Morton, J.
The questions in this case relate to the rights of the parties'in a passageway five feet wide, extending from Bennington Street to Newtonville Avenue in Newton, and bounding easterly the lots belonging to the respondents. The passageway and lots formerly belonged to one John B. Gould, and constituted one lot known as lot 17 on a plan of land belonging to one Granger. The passageway was laid out by Gould along and next to the easterly line of lot 17. He did not own then and has not owned since any land easterly of and adjoining lot 17 on that side. The respondents claim title to the passageway under two mortgages executed by Gould to the Hingham Institution for Savings of the lots belonging to them respectively. The petitioner, who is the wife of said Gould, claims title to the passageway under a conveyance of it to her from her husband through a conduit after the mortgages were given to the Institution for Savings.
The mortgage to the Institution for Savings of the lot belonging to the respondent Barker described it as “ Northeasterly on Newtonville Avenue 85 feet; southeasterly on a passageway 5 feet wide running through the grantor’s land to Bennington Street 117f feet; southwesterly on other land of the grantor 85 feet, and northwesterly by lot 16 on said plan 117|- feet.” That of the lot belonging to the respondent Wagner described it as “ Southeasterly on a passageway 5 feet wide running through grantor’s land to Bennington Street 821 feet; southwesterly on Bennington Street 85 feet; northwesterly on lot 16 on said plan 82-| feet, and northeasterly on other land of the grantor 85 feet.” The two lots were each ninety feet on the street.
[275]*275The principal question is whether the mortgages operated to convey to the westerly line of the passageway, or to the centre of it, or to the easterly line. Upon that question the Land Court found and ruled, in substance, that the petitioner had title to the easterly half of the passageway, with a right of way over the westerly half, and that the respondents had a corresponding right of way over the easterly half. We think that this was correct.
The general rule is that a deed bounding on a way conveys the title to the centre of the way if the grantor owns so far. Richardson v. Boston, 13 Allen, 146, 152. The reasons for this rule are stronger in the case of a public way than in that of a private way, but the rule applies to both public and private ways. Motley v. Sargent, 119 Mass. 231. Fisher v. Smith, 9 Gray, 441. The fact that the distances of the side lines do not extend to the centre of the way is not enough to exclude the operation of the rule. Clark v. Parker, 106 Mass. 554. McKenzie v. Gleason, 184 Mass. 452. The question is one of intention. If competent, the evidence which was admitted against the objection of the respondents would tend to show that it - would be contrary to the intention of the grantor to construe the mortgage deeds as conveying title to the easterly line of the way. But, independently of that, the question is settled, we think, in this Commonwealth in favor of the ruling of the Land Court, though it has been decided differently in other jurisdictions. See Haberman v. Baker, 128 N. Y. 253; Taylor v. Armstrong, 24 Ark. 102; In the matter of Robbins, 34 Minn. 99; Jones v. Water Lot Co. 18 Ga. 539; Healey v. Babbitt, 14 R. I. 533. In Lemay v. Furtado, 182 Mass. 280, a case very similar to this, it was held that the grantee took only to the middle of the way. It is true that what the court said on this point was, in a sense, obiter. But the point was considered and passed upon at the request of the parties with a view to disposing of the whole controversy, and the opinion is to be regarded, therefore, as deciding the question. The same question was considered in Gray v. Kelley, 194 Mass. 533, with the same result as in Lemay v. Furtado, supra, and in Hamlin v. Attorney General, 195 Mass. 309, the question was again presented and a like conclusion arrived at, In Gray v. Kelley, supra, the doctrine laid down in the cases cited above from other States was distinctly repudiated, and this was re[276]*276peafced in Hamlin v. Attorney General, supra. See also Everett v. Fall River, 189 Mass. 513; McKenzie v. Gleason, 184 Mass. 452; Motley v. Sargent, 119 Mass. 231.
The evidence in regard to the laying out and construction of the way and the condition of the locality was admissible (Motley v. Sargent, supra, 235; Codman v. Evans, 1 Allen, 443, 446) ; but we doubt whether the evidence in regard to the ownership by the petitioner and her husband of other lots on the other side of Bennington Street, and that the use of the way was of value to their lots, that the way was used by residents on Bennington Street, and that the petitioner’s husband was paid for such use by some of the residents, was competent. If admissible, however, it does not affect the construction which, in our opinion, should be given to the mortgage deeds.
We doubt also whether the construction given by the Land Court to the quitclaim deed from the petitioner and her husband to the bank dated April 23, 1903, was correct. The deed was given to correct errors of description in the mortgage of the Wagner lot and in a subsequent quitclaim deed of the equity by said John B. Gould, and “ to confirm the title conveyed by said John B. Gould to this grantee by mortgage aforesaid, and by deed of January 22, 1897 ” (the quitclaim deed referred to); and it may well be doubted whether it operated to convey any title on the part of the petitioner. Scaplen v. Blanchard, 187 Mass. 73. But no exception was taken to the ruling.
The appeal from the “Supplemental Memorandum and Decision” has been waived. The result is that the exceptions must be overruled.
So ordered.
Loring and Sheldon, JJ.,
are of opinion that the mortgages of the Barker and Wagner lots made by Gould to the Hingham Institution for Savings on August 8,1894, carried the fee in the whole of the passageway here in question and not in the westerly half only.
This passageway was originally laid out along the easterly boundary line of the grantor’s land, and he at no time owned any land beyond it.
It is agreed by all that the mortgages in question, as matter of construction, did not stop at the westerly side line of the [277]*277passageway. It is also agreed that there is nothing to indicate an intention that the easterly boundary of the lot, not stopping at the side line of the way, should go to the centre or to the further side of it. The case now before us is confessedly that of a conveyance of premises bounded by a way on the extreme limit of the grantor’s land but wholly upon it, where no intention can be gathered as to where the side line is to be beyond the fact that the lot is bounded by the way.
In every case in which this point has been up for decision it has been held that the fee in the whole of the passageway passed to the grantee. It has been so held in well considered cases in New York, Rhode Island, Minnesota, Arkansas and Georgia. Haberman v. Baker, 128 N. Y. 253. Healey v. Babbitt, 14 R. I. 533. In re Robbins, 34 Minn. 99. Taylor v. Armstrong, 24 Ark. 102.
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Morton, J.
The questions in this case relate to the rights of the parties'in a passageway five feet wide, extending from Bennington Street to Newtonville Avenue in Newton, and bounding easterly the lots belonging to the respondents. The passageway and lots formerly belonged to one John B. Gould, and constituted one lot known as lot 17 on a plan of land belonging to one Granger. The passageway was laid out by Gould along and next to the easterly line of lot 17. He did not own then and has not owned since any land easterly of and adjoining lot 17 on that side. The respondents claim title to the passageway under two mortgages executed by Gould to the Hingham Institution for Savings of the lots belonging to them respectively. The petitioner, who is the wife of said Gould, claims title to the passageway under a conveyance of it to her from her husband through a conduit after the mortgages were given to the Institution for Savings.
The mortgage to the Institution for Savings of the lot belonging to the respondent Barker described it as “ Northeasterly on Newtonville Avenue 85 feet; southeasterly on a passageway 5 feet wide running through the grantor’s land to Bennington Street 117f feet; southwesterly on other land of the grantor 85 feet, and northwesterly by lot 16 on said plan 117|- feet.” That of the lot belonging to the respondent Wagner described it as “ Southeasterly on a passageway 5 feet wide running through grantor’s land to Bennington Street 821 feet; southwesterly on Bennington Street 85 feet; northwesterly on lot 16 on said plan 82-| feet, and northeasterly on other land of the grantor 85 feet.” The two lots were each ninety feet on the street.
[275]*275The principal question is whether the mortgages operated to convey to the westerly line of the passageway, or to the centre of it, or to the easterly line. Upon that question the Land Court found and ruled, in substance, that the petitioner had title to the easterly half of the passageway, with a right of way over the westerly half, and that the respondents had a corresponding right of way over the easterly half. We think that this was correct.
The general rule is that a deed bounding on a way conveys the title to the centre of the way if the grantor owns so far. Richardson v. Boston, 13 Allen, 146, 152. The reasons for this rule are stronger in the case of a public way than in that of a private way, but the rule applies to both public and private ways. Motley v. Sargent, 119 Mass. 231. Fisher v. Smith, 9 Gray, 441. The fact that the distances of the side lines do not extend to the centre of the way is not enough to exclude the operation of the rule. Clark v. Parker, 106 Mass. 554. McKenzie v. Gleason, 184 Mass. 452. The question is one of intention. If competent, the evidence which was admitted against the objection of the respondents would tend to show that it - would be contrary to the intention of the grantor to construe the mortgage deeds as conveying title to the easterly line of the way. But, independently of that, the question is settled, we think, in this Commonwealth in favor of the ruling of the Land Court, though it has been decided differently in other jurisdictions. See Haberman v. Baker, 128 N. Y. 253; Taylor v. Armstrong, 24 Ark. 102; In the matter of Robbins, 34 Minn. 99; Jones v. Water Lot Co. 18 Ga. 539; Healey v. Babbitt, 14 R. I. 533. In Lemay v. Furtado, 182 Mass. 280, a case very similar to this, it was held that the grantee took only to the middle of the way. It is true that what the court said on this point was, in a sense, obiter. But the point was considered and passed upon at the request of the parties with a view to disposing of the whole controversy, and the opinion is to be regarded, therefore, as deciding the question. The same question was considered in Gray v. Kelley, 194 Mass. 533, with the same result as in Lemay v. Furtado, supra, and in Hamlin v. Attorney General, 195 Mass. 309, the question was again presented and a like conclusion arrived at, In Gray v. Kelley, supra, the doctrine laid down in the cases cited above from other States was distinctly repudiated, and this was re[276]*276peafced in Hamlin v. Attorney General, supra. See also Everett v. Fall River, 189 Mass. 513; McKenzie v. Gleason, 184 Mass. 452; Motley v. Sargent, 119 Mass. 231.
The evidence in regard to the laying out and construction of the way and the condition of the locality was admissible (Motley v. Sargent, supra, 235; Codman v. Evans, 1 Allen, 443, 446) ; but we doubt whether the evidence in regard to the ownership by the petitioner and her husband of other lots on the other side of Bennington Street, and that the use of the way was of value to their lots, that the way was used by residents on Bennington Street, and that the petitioner’s husband was paid for such use by some of the residents, was competent. If admissible, however, it does not affect the construction which, in our opinion, should be given to the mortgage deeds.
We doubt also whether the construction given by the Land Court to the quitclaim deed from the petitioner and her husband to the bank dated April 23, 1903, was correct. The deed was given to correct errors of description in the mortgage of the Wagner lot and in a subsequent quitclaim deed of the equity by said John B. Gould, and “ to confirm the title conveyed by said John B. Gould to this grantee by mortgage aforesaid, and by deed of January 22, 1897 ” (the quitclaim deed referred to); and it may well be doubted whether it operated to convey any title on the part of the petitioner. Scaplen v. Blanchard, 187 Mass. 73. But no exception was taken to the ruling.
The appeal from the “Supplemental Memorandum and Decision” has been waived. The result is that the exceptions must be overruled.
So ordered.
Loring and Sheldon, JJ.,
are of opinion that the mortgages of the Barker and Wagner lots made by Gould to the Hingham Institution for Savings on August 8,1894, carried the fee in the whole of the passageway here in question and not in the westerly half only.
This passageway was originally laid out along the easterly boundary line of the grantor’s land, and he at no time owned any land beyond it.
It is agreed by all that the mortgages in question, as matter of construction, did not stop at the westerly side line of the [277]*277passageway. It is also agreed that there is nothing to indicate an intention that the easterly boundary of the lot, not stopping at the side line of the way, should go to the centre or to the further side of it. The case now before us is confessedly that of a conveyance of premises bounded by a way on the extreme limit of the grantor’s land but wholly upon it, where no intention can be gathered as to where the side line is to be beyond the fact that the lot is bounded by the way.
In every case in which this point has been up for decision it has been held that the fee in the whole of the passageway passed to the grantee. It has been so held in well considered cases in New York, Rhode Island, Minnesota, Arkansas and Georgia. Haberman v. Baker, 128 N. Y. 253. Healey v. Babbitt, 14 R. I. 533. In re Robbins, 34 Minn. 99. Taylor v. Armstrong, 24 Ark. 102. Jones v. Water Lot Co. of Columbus, 18 Ga. 539.
The question is an open one in this Commonwealth. There is a dictum to the contrary in Lemay v. Furtado, 182 Mass. 28Q. The bill before the court in that case was a bill to restrain the defendant from trespassing on a way twenty feet wide which way was the easterly boundary line of the land conveyed to the defendant. It was held that “ the defendant has a right of way over the whole tract.” The court then adds: “ This conclusion is enough for the decision of the case, but as the parties hare requested us to do what we can to dispose of the whole controversy, we may add that we see no reason to doubt that the other part of the general rule of construction applies, and that the defendant owns the fee to the middle line of the tract, subject of course to the plaintiff’s easement of way.” It appears from an inspection of the briefs in that case that no one of the five cases cited above was brought to the attention of the court and that the principle on which they rest was not argued. It may be doubted whether the point now under consideration was in the mind of any one of the judges. However that may be, the statement was obiter and does not conclude us from deciding the point the other way in case we are of opinion that it should be so decided. It was decided in Gray v. Kelley, 194 Mass. 533, (which was disposed of while the case at bar was under advisement,) that as matter of construction of the deed there in question the boundary of the lot stopped at the side line of the way. [278]*278The statement in that case of what would have been the boundary line if it had not stopped at the side line of the way is an expression of opinion which is even less decisive of the point now up for decision. The same is true of the subsequent case of Hamlin v. Attorney General, 195 Mass. 309, also decided while the case now before us was under advisement. There also it was decided that the boundary of the lot stopped at the side line, and the statement of where it would have gone had it not stopped there is an obiter dictum not conclusive of the question which we are now called upon to decide.
As we have said, the question we have to consider is what the boundary line is where the lot is bounded on a way wholly on land of the grantor, when he has no land on the other side of that way and where there is no evidence of an intention on his part as to how far that side of the lot shall extend.
Cases where the grantor owns not only the fee in the way but land on the other side of it belong to another class. It cannot be assumed in such a case that the grantor owning the land on both sides of the way intended that the grantee should fare better than he was to fare himself after the conveyance, and for that reason the grantee takes to the centre of the way only.
Excluding these cases, the true rule is that a conveyance of land bounding on a way where as matter of construction the granted premises do not stop at the side line goes to the line of the ownership of the grantor. There is a presumption that he owns to the centre. Consequently on its face a deed bounding on a way goes to the centre. But this presumption may be rebutted. If it appears to be the fact that the grantor’s title stops at the side line, his grant of land bounded on the way stops at the side line. On the other hand, if it appears to be the fact that the grantor’s title extends to the other side of the way the deed conveys to the grantee the fee in the whole of it.
The reason given in the decided cases for going to the centre of the way when the grantor owns to the centre is stated in these words by Gray, J. in Boston v. Richardson, 13 Allen, 146, 153: “ But in the absence of words clearly manifesting an intent so to do, the law presumes that he did not intend to reserve the title in a strip of land, not capable of any substantial or beneficial use by him, after having parted with the land by the side [279]*279of it, while the highway remains, nor ordinarily of any considerable value to him if the way should be discontinued, and the ownership of which by him might greatly embarrass the use or disposal, by his grantee, of the lot granted.” To the same effect see Shaw, C. J., in Smith v. Slocomb, 9 Gray, 36, 37; C. Allen, J., in Gould v. Eastern Railroad, 142 Mass. 85, 89.
This reason applies with still greater force to the further half of a way on which the grantor after the deed in question takes effect owns no land, and where for this reason the nearer half passes to the grantee. No reason has been and it is believed no reason can be enunciated for holding that the grantee, who in such a case tabes the nearer half of such a way, does not take also the further half.
The conclusion to which the court will be driven in similar cases is worthy of consideration. If the conveyance in the case at bar goes to the centre of the way only, a conveyance by a wall on the extreme edge of the grantor’s land but lying wholly on his land must of necessity go to the centre and not include the whole wall. Surely that is a conclusion which should not be reached.
Again, no one has ever contended that a deed of land bounded by the seashore stopped half way down the beach. It is conceded there that it is the line of high or low water. See Doane v. Willcutt, 5 Gray, 328; Haskell v. Friend, ante, 198. There is little, if any, more reason for stopping in the centre of a way when the grantor owns the fee in the whole and the boundary as matter of construction of the deed does not stop at the side line, than there is for stopping half way down the seashore if, as matter of construction, the line of high water mark is not the boundary line.
For these reasons, in the opinion of these judges the exceptions should be sustained.