Stuart v. Fox

• Decision Date: 01 December 1930
• Citation: 152 A. 413
• Parties: STUART et al. v. FOX et al. SAME v. MINOTT. SAME v. SHWARTZ et al.
• Court: Maine Supreme Court

152 A. 413

STUART et al.

v. FOX et al.

SAME

v. MINOTT.

SAME

v. SHWARTZ et al.

Supreme Judicial Court of Maine.

Dec. 1, 1930.

Report from Superior Court, Cumberland County.

Suits by Sarah P. Stuart and another against Charles E. Fox and another, against Jessie C. Minott, and against Harry M. Shwartz and another. On report from superior court.

Judgment for defendants.

Argued before PATTANGALU, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Frank H. Purinton, of Portland, for plaintiffs.

Verrill, Hale, Booth & Ives, of Portland, for Charles E. Fox and Edward E. Fox.

Geo. H. Allan, of Portland, for Jessie C. Minott.

Brooks Whitehouse, of Portland, for Harry Shwartz and Jesse Rosenberg.

THAXTER, J.

These three cases, which are writs of entry, involve the same facts, and are reported to this court for final determination on so much of the evidence as is legally admissible. From this evidence the following facts appear:

In 1850, James Deering was the owner of a large tract of land in what is now a growing and populous part of the city of Portland. In that year the York & Cumberland Railroad Company, which subsequently became the Portland & Rochester Railroad Company, acquired under the terms of its charter by condemnation a right of way six rods wide through the Deering land. One rod of this was subsequently reconveyed, so that the width of the way as finally used by the railroad was eighty-two and one-half feet. In 1886 the heirs of James Deering, then owning the land on each side of this right of way, conveyed to Carrie A. Nutter a piece of land on the westerly side of it described as follows: "A certain lot of land situated on the Northerly side of Noyes Street in said Deering and described as follows viz., beginning at the corner formed by the intersection of the Northerly side line of said Noyes Street with the Northerly side line of Longfellow Street; thence Westerly by said Longfellow Street sixty (60) feet to a point; thence Northerly on a line at right angles to said Longfellow Street two hundred and seventeen (217) feet and .95 of a foot more or less to the location of the Portland and Rochester Railroad; thence Southeasterly by said location two hundred and ten (210) feet more or less to said Noyes street; thence Westerly by said Noyes street ninety eight (98) feet more or less to the corner begun at. For a more particular description reference may be had to a plan in the possession of the said Grantors." This lot of land, through various conveyances and devises, and through descent, is now owned by the plaintiffs. The area on the other side of the railroad location opposite this lot between the railroad and Forest avenue, being a piece varying in width from one hundred and thirty-nine to one hundred and fifty-four feet, was held by the Deering heirs until 1894, when it was conveyed to Arthur E. Marks. The northerly and westerly bounds of this land were described in the deed as follows: "Thence westerly on a line parallel with Noyes Street one hundred and thirty-nine (139) feet more or less, to the location of the Portland and Rochester Railroad Company; thence Southerly by said location two hundred and sixty (260) feet more or less to said Noyes Street."

It will be seen from these two deeds therefore that the Deering heirs, owning the fee in the railroad right of way and in the land on both sides of it, conveyed the area first on the westerly side, and eight years later that on the easterly side, describing both of such lots as running "to" and "by" the railroad location.

In 1911 the Portland & Rochester Railroad abandoned its right of way, and in 1922 the Deering heirs by three warranty deeds conveyed to the predecessors in title of the defendants in these actions the area comprising such location between the lots previously conveyed to Carrie A. Nutter and to Arthur E. Marks.

These suits are brought to recover the westerly half of such railroad location in so far as it abutted the property now owned by the plaintiffs, whose claim is that the deed to Carrie A. Nutter conveyed to her the fee to the center of the railroad property, and that on the abandonment of this they became possessed of this land free from the incumbrance of the railroad right of way. The defendants claim through the deed from the Deering heirs, their contention being that title to the fee in this strip was retained by the grantors when the land on each side of it was conveyed.

The question here presented has never come before the courts of this state, although there are conflicting decisions in other jurisdictions. It is important, not only to the parties in this case who are contesting the title to real estate, on which have been built permanent structures of substantial value, but also to others similarly situated. It is also possible to foresee the abandonment of other railroads in this state, and extensive litigation to determine the title to their rights of way, if this question is not definitely settled in this jurisdiction.

The contention of counsel for the plaintiffs is that a railroad right of way is a highway, and that the same rule which applies in the case of land bounded on a highway should apply to that adjoining a railroad. This well-established principle is that a conveyance of land bounded on a highway, the fee of which is owned by the grantor, carries title to the center of it, unless a contrary intent appears. Oxton v. Groves, 68 Me. 371, 28 Am. Rep. 75; Low v. Tibbetts, 72 Me. 92, 39 Am. Rep. 303; 4 R. C. L. 78. A glance at the reasons for this rule will perhaps indicate how far it is applicable to land abutting on a railroad.

The procedure for the location of highways is now largely governed by statute. In early times they were ordinarily created by a dedication express or implied by the owner of the land through which they ran. British Museum v. Finnis, 5 C. & P. 460. However created, the right given was ordinarily an easement. The public had the right of passage, but title to the soil was retained by the original owner. Peck v. Smith, 1 Conn. 103, 6 Am. Dec. 216; Webber v. Eastern Railroad Co., 2 Mete. (Mass.) 147, 151; Burr v. Stevens, 90 Me. 500, 38 A. 547. It is true that the grant of this easement carried with it all the incidents necessary to make the enjoyment of the public right effective, not only with reference to the amount and methods of travel in vogue at the time of the grant, but with respect to such as an advancing civilization might indicate were reasonable and proper. Milhau v. Sharp, 15 Barb. (N. Y.) 193, 210; Burr v. Stevens, supra. The ownership of the fee in the highway in early times, when the means of travel were primitive, was of distinct benefit to the owner of the adjoining land, and today, even with the enlargement of the public right, this claim to the freehold is of advantage to the abutting property holder. Thus the proprietor of the soil in the highway had the right to the grass along its untraveled border, and he could maintain trespass against one who permitted his cattle to graze there. "Woodruff v. Neal, 28 Conn. 165; the right to make a reasonable use of it for the unloading and temporary storage of fuel for the use of his house, Commonwealth v. Passmore, 1 Serg. & R. (Pa.) 217, 219; the right to the minerals under it, Chester v. Alker, 1 Burr. 133, 143; the right to sink drains under it, Perley v. Chandler, 6 Mass. 454, 4 Am. Dec. 159; the right to build vaults under the street for storage or other uses connected with his buildings, Allen v. City of Boston, 159 Mass. 324, 34 N. E. 519, 38 Am. St. Rep. 423; the right to plant ornamental or shade trees, Wellman v. Dickey, 78 Me. 29, 2 A. 133. Other advantages associated with the enjoyment of the abutting property by reason of the ownership of the fee in the highway could be enumerated.

Courts have attempted to justify the presumption that title to land bounded on a highway extends to the center of the way, on the theory that the grantor could not have intended to retain the ownership in a long narrow strip of land of no apparent benefit to himself. This is undoubtedly a consideration which should be given weight, but, looking at the principle in its early origin, it seems to be of even greater moment that the grantor should not be presumed to retain for himself that which is of distinct benefit to his grantee in connection with the proper use and enjoyment of the estate conveyed.

An almost perfect analogy with the rule as to highways is that governing the boundaries of land on nonnavigable streams. The title to land so bounded extends to the thread of the stream unless a contrary intent appears. Lincoln v. Wilder, 29 Me. 169; Bradford v. Cressey, 45 Me. 9; Wilson v. Harrisburg, 107 Me. 207, 77 A. 787. This was the rule in England as far back as the time of Lord Hale and was brought by the colonists to New England as a part of the common law. The riparian proprietor owns the bed of the stream and all but the public right of passage. Pearson v. Rolfe, 76 Me. 380. As he could take herbage from the highway for his cattle, so he may take water from the stream, Blanchard v. Baker, 8 Me. (8 Greenl.) 253, 266, 23 Am. Dec. 504; as he could use the land under the highway so long as the public right of passage was not affected, so may he use the bed of the river, Carleton v. Cleveland, 112 Me. 310, 92 A. 110. He is entitled to the ice that forms in winter, and to the rocks and stones in the stream, and he may use its momentum for power. Pearson v. Rolfe, supra. These rights, of such immeasurable benefit to the proprietor of the shore, are of little advantage disconnected with the ownership of it. Hence we have the same presumption as in the case of highways.

A similar situation exists in the case of the title to tidewater flats between high and low water mark. Originally these belonged to the crown, but under the provisions of the Colonial Ordinance of Massachusetts 1641—47, it was declared: ...