Champlin v. Pendleton

Waite, J. In the very late case of Chatham v. Brainard, 11 Conn. Rep. 60., we had occasion to examine the law in relation to the ownership ofhighways. The different authorities upon this subject are so fully examined and considered, in the opinion given in that case, that it is unnecessary again to refer to them. We there held, that the ownership of the lands on each side of the way, furnishes prima facie evidence that such owner has a fee in the highway, and that strong testimony is necessary to rebut it. Whatever may have been the conflicting opinions heretofore entertained upon this subject, that rule, which is founded principally upon policy, may now be considered as fully settled, at least, in this state. And although land adjoining a highway may be so conveyed as to exclude the way ; yet the inference of law is, that a conveyance of land, bounded on a highway, carries with it the fee to the centre of the road as part and parcel of the grant. An intention on the part of the grantor to withhold his interest in the [27] road, after parting with all his interest in the land adjoining, is never presumed. It ought to appear in clear and terms, so that the grantee may understand that the grantor’s interest in the road is not conveyed. Judge Swift, in the case of Stiles v. Curtis, 4 Day 338., says “ if it had not been universally understood that the conveyance of land adjoining a highway conveyed the right of soil in it, express words for that purpose would, long since, have been inserted in deeds.” Was ¡«o charge of the court to the jury in this case in conformity with these principles? Under it, the jury must have found, that the plaintiff, by virtue of the several deeds referred to in the motion, was the owner of the land adjoining the highway. The presumption of law, then, is, that he owns to the centre of the highway. Is there anything in any one of those conveyances to rebut that presumption ? We discover nothing of the kind. There is no expression to be found, indicating an intention on the part of any one of the grantors to exclude the highway. The deed from John Denison to the plaintiff has been principally relied upon, by the counsel for the defendant, as supporting their claim. The boundaries of the tract of land there conveyed are given, and the description of the South line corresponds with the North line of the highway, as originally laid out. There is a clear intention to convey all the land North of the highway, with all the privileges and appurtenances, and nothing to show a design to exclude the road. But it is said, there is a difference between a deed describing the land as bounded upon, by, or along the highway and one in which no mention is made of the road ; and that in the former case, the fee of the highway will pass, but not in the latter. But we know of no such distinction. If the land conveyed is in fact bounded by a highway, it can make no difference in the legal construction of the conveyance whether the words “ by the highway,” are used or not. The effect in the one case, will be the same as in the other. We are satisfied, therefore, that the instruction given to the jury was right; and that no new trial should be granted. In this opinion the other Judges concurred. New trial not to be granted.