Leavitt v. Towle

8 N.H. 96

• Court: Superior Court of New Hampshire
• Decided: December 15, 1835
• Status: Published

Opinion

Green, J.

A deed is to be construed most strongly against the grantor. By this rule the exception can only embrace the easement, or right of the public to pass over the land appropriated for the road, and not the soil itself. A literal and strict construction of the exception necessarily leads to this conclusion. It is difficult to understand how the soil over which a road passes can be transferred by a conveyance of the road. The road is the right of passage in the ^public, and for every other purpose but repairs, the soil belongs to the original owner.

Was a grant to be made of land over which a road runs, it would hardly be thought by any one that a grant of the road would convey the soil over which it passes. Had it been the intention of the defendant to reserve his right to the soil, it might easily have been so expressed; and it is difficult to conjecture any object of profit or advantage the defendant could have had in view in reserving his title to so narrow a strip through two and a half acres of land. Upon the whole, we are satisfied that the exception extends only to the easement, or right of passage in the public ; and that the soil over which the road passed was transferred to the plaintiff as a part of the two and a half acres, and that the exception was inserted for the only purpose of protecting the defendant from being answerable on his covenants in the deed, on account of the road. 1 Conn. Rep. 103 — 124.

According to the agreement of the parties,

Judgment must be entered for the plaintiff.