This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
99. Severy v. Cent. Pac. R. Co., 51 Cal. 594; Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748; Grand Rapids & Ind. R. R. Co. v. Heisel, 38 Mich. 62; Morrow v. Willard, 30 Vt. 118.
1. Johnson v. Anderson, 18 Me. 76 (semble); Woodman v. Spencer, 54 N. H. 507; Salter v. Jonas, 39 N. J. Law 469, 23 Am.
By analogy to the rule applied in the case of boundaries on streams, it would seem that a monument at the side or edge of the highway, when referred to as a starting point for a line running along the highway, should not ordinarily exclude the soil within the highway limits, but that it might well be regarded as merely showing the point at which the boundary strikes the highway, since it is not usually practicable to place a monument in the center of the highway. This view has occasionally been indicated,2 but usually the naming of a monument at the side or edge of the highway, from which the line is to run along the highway, has been regarded as sufficient to exclude the land within the highway limits.3 Where the latter view prevails, the same result would follow when, as the starting point of such line, there is named, not a monument on the side of the highway, but an imaginary point, such as the intersection of the side line with another line.4
Rep. 229; Humphreys v. East-lack, 63 N. J. Eq. 136, 51 Atl. 775; Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. St. 124, 75 Am. Dec. 584: Anthony v. City of Providence, 18 R I. 699, 28 Atl. 766. Compare Hobson v. Philadelphia, 150 Pa. St. 595, 24 Atl. 1048.
And the fact that the length of the side lines of the property as given would carry them to the centre of the highway has been regarded as immaterial. Baker v. Mobile Electric Co., 173 Ala. 28, 55 So. 364.
2. Moody v. Palmer, 50 Cal. .".1; Cattle v. Young, 59 Me. 105; Low v. Tibbetts, 72 Me. 92.
3. Peabody Heights Co. of Baltimore v. Sadtler, 63 Md. 533; Hunt v. Brown, 75 Md. 481, 23 Atl. 1029; Sibley v. Holden, 10 Pick. (Mass.)
249; Smith v. Slocomb, 9 Gray (Mass.) 36; Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 287. And see Peck v. Denniston, 121 Mass. 17; Chadwick v. Davis, 143 Mass. 7, 8 N. E. 601; Hoboken Land & Improvement Co. v. Kerrigan, 31 N. J. Law 13; Van Winkle v. Van Winkle, 184 N. Y. 193, 77 N. E. 33. appears to be contra.
4. Smith v. Slocomb, 9 Gray (.Mass.) 36; Rieman v. Baltimore Belt Ry. Co., 81 Md. 68, 31 At. 44 4; White's Bank of Buffalo v. Nichols, 64 N. Y. 65; Blackman v. Riley, 138 N. Y. 318, 34 N. E. 214. See Hoboken Land Co. v. Kerrigan, 3l N. .1. L. 13.
The words "beginning on the southerly side of" the road, or "at a point" on such side, and like expressions, have been, in at
In applying the foregoing rules, the highway or street referred to is the highway as opened or defined by use, rather than the highway as platted or recorded.5 A change in the location or limits of the highway after the making of the conveyance would seem not to affect the boundaries of the abutting land.6
In some jurisdictions a conveyance is not regarded as including any part of land which is merely intended to be dedicated as a highway in the future, or which is merely marked on a plat as such, although the land conveyed is described as bounded on such intended highway as if it actually existed.7 In other jurisdictions it is considered that such a reference to land as a highway raises the same presumption of an intention to convey the land to the center of the proposed highway as if the highway actually existed.8 least two states, construed as merely indicating the side of the road on which the land lies and not as locating a corner of the land at the edge of the road. O'connell v. Bryant, 121 Mass. 557; Hamlin v. Attorney General, 195 Mass. 309, 81 N. E1. 275; Salter v. Jonas, 39 N. J. L. 469, 23 Am. Rep. 229. And see Kneeland v. Van Valkenburgh, 46 Wis. 434, 32 Am. Rep. 719, 1 N. W. 63. But a contrary view has also been taken. Walker v. Pearson, 40 Me. 152; In re Parkway 209 N. Y. 344, 103 N. E. 508; Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 287; Lankin v. Terwilliger, 22 Ore. 97, 29 Pac. 268. And see Paul v. Carver, 26 Pa. 223.
5. Southern Iron Works v. Central of Georgia Rwy. Co., 131 Ala. 649, 31 So. 723; Orena v. City of Santa Barbara, 91 Cal. 621, 28 Pac. 268, Falls Village
Water Power Co. v. Tibbetts, 31 Conn. 165; Winter v. Payne, 33 Fla. 470, 15 So. 211: Cleveland v. Obenchain, 107 Ind. 591, 8 N. E. 624; Brown v. Heard, 85 Me. 294, 27 Atl. 182; Wilmarth v. Woodcock, 66 Mich. 331, 33 N. W. 400; O'brien v. King, 49 N. J. Law 79, 7 Atl. 34; Blackman v. Riley, 138 N. Y. 318, 34 N. E. 214.
6. Brantley v. Huff, 62 Ga. 532; White's Bank of Buffalo v. Nichols, 64 N. Y. 65. Contra, Williams v. Johnson, 149 Ky. 409, 149 S. W. 821.
7. Leigh v. Jack, 5 Exch. Div. 264; Bangor House Proprietary v. Brown, 33 Me. 309; Palmer v. Dougherty, 33 Me. 502, 54 Am. Dec. 636; Robinson v. Myers, 67 Pa. St. 9; Spackman v. Steidel, 88 Pa. St. 453; Clymer v. Roberts, 220 Pa. 162, 69 Atl. 548.
8. Bissell v. New York Cent. R. Co.. 23 N. Y. 61; In re Ladue, 118 N. Y. 213, 23 N. E. 465:
The fact that the land as described borders on a strip which had previously been a highway, but which is no longer such, the highway having been vacated before the delivery of the conveyance, has been held not to make the conveyance effective to pass any part of that strip.9
If the owner owns the whole of the bed of the highway, and no land on the other side thereof, his conveyance of land on the highway will, it has been held, prima facie pass all the land within the highway limits,10 and this has occasionally been held to be so although the ownership of the further half of the highway involved riparian rights.11
When the land conveyed is described as extending a certain distance from the highway, without other means of determining its location, the line is ordinarily to be measured, it has been decided, from the center line of the highway.12
Whether, when the land is described as bounded on a private way, the same rule applies as in the case of a public way, so as to give to the grantee the land to the center line thereof, in the absence of the expression of a contrary intention, is a question on which the cases are not in accord.13 In one state in which the same rule of presumption is held to apply in the case of a private way, it has been said that an intention not to grant to the center of such a way is more readily indicated than in the case of a public way.14
Anthony v. City of Providence, 18 R. I. 699, 28 Atl. 766; Johnson v. Arnold, 91 Ga. 659, 18 S. E. 370; Thompson v. Maloney, 199 111. 276, 93 Am. St. Rep. 133, 65 N. E. 236. See Peck v. Denniston, 121 Mass. 17.
9. White v. Jefferson, 110 Minn. 276, 32 L. R. A. N. S. 778, 124 N. W. 373, 125 N. W. 262; In re Schmeidel's Estate, 119 Minn. 186, 137 N. W. 1110; Brown v. Taber, 103 Iowa, 1, 72 N. W. 416. Compare Paine v. Consumers F. & S. Co., 71 Fed. 626, 19 C. C. A. 99.
10. Taylor v. Armstrong, 24 Ark. 102; Johnson v. Arnold, 91 Ga. 659, 18 S. E. 370; In re Robbins, 34 Minn. 99, 57 Am. Rep. 40, 24 N. W. 356; Thompson v. Major, 58 N. H. 242; Haberman v. Baker, 128 N. Y. 253, 13 L. R. A. 611, 28 N. E. 370; Healey v. Babbitt, 14 R. I. 533.
11. Wait v. May, 48 Minn. 453, 51 N. W. 471; Johnson v. Grenell, 188 N. Y. 407, 81 N. E. 161; Gifford v. Horton, 54 Wash. 595, 103 Pac. 988. And see Irvin v. Crammond, 58 Ind. App. 540, 108 N. E. 539. But Banks v. Og-den, 2 Wall. (U. S.) 57, 17 L. Ed. 818; Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Illinois etc. Canal v. Haven, 11 111. 554; Brisbine v. Railway Co., 23 Minn. 114; Ocean City Hotel Co. v. Sory, 77 N. J. L. 527, 73 At. 236, are apparently contra.
12. Dodd v. Witt, 139 Mass. 63, 52 Am. Rep. 700, 29 N. E. 475.