Paul v. Carver

• Decision Date: 01 January 1856
• Citation: 26 Pa. 223
• Parties: Paul versus Carver.
• Court: Pennsylvania Supreme Court

Page 223

26 Pa. 223

Paul versus Carver.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

G. W. Biddle, for plaintiff in error.

E. K. Price and Lex, for defendant in error.

The opinion of the court was delivered by LEWIS, C. J.

The general rule is well established that where a stream not navigable is called for in a deed as a boundary or monument, it is used as an entirety to the centre of it, and to that extent the fee passes. It would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the title of the grantee, in such cases, to the edge of the river: 3 Kent's Com. 428. So land bounded by an artificial ditch extends to the centre of the ditch: 6 Conn. 471. So, where a street is called for as a boundary, the title passes to the centre of the street. "The law with respect to public highways and to freshwater rivers is the same, and the analogy perfect as concerns the right of soil. The presumption is that the owners of the land on each side go to the centre of the road, and they have the exclusive right to the soil subject to the right of passage in the public:" 3 Kent's Com. 432. Chancellor Kent declares that "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. 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; and it was said in Peck v. Smith, 1 Conn. Rep. 103, that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference:" 3 Kent's Com. 433. If no other reason could be assigned in support of this rule of construction, the general understanding of the people, and the extensive and immemorial practice of claiming and acquiescing in such rights, ought to have great weight. A contrary opinion would introduce a flood of unprofitable litigation. But the rule has its origin in a regard to the nature of the grant. Where land is laid out in town lots, with streets and alleys, the owner receives a full consideration for the streets and alleys in the increased value of the lots. The object of the purchasers of lots is to enjoy the usual benefits of the streets. The understanding always is that houses may be erected fronting on the streets, with windows and doors, and doorsteps and vaults. These latter always extend beyond the line of the street, and it is necessary that they should so extend. If a right of property in the streets might, under any circumstances, be exercised by the grantor, he might deprive his grantee of the means of entry into or exit from his house, and of all the enjoyments of light and air, and might thereby deprive him of the means of deriving any benefit from his purchase. In large cities vaults under the sidewalks for receiving fuel and other necessaries are almost universally constructed. In some instances where lots are owned by the same person on each side of the street, these vaults extend entirely across it, forming an under-ground communication between the two properties. Shade trees, posts, awnings, and many other convenient structures, are constantly erected. All these might be prohibited by the original grantor, if his right of property remained after parting with the lots. If the streets were to be vacated, of what value would they be to the original grantors,...