Barker, P. J., (after stating the facts.) The referee held, as matter of law, and the judgment .determines, that, at the time of the commencement of the action, the plaintiff was the owner in fee of that portion of Park avenue which lies south of the center line thereof, in front of the premises described in the complaint, which were then owned and occupied by the plaintiff, subject to the right of the public to use the same as a public street.
The decree restraining the defendant from operating its road over and upon that portion of the street is based upon such possession and ownership found by the referee to be in the plaintiff. The controversy, as to the right of the plaintiff to the relief granted, involves the proper construction to be given to the description, of the premises conveyed by the executors of the last will and testament of Silas 0.
Smith, to Susan H. Murray, executed in 1865, which embraced these and other lands described as one parcel in the said deed. At that time Park avenue was, as it now is, a public street, which had been dedicated to the public use by Smith, who was the owner in fee of the tract of land over and 565 through which Park avenue was laid out, which street intersects with other public streets in the city of Rochester.
After the dedication, and in his lifetime, Smith made a plot of his land, showing the size and number of each of the lots into which he had subdivided the tract, and filed the same in the county clerk’s office. Lot No. 5, as laid out and designated on the map, is on the south side of Park avenue, and embraced the premises owned by the plaintiff at the time of the commencement of this action.
The question for our determination is, did the executors of Smith convey to Murray the fee of the land to the center of Park avenue? or did they, by their conveyance, limit the premises conveyed to the south exterior line of such street? After referring to the township division in which the premises are located, the balance of the description is as follows, viz.: “All that certain piece or parcel of land known as lot No. 5, in subdivision of a part of the home lot of the late Silas 0.
Smith, bounded as follows: On the north five hundred and twenty-nine feet and six inches, on the south line of Park avenue as now established; on the east by the west line of Meigs street, one hundred and fifty feet; on the south by lot No. 6, five hundred and twenty-six feet and six-tenths ft.; and on the west by the east line of the Bixby tract, one hundred and fifty-nine feet,—containing eighty-seven and one one-hundredth acres, be the same more or less; reference being had to a map on file in the office of the clerk of Monroe county, made by Silas Beardsley, in November, 1865.” Where lands are bounded by a public street, the legal presumption is that the grantor intended to convey the soil.
Usque ad medium, fllum. This presumption prevails in all cases, unless the contrary intention is clearly expressed in the language used, locating and describing the premises which are the subject of the grant. Bank v. Nichols, 64 N. Y. 65.
Our conclusion is that the grantors of Murray did not convey to her the fee of any part of the road-bed of Park avenue, and they, by the use of the words of the description, viz., “bounded as follows: On the north five hundred and twenty-nine feet and six inches, on the south line of Park avenue as now established,”—clearly manifested their intention to exclude the bed of the street from the operation of the grant, and made the north boundary line of the premises conveyed the south exterior line of Parir avenue.
The construction which the courts give to the description of the premises contained in deeds in analogous cases, with a view of ascertaining the intention of the grantor, has satisfied our minds that the learned referee was in error in holding that the plaintiff was the owner of the fee to the center of the avenue.
We content ourselves with citing the following cases, which, among others, we rely upon in support of our views: English v. Brennan, 60 N. Y. 609; Wallace v. Fee, 50 N. Y. 694; Insurance Co. v. Stevens, 87 N. Y. 287; Bissell v. Railroad Co., 23 N. Y. 61; Perrin v. Railroad Co., 36 N. Y. 120. If the plaintiff had acquired a title to the center of the street, then the judgment would have been supported by the rule stated in Craig v. Railroad Co., 39 N. Y. 404.
As the plaintiff has no title to the lands on which the defendant’s road is located and constructed, the question is presented whether, as the owner of lands bounded on the street, she is entitled to an injunction restraining the defendant from building and operating a street railroad in Park avenue opposite her premises,'for the reason that her property is taken for a public use without a just compensation being made therefor, contrary to the provision of the constitution ?
The abutting owners of lands have an easement in the street in common with the whole public to pass and repass, and also to have free access to and from their premises.
It is now established, by the decision of the courts of last resort in this state, that the construction of a surface street railroad in a public street, with the consent of the legislature, and for the carriage of passengers, the cars to be drawn by horses, is not such an infringement upon the property rights of an abutting land-owner, who has no title to the bed of the street, so as to entitle him .to compensation under the 566 provisions of the constitution that private property shall not be taken for public use without just compensation.
People v. Kerr, 27 N. Y. 188; Kelinger v. Railroad Co., 50 N. Y. 206; Story v. Railroad Co., 90 N. Y. 122; Mahady v. Railroad Co., 91 N. Y. 148. There is no substantial difference between the cases in which the legal title to the bed of the street-is in private individuals, and those in which it is in the public,"as to the rights- of the public therein; and in either case the street is to be deemed open and’-fréefor public passage, and may be used for the operation of a street surface railroad.
People v. Kerr, supra. If Park avenue should be discontinued as a public street, there would be no reversion of the title to the plaintiff; and the owner of the fee, whoever he may be, at that time, could devote the land to any lawful use consistent with the enjoyment of the plaintiff’s easement.
The question is not now here for our consideration whether upon the'facts, as found by the referee, the plaintiff could maintain an action- against the defendant for damages, for an improper use of its franchise, which resulted, as the plaintiff alleges, in an interference with the use of the street, and to the annoyance and injury of the plaintiff in passing to and from her premises.
We do not consider that the case of Pratt v. Railroad Co., 19 Hun, 30, or that of Fanning v. Osborne, 34 Hun, 121, holds any legal proposition inconsistent with the conclusions we have reached in this case. In each of those cases the plaintiff was, as in this case, bounded by the exterior line of the street in which the railroad was laid, or intended to be laid, down by the defendants.
In--the first of these cases, the defendant was organized to build and operate a steam railroad under the general railroad act, for the conveyance of passengers and freight; in the second case, the corporation was organized to operate a surface street railroad, and the injunction only restrained the defendant from the use of steam as a motive power. The case last cited was reviewed in the court of appeals, and the judgment affirmed on the grounds not noticed in the court below. 7 N. E. Rep. 307.
On the argument the appellant contended that the alienation of the premises by the plaintiff barred her right of action, and that she is not entitled to relief in any form. As we have held that the plaintiff was not entitled to an injunction restraining the defendant from operating its road, if she had remained the owner of the premises, the question does not need consideration on this appeal.
If 'the plaintiff, prior to the conveyance, had a right of action for damages against the defendant, based upon the improper and unlawful use of its franchise', it was not assigned or transferred to her grantee, nor lost to her by such conveyance, and she may yet recover her damages in a proper action.
By'-the judgment the plaintiff was awarded equitable relief only', and we have liot considered the question whether the complaint1 is properly framed for the recovery of damages, if the plain tiff-has sustained any which may be recovered in an action at law. Judgment reversed, and new trial granted before another referee, with costs to-abide the event. All concur.
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