Mr. Justice Magruder
delivered the opinion of the court:
The question in this case relates to the title of the strip 25 feet wide, which lies north of the respective properties of the appellants, Huff and Bach. Both parties claim under the railroad companies as a common source of title. As we understand the record, Sixty-first street running east and west between LaSalle street on the east and Wentworth avenue on the west, and, indeed, between State street on the east and Wentworth avenue on the west, was only 66 feet wide, as originally laid out and dedicated. The strip of land here in controversy, 25 feet wide, lies south of Sixty-first street, and was no part of the original street, but was entirely outside of that street. It is not denied that in January, 1885, when the town of Lake passed the ordinance for the construction of the viaduct, and when the contract was made for the construction of the viaduct, the railroad companies owned this strip.
The theory of the appellants is, that the action of the railway companies in constructing the viaduct over the strip, and permitting its use under the grant contained in the contract, constituted a dedication as a highway of the 25-foot strip of land, occupied by the viaduct. It seems to be contended that there was a dedication of the 25-foot strip for the purposes of a highway, and that, when the viaduct built over the strip was abandoned, the reversionary interest of the dedicators passed to the appellants, as grantees from the dedicators, through Jacobs, of the abutting property.
It is conceded by the appellants that the deeds, under which they hold, did not, by their terms, convey to them, or their grantor, the strip in question. For example, the deed executed by the Chicago, Rock Island and Pacific Railway Company to Benjamin F. Jacobs conveys property bounded as follows: “On the north by a line drawn 91 feet south of and parallel with the north line of Sixty-first street in the town of Lake.” The north line of the property conveyed to Jacobs was 91 feet south of the north line of Sixty-first street, and, as Sixty-first street was only 66 feet wide, there was excluded from the deed to Jacobs a strip, 25 feet wide, between the south line of Sixty-first street and the north line of the property conveyed to Jacobs. Therefore, the deed from the railway company to Jacobs conveyed to him no part of the 25-foot strip in question, but, by the express boundaries named in his deed, that strip was excluded from the land conveyed to him. So, also, the deed, executed by Jacobs to Huff and Robinson, conveyed lots “bounded on the north by a line 91 feet south of and parallel with the north line of Sixty-first street.” By this description there was expressly excluded from the land conveyed to Huff and Robinson, (Robinson’s interest afterwards being conveyed to Huff), the portion oPthe 25-foot strip, which lies north of Huff’s land and between its north line and the south line of Sixty-first street. The deed from Jacobs to Bach conveys “the north 48 feet of lot 26 in block 1 in B. F. Jacobs’ subdivision,” etc., but conveys nothing else except such north 48 feet. By its terms it includes no part of the strip lying north of such 48 feet.
While, however, counsel for appellants concede that the strip in question did not pass by virtue of the deed to Jacobs, if that deed is to be taken literally, yet they rely upon the presumption that the conveyance of land, abutting upon a street, will be presumed to include the land to the middle of the street. This contention assumes that the land of appellants abuts upon a street. It does not, however, abut upon Sixty-first street, but it abuts upon a strip of ground 25 feet wide lying south of Sixty-first street. It is claimed that, by virtue of the construction of the viaduct over this strip, it became a part of Sixty-first street, so as to widen that street to a width of 91 feet, instead of 66 feet, as its widtlpwas theretofore. Article 3, it is true, provides tb at “when the viaduct and all the approaches thereto are finally constructed, the said railway companies hereby grant to the said town of Lake the right to use, repair and maintain said viaduct audits said approaches as a public highway.” It was the viaduct, which was to be used by the town as a public highway, and not necessarily the ground under the viaduct. The viaduct was an elevated structure for the purpose of carrying the travel, by persons and teams, over the railroad tracks, which crossed Sixty-first street. Let it be admitted, however, that the strip in question, by virtue of the viaduct constructed over it, was a highway. If the presumption, that the conveyance of land abutting on a street includes the land to the middle of the street, is to prevail in this case as to the 25-foot strip in question, the appellants, in any event, would only be entitled to the half of the strip lying north of their lots, and the other half would belong to the city of Chicago as being the owner of Sixty-first street, 66 feet wide, lying north of the strip. Under this view the contention of appellants, that they are owners of the whole of the strip, can not prevail in any event.
The rule, that a grant of lands, bordering on a highway or river, carries the exclusive right and title in the highway or river to the center thereof subject to the right of passage in the public, is not enforced where it appears that, by the terms of the grant and all the attendant circumstances, the intention of the grantor was to confine the grantee to the edge or margin of the highway or river. (City of Chicago v. Laflin, 49 Ill. 172, and cases there referred to; Piper v. Connelly, 108 id. 646; Rockwell v. Baldwin, 53 id. 19; Davenport Bridge Railway Co. v. Johnson, 188 id. 472; Helmer v. Castle, 109 id. 664).
In Henderson v. Hatterman, 146 Ill. 555, we said (p. 564): “The presumption, that the owner of the adjoining land intended to convey his interest in the highway, may be overcome, either by the use of express terms excluding it, or by such facts and circumstances as show an intention to exclude it. The intent to exclude the highway must appear from the language of the deed, as explained by surrounding circumstances.” The doctrine on this subject is well stated by Elliott in his work on Roads and Streets, (2d ed. sec. 723,) in the following words: “This presumption, that the adjoining owner intended to convey his interest in the highway, is not conclusive. It is a rebuttable presumption. He may convey either separately—the soil under the highway without the adjoining land, or the adjoining land without the soil under the highway—and if he uses express terms excluding the highway, or if the facts and circumstances are such as to clearly show that he intended that no interest in the fee of the highway should pass, such presumption is overcome, and the grantee will take only to the side of the highway. The question is one of intention to be ascertained from the language of the deed, together with other facts and circumstances properly going to explain that language, such as the situation of the lands and the relation of the parties, the presumption of intent to pass the title to the center of the road prevailing unless a contrary intention appears.”
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Mr. Justice Magruder
delivered the opinion of the court:
The question in this case relates to the title of the strip 25 feet wide, which lies north of the respective properties of the appellants, Huff and Bach. Both parties claim under the railroad companies as a common source of title. As we understand the record, Sixty-first street running east and west between LaSalle street on the east and Wentworth avenue on the west, and, indeed, between State street on the east and Wentworth avenue on the west, was only 66 feet wide, as originally laid out and dedicated. The strip of land here in controversy, 25 feet wide, lies south of Sixty-first street, and was no part of the original street, but was entirely outside of that street. It is not denied that in January, 1885, when the town of Lake passed the ordinance for the construction of the viaduct, and when the contract was made for the construction of the viaduct, the railroad companies owned this strip.
The theory of the appellants is, that the action of the railway companies in constructing the viaduct over the strip, and permitting its use under the grant contained in the contract, constituted a dedication as a highway of the 25-foot strip of land, occupied by the viaduct. It seems to be contended that there was a dedication of the 25-foot strip for the purposes of a highway, and that, when the viaduct built over the strip was abandoned, the reversionary interest of the dedicators passed to the appellants, as grantees from the dedicators, through Jacobs, of the abutting property.
It is conceded by the appellants that the deeds, under which they hold, did not, by their terms, convey to them, or their grantor, the strip in question. For example, the deed executed by the Chicago, Rock Island and Pacific Railway Company to Benjamin F. Jacobs conveys property bounded as follows: “On the north by a line drawn 91 feet south of and parallel with the north line of Sixty-first street in the town of Lake.” The north line of the property conveyed to Jacobs was 91 feet south of the north line of Sixty-first street, and, as Sixty-first street was only 66 feet wide, there was excluded from the deed to Jacobs a strip, 25 feet wide, between the south line of Sixty-first street and the north line of the property conveyed to Jacobs. Therefore, the deed from the railway company to Jacobs conveyed to him no part of the 25-foot strip in question, but, by the express boundaries named in his deed, that strip was excluded from the land conveyed to him. So, also, the deed, executed by Jacobs to Huff and Robinson, conveyed lots “bounded on the north by a line 91 feet south of and parallel with the north line of Sixty-first street.” By this description there was expressly excluded from the land conveyed to Huff and Robinson, (Robinson’s interest afterwards being conveyed to Huff), the portion oPthe 25-foot strip, which lies north of Huff’s land and between its north line and the south line of Sixty-first street. The deed from Jacobs to Bach conveys “the north 48 feet of lot 26 in block 1 in B. F. Jacobs’ subdivision,” etc., but conveys nothing else except such north 48 feet. By its terms it includes no part of the strip lying north of such 48 feet.
While, however, counsel for appellants concede that the strip in question did not pass by virtue of the deed to Jacobs, if that deed is to be taken literally, yet they rely upon the presumption that the conveyance of land, abutting upon a street, will be presumed to include the land to the middle of the street. This contention assumes that the land of appellants abuts upon a street. It does not, however, abut upon Sixty-first street, but it abuts upon a strip of ground 25 feet wide lying south of Sixty-first street. It is claimed that, by virtue of the construction of the viaduct over this strip, it became a part of Sixty-first street, so as to widen that street to a width of 91 feet, instead of 66 feet, as its widtlpwas theretofore. Article 3, it is true, provides tb at “when the viaduct and all the approaches thereto are finally constructed, the said railway companies hereby grant to the said town of Lake the right to use, repair and maintain said viaduct audits said approaches as a public highway.” It was the viaduct, which was to be used by the town as a public highway, and not necessarily the ground under the viaduct. The viaduct was an elevated structure for the purpose of carrying the travel, by persons and teams, over the railroad tracks, which crossed Sixty-first street. Let it be admitted, however, that the strip in question, by virtue of the viaduct constructed over it, was a highway. If the presumption, that the conveyance of land abutting on a street includes the land to the middle of the street, is to prevail in this case as to the 25-foot strip in question, the appellants, in any event, would only be entitled to the half of the strip lying north of their lots, and the other half would belong to the city of Chicago as being the owner of Sixty-first street, 66 feet wide, lying north of the strip. Under this view the contention of appellants, that they are owners of the whole of the strip, can not prevail in any event.
The rule, that a grant of lands, bordering on a highway or river, carries the exclusive right and title in the highway or river to the center thereof subject to the right of passage in the public, is not enforced where it appears that, by the terms of the grant and all the attendant circumstances, the intention of the grantor was to confine the grantee to the edge or margin of the highway or river. (City of Chicago v. Laflin, 49 Ill. 172, and cases there referred to; Piper v. Connelly, 108 id. 646; Rockwell v. Baldwin, 53 id. 19; Davenport Bridge Railway Co. v. Johnson, 188 id. 472; Helmer v. Castle, 109 id. 664).
In Henderson v. Hatterman, 146 Ill. 555, we said (p. 564): “The presumption, that the owner of the adjoining land intended to convey his interest in the highway, may be overcome, either by the use of express terms excluding it, or by such facts and circumstances as show an intention to exclude it. The intent to exclude the highway must appear from the language of the deed, as explained by surrounding circumstances.” The doctrine on this subject is well stated by Elliott in his work on Roads and Streets, (2d ed. sec. 723,) in the following words: “This presumption, that the adjoining owner intended to convey his interest in the highway, is not conclusive. It is a rebuttable presumption. He may convey either separately—the soil under the highway without the adjoining land, or the adjoining land without the soil under the highway—and if he uses express terms excluding the highway, or if the facts and circumstances are such as to clearly show that he intended that no interest in the fee of the highway should pass, such presumption is overcome, and the grantee will take only to the side of the highway. The question is one of intention to be ascertained from the language of the deed, together with other facts and circumstances properly going to explain that language, such as the situation of the lands and the relation of the parties, the presumption of intent to pass the title to the center of the road prevailing unless a contrary intention appears.”
In the case at bar, the intention not to convey the strip in question, but to convey only such land as lay south of the strip in question, is not only apparent from the clear and definite language of the deeds, as recited hereinbefore and in the statement preceding this opinion, but also from the terms of the original contract made between the town of Lake and the railroad companies, and the conduct of the parties to that contract since its execution. When the appellants purchased their lots from Jacobs, they must be presumed to have had notice or knowledge of the terms of the contract between the town of Lake and the railroad companies, under which the viaduct was constructed. Article 9 of that contract provided that, “in case said town of Lake, or any municipality succeeding to its powers, shall ever cause Sixty-first street to be re-opened after such vacation, * * * the right of the public to use the viaduct and its approaches, and that portion of the land necessary for the maintenance and continuance thereof, and all rights hereby granted, shall immediately cease and determine and the same revert to said railway companies and their successors, free and clear of any and all rights attaching thereto to the party of the first part.” After the town of Lake was annexed to the city of Chicago, the city of Chicago passed an ordinance requiring the railroad companies to elevate their tracks, and caused the viaduct to be removed and destroyed. As a necessary result of the elevation of the tracks over Sixty-first street, Sixty-first street, at the point where it had been vacated in accordance with the contract, was re-opened to the use of the public. It is true, that the surface of the street was sunk in such a way as to constitute what is called a subway under the tracks, but the street was none the less re-opened even if a part of it was changed in such a way as to constitute a subway. The contingency provided for in article 9 has, therefore, occurred. The city of Chicago, a municipality succeeding to the powers of the town of Lake, has caused Sixty-first street to be re-opened since its vacation in December, 1885, and, therefore, the right of the public to use the viaduct has determined and has reverted to the railway companies and their successors. After such reversion took place, the railway companies conveyed the strip to the appellee, the Hastings Express Company. We are unable to see why that deed did not convey to the express company a good title. Counsel for appellants seem to claim that the word, “successors,” in article 9 refers to and includes Jacobs, as a grantee of the railroad company. They, therefore argue, that, when the reversion took place, it vested the title to the strip in Jacobs as a grantee of the railroad company, and in themselves as grantees of Jacobs. The trouble with this contention is, that the deed to Jacobs did not convey any part of the strip in question, but only certain land lying south of the strip. In addition to this, we do not understand that the word, “successors,” here refers to grantees, but to such railroad companies as might be successors to the railroad companies, who made the contract with the town of Lake, the word “successors” referring to succession in their capacity as railroads.,
In view of what is said, we are of the opinion that the appellants took no interest in the strip in question, and that the decree of the court below, dismissing the original bill, and granting the relief prayed for by the cross-bill, was correct.
Accordingly, the decree of the superior court of Cook county is affirmed.
Decree affirmed.