Center Bridge Co. v. Wheeler & Howes Co.

Prentice, C. J. This is an action of ejectment to recover possession of a strip of land which was for many years used by the railroad company now known as the New York, New Haven and Hartford Railroad Company as a part of its right of way. The plaintiff must recover, if it recovers at all, upon the strength of its own title shown, and not by reason of the weakness of the defendant’s title. Cahill v. Cahill, 75 Conn. 522, 524, 54 Atl. 201, 732; Moran v. Denison, 79 Conn. 325, 330, 65 Atl. 291. Our advice is asked upon the ultimate question of the plaintiff’s right to recover upon the-facts found, and also in response to four other incidental questions. One of these relates to the rights of the railroad company; the plaintiff claiming that it has abandoned the use of the land for railroad purposes, and that with this abandonment it has lost all right or title in or to the property. Another asks an adjudication of the rights of the city of Bridgeport by virtue of a certain deed by the plaintiff to it. Neither the railroad company nor the city is a party to the action. The impropriety of answering these two questions is thus apparent. Fortunately, however, their answer is not involved in a determination of the right of the plaintiff to have the judgment it seeks. The remaining two incidental questions call for the definition of a boundary described in each of two *588 deeds. The one is the western boundary of the deed to Carmi Hart; the other, the eastern boundary of the deed of the plaintiff to Sanborn. These boundaries determined, the way to a decision of the ultimate question of the plaintiff’s right to recover is made clear. The deed to Carmi Hart, bounding upon the land of the railroad and running along the same, in the absence of circumstances indicative of a contrary intent of the parties, carried the land to the middle line of the four-rod strip in which it had its easement of way. It is the well-settled rule that where a deed conveys land bounded upon a highway the fee is presumptively carried to its middle line. Champlin v. Pendleton, 13 Conn. 23, 26; Chatham v. Brainerd, 11 Conn. 60, 83. Where the boundary is a non-navigable stream, the rule also is that the grant extends to the middle of the stream. Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462, 463. As a general rule, a deed bounding on a canal carries the title to the middle of the canal. Goodyear v. Shanahan, 43 Conn. 204, 210. Seery v. Waterbury, 82 Conn. 567, 74 Atl. 908, presented a case of a boundary upon a private way. We there adopted the rule that presumably the title was not carried beyond the border line of the way. The reason assigned for this change of presumption in the case of a private way from that which prevails in the case of a highway, stream, or canal, was that it seemed to be more in consonance with the rule of justice under the conditions presented by private ways. The Maine cases, whose rule we adopted, have called attention to some of the reasons for this conclusion. Bangor House v. Brown, 33 Me. 309, 314; Ames v. Hilton, 70 Me. 36, 43. The fee in a private way is subject to a private easement only, and that easement may be terminated at any time at the will of the parties. A highway easement is one in favor of the public generally, *589 and has attached to it the idea of permanence. The prospect of benefit from the retention of the fee in the two cases thus differs essentially. Again, in respect to highways, motive for a continuance of ownership of the fee, disconnected with ownership of the abutting land, is hard to discover. On the contrary, a valid reason may well exist why the grantor of a private way should desire to retain the fee of the land. The easement which a railroad acquires in its right of way is like that of a highway, in that it is for the use of the public. New York, N. H. & H. R. Co. v. Long, 69 Conn. 424, 437, 37 Atl. 1070. It is one which has attached to it the incidents of exclusive occupation and enjoyment for the public use in a peculiar degree. New York & N. E. R. Co. v. Comstock, 60 Conn. 200, 210, 22 Atl. 511; Nolan v. New York, N. H. & H. R. Co., 53 Conn. 461, 472, 4 Atl. 106. It possesses the feature of prospective permanence no less than does that of a highway. All of the considerations which have led courts generally to recognize a presumed intent to have a bound upon a highway, stream, or canal, carry to the middle fine, appear to be present in the case of a boimd upon a railroad right of way; and therein are to be found the true analogies to the latter situation. They are not found in cases where the bound is upon a mere private way. The deed by the plaintiff to Sanborn bounded the property conveyed east on the track of the railroad. The plaintiff contends that this language is to be interpreted and given the same effect as though the bound was expressed to be upon the railroad, or the railroad right of way. This construction, most favorable to the plaintiff, would not, however, suffice to substantiate its claim that nothing passed to the grantee within the limits of the right of way. The same principle of construction which operates to extend the Hart deed to *590 include the eastern half of the four-rod strip operates also to carry the boundary line of the Sanborn deed from the opposite direction up to the middle line of that strip, and thus to embrace the western and remaining half of it. This construction of these two deeds establishes that the title to the eastern half of the land in controversy is now in the defendant; that the title to the western half is in some other party than the plaintiff; and that, as a necessary consequence, its action must fail for lack of title in itself shown. The Superior Court is advised that the deed to Carmi Hart, referred to in question two, and that from the plaintiff to George P. Sanborn, referred to in question three, each conveyed to the respective grantees therein the fee simple of the land over which the railroad company had its right of way up to the middle line thereof, and that the plaintiff is not entitled to the immediate possession of the land described in the complaint. In this opinion the other judges concurred.