Grant v. Moon

Brace, P. J. — This is an action in ejectment for a •small parcel of land in the city of Springfield, contained within the following metes and bounds: • “Beginning at a point eleven rods and nine links south of a point twenty-eight feet southwest of the northeast corner of the southwest quarter of section 23, township 29, range 22, thence south forty-one and one half degrees west to a point on a straight line running due north and ■south one hundred and sixty feet west of said beginning point; thence south forty-one feet; thence north forty-one and one half degrees east to a point due south of said beginning point, thence north forty-one feet to ■said beginning point.” The answer was a general denial. The case was tried by the court without a jury. The plaintiff asked the court to declare the law to be “that on the evidence the plaintiff is entitled to recover the land in contro [47] versy, provided the court finds from the evidence that the defendant was in possession of the property at the time of the institution of this suit,” which the court refused to do. No other declarations of law were asked or given. The court found for the defendant, and the plaintiff appeals. It appears that the parties are coterminous proprietors. The evidence tends to prove that the land in question was formerly within the lines of an old public, road sixty feet wide, running from Springfield, Missouri, to Fayetteville, Arkansas, the use of which as a public road had been abandoned for some years prior to the institution of this suit; that the conveyances under which both parties claim are by metes and bounds, that the. land in question is in the possession of the defendant and within the lines of the plaintiff, according to the description of the courses and distances in the deeds on which he claims title. The claim of the defendant is that the south line of his tract is coincident with the north line of the old road, and, the road having been abandoned, his line is ■extended to the middle of the old road, and, thus extended, includes the land in controversy. The plaintiff concedes that the evidence shows that the defendant’s land at its southwest corner touches the line of the old road, but insists that the evidence shows that his line, “when it leaves that point running northeast leaves the line of the old road and does not touch it any more, but varies therefrom a small but assured distance, the line of divergence increasing as it progresses eastward.” Whether the weight of the evidence supports this view of the fact we are not called upon to say. The ■court must have found that this line of the defendant and the line of the old road were practically coincident, and that the defendant’s land for the length thereof [48] abutted on tbe road, and we can not say there was no evidence from which this inference might have been drawn. Conceding, then, that defendant’s land did so abut, the only question in the case was, did the abandonment of the public road have the effect of extending the boundary of defendant’s land to the middle line thereof, thereby including the land in controversy within the line of plaintiff’s grant. Chancellor Kent says: “The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the center of the road, as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice; and, it was said, in Peck v. Smith [1 Conn. 103,] that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as the general rule, that a grant of land bounded upon a highway or river carries the fee in the highway or river 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. [13 Ed.] *433. This general rulé is the recognized law in this state. Snoddy v. Bolen, 122 Mo. 479. The title of the defendant emanated from the common grantor long before the title of the plaintiff. At the time of his grant to defendant’s remote grantor he was the owner of the fee to the center of the highway, and under this general rule the grant extended to the center' of the road, unless in the deed there be something found to show a different intent. There are no [49] such words used, so far as this record shows. The land is simply described by metes and bounds, without mention of the road in any of the deeds, and, “It seems * * * if no such words are used and no highway is mentioned, although the description by courses and distances should carry the line along the side of a highway, the land to the center of the way will also pass.” Elliott on Roads and Streets, 551; Gear v. Barnum, 37 Conn. 229; Cox v. Freedley, 33 Pa. St. 124; Paul v. Carver, 26 Pa. St. 223. However that may be, “The question is one of intention, to be ascertained from the language of the deed together with other facts and circumstances properly going to explain that language, such as the situation of the lands and the relation of the parties, the presumption of intent to pass the title to the center of the road prevailing, unless a contrary intention appears.” Elliott on Roads and Streets, 550; Angell on Highways [3 Ed.], sec. 314. “ What the boundaries of a given piece of land which has been conveyed by deed are, is for the court; Where these boundaries are, is a question for the jury.. What is the true location of a survey-is not one of construction, nor a question of law, but of fact; and whether a particular piece of land is included within the boundaries mentioned, if these are in dispute, is a question for the jury.” 3 Wash. on Real Property [5 Ed.], p. 453. What theory of the law the trial court may have entertained and applied in the determination of this case, we are not advised by this record. It was not asked to declare that theory. The question of fact at issue as to the location of the boundaries of plaintiff’s and defendant’s land, it found in favor of the defendant, and we are concluded by that finding, there being evidence from which the court might have inferred that [50] it was the intention that the grant to the defendant should extend to the middle of the road, subject to the public easement. The judgment is affirmed. All concur.