Van O'Linda v. Lothrop

Morton J. delivered the opinion of the Court. The defendant admits and justifies the entry and trespass. The J , J r plaintiffs claim the locus in quo in fee. The defendant claims a right of way over it. There is no doubt, that the deed from Charles Russell to the plaintiffs, of October, 1834, covers the land in controversy. But prior to that deed, Russell, who was then seised of the land now owned by both parties, as well as of other land on the north of it, now owned by Edward Robeson, in December, 1833, conveyed to J. Ricketson and others the lots on the north and on the south of the locus in quo. One was bounded north “ on an intended street,” and the other, south on a “ street.” The defendant derived a title to the south lot from Ricketson and others, who conveyed the north lot to Robeson. These two lots are 40 feet apart, leaving between them a strip of land 40 feet wide and 217 or 218 feet long, which is the subject of this suit. If the defendant can establish any right over the premises, it must be by virtue of the deed of Russell to Ricketson and others; and the true construction of that deed is the principal question in the case. It is supposed to be settled by the adjudged cases in this Commonwealth, that in a line running to a road or bounded by a road, the road is excluded. Clap v. M'Neil, 4 Mass. R. 589 ; Alden v. Murdock, 13 Mass. R. 256 ; Sibley v. Holden, 10 Pick. 249 ; Tyler v. Hammond, 11 Pick. 193 And yet there seems to be a great analogy [296] between a boundary upon a river and upon a road. In the former case it is well settled that the Jilum aquae is the true line, and that all the soil under the water vests in the adjoining proprietors, subject to the easement of the public in the river. And should the river be diverted, or for any cause cease to flow, the ownership of the land would become perfect for all purposes. A public highway is, in many respects, in its legal uses, similar to a river. It is not easy to see why two coterminous proprietors bounded upon a road or street, should not take the fee to the centre of the highway, subject to the public servitude. This doctrine is maintained by Chancellor Kent. 3 Kent’s Comm. 349, and is supported by the case of Jackson v. Hathaway, 15 Johns. R. 447. Perhaps the cases in our courts may all be sustained without any inter ference with the general rule, that land bounded upon the high way extends to the centre of it, as laid down in New York and elsewhere. In some of the cases, if not all of them, the description was so specific as necessarily to exclude the ways. But whatever may be the correct general rule, we are satisfied that the deed to Ricketson and others excluded the land in question. The street did not then exist in actual use, but only in contemplation. If Russell had intended to convey the land between the two lots, there could be no possible reason for separating the land into two parcels, giving to each a separate boundary, limiting one by the north side of the proposed street and the other by the south side of it. We are therefore of opinion, that the fee did not pass by that deed. It was not expressly granted, and it could not pass incidentally. Land will not pass as incident or appurtenant to land. As the purchasers of the estates on each side of the locus in quo did not acquire a right to the soil itself, it remains to be seen whether they acquired an easement over it. There was no express grant of a right of way. Nor did any way pass as appurtenant to the land granted, none then being in use or in existence. If the defendant acquired an easement in the land, it must have been by implication, or on the principle of estoppel. The doctrine laid down in Parker v. Smith, 17 Mass. R. 413, seems to us to be a very reasonable and equitable one. [297] That case, we think, was perfectly analogous to this ; but if there be any difference, this is the stronger of the two. It was there said, that “ the grantor and his heirs are estopped from denying, that there is a street or way to the extent of the land, on those two sides. We consider this to be not merely a description, but an implied covenant, that there are such streets.” This opinion is decisive of this part of the case. A right of way vested in Ricketson and others ; and they, by their deed, conveyed the same to the defendant. But it is contended by the plaintiffs’ counsel, that even if the defendant had a right of way, yet he so abused it as to become a trespasser. There is no doubt, that the owner of the fee of land, over which a way, public or private, exists, has a right to the enjoyment of any use of his estate consistent with the servitude to which it is subjected, and may maintain trespass for any interruption of his enjoyment. Robbins v. Borman, 1 Pick. 122 ; Adams v. Emerson, 6 Pick. 57. The use of the way by the defendant which is complained of, consisted in placing gates and doors so near the street that when opened they swung over it ; in suffering horses and carriages occasionally to stand in the street near his premises , m placing timber and other materials on the street preparatory to building a barn on his own land ; in throwing earth out of his cellar on to the street for the purpose of removing it; and in spreading some earth on the street to make it more level and to make his own barn more accessible. This is alleged to be an unreasonable use of the way and such a one as amounts to a trespass What may be deemed a reasonable and proper use of a way, public or private, must depend much on the local situation, and much on public usage. The general use and the acquiescence of the public is evidence of the right. The owner of land may make such reasonable use of a way adjoining his l“r,d. as is usually made by others similarly situated. As to’ the reasonableness of the use, it may well be laid down, that in a populous town where land is very valuable, it is not unreasonable to erect buildings and fences on the line of the street and to place doors and gates in them, so as when opened to swing over'the street. When the owner of a lot in such [298] a situation has occasion to build, and for that purpose to dig cellars, he may rightfully lay his building materials and earth within the limits of the street, provided he takes care not improperly to obstruct the same, and to remove them within a reasonable time. It is very obvious that, without this privilege, it would be in some situations nearly or quite impracticable to build at all. If he be guilty - of a wrong to any one, it is to the public, and not to the owner of the land. If he is guilty of a nuisance, he is answerable to the Commonwealth. The spreading earth or gravel on a way with an honest intent to improve the way and make it more convenient for public use, and thereby actually improving it, is clearly no trespass on the owner of the land. Much less is it a trespass, occasionally to allow horses and carriages to stand in the street against or near a house. This is one of the appropriate uses of a highway. If this were to be deemed a trespass, very few of us would escape. These were the substance of the instructions which were given to the jury. We think they were correct; and judgment must be rendered upon the verdict.