Seymour, J.
The plaintiff avers in his bill that he is the owner of certain premises in the city of Norwich, and that along the northeasterly side of the same there is a private street; that he has been at great expense in enclosing the unincumbered portion of his premises from said private street, and that the defendants threaten to enter upon the enclosed portion and tear down the bank wall which he has erected; praying for an injunction.
The matter which has been contested before us is, whether that which the plaintiff alledges to be a private street is such, or is, as the defendants claim it to be, a public highway. This also seems to have been one of principal matters of contest in the Superior Court, and the case was reserved for the advice of this court mainly to settle that question. The attention of neither court nor counsel was turned to the precise allegations of the plaintiff’s bill. If it had been it would have been seen that the question so earnestly discussed is outside of the issue as it arises on the record.
There was in the Superior Court a contest regarding the boundary line between the plaintiff’s premises and the street in question. The city claimed that the plaintiff had by his wall enclosed about two feet of the street, and had by a notice in writing ordered the plaintiff to remove back his wall abontthat distance. The plaintiff denied that he had enclosed any portion of the street. On the trial of this boundary quest ion it became clear that the plaintiff’s wall encroached indeed on the street, but only to the extent of about eleven inches, and this became so apparent that the defendants abandoned all claim to remove more than these eleven inches of the wall. But the plaintiff in his bill had sought protection for so much only of his premises as were unincumbered by the istreet. These eleven incumbered inches wore therefore outside of the issue as that issue appeared by the papers.
In regard to these eleven inches, it is to be observed also that the only contest regarding them now is, whether they are part of a public highway or of a private street. Even if the plaintiff’s bill were adapted to raise that issue, and it should be found in his favor, that it is a private street only, [22]*22on which he had encroached, the court would be slow to exercise its extraordinary powers of injunction to protect the encroachment.
The parties however had an elaborate trial in the Supe-' rior Court regarding the character of the street, and they have been fully heard by us on that question. They both desire us to decide the case on that point. We therefore deem it our duty to decide whether the street is or is not a public highway.
The facts on which this question depends are substantially as follows:
The plaintiff’s premises and-the street in dispute are part of what was called the Roatli estate, situated within the city of Norwich. The heirs of Roswell Roath had a difficulty in dividing that estate and they submitted the matter to arbitration. '
The arbitrators, for the purpose of making a just distribution, caused the estate to be divided into eiglity-six building lots, of which a plan was'made, with streets and avenues marked on the plan. The seventh clause of the award is “ that the lines of those lots which are bounded on the plan by any street, avenue or lane, shall extend to the center of the street, and the proprietors and those in possession under them shall have free right of way over and through said streets, avenues and lanes, in the same manner that they would have if such streets, avenues and lanes were public highways.” This award was made July 24th, 1851, and the parties without delay executed quitclaim deeds to each other in accordance with and in confirmation of the award, using the same phraseology as that used by the arbitrators in describing the avenues and streets and the rights of the parties therein. These deeds were duly recorded and the plan was deposited in the town clerk’s office and there lodged on file. The street in question is called on the plan Proprietors street, but subsequently it went' by the name also of Park street. It connects one of the old streets of the city, Cliff street, with a new street, having its origin in the arbitrators’ plan, called “ Roath avenue,” and through that avenue with other streets .of the plan.
[23]*23The arbitrators had no power to dedicate any'portion of the Roatli estate to the public. Their authority was to make partition, and as incidental to that to confer rights of way upon the parties to the submission over the streets and avenues established by the award. This incidental power was exercised by making the right of way in those upon whom it was conferred as ample as in public highways, but limiting the right to the proprietors of lots and those in possession under them.
The terms of the award taken literally and strictly exclude from these streets visitors to the proprietors, whether on calls of business or friendship. Such visitors are not “ proprietors,” nor are they “ in possession under them.” The quitclaim deeds executed to confirm the award naturally followed in the words of the award itself. This narrow restriction of the right in respect to the persons who might exercise it was certainly hot intended or expected to be perpetual. As from time to time these building lots should be occupied the access of the public to them would become, as it has'now become, a necessity. The exclusion of the public would be neither desirable nor practicable. The arbitrators, owing to their restricted powers, could not dedicate the streets to the public, but they prepared the way for such a dedication, and made it in the nature of things well nigh inevitable. The names themselves, “ streets and avenues,” with widths appropriate to the names, show that public highways were contemplated as an ultimate result.
The burden upon the adjoining proprietor of a private way is substantially as heavy as that of a highway, but the conveniences and advantages of a public over a private street to the occupants of the eighty-six building lots are obvious. As private ways their paving, grading, repairing, and division into carriage and foot paths, would devolve upon the proprietors of the lots ; but in what mode-, upon what general plan, with what apportionment of expense, must be left in doubt and confusion.
It was not expected that the property would be at once built upon, or that the streets would at once be needed and [24]*24used. Of" course an immediate and full dedication to the public did not take place. Until 1865 Proprietors street was open to the public only by means of a pair of bars. In 1865 a public school house was erected on Roath avenue, and from that time the street has. been open to public travel.
This opening is an act which, taken in connection with the award,'the plan and the deeds, and with the situation of the property and its. intended use for city building lots, indicates very clearly a dedication to the public as a highway. It was accepted as such by vote of the common council on the 2d of October, 1865, about two years before the plaintiff became owner of his lot. This vote of acceptance is of the street as it was supposed to be laid down on the arbitrators’ plan, but by a mistake arising from an encroachment on the side of the street opposite the plaintiff,- the vote locates the street somewhat west of its true situs.
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Seymour, J.
The plaintiff avers in his bill that he is the owner of certain premises in the city of Norwich, and that along the northeasterly side of the same there is a private street; that he has been at great expense in enclosing the unincumbered portion of his premises from said private street, and that the defendants threaten to enter upon the enclosed portion and tear down the bank wall which he has erected; praying for an injunction.
The matter which has been contested before us is, whether that which the plaintiff alledges to be a private street is such, or is, as the defendants claim it to be, a public highway. This also seems to have been one of principal matters of contest in the Superior Court, and the case was reserved for the advice of this court mainly to settle that question. The attention of neither court nor counsel was turned to the precise allegations of the plaintiff’s bill. If it had been it would have been seen that the question so earnestly discussed is outside of the issue as it arises on the record.
There was in the Superior Court a contest regarding the boundary line between the plaintiff’s premises and the street in question. The city claimed that the plaintiff had by his wall enclosed about two feet of the street, and had by a notice in writing ordered the plaintiff to remove back his wall abontthat distance. The plaintiff denied that he had enclosed any portion of the street. On the trial of this boundary quest ion it became clear that the plaintiff’s wall encroached indeed on the street, but only to the extent of about eleven inches, and this became so apparent that the defendants abandoned all claim to remove more than these eleven inches of the wall. But the plaintiff in his bill had sought protection for so much only of his premises as were unincumbered by the istreet. These eleven incumbered inches wore therefore outside of the issue as that issue appeared by the papers.
In regard to these eleven inches, it is to be observed also that the only contest regarding them now is, whether they are part of a public highway or of a private street. Even if the plaintiff’s bill were adapted to raise that issue, and it should be found in his favor, that it is a private street only, [22]*22on which he had encroached, the court would be slow to exercise its extraordinary powers of injunction to protect the encroachment.
The parties however had an elaborate trial in the Supe-' rior Court regarding the character of the street, and they have been fully heard by us on that question. They both desire us to decide the case on that point. We therefore deem it our duty to decide whether the street is or is not a public highway.
The facts on which this question depends are substantially as follows:
The plaintiff’s premises and-the street in dispute are part of what was called the Roatli estate, situated within the city of Norwich. The heirs of Roswell Roath had a difficulty in dividing that estate and they submitted the matter to arbitration. '
The arbitrators, for the purpose of making a just distribution, caused the estate to be divided into eiglity-six building lots, of which a plan was'made, with streets and avenues marked on the plan. The seventh clause of the award is “ that the lines of those lots which are bounded on the plan by any street, avenue or lane, shall extend to the center of the street, and the proprietors and those in possession under them shall have free right of way over and through said streets, avenues and lanes, in the same manner that they would have if such streets, avenues and lanes were public highways.” This award was made July 24th, 1851, and the parties without delay executed quitclaim deeds to each other in accordance with and in confirmation of the award, using the same phraseology as that used by the arbitrators in describing the avenues and streets and the rights of the parties therein. These deeds were duly recorded and the plan was deposited in the town clerk’s office and there lodged on file. The street in question is called on the plan Proprietors street, but subsequently it went' by the name also of Park street. It connects one of the old streets of the city, Cliff street, with a new street, having its origin in the arbitrators’ plan, called “ Roath avenue,” and through that avenue with other streets .of the plan.
[23]*23The arbitrators had no power to dedicate any'portion of the Roatli estate to the public. Their authority was to make partition, and as incidental to that to confer rights of way upon the parties to the submission over the streets and avenues established by the award. This incidental power was exercised by making the right of way in those upon whom it was conferred as ample as in public highways, but limiting the right to the proprietors of lots and those in possession under them.
The terms of the award taken literally and strictly exclude from these streets visitors to the proprietors, whether on calls of business or friendship. Such visitors are not “ proprietors,” nor are they “ in possession under them.” The quitclaim deeds executed to confirm the award naturally followed in the words of the award itself. This narrow restriction of the right in respect to the persons who might exercise it was certainly hot intended or expected to be perpetual. As from time to time these building lots should be occupied the access of the public to them would become, as it has'now become, a necessity. The exclusion of the public would be neither desirable nor practicable. The arbitrators, owing to their restricted powers, could not dedicate the streets to the public, but they prepared the way for such a dedication, and made it in the nature of things well nigh inevitable. The names themselves, “ streets and avenues,” with widths appropriate to the names, show that public highways were contemplated as an ultimate result.
The burden upon the adjoining proprietor of a private way is substantially as heavy as that of a highway, but the conveniences and advantages of a public over a private street to the occupants of the eighty-six building lots are obvious. As private ways their paving, grading, repairing, and division into carriage and foot paths, would devolve upon the proprietors of the lots ; but in what mode-, upon what general plan, with what apportionment of expense, must be left in doubt and confusion.
It was not expected that the property would be at once built upon, or that the streets would at once be needed and [24]*24used. Of" course an immediate and full dedication to the public did not take place. Until 1865 Proprietors street was open to the public only by means of a pair of bars. In 1865 a public school house was erected on Roath avenue, and from that time the street has. been open to public travel.
This opening is an act which, taken in connection with the award,'the plan and the deeds, and with the situation of the property and its. intended use for city building lots, indicates very clearly a dedication to the public as a highway. It was accepted as such by vote of the common council on the 2d of October, 1865, about two years before the plaintiff became owner of his lot. This vote of acceptance is of the street as it was supposed to be laid down on the arbitrators’ plan, but by a mistake arising from an encroachment on the side of the street opposite the plaintiff,- the vote locates the street somewhat west of its true situs. It is in consequence of this now admitted mistake that the written notice herein before mentioned required the plaintiff to set his wall back about two feet, instead of eleven inches.
The plaintiff however still insists that, admitting there is a highway in Proprietors street, its width is to be measured by the extent of the public travel, or at most by the fences of the adjoining proprietors who have erected fences along its sides, and thus that the eleven inches in dispute which have 'never been included within the limits of the highway as used or as fenced, are not included within the dedication.
We think the plaintiff under his deed is not in a condition to make this claim. It is also in violation of the spirit of the award and of the deeds made to carry it into effect. . The parties contemplated that when the streets from time to time became public, they should be such up to the boundaries es-^ tablished by the award and marked upon the plan. Otherwise the center of a street might be public and its margins private, without any definite boundary between the one and the other. The symmetry of the entire plan would thus be destroyed. The opening of the street for public travel by the proprietors, and the use by the public, are to be construed [25]*25in connection with the plan of the streets and lots, and thus there was a constructive occupation by the public up to the limits indicated by the plan. This is especially so as against. the plaintiff, who built the wall in dispute after having taken a deed in the terms now to be noticed. His first deed from one Myers, to whom the title had come from some of the original owners, bears date August 80th, 1867. The premises conveyed are described as commencing at a certain point in Cliff street, about which there was no contest, “ thence easterly .by said street fifty-eight and a half feet to a street -called Park or Proprietors street; thence northerly by said Park or Proprietors street, &e.” At this time the street in question was open to public travel and had been so about two years. The common council had nearly two years before accepted the street in substantial conformity with the arbitrators’ plan. The word “ street ” prima facie and naturally imports a public highway It had been just used in the deed with that import, in speaking of Cliff street. The fifty-eight and a half feet on Cliff street measured according to the plaintiff’s deed, brings us to the corner of Cliff and Proprietors street, as laid down on the arbitrators’ plan, leaving the plaintiff’s wall an encroachment on the street of eleven inches. The deed thus recognizes the street as a public highway up to the limit contended for by the defendants. The plaintiff introduced this deed as part of his evidence, and it is the only foundation of his title to that part of his premises described in it. He also introduced another deed in evidence of another parcel adjoining the former, in which latter deed, dated July 8th, 1868, the premises are described as lying on the southwesterly side of Park street, beginning at said street and at the northeasterly corner of land of the plaintiff (the tract conveyed by the first deed,) and running thence northwesterly by said street fifty-one feet to the corner of a fence, &c.
These deeds, taken in connection with the other documents, the vote of the common council, and the then existing public use, seem to conclude the plaintiff in respect to the matter in controversy.
If Proprietors street is a public highway, then the plain[26]*26tiff’s deeds by a familiar rule of construction carry him to the center of it; but if the street is a.mere private way, it is by _ no means clear that the plaintiff by means of his deeds gets any interest in it.
The Superior Court is therefore advised to dismiss the plaintiff’s bill; but inasmuch as the defendants by their written notice threatened the plaintiff’s property to an extent now admitted to be considerably further than they were warranted in doing, we'think justice will be done by taxing no costs against either party.
In this opinion the other judges concurred.