Helmer v. Castle

Mr. Justice Scholfield delivered the opinion'of the Court: The sole question in this case, as stated by counsel for appellant in their argument, relates to the location of the north boundary line of the premises conveyed by the deed from Hickox to Martha J. Park. If the south line of Lake street is the north line of the premises conveyed by the deed to Martha J. Park, then the premises in controversy are owned by the grantee of Martha J. Park, and the judgment should be reversed. If the center line of Lake street is the north boundary line of the premises conveyed by the deed to Martha J. Park, then appellee is the owner of the premises in controversy, and the judgment below should be affirmed. The description in the deed of Hickox to Martha J. Park is as follows: “Commencing at the north-east corner of that part of section 11, township 39 north, range 13, east of the .third principal meridian, south of the road there running; thence running westerly along the line of said road 141 feet; thence southerly 619 feet; thence easterly 139 T90 feet to the east line of said section; thence northerly along said line 616-gig- feet to the place of beginning, containing two acres, more or less.” The only difficulty is, of course, in locating the starting point. At the time this deed was executed, the land it conveyed was not within the limits of the city, and what is now Lake street, was then, at this point, only a common highway. Moreover, the title to the whole of the east half of the southeast quarter of section 11, township 39 north, range 13, east of the third principal meridian, was originally in the trustees of the Illinois and Michigan Canal, and before they conveyed the same they had the tract divided by a surveyor into two separate parcels, one lying north of and extending south to the center of said road, containing forty-one acres, and the other lying south of and extending north to the center of said road, containing thirty-nine acres; and when they subsequently conveyed the parcel in which the premises now in controversy lie, they described it thus: “Bast half of the south-east quarter, south of road, of section 11, in township 39 north, range 13, east of the third principal meridian, containing thirty-nine acres.” All subsequent grantors of said premises, down to Philander Hickox, when conveying the parcel, used the same language. We think it reasonably certain, the tract being divided into two parts only, one north and the other south of the road, and each extending to the center line of the road, that the words, here, “south of the road, ” mean the tract on the south side of the road extending north to the center line of the road. The identity is exact in quantity,—thirty-nine acres,—and on a question of this kind that must have an important bearing. Assuming it, then, to be sufficiently established that Philander Hickox took the part on the south side of the road extending north to the center line of the road, what is there here, in proof, showing that he designed to reserve to himself the ownership of the fee in the south half of the road ? We are unable to discover a particle of proof of such intention. It is not shown that he retained the ownership in any adjacent soil to which this would be of value if attached, or to the use of which it could be made beneficial on ceasing to be used for a highway. It is obvious, on account of its peculiar shape and small size, that it could be of no practical value by itself; and there is nothing in the language of the i deed necessarily repugnant to the idea that the intention? was to convey to the center line of the road. The words, “south of the road there running, ” refer to the part of the tract, and not to the location of the corner. And when it is borne in mind that the tract had been divided into two parts,—one north and the other south of the center of the road,—and that the south part had for a series of years been so conveyed, it is most reasonable to suppose it was intended by these words to mean the part of the tract on the south side of the road extending north to the center line of the road. Then the north-east corner, the starting point, must fall on the center line of the road. This is strongly corroborated, also, by the succeeding phraseology in the description, “thence running westerly along the line of said road, ” etc., which would seem to clearly mean center line of the road, for there is no other line of the road. The sides of the road are quite different, and if the south side of the road had been intended, it is fair to presume the language would have been to that effect. In Canal Trustees v. Havens, 11 Ill. 557, this court declared the law applicable to such cases thus: “By the common law, a grant of land bordering on a highway or river carried the exclusive right and title in the highway or river to the center thereof, subject to the right of passage in the public, unless the terms of the grant clearly indicate an intention on the part of the grantor to confine the grantee to the edge or margin. In such case the highway or river is regarded as the boundary or monument, and the purchaser takes to the middle of the monument as part and parcel of the grant. ” This has been approved and followed in Gebhardt v. Reeves, 75 Ill. 307, Rockwell v. Baldwin et al. 53 id. 19, Chicago v. Rumsey, 87 id. 351, and Piper v. Connelly et al. 108 id. 646. This presumption not being overcome by anything in thevidence here, it must prevail. We must hold the intent was to make the center, and not the south side of the road, the north boundary of the lot conveyed by Hickox to Park, and so holding, the judgment must be affirmed. Judgment affirmed.