The opinion of the court was delivered by
Poland, J.
The first question made In this case arises upon the defendant’s objection, that this action cannot be sustained by the present plaintiffs, because there has been no decree made by the Probate Court, directing a division of the estate among the several heirs entitled to it; and the case of Board-man v. Bartlett, 6 Vt. 631, is relied upon, to sustain the objection. That case arose and was decided under the statute of 1821, which expressly prohibited heirs and devisees from maintaining actions of trespass, or ejectment, for lands of the testator, or intestate, until such estate shall be set off to them by order of the Probate Court. The Revised Statutes of this state do not contain any such prohibition, and indeed no prohibition whatever, except in cases where there has been an administrator or executor appointed, who has assumed the trust of administering upon the estate. See Rev. St., p. 269, see. 11. By the common law, upon the death of the ancestor the title [489]*489immediately descended to and vested in the heir, and he was the proper party to bring an action for any injury to the realty; and as this case is clearly not within any of the prohibitions contained in the Revised Statutes, this objection of the defendant cannot be sustained and was properly overruled by the county court.
Another and much more important question is raised in the case upon the construction of the deed from D. Azro A. Buck to Daniel Wyman, dated September 10,1813, as to the extent of the boundary line of the premises conveyed, and especially, whether any part of the road, or highway, mentioned in said deed, is to be considered as included within the description of the land conveyed.
There has been much discussion in this country, both by the courts and elementary writers, in relation to the rules, which should govern in the construction of deeds and grants of lands lying upon or bounded by highways, or streams not navigable; and the most perfect harmony has not prevailed among the various decisions of courts and opinions of law writers upon this subject. The following general principles, however, seem now to be pretty well established. That where one owns land adjoining to or abutting a highway, the legal presumption is, in the absence of evidence showing the fact to be otherwise, that such land owner owns to the middle of the highway; — so, also, where one conveys land adjoining to or .bounded upon a-highway, (of which the grantor owns the fee,) the law presumes the party intended to convey to the middle of the highway, and will give the deed such an effect, unless the language used by the grantor is such, as to show a clear and explicit intent to limit the operation of the deed, or grant, to the side, or outer edge, of the highway. And in all cases, where general terms are used in a deed, such as “ to a highway,” or “ upon a highway,” or along a highway, the law presumes the parties intended the conveyance to be to the middle or centre line.
The doctrine has sometimes been advanced, that where land was conveyed, which abutted,upon a highway, though by a description which did not include any part of the highway itself, yet the grantee would take to the middle of the highway, upon the principle, that the highway would pass as appurtenant to the adjacent land. This doctrine seems now, however, to be very justly and generally exploThe of the fee of the [490]*490way is located, has not a mere easement in the land, which might pass as a mere appurtenant; but he is considered as still the real owner of the soil and freehold in the land, and entitled to the use and possession of it, so far as it can be used, or occupied, without detriment to the rights of the public to use it for a highway; and he may maintain trespass, or ejectment, even, against any other person, who commits an injury upon the soil, or makes an erection upon it.
The true reason, why this doctrine cannot be sustained, is well stated by Platt, J., in giving judgment in the case of Jackson v. Hathaway, 15 Johns. 447. He says, “ A mere easement may, without express words, pass as an incident to the principal object of the errant; but it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries.” And the law is laid down in nearly the same language by Wilde, J., in delivering the opinion of the court in the case of Tyler v. Hammond, 11 Pick. 193, and by Morton, J., in the case of O’Linda v. Lathrop, 21 Pick. 292; and we are not aware, that this doctrine is now held, in terms, by any court in England, or in this country.
The question, then, whether, in a conveyance of land abutting upon a highway, the highway is included and passes to the grantee, or whether it is excluded and does not pass, becomes in all cases a matter of construction and intention merely, from the language used by the parties, and such surrounding circumstances, as are proper to be taken into the account in ascertaining the intentions of the parties, — keeping always in view the legal presumption, that the parties intended to include the highway, and that the burden is upon the party, who assumes to show, that the parties intended the contrary.
From the plan, referred to in the bill of exceptions in this case, it appears, that the piece of land conveyed by D. A. A. Buck to Wyman was a narrow strip of land, lying between the road and the branch, terminating at the south end in a sharp point, at the intersection of the road and the branch, the road there crossing the branch diagonally; and the main question seems to be in this case, as to the starting point mentioned in the deed. The plaintiffs claim, that it is at the intersection of the northern, or western, bank [491]*491of the branch and the eastern edge, or side, of the highway. The defendant claims, that by a proper construction of the deed the point of intersection is where the centre line of the branch and the centre line of the road intersect, — which is several rods farther south than the point claimed by the plaintiffs. The land in dispute is between these two points.
If the position of the plaintiff, as to the point of beginning, in the description of the premises in the deed, were admitted to be correct, it would not be important to inquire, whether any part of the highway was included in the premises conveyed, or not, as we think, if the centre of the road were the boundary intended, it would have to be reached by a direct line from the starting point, and thus the land in dispute not be covered by the deed. But as the whole description is to be taken together, in order to ascertain the intent of the parties, and the proper determination of the place of beginning may be materially affected by the construction given to the deed in this particular, we have examined the case in reference to the question, whether the land conveyed goes to the centre of the highway, or only to the eastern side, or edge, thereof.
It may be proper here to notice some of the leading decisions in similar cases; though in cases, where we are merely seeking the intent of the parties from the language they have used, not very much aid can be obtained from authorities, except where the very same language is used. In the case of Jackson v. Hathaway, 15 Johns. 447, it was held, that, where land was conveyed, and bounded upon the side
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The opinion of the court was delivered by
Poland, J.
The first question made In this case arises upon the defendant’s objection, that this action cannot be sustained by the present plaintiffs, because there has been no decree made by the Probate Court, directing a division of the estate among the several heirs entitled to it; and the case of Board-man v. Bartlett, 6 Vt. 631, is relied upon, to sustain the objection. That case arose and was decided under the statute of 1821, which expressly prohibited heirs and devisees from maintaining actions of trespass, or ejectment, for lands of the testator, or intestate, until such estate shall be set off to them by order of the Probate Court. The Revised Statutes of this state do not contain any such prohibition, and indeed no prohibition whatever, except in cases where there has been an administrator or executor appointed, who has assumed the trust of administering upon the estate. See Rev. St., p. 269, see. 11. By the common law, upon the death of the ancestor the title [489]*489immediately descended to and vested in the heir, and he was the proper party to bring an action for any injury to the realty; and as this case is clearly not within any of the prohibitions contained in the Revised Statutes, this objection of the defendant cannot be sustained and was properly overruled by the county court.
Another and much more important question is raised in the case upon the construction of the deed from D. Azro A. Buck to Daniel Wyman, dated September 10,1813, as to the extent of the boundary line of the premises conveyed, and especially, whether any part of the road, or highway, mentioned in said deed, is to be considered as included within the description of the land conveyed.
There has been much discussion in this country, both by the courts and elementary writers, in relation to the rules, which should govern in the construction of deeds and grants of lands lying upon or bounded by highways, or streams not navigable; and the most perfect harmony has not prevailed among the various decisions of courts and opinions of law writers upon this subject. The following general principles, however, seem now to be pretty well established. That where one owns land adjoining to or abutting a highway, the legal presumption is, in the absence of evidence showing the fact to be otherwise, that such land owner owns to the middle of the highway; — so, also, where one conveys land adjoining to or .bounded upon a-highway, (of which the grantor owns the fee,) the law presumes the party intended to convey to the middle of the highway, and will give the deed such an effect, unless the language used by the grantor is such, as to show a clear and explicit intent to limit the operation of the deed, or grant, to the side, or outer edge, of the highway. And in all cases, where general terms are used in a deed, such as “ to a highway,” or “ upon a highway,” or along a highway, the law presumes the parties intended the conveyance to be to the middle or centre line.
The doctrine has sometimes been advanced, that where land was conveyed, which abutted,upon a highway, though by a description which did not include any part of the highway itself, yet the grantee would take to the middle of the highway, upon the principle, that the highway would pass as appurtenant to the adjacent land. This doctrine seems now, however, to be very justly and generally exploThe of the fee of the [490]*490way is located, has not a mere easement in the land, which might pass as a mere appurtenant; but he is considered as still the real owner of the soil and freehold in the land, and entitled to the use and possession of it, so far as it can be used, or occupied, without detriment to the rights of the public to use it for a highway; and he may maintain trespass, or ejectment, even, against any other person, who commits an injury upon the soil, or makes an erection upon it.
The true reason, why this doctrine cannot be sustained, is well stated by Platt, J., in giving judgment in the case of Jackson v. Hathaway, 15 Johns. 447. He says, “ A mere easement may, without express words, pass as an incident to the principal object of the errant; but it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries.” And the law is laid down in nearly the same language by Wilde, J., in delivering the opinion of the court in the case of Tyler v. Hammond, 11 Pick. 193, and by Morton, J., in the case of O’Linda v. Lathrop, 21 Pick. 292; and we are not aware, that this doctrine is now held, in terms, by any court in England, or in this country.
The question, then, whether, in a conveyance of land abutting upon a highway, the highway is included and passes to the grantee, or whether it is excluded and does not pass, becomes in all cases a matter of construction and intention merely, from the language used by the parties, and such surrounding circumstances, as are proper to be taken into the account in ascertaining the intentions of the parties, — keeping always in view the legal presumption, that the parties intended to include the highway, and that the burden is upon the party, who assumes to show, that the parties intended the contrary.
From the plan, referred to in the bill of exceptions in this case, it appears, that the piece of land conveyed by D. A. A. Buck to Wyman was a narrow strip of land, lying between the road and the branch, terminating at the south end in a sharp point, at the intersection of the road and the branch, the road there crossing the branch diagonally; and the main question seems to be in this case, as to the starting point mentioned in the deed. The plaintiffs claim, that it is at the intersection of the northern, or western, bank [491]*491of the branch and the eastern edge, or side, of the highway. The defendant claims, that by a proper construction of the deed the point of intersection is where the centre line of the branch and the centre line of the road intersect, — which is several rods farther south than the point claimed by the plaintiffs. The land in dispute is between these two points.
If the position of the plaintiff, as to the point of beginning, in the description of the premises in the deed, were admitted to be correct, it would not be important to inquire, whether any part of the highway was included in the premises conveyed, or not, as we think, if the centre of the road were the boundary intended, it would have to be reached by a direct line from the starting point, and thus the land in dispute not be covered by the deed. But as the whole description is to be taken together, in order to ascertain the intent of the parties, and the proper determination of the place of beginning may be materially affected by the construction given to the deed in this particular, we have examined the case in reference to the question, whether the land conveyed goes to the centre of the highway, or only to the eastern side, or edge, thereof.
It may be proper here to notice some of the leading decisions in similar cases; though in cases, where we are merely seeking the intent of the parties from the language they have used, not very much aid can be obtained from authorities, except where the very same language is used. In the case of Jackson v. Hathaway, 15 Johns. 447, it was held, that, where land was conveyed, and bounded upon the side of a road, no part of the highway passed by the deed. In the case of Sibley v. Holden, 10 Pick. 249, tenants in common owned land lying upon both sides of a highway, and executed mutual deeds to make partition of their land; and in the deeds the land was described as beginning at a stake and stones on the side of the road, thence, by various courses, to said road again, thence by said road to the place of beginning; and it was decided, that no part of the road was included in the conveyance, but that it still belonged to both, as tenants in common. In Tyler v. Hammond, 11 Pick. 192, a piece of land was conveyed by certain metes and bounds, and was also described as bounded upon one side of a road; and it was held, that no part of the road passed by the deed, it not being included within the metes and bounds given by the deed.
[492]*492The following cases were conveyances of land bounded upon streams not navigable; and all authorities seem to agree, that the law is the same in relation to such waters, as in the case of highways. 3 Kent 432, and notes. In the case of Albee v. Little, St N. H. 277, it was held, where a deed of land described it as beginning at a river, and then the line was particularly described, until it came to the river again, and was then described as running “ on the southerly and easterly bank of said river to the bound first mentioned,” that the conveyance did not extend to the centre of the stream, but only to the side, or bank. In Hatch v. Dwight et al., 17 Mass. 289, the description of 'the land was, “Beginning at the west end of the dam on Mill river, at the upper mills, so called, thence running up the river two rods, thence westwardly, &c., thence to the bank of the river,” — and it was held, that the words used clearly excluded any part of the stream.
The defendant relies mainly upon the following cases; — Chatham v. Brainard, 11 Conn. 60, where the land was described by courses and distances, and was also described as bounded easterly on the highway, and it was held, that the deed extended to the centre line of the road ; though considerable stress seems to be laid upon the fact, that it did not appear clearly, that, by the courses and distances as given, the road was excluded. In the case of Champlin v. Pendleton, 13 Conn. 23, land adjoining a highway was conveyed by metes and bounds, without mentioning the highway; but it being made to appear, that the south line of the land and the north line of the highway were the same, it was held, that the conveyance extended to the middle of the highway. In the case of Starr v. Child et al., 20 Wend. 149, the deed described certain premises by a line running to the river, thence along the shore of said river to a certain street; and it was held by a majority of the supreme court of New York, that the grantee took to the middle of the river. This case was afterwards carried up and decided by the court of errors in that state, and the judgment of the supreme court was reversed, and it was held, that the grantee only took to low water mark, and that no part of the bed of the river was included in the deed. 4 Hill 369.
To return, then, to the language of the deed in this case; — “ Beginning at the intersection of the road from Chelsea village to Allen’s [493]*493saw mill and the branch on which the saw mill stands on the northerly side of said branch and nearly opposite my now dwelling house, thence on the easterly side of said road, until the said road strikes the bank of said branch, thence down said branch in the middle of the channel to the first mentioned bound.” The land is described as bounded on the west by a line running on the easterly side of the highway ; — now upon what ground can it be fairly said, the parties intended, by the easterly side, the centre line of the highway ? The language, as commonly used and understood, certainly does not import that; and it seems to us, that when the case is viewed in the light of the authorities upon the subject, the great majority of them are against giving this deed such a construction, as the defendant claims for it. The case in 13 Conn, is an authority sufficiently strong to sustain the defendant’s view ; but that case is directly at variance with the case in 11 Pick., and, as it seems to us, cannot be sustained upon the principle established, even in Connecticut, that the highway must come within the description and cannot pass as appurtenant merely.
Where, then, is the starting point in the deed ? In the first place it is to be on the northerly side of said branch, and, as we understand the terms used, they must refer to the battle, and not to the centre, or thread, of the stream. The line leading from this point is to follow the easterly side of the highway, which, as already stated, in our opinion, is to be construed to mean the eastern edge, or line, of the road, and not the centre line of the road. We come to the conclusion, therefore, from the language used in this deed, that the true starting point is at the intersection of the northerly bank of the stream and the eastern side, or edge, of the road, and that no land lying south of that point was intended to be conveyed by the deed ; and also that no part of the highway was intended to be included in the deed.
The judgment of the county court is therefore reversed and a new trial granted.