By the Court,
Brown, J.
When the plaintiffs closed their testimony and rested, upon the trial of this action, they had established, prima facie, a title to the premises in question. These consisted of the western half of the road bed of the Brooklyn, Jamaica and Flatbush turnpike road, near [154]*154Hanson place, in the city of Brooklyn. The route of the turnpike is at this point identical with an old road mentioned in the deeds of conveyance as the road leading from Bedford to Brooklyn ferry. The plaintiffs claimed title under one Michael Bergen, and read in evidence two deeds of conveyance for a farm of land containing 90 acres, more or less, dated May 11th, 1787. One from Michael B. Grant and Catherine Bergen, relict of Michael Bergen, to George Powers, butcher; and the other from John Grant and Sarah his wife, one of the daughters of Michael Bergen, and Michael B. Grant, eldest son of John Grant, to the same grantee. Jeremiah Lott, who was examined as a witness for the plaintiffs, said he resided in Flatbush since 1779, and knew George Powers the elder. First knew him when he was a butcher; he lived on this farm and died in possession of it. He was succeeded in possession of the farm by his son George Powers, who also died in possession some 15 or 20 years before the trial. His wife succeeded him in the possession. Thought Michael B. Grant was Michael Bergen’s daughter’s son, and that Powers had the farm from Michael B. Grant. The Powers dwelling house was on the premises, near to and on the westerly side of the road. He surveyed the road for the turnpike company when it was laid out as a turnpike, to which time it had been used as a public highway. It was also proved by the testimony of Silas Ludlam, that he surveyed the premises for Mary Powers ; that herself and son occupied the farm and premises until about ten years before the trial, when the dwelling house was removed by direction of the authorities of the city, on the opening of Flushing avenue. The turnpike road was discontinued as such, and no longer used, about six or eight years before the trial. After Flat-bush avenue was graded and paved, the old road became impassable and was discontinued. About five years before the trial, the owners of the land on the side of the road opposite the Powers farm fenced in one half of the road in front of them, and the fence inclosing the half of the road in front of [155]*155the Powers property—the locus in quo—was built about two years before the trial, by the purchasers from the turnpike company. The plaintiffs produced and proved, upon the trial, a regular chain of title for the Powers farm, by devise from George Powers the elder to George Powers the younger, and by devise from the latter to Mary Powers. They also produced and read in evidence several mesne conveyances, which vested in themselves whatever title Mary Powers had to the premises in controversy, under the two devises before referred to.
By a reference to the two deeds of the 11th of May, 1787, which are the foundation of the plaintiffs’ title, it will be seen that the premises conveyed are bounded easterly by the road leading from Bedford to Brooklyn ferry. Upon this description the plaintiffs do not, as the defendants’ counsel supposes, claim title to the westerly half of the road bed as an incident to the grant of the adjoining land. They claim it as a part of the premises conveyed, and within the terms of the grant. The description is not such as necessarily to exclude the road or highway from the effect of the grant. Mo words are used indicating an intention to limit the eastern boundary to the westerly line of the road. On the contrary, the words of the grant include, by fair interpretation, the one half of the road bed which are the premises in dispute. In Jackson v. Hathaway, (15 John. 447,) which was an action of ejectment brought to recover certain premises in the city of Hudson, which were formerly a public highway, but had been discontinued by an order of the common council, the heir at law of the patentee was the lessor of the plaintiff. The lands upon both sides of the highway had been conveyed to those under whom the defendants claimed, and the question was whether the bed of the road passed to the grantees under the deeds, or remained in the original patentee or his heirs. Upon the production of the deeds, it appeared the premises in both conveyances were bounded on the north side and on the south side of the road. The descriptions mani[156]*156fésted a plain intention to exclude the land covered by tké road from the effect of the grants. The court'say, “the boundaries in these deeds do not include the space of the road,, and of course the plaintiffs’title to the intervening ground' remains as perfect as if no road had ever been there'.'' The purchasers under those deeds have lost an easement which! was public, not private, but they have, exclusive of the' old road, all the land they bargained for.” Again, it is said to be “ impossible to protect the defendant on the ground that the adjoining road passed by the deeds as an incident to the lands professedly granted. A mere easement may, without express words, pass as an incident to the principal object of the grant, but it would be absurd to allow the fee of one piece of land, not mentioned in a deed, to pass as appurtenant to another distinct parcel which is expressly granted by precise and definite boundaries. The plaintiff recovered because the land claimed was not mentioned in the-deed of his ancestor, and could not pass as incident to another parcel. The justice who delivered the opinion, howéver, declares what is regarded as the settled rule, that where lands are bounded by a public highway, or the courses in the’deeds of conveyance run to a public highway, or any similar object, the premises conveyed extend, by fair construction, to the middle of the highway or object named;” for, he says, that “where a farm is bounded along a highway, or upon a highway, or running to a highway, there is reason to intend the parties meant the middle of the highway.” (See 3 Kent’s Com. 433, 434. Starr v. Child, 20 Wend. 149. Sizer v. Devereux, 16 Barb. 160.) It appears to me, therefore, that at the close of the plaintiffs’ evidence the proof was sufficient to entitle them to recover, and to caétupon the defendants the burthen of showing title out of the plaintiffs.
There were two principal grounds taken to show that the plaintiffs were without title to the premises in dispute. 1st. That the common source of title tti the premises claimed, and also to the adjoining premises, was the Dutch gov-[157]*157eminent, which granted a patent for the Powers farm in 1846, at which time the premises claimed were in nse as a public highway. The civil law prevailed in the Netherlands and their colonies at that time, and by the rule of the civil law, the sovereign or government was the absolute owner of the soil of the public highways, and the title of the adjoining owner was absolutely divested. The defendants produced evidence tending to show that the road from Bedford to Brooklyn ferry, originally an Indian path, was in use as a highway or road for transit while the Dutch held dominion over the country. They also proved that the Powers farm was held by the ancestor of Michael Bergen, who died during the revolution, under a patent granted by William Kieft, on behalf of the Dutch government, of the date of February 22, 1646, and by a confirmatory patent from Bichard Nicholls, governor general &c. under the Duke of York, of the date of June 21st, 1667.
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By the Court,
Brown, J.
When the plaintiffs closed their testimony and rested, upon the trial of this action, they had established, prima facie, a title to the premises in question. These consisted of the western half of the road bed of the Brooklyn, Jamaica and Flatbush turnpike road, near [154]*154Hanson place, in the city of Brooklyn. The route of the turnpike is at this point identical with an old road mentioned in the deeds of conveyance as the road leading from Bedford to Brooklyn ferry. The plaintiffs claimed title under one Michael Bergen, and read in evidence two deeds of conveyance for a farm of land containing 90 acres, more or less, dated May 11th, 1787. One from Michael B. Grant and Catherine Bergen, relict of Michael Bergen, to George Powers, butcher; and the other from John Grant and Sarah his wife, one of the daughters of Michael Bergen, and Michael B. Grant, eldest son of John Grant, to the same grantee. Jeremiah Lott, who was examined as a witness for the plaintiffs, said he resided in Flatbush since 1779, and knew George Powers the elder. First knew him when he was a butcher; he lived on this farm and died in possession of it. He was succeeded in possession of the farm by his son George Powers, who also died in possession some 15 or 20 years before the trial. His wife succeeded him in the possession. Thought Michael B. Grant was Michael Bergen’s daughter’s son, and that Powers had the farm from Michael B. Grant. The Powers dwelling house was on the premises, near to and on the westerly side of the road. He surveyed the road for the turnpike company when it was laid out as a turnpike, to which time it had been used as a public highway. It was also proved by the testimony of Silas Ludlam, that he surveyed the premises for Mary Powers ; that herself and son occupied the farm and premises until about ten years before the trial, when the dwelling house was removed by direction of the authorities of the city, on the opening of Flushing avenue. The turnpike road was discontinued as such, and no longer used, about six or eight years before the trial. After Flat-bush avenue was graded and paved, the old road became impassable and was discontinued. About five years before the trial, the owners of the land on the side of the road opposite the Powers farm fenced in one half of the road in front of them, and the fence inclosing the half of the road in front of [155]*155the Powers property—the locus in quo—was built about two years before the trial, by the purchasers from the turnpike company. The plaintiffs produced and proved, upon the trial, a regular chain of title for the Powers farm, by devise from George Powers the elder to George Powers the younger, and by devise from the latter to Mary Powers. They also produced and read in evidence several mesne conveyances, which vested in themselves whatever title Mary Powers had to the premises in controversy, under the two devises before referred to.
By a reference to the two deeds of the 11th of May, 1787, which are the foundation of the plaintiffs’ title, it will be seen that the premises conveyed are bounded easterly by the road leading from Bedford to Brooklyn ferry. Upon this description the plaintiffs do not, as the defendants’ counsel supposes, claim title to the westerly half of the road bed as an incident to the grant of the adjoining land. They claim it as a part of the premises conveyed, and within the terms of the grant. The description is not such as necessarily to exclude the road or highway from the effect of the grant. Mo words are used indicating an intention to limit the eastern boundary to the westerly line of the road. On the contrary, the words of the grant include, by fair interpretation, the one half of the road bed which are the premises in dispute. In Jackson v. Hathaway, (15 John. 447,) which was an action of ejectment brought to recover certain premises in the city of Hudson, which were formerly a public highway, but had been discontinued by an order of the common council, the heir at law of the patentee was the lessor of the plaintiff. The lands upon both sides of the highway had been conveyed to those under whom the defendants claimed, and the question was whether the bed of the road passed to the grantees under the deeds, or remained in the original patentee or his heirs. Upon the production of the deeds, it appeared the premises in both conveyances were bounded on the north side and on the south side of the road. The descriptions mani[156]*156fésted a plain intention to exclude the land covered by tké road from the effect of the grants. The court'say, “the boundaries in these deeds do not include the space of the road,, and of course the plaintiffs’title to the intervening ground' remains as perfect as if no road had ever been there'.'' The purchasers under those deeds have lost an easement which! was public, not private, but they have, exclusive of the' old road, all the land they bargained for.” Again, it is said to be “ impossible to protect the defendant on the ground that the adjoining road passed by the deeds as an incident to the lands professedly granted. A mere easement may, without express words, pass as an incident to the principal object of the grant, but it would be absurd to allow the fee of one piece of land, not mentioned in a deed, to pass as appurtenant to another distinct parcel which is expressly granted by precise and definite boundaries. The plaintiff recovered because the land claimed was not mentioned in the-deed of his ancestor, and could not pass as incident to another parcel. The justice who delivered the opinion, howéver, declares what is regarded as the settled rule, that where lands are bounded by a public highway, or the courses in the’deeds of conveyance run to a public highway, or any similar object, the premises conveyed extend, by fair construction, to the middle of the highway or object named;” for, he says, that “where a farm is bounded along a highway, or upon a highway, or running to a highway, there is reason to intend the parties meant the middle of the highway.” (See 3 Kent’s Com. 433, 434. Starr v. Child, 20 Wend. 149. Sizer v. Devereux, 16 Barb. 160.) It appears to me, therefore, that at the close of the plaintiffs’ evidence the proof was sufficient to entitle them to recover, and to caétupon the defendants the burthen of showing title out of the plaintiffs.
There were two principal grounds taken to show that the plaintiffs were without title to the premises in dispute. 1st. That the common source of title tti the premises claimed, and also to the adjoining premises, was the Dutch gov-[157]*157eminent, which granted a patent for the Powers farm in 1846, at which time the premises claimed were in nse as a public highway. The civil law prevailed in the Netherlands and their colonies at that time, and by the rule of the civil law, the sovereign or government was the absolute owner of the soil of the public highways, and the title of the adjoining owner was absolutely divested. The defendants produced evidence tending to show that the road from Bedford to Brooklyn ferry, originally an Indian path, was in use as a highway or road for transit while the Dutch held dominion over the country. They also proved that the Powers farm was held by the ancestor of Michael Bergen, who died during the revolution, under a patent granted by William Kieft, on behalf of the Dutch government, of the date of February 22, 1646, and by a confirmatory patent from Bichard Nicholls, governor general &c. under the Duke of York, of the date of June 21st, 1667. There was no proof, however, to show how, when or by whom the old road was laid out or dedicated ; whether by the government over lands of private persons taken for that purpose, or by reservations by the government from the lands patented to the original proprietors ; or by dedication of the proprietors themselves. Upon all these questions, so material to maintain the defendant’s theory and first ground of defense, we are left entirely to presumption and conjecture. It is more than two hundred years since the Dutch government have ceased to exercise any power or dominion over the land, and it may be worth while to examine for a moment the effect of these various deeds and grants, and the possession of the Bergen and the Powers family under them, for so great a length of time. To go no farther back than the 11th May, 1787, the date of the two deeds to George Powers, we find that from that time, a period of more than seventy years, the Powers family and their grantees have been in the actual possession of the lands adjoining the road, under a deed of conveyance which I have shown embraced the lands to the center of the road, to which [158]*158they claimed title, subject to the public easement. They were therefore in the constructive, if not the actual, possession of the locus in quo. They could have maintained an action of ejectment for an exclusive appropriation of any part of the roadway, and the sheriff would have delivered them the possession, subject to the public easement. They could have maintained an action of trespass against a person removing trees, gravel or soil, or doing any tortious act other than exercising the mere right of passage. (Goodtitle v. v. Acker, 1 Burr. 133. Etz v. Daily, 20 Barb. 32. 3 Kent’s Com. 432. Gidney v. Earl, 12 Wend. 98.) The mere abilty to maintain the action of trespass for an injury to lands, subject to the easement of a public" highway, shows that the law regards the owner of the fee as in the actual possession. For it is an elementary principle familiar to us all, that as the gist of the action is the injury to the possession, unless at the time the injury was committed the plaintiff was in the actual possession, trespass cannot be supported. (See the cases referred to in the notes to 1 Chitty’s Pl. 175.) In Gedney v. Earl, Mr. Justice Nelson says : “ The right of way, public or private, is but an incorporeal hereditament, an easement which per se does not divest the owner of the fee of the land; and for any other purpose, except the use or servitude as a public highway, the soil belongs to him, and he is entitled to the same remedies, for an injury to his residuary interest, that he would be entitled to if it was entire and absolute. The law will not presume a grant of a greater interest or estate than is essential to the enjoyment of the public easement: the rest is parcel of the close. The fact that the highway is fenced on each side is for the convenience of the owner, and has no necessary connection with the road. It follows from the above view that the person in possession of the farm or lot through which the highway passes, is in contemplation of law in possession of the highway, subject to the public easement; for being in possession of the lot, he is prima facie in possession of every parcel of [159]*159it.” It would be an unreasonable and an unwise conclusion to hold that these legal results from undisputed facts should be disregarded and set aside, upon the mere presumption that the Dutch government may have reserved to itself in the original patents, or obtained in some other unknown way, the title to the land embraced within the lines of the old road.
The second ground of defense consisted in showing title out of the plaintiffs and their grantors, acquired by the Brooklyn, Jamaica and Flatbush Turnpike Company, under two several acts of the legislature, which were read in evidence and referred to upon the trial. The defendants also produced and proved a deed of conveyance from the turnpike company to the Brooklyn and Jamaica Bail Boad Company, bearing date August 2d, 1832, for the turnpike road, including the premises claimed by the plaintiffs, together with divers other mesne conveyances, which finally vest whatever right and title the rail road company acquired under the deed from the Brooklyn, Jamaica and Flatbush Turnpike Company in the defendants in this action. The existence of these various deeds of conveyance was not controverted upon the trial, and as the right of the defendants depends exclusively upon the question whether the turnpike company acquired the fee of the lands taken for the use of the road, or an easement and right of passage only, it will not be necessary or useful to notice them, farther.
The Brooklyn, Jamaica and Flatbush Turnpike Company was incorporated by the act of the 17th March, 1809. And by the 1st section it was declared to “be in.law capable of purchasing, holding and conveying any estate, real or personal, for the use of the corporation,” with the proviso that such estate “ shall be necessary to fulfill the objects of the corporation, and to no other purpose whatever.” The 5th section named the commissioners to lay out the road directed by the. act, “ subject to the directions, regulations and restrictions in all respects as are prescribed and contained in the act relative to turnpike companies, passed March 13th, [160]*1601807. ■ The 3d section of this latter act. provides that commissioners,: appointed by the governor, shall lay out the road in such manner that the object of the corporation and the general interest of the public shall in the best manner be effected.- It also provides for an agreement with the owners of the land for the purchase of so much thereof as shall be necessary for making the road, and for gates, toll-houses and other works.. ■ And in case of disagreement, it provides for the making of . an estimate and assessment of the damages which the owners of the land used or to be used for the road may sustain, or will sustain, with a provision that the corporation shall not enter upon the lands for the purpose of making the road thereon until the damages are paid. The section also prohibited the corporation from appropriating any highways to the uses of the turnpike road, until such-highway should have been appraised and paid for to the commissioners of highways of the town in the manner directed for the taking of private property. The appraisers appointed to make this appraisement filed their inquisition, datéd August 1st, 1809, and thereby found the' road upon which the turnpike was laid, out to be a public highway, and they awarded $100 for damages to the town" of Brooklyn, and $50 to the town of Flatbush, to be paid to the commissioners of highways of such towns. I see nothing in the two acts of "the legislature to which I have referred, to justify or authorize the opinion that the legislature" intended the turnpike corporation should acquire the title in fee to the lands needed for the construction of their road. Such a legislative intent will certainly not be implied, or inferred, from any loose or careless expressions to be found in the acts themselves. Those who seek to establish such consequences as the foundation of a title to lands, must find authority for it in the language which the legislature have used, considered in reference to the objects and purposes which the laws were designed to accomplish. This is just what the act of. incorporation itself declares; for it limits the power of the corporation to the acquisition [161]*161of such real and personal estate as shall be necessary to fulfill the objects of the corporation, and declares it shall hold real property for no other purpose whatever. The objects which were to be accomplished by the corporation was the construction of a public highway or road for public travel, to be maintained and kept in order at its own cost, and upon which it had the right to erect gates and take tolls from travelers. All the estate it needed in the lands taken for the road was the easement or right of way known to the law in the classification of property as an incorporeal hereditament. The use to which the road was to be devoted was not to be confined to the corporation and its employees, like that of a railway operated by steam. But the use was a public use, open to all who chose to enter upon it, and was in no way distinguishable from a common highway, except that it was to be constructed and maintained by the corporation, with the right to take tolls thereon. We see the same proceedings, substantially, for the opening and laying out the turnpike as are followed in laying out and opening a public highway, so far as relates to the acquiring the right of passage, and the land owners are to be compensated for the damages sustained by them for the lands used or to be used for the road. The compensation is not measured by the value of the lands, as it certainly would have been if it was intended to take the property in fee, but it is the damages which the owners sustain by the use of the lands required for the road. This shows that the framers of these statutes had in mind the easement, and not the fee of the land. And so we find that the damages awarded by the appraisers for the old road taken for the use of the turnpike, were given to the highway commissioners of the towns of Flatbush and Brooklyn, who certainly had nothing but the right of way, and not to the owners of the fee, because the fee was not taken. I am therefore of opinion that the turnpike company did not acquire, and had no authority to acquire, under their act of incorporation, any other estate in the lands taken for the road than [162]*162an incorporeal hereditament or right of passage. The rights of a turnpike corporation to lands thus acquired, were considered and passed upon by this court in the case of Hooker v. Utica and Minden Turnpike Co. (12 Wend. 371.) The corporation was created by an act passed March 24th, 1809, the same session at which the Brooklyn, J amaica and Flat-bush turnpike act was passed, and the provisions of the two acts are in many respects identical. The corporation was authorized, upon paying to the land owners the sums assessed and awarded to them by the appraisers, to have and hold, “to them and their successors and assigns, the lands and tenements in the inquisition described, and the company was not to enter upon the lands until the damages were paid.” This language, it is to be observed, is much stronger, and would be regarded as much more effectual to vest the company with the estate in fee, than the language used in the Brooklyn, J amaica and Flatbush act. The action was brought against the defendant for digging and tearing up a sluiceway in the road. It appeared on the part of the defense, or what was equivalent, there was an offer to prove, that the part of the road where the sluiceway was, had been abandoned by the company since 1826, (the alleged trespass having been done in 1829,) and had been fenced by the owners of the land. The evidence was rejected, and the turnpike company had a verdict, the judgment upon which was reversed upon a writ of error. Mr. Justice hTelson, who delivered the opinion of the court, saying, “ The owners of the lands through which the road ran, had good cause for believing that the corporate rights of the company had been voluntarily abandoned, and the lands had reverted to the original owners. Although the act of incorporation vests in the company the title to the lands over which the road passes, on compliance by them with the provisions of the act, such title must nevertheless be considered as vested only for the purposes of a road, and when the road is abandoned, the land reverts to the original owners.” This decision is in harmony with the constitutional rule as [163]*163now understood, that the power to take private property for public use, under the law of eminent domain, excludes the idea that it may be taken for private use, or taken under the semblance of public use, and immediately or ultimately conveyed and appropriated to private uses. Very many of the numerous turnpike roads which extend over the country in all directions are gradually being abandoned, under the influence of modes of travel and transit unknown and unthought of - by the framers of these statutes. And it would be an intolerable burden upon the property through which they were made, if upon their disuse and discontinuance the corporations were entitled to the rights of owners in fee, with the incidental power to sell and convey to private uses, and to exclude the owners of the adjoining lands from all rights of entry and passage over these narrow strips of territory, worthless for cultivation or agricultural purposes, and available only in connection with the adjoining lands, and which but for the road would have remained part and parcel of their own property. The only sensible rule is that asserted in the case last quoted—that where the language of the act of incorporation is such as to vest the title in the company, it must nevertheless be considered as vested only for the purposes of the road; and when the road is abandoned, the land reverts to the original owner.
[Kings General Term,
February 10, 1862.
Mnoti, Brown and Scrugham, Justices.]
Several questions were raised during the trial upon the admissibility of testimony, which, upon the view I have taken of the case, it is not material to consider.
Judgment should be entered, upon the verdict, for the plaintiffs.