or unskillful work, I am not responsible for any injury which may resu't, whether to my own servant or to a third person. The rule is different if the machine is made according to my own plan, or if I interfere and give directions as to the manner of its construction. The machinist then becomes my servant, and respondeat superior is the rule:" Ardesco Oil Co. v. Gilson, 63 Id. 151. It was cited in Pittsburgh, F. W. & C. R'y Co. v. Gilleland, 56 Id. 451, to illustrate the growth of the doctrine that while the citizen must often suffer for the public good, his suffering is not to be aggravated by unskillfulness and carelessness. PAUL v. CARVER. [26 PENNSYLVANIA STATE, 223.] PRESUMPTION IS THAT OWNERS OF LAND ON EACH SIDE OF STREET, ROAd, or HIGHWAY GO TO CENTER of such boundary, and they have the exclusive right to the soil, subject to the right of passage in the public. CONVEYANCE OF LAND BOUNDED BY PUBLIC STREET, DITCH, FRESH-WATER RIVER, OR HIGHWAY PASSES TITLE TO CENTER of such boundary; as it is regarded as a single line, and the thread of such boundary is the monument or abuttal. Monuments control measurements. IT WILL NEVER BE PRESUMED THAT GRANTOR, after parting with all his right and title to the adjoining land, intended to withhold his interest in a street, road, or highway, to the center of it. GRANTEE'S TITLE CANNOT BE LIMITED TO EDGE OF PUBLIC STREET, DITCH, HIGHWAY, OR FRESH-WATER RIVER, unless there is an express exception in the deed to that effect, or some clear and unequivocal declaration, or certain and immemorial usage. ALTHOUGH MEASUREMENT OF DISTANCE SET FORTH IN CONVEYANCE BRINGS LINE ONLY TO SIDE of the street or highway, this is not sufficient to control the rule of law which carries the title to the center of such street or highway. EJECTMENT by Carver against Paul to recover a certain strip or piece of ground, being a portion of the northern part of Tidmarsh street, between Twelfth and Thirteenth, as formerly laid out, in Philadelphia. The part of the street in dispute was opened by public authority in 1827, but under legislative enactment the course of the street was changed in 1835, and in 1850 an act was passed vacating the part of the street in dispute. In 1836 Mrs. Brinton conveyed the premises bounding on Tidmarsh street, between Twelfth and Thirteenth, to William Perry, the deed calling for the northern side of the street. Perry gave a mortgage for the purchase money. It was foreclosed, and the premises sold to Carver, who received a sheriff's deed January 8,1853. In 1847 the commissioners of Moyamensing, the township including the land in dispute, recovered judgment against Perry on a certain claim they had against him, and caused the premises between Twelfth and Thirteenth streets, bounding on Tidmarsh, and running to the center of old Tidmarsh street, vacated, or about to be vacated, and which was fifty feet wide, to be sold at sheriff's sale. Deeds were made to intermediate purchasers, and the strip in dispute, about twenty-five feet wide, the half of old Tidmarsh street, between Twelfth and Thirteenth, became vested in James W. Paul, against whom this ejectment was brought by Carver, who alleged that title to the same became vested in him under his purchase on the proceedings upon the mortgage given by Perry to Mrs. Brinton. The court below ruled that under the sale upon the mortgage the plaintiff had a title to the middle of the street, and that, being vacated by authority of law, he was entitled to recover possession. Plaintiff got a verdict, and defendant sued out a writ, assigning the ruling of the court as wrong. G. W. Biddle, for the plaintiff in error. E. K. Price and C. E. Lex, for the defendant in error. By Court, LEWIS, C. J. The general rule is well established that where a stream not navigable is called for in a deed as a boundary er monument, it is used as an entirety to the center of it, and to that extent the fee passes. It would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the title of the grantee in such cases to the edge of the river: 3 Kent's Com. 428. So land bounded by an artificial ditch extends to the center of the ditch: Warner v. Southworth, 6 Conn. 471.. So where a street is called for as a boundary, the title passes to the center of the street. "The law with respect to public highways and to fresh-water rivers is the same, and the analogy perfect as concerns the right of soil. The presumption is that the owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public:" 3 Kent's Com. 432. Chancellor Kent declares that 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 a 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 [6 Am. Dec. 216], that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever re tained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference:" 3 Kent's Com. 433. If no other reason could be assigned in support of this rule-of construction, the general understanding of the people, and the extensive and immemorial practice of claiming and acquiescing in such rights, ought to have great weight. A contrary opinion would introduce a flood of unprofitable litigation. But the rule has its origin in a regard to the nature of the grant. Where land is laid out in town lots, with streets and alleys, the owner receives a full consideration for the streets and alleys in the increased value of the lots. The object of the purchasers of lots is to enjoy the usual benefits of the streets. The understanding always is that houses may be erected fronting on the streets, with windows and doors, and door-steps and vaults. These latter always extend beyond the line of the street, and it is necessary that they should so extend. If a right of property in the streets might, under any circumstances, be exercised by the grantor, he might deprive his grantee of the means of entry into or exit from his house, and of all the enjoyments of light and air, and might thereby deprive him of the means of deriving any benefit from his purchase. In large cities vaults under the sidewalks for receiving fuel and other necessaries are almost universally constructed. In some instances, where lots are owned by the same person on each side of the street, these vaults extend entirely across it, forming an underground communication between the two properties. Shade trees, posts, awnings, and many other convenient structures are constantly erected. All these might be prohibited by the original grantor if his right of property remained after parting with the lots. If the streets were to be vacated, of what value would they be to the original grantors, unless for the purposes of annoyance to the lot-owners? A long strip of ground fifty or one hundred feet wide, and perhaps several miles in length, without any access to it except at each end, is a description of property which it is not likely either party ever contemplated as remaining in the grantor of the lots on each side of it. Influenced by these considerations, the law has carried out the real intention of the parties by holding that the title passed to the center of the street subject to the right of passage. Where a street is called for as a boundary, it is regarded as a single line. The thread of the road is the monument or abuttal: Newhall v. Ireson, 8 Cush. 595 [54 Am. Dec. 790]. Measurements are of small importance where monuments are called for. Monuments control measurements. There is no doubt whatever as to the existence of the general rule; but it is thought by the plaintiff in error that where the deed calls for a particular side of a street the case is taken out of the rule. In our opinion, this is a circumstance entirely too insignificant to produce a result so inconvenient and so contrary to the practice of the people. This very question was decided when these parties were here in another form of action. It is therefore unnecessary to examine in detail either the English or American decisions on the subject. While they all fully recognize the existence of the rule that a conveyance of land bounded by a highway passes to the grantee a title to the center of the way, there is some difference of opinion in the application of it to particular cases. A rule founded upon policy, and tending to guard against inconveniences of the most alarming character, ought not to be frittered away by distinctions founded on differences in phraseology, which might readily escape attention. The paramount intent of the parties, as disclosed from the whole scope of the conveyance and the nature of the property granted, should be the controlling rule. Although the measurement of the distance set forth in the conveyance brings the line only to the side of the road, this is not sufficient to control the rule of law which carries the title to the center of it: Newhall v. Ireson, supra. Although the deed says nothing about a highway, and although the south line of the land conveyed corresponds with the north line of the highway as originally laid out, still this strong circumstance has been held entirely insufficient to control the general intendment of law that the title passes to the center of the highway: Champlin v. Pendleton, 13 Conn. 23. Even where a grant described the land as" beginning on the westerly side of the county road," "thence running northerly, touching the said westerly side of said road forty rods," this description was held to be insufficient to control the rule of law which extends the title to the center of the road: Johnson v. Anderson, 18 Me. 76. The case last cited disposes of the identical question now before us, and we adopt it as a sound exposition of the law. In our own state we have no authoritative decision on the question. Black v. Hepburne, 2 Yeates, 331, was a nisi prius decision, and the case-seems to have been determined on the principle that ejectment would not lie for an easement. Commonwealth v. McDonald, 16 Serg. & R. 390, was an indictment for erecting a nuisance in a public highway, in which it was distinctly stated that the public right to the highway, and that only, was decided. The Union Burial Ground v. Robin son, 5 Whart. 18, was the case of a conveyance before the street was opened, and the deed called for "the south side of Washington street as the same may hereafter be opened." The measurement of one of the lines, terminating at that point, was also stated with great paticularity in feet, inches, and fractions of an inch. It may be that these circumstances ought to have had but little weight; but we find that they influenced the decision, and that the court carefully stated that the case of a lot, bounded on a street laid out and dedicated to public use at the time of the grant, would present a different question. That case is, therefore, no precedent for one like the present. The other assignments of error do not require any special notice. The whole case was properly disposed of by the district court. Judgment affirmed. GRANT OF LAND BOUNDED BY STREET, ROAD, STREAM, OR HIGHWAY CARRIES FEE TO CENTER OF SUCH BOUNDARY: Middleton v. Pritchard, 38 Am. Dec. 112, and notes 119; Luce v. Carley, 35 Id. 637, and numerous cases cited in note thereto 640; Newhall v. Ireson, 54 Id. 790, and extended note thereto 793; Paul v. Carver, 64 Id. 649, and references in note to same 651; unless the terms of the grant clearly show an intention to stop at the margin, and this, although the monuments are described as standing on the bank or margin of the stream: See note to Lowell v. Robinson, 33 Id. 673. MONUMENTS CONTROL BOUNDARIES, COURSE, AND DISTANCES: Frost v. Spaulding, 31 Am. Dec. 150, and note 154; Suffern v. McConnell, 32 Id. 439, and note 444; Newman v. Foster, 34 Id. 98, and note 105; and note to Morton v. Jackson, 40 Id. 110. ACQUIESCENCE IN BOUNDARY LINE IS EVIDENCE OF AGREEMENT TO ABIDE BY IT, and if continued sufficiently long to give title by prescription, is conclusive evidence: Jackson v. McConnell, 32 Am. Dec. 439. THE PRINCIPAL CASE WAS CITED in Cox v. Freedley, 33 Pa. St. 124, as being one carefully decided, and twice reported. Its principle was applied, and Cox allowed to take to the middle of the street. And the circumstance of being bounded by the side of a street, instead of the street itself, was alluded to as "too insignificant to produce a result so inconvenient and so contrary to the practice of the people." In Wood v. Appal, 63 Id. 222, it was cited to show that a conveyance of land bounding on the street carried title to the center of it. So, in Baker v. Chester Gas Co., 73 Id. 121. In Robinson v. Myers, 67 Id. 17; Trutt v. Spotts, 87 Id. 341; Spackman v. Steidel, 88 Id. 458, it was cited as showing that it is a well-settled rule in this state that a conveyance of lands bounded on a street, road, or highway gives the grantee a title to the middle of such boundary, if the grantor had title to it, unless he reserved it either expressly or by clear implication. It was cited in Snider v. Snider, 3 Phila. 159, to show that "the paramount intent of the parties, as disclosed from the whole scope of the conveyance and the nature of the property granted, should be the controlling rule." It was considered inapplicable in Allegheny City v. Moorehead, 80 Pa. St. 138. AM. DEC. VOL. LXVII-27 |