y. 562; Dawson v. Railroad Co., 15 Minn. 136 (Gil. 102); 3 Washb.Real Prop. (5th Ed.) *467, *635, *671; Devl. Deeds, Sec. 1027. And the same effect is given to a deed describing the lot conveyed by number and reference to an undedicated plat upon which the lot is shown to front upon a street. In such a case the easement which the grantee acquires is not limited to that part of the described street in front of his lot, but it extends to the whole street shown so far as it was owned by the grantor when the deed was executed. Rodgers v. Parker, 9 Gray, 445; Thomas v. Poole, 7 Gray, 83; Cox v. James, 45 N.Y. 562. It is quite true that it has been held that such a deed does not bind the grantor to open and maintain a street in a condition fit for travel (Hennessey v. Railway Co., 101 Mass. 540); nor does it imply a covenant that the street is in such a condition when the deed is made. The only effect is that, as between the grantor and grantee, the latter may do nothing inconsistent with this right. Between them, therefore, it is a street. Nor does it prevent this result that the plat was marked vacated, or that in some of the deeds it was referred to as vacated. The vacation of the plat affected only the public easement. It did not conflict with the use of the street as a common way by all the abutting lot owners. Water street was absolutely necessary to any enjoyment of the lots at all. A steep hill cut off a large part of each of the numbered lots from High street, and the water lots had no frontage except on Water street.

By the common-law rule of construction, a deed of trust which describes it as bounding upon a street carries the fee of the grantor to the middle line of the street. 3 Washb.Real Prop. (5th Ed.) 635, where all the authorities are collected. The rule is thus comprehensively stated by Mr. Justice Gray in the case of the City of Boston v. Richardson, 13 Allen, 146, 154:

'Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal or ordinary meaning, includes the title in the land of which it has been made part, as a house, a mill, a wharf, or the like, the side of the land or structure referred to a boundary is the limit of the grant; but when the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech, as defining a boundary, and not as describing a title in fee, and which does not, in its description or nature, include the earth as far down as the grantor owns, and yet which has width, as in the case of a way, a river, a ditch, a wall, a fence, a tree, or a stake and stones, then the center of the thing so running over or

...