Henderson v. Hatterman

Mr. Justice Magruder delivered the opinion of the Court: A reference to the plat shows, that the land claimed by the appellants abuts, on its southeasterly side, upon a road sixty-six feet wide, known as the Indian Boundary Line road. There is nothing to indicate, that this road was anything more than an ordinary highway when Ure’s subdivision was made. The center line of this road is what is known as the Indian Boundary Line. Appellants claim, that they own an acre of ground in lot 9, and that the southerly line of the land so owned by them coincides with the northerly line of the Indian Boundary Line Boad, while appellee contends that the southerly line of the land of appellants coincides with the Indian Boundary Line, or the center of said road. Where a deed refers to a plat or subdivision, the particulars shown upon such plat or subdivision are as much a part of the deed, as though they were recited in it. (L. & N. R. R. Co. v. Koelle, 104 Ill. 455; Piper v. Connelly, 108 id. 646; 3 Wash. on Real Prop. marg. page 638). Here, the deeds, under which both parties hold, not only refer to lot 9 in Ure’s subdivision, but also to the Indian Boundary Line. When we look at the plat of Ure’s subdivision, we find not only that lot 9 abuts at its south end upon said road, and that the Indian Boundary Line is the center of said road, but also that Ure’s subdivision is a subdivision of that part of the S. E. % of section 30, “ (lying north of Indian Boundary Line and east of Green Bay road,) of Sec. 30, T. 41, R. 14 E., into nine lots and two blank lots.” Presumptively, therefore, the land subdivided comes down to that line, and the subdivision embraces the north half of the road, or the strip 33 feet wide which lies north of said line. The deed from Ulire to Ducat describes lot 9 as a tract of 5.15 acres “being north of Indian Boundary Line.and if lot 9 comes down to the Indian Boundary Line, it must include the north half of the road to the extent of its width on the south. It is well settled', as a general rule, that “a grant of land bounded upon a highway * * * carries the fee in the highway to the center of it, provided the grantor at the time owned to the center, and there be no words or specific description to show a contrary intent.” (3 Kent’s Com. marg. page 434; Elliott’s Roads and Streets, page 549, and cases in note 2). When a deed bounds an estate by or on a public way, the presumption is, if nothing else appeal’s, that' the center of the way is the boundary line. (Dean v. Lowell, 135 Mass. 55). It will not be supposed that a man would care to keep title to the highway in himself, when he had parted with the land bordering thereon. (Salter v. Jonas, 39 N. J. L. 469; 3 Wash. on Real Prop. marg. page 635.) The presumption that the owner of the adjoining land intended to convey his interest in the highway may be overcome, either by the use of express terms excluding it, or by such facts and circumstances as show an intention to exclude it. The intent to exclude the highway must appear from the language of the deed, as explained by surrounding circumstances.(Mott v. Mott, 68 N. Y. 246; Elliott’s Roads and Streets, page 550). It makes no difference in the application of the rule, whether the land abutting upon the highway is a lot which bears a certain number, or is a farm, called black-acre, or otherwise. (Kimball v. City of Kenosha, 4 Wis. 321; Berridge v. Ward, 10 Com. B. Rep. 400). Although the measurement set forth in the deed brings the line only to the side of the highway, the title will still be carried to the center of it, unless such words are used and such metes and bounds are set forth as show a contrary intention. (3 Kent’s Com. marg. page 434, note 37; Elliott’s Roads and Streets, page 550; Paul v. Carver, 26 Pa. St. 223; Cox v. Freedley, 33 id. 124; Johnson v. Anderson, 18 Me. 76; Cottle v. Young, 59 id. 105; Woodman v. Spencer, 54 N. H. 507). Of course, it is understood, that the title to the center of the highway, which thus passes by the grant of the adjoining land, is subject to the easement of the public in the highway. An application of these principles to the description contained in the deed from Ure to Whittaker and Henderson leads to the conclusion, that the southern boundary line of the land thereby conveyed was the center of the Indian Boundary Line Boad, or, what is the same thing, the Indian Boundary Line. The deed, construed in the light of such surrounding circumstances as are admissible to explain its meaning, bespeaks no intention on the part of the grantor to exclude his interest in the highway. lire’s subdivision was of the S. E. ¿ of the section “into nine lots and two blank lots.” The only two blank lots on the plat are Mrs. Whittaker’s 1 acre and Keys’ 8.75 acres. Thus, according'to the plat, the 9 lots and the two blank lots are distinct and several pieces of property, so that, if it were not for the descriptions used in the deeds, Mrs. Whittaker’s 1 acre would not appear to be a part of lot 9. The deed to her does not specifically describe it as a part of lot 9, but as a parcel of land “commencing on the southwest corner of lot 9 of lire’s subdivision * * * running thence northeasterly • along the Indian Boundary Line 4 chains and 33 links; thence running north 108.16 feet,” etc. Where is the starting point in this description? The appellants contend, that the “southwest corner of lot 9” is in the north line of the Boad, that is to say, 33 feet north of the center of the Boad or of the Indian Boundary Line. If this be so, the description is an impossible one, because, after leaving the starting point, the course must be along the Indian Boundary Line; the words are: “running thence northeasterly along the Indian Boundary Line 4 chains and 33 links.” The Indian Boundary Line is 33 feet south of the “southwest corner of lot 9” if that corner is in the north line of the road. To commence at a starting point thus located, it would be necessary to jump to a point 33 feet south thereof, in order to carry out the succeeding portion of the description. The street west of lot 9 is 60 feet wide. If the starting point is in the north line of the Indian Boundary road and 30 feet east of the center of said street, a line 4 chains and 33 links in length would throw the eastern line of the Whittaker tract upon the land of Keys. According to the description in the Whittaker deed, the east line of the land of appellants starts from the Indian Boundary Line, “thence running north 108.16 feet.” If the starting point be in the north line of the road, then the southern end of the east line of the tract would be 33 feet south of the southern end of the west line thereof which terminates at the place of beginning. The Whittaker deed does not describe a course from the beginning, either along the Indian Boundary Line Boad, or along the north line of that road, or along the south line of lot 9, but along the center of the road, that is to say, along the Indian Boundary Line. Inasmuch as, under the rules of law above laid down, the boundary is in the center of the highway where the land conveyed abuts on the highway, then every part of such boundary, including the starting point as well as every other point therein, must be in the center of the highway. We, therefore, think that the southwest corner of lot 9 must be regarded as located in the center of the Indian Boundary Line Boad, or in the Indian Boundary Line at the intersection of that line with the center line extended of the street west of lot 9. (3 Washb. on Real Prop. marg. page 635—5th ed—top page 448, par. 51, note 9, and cases cited). It is- well settled, that monuments control courses and distances, and the courses and distances control the quantity of land. (Cottingham v. Parr, 93 Ill. 233; Kamphouse v. Gaffner, 73 id. 453; Lincoln v. McLaughlin, 74 id. 11; Brown v. Huger, 21 How. 305). Highways, as well as streams, walls and fences, are often referred to in deeds as monuments, and are regarded as such when the land conveyed abuts upon them. (Canal-Trustees v. Haven, 11 Ill. 554; 3 Wash. on Real Prop. marg. page 632, top page 435; 2 Am. & Eng. Enc. of Law, page 500). In Newhall v. Ireson, 8 Cush. 595, where it appeared that the last measurement brought the line to the southerly side of the highway, it was said: “This fact does not rebut the strong presumption, that boundary on a highway is ad filum vice. The road is a monument; the thread of the road is that monument or abuttal.” In Paul v. Carver, 26 Pa. St. 223, where a public highway was 'called for as a boundary, it was held that the title passed to the center subject to the right of passage, and it was said: “It is regarded as a single line. The thread of the to ad is the monument or abuttal.” In Canal Trustees v. Haven, supra, after announcing the doctrine that, at common law, a grant of land bordering on a highway carries the exclusive right and title in the highway 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, we said: “In such case, the highway * * * is regarded as the boundary or monument, and the purchaser takes to the middle of the monument, as part and parcel of the grant.” In Helmer v. Castle, 109 Ill. 664, the language of the Haven case was quoted and applied to the following description in a deed: “Commencing at the northeast corner of that part of section 11 * * * south of the road,there running; thence running westerly along the line of said road 141.6 feet,” etc.; and it was there said: “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 northeast corner, the starting point, must fall on the center line of the road. This is strongly corroborated, also, by the succeeding phraseology, ‘thence running westerly along the line of the 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.” So, here, if the north side of the road had been intended as the south boundary of the tract conveyed to the grantors of appellants, it is fair to presume that the language would have been to that effect; and the center line or thread of the road, which is the Indian Boundary Line, must be regarded as a monument which will control the location of the starting point. The Indian. Boundary Line was established in 1816 by “a treaty of peace, friendship and limits, made and concluded between Ninian Edwards, William Clark and August Chouteau, commissioners plenipotentiary of the United States of America on the part and behalf of the said States, of the one part, and the chiefs and warriors of united tribes of Ottawas, Chippewas and Pottawatomies residing on the Illinois and Melwakee and other waters, and on the southwestern parts of Lake Michigan, of the other part.” In and by article 1 of said treaty the said tribes ceded to the United States, among other lands, the land contained in the following bounds, to-wit: “Beginning on the left bank of the Fox river of Illinois ten miles above the mouth of said Fox river; thence running so as to cross Sandy creek (now Au Sable river) ten miles above its-mouth; thence in a direct line to a point ten miles north of the west end of the portage between Chicago creek, which empties into Lake Michigan and the Biver Depleine, a fork of the Illinois; thence in a direct line to a point on Lake Michigan ten miles northward of the mouth of the Chicago creek; thence along the lake to a point ten miles southward of the mouth of the said Chicago creek; thence in a direct line to a point on the Kankakee ten miles above its mouth; thence with the said Kankakee and the Illinois river to the mouth of Fox river, and thence to.the beginning.” (U. S. Statutes at Large, Vol. 7, entitled Indian Treaties, page 146). The same line is referred to in a treaty between the United States and the' same Tribes, made in 1830, wherein said Tribes ceded certain lands, one of the boundary lines of which is described as running “along the northwestern boundary line of the cession of 1816, to Lake Michigan.” (Idem, page 320). It is claimed, however, by counsel for appellants that the words, “meaning and intending hereby to convey one acre of land without reference to metes and bounds as above described,” which follow in the description in the deed from Ure to Whittaker and Henderson, must be regarded as controlling the previous description so as to give the grantees an acre of ground, even though such quantity is not embraced within the specified limits. The general rule is, that quantity yields to course and distance, as course and distance yield to monuments. (Cottingham v. Parr, supra). Unless there is a covenant as to the quantity, it is seldom resorted to for the purpose of determining the boundary, and it is very rarely, if ever, permitted to control courses and distances. (3 Wash. on Real Prop. marg. page 630, top page 427). To sell a number of acres of land without describing any boundaries to the same would be void. (Idem, marg. page 632, top page 435). But if the words quoted should be construed as having the effect claimed for them, they do not necessarily amount to an express agreement to convey one acre north of the Indian Boundary Line Road. They are consistent with the intention to convey one acre north of the Indian Boundary Line, that is, one acre including the north half of the road, being a strip 33 feet wide and 4 chains and 33 links long. The decree below gives to the appellants one acre of land including said strip. Such is the testimony of the surveyors, and counsel for appellants admits in his brief, that the effect of the decree is “to give to appellants an acre, minus the quantity lying between the north line of the Indian Boundary Road and the Indian Boundary Line in the center of said road.” In view of the fact, that the appellants get an acre of land subject to the easement of the public in the south 33 feet thereof, it is unnecessary to consider what would have been the effect of the words quoted upon the previous description by metes and bounds, if the quantity including that subject to such easement had been less than an acre. We do not think, that the appellee can be heard to complain of the decree below, as he has failed to assign cross-errors in accordance with the rule. The assignment of cross-errors, as well as of errors, must be written upon or attached to the record. (St. Louis Bridge Co. v. The People, 128 Ill. 422). Upon examining the record we do not find that this has been dope in the present case. The decree of the Circuit Court is affirmed. Decree affirmed,.