Scholl v. Emerich

36 Pa. Super. 404, 1908 Pa. Super. LEXIS 176

• Court: Superior Court of Pennsylvania
• Decided: July 15, 1908
• Docket: Appeal, No. 157
• Status: Published

Opinion

Opinion by

Porter, J.,

This litigation arises out of a dispute as to- the ownership of a strip of land formerly occupied by the abandoned Union Canal Company. The plaintiff filed this bill to restrain the defendants from tearing down and taking away the stone in a canal lock upon the land in dispute, the court- below issued a preliminary injunction, whereupon the defendants filed a bond conditioned that they indemnify the plaintiff for all the stone removed, in case upon final decree the title was adjudged to be in the plaintiff,. and the injunction was thereupon dissolved. The- cause proceeded to a final hearing and the cóúrt adjudged' the' tifié'to the land to be in the plaintiff, and fóünd as á fact-that the defendants' had removed stone to1 the Value of $1,360.75, • of which $1,313.50 worth was taken from the part of thé land north of the center line of the canal,' and $47.25 worth from that part south of said center line; and entered a- decree restraining, the defendants from further'removing any stone from the land, upon which the Union Cañal had been located,- and that the defendants pay to the plaintiff the sum of $1,360.75 as compensation for the stone removed by them. The defendants appeal and, among other things, assign for error the finding that the title to' the strip of land was in the plaintiff and the entry of the aforesaid decree.

The defendants asserted title to the' premises tinder a deed from Gordon Chambers, successor in title of the Union Cáñáí Company. The canal company had acquired the' right- of w&f over this property by condemnation proceedings under' áéé.-13 of the Act of April 2, 1811, 5 Sm. L. 266. The canal company did not under that proceeding acquire án estate i'n feé simple, but only an estate determinable upon the abandonment Of- the land for use as a canal, and the canal having been abandoned the' estate of the grantees of that company in this land must fail-':' Sholl v. Stump, 24 Pa. Superior Ct. 48; Jessup v. Loucks, 55 Pa. 350; Pittsburgh & Lake Erie Railroad Company v. Bruce, 102 Pa. 23. The Union Canal Company had a right of Way only, and that for a single' purpose, the construction and-maintenance of a canal, and when the canal Was' abandoned the úse and occupation of the land reverted to the oWner' Of the fee. The weakness of the primary contention' of the defendants, however, is not á sufficient foundation fot a décreéún favor of the plaintiff, -for thé- burden was' upon’ him to sh’oW title in himself.

There is no dispute as to the material facts in this- casé and they may be thus summarized from the findings5 by thé léárnéd judge Of the court below.- Georgé Keiáer' was’ the owner of a tract containing 120 acres' of land boúndéd on-thé north - by lands of Adam Kurtz. 'There- wáá - prior t‘0' 1823- and-' still' continúes to- bé' a public r'óad along that- part Of the line 'between the two farms next to the strip of land in controversy. The Union Canal Company, in 1823, condemned a right of ..way through the northern part of the land of Keiser, and constructed .thereon a canal, with its berme-bank and the entire canal immediately south of the public road, which road wag.the boundary between the lands of Keiser and the land of Kurtz to-the north: The right of way of the canal was south of-and immediately adjoining the public road. The canal was operated'upon this right of way for many years, but was finally abandoned, probably about 1885. The damages of Keiser for the right of way of the canal company were assessed under a proceeding in the court of quarter sessions of Berks county in 1827, and,the report was finally confirmed in 1835. The land thus taken.by the canal company contained two acres.and 102 perches-. The work done by the, company in constructing the. canal-.upon this right of way included the building of the sandstone lock, from which the defendants took, the stone, in question.

■While the canal was in operation, on April 14, 1838, George Keiser conveyed to Daniel Ramsey a part of this 120 acre tract of land,, “containing 93 acres and 88 perches of land, strict measure,” describing .the same by adjoiners, courses and dis- , tances and giving the “Union Canal” as part of the northern , boundary; that.part of the description here material being in the.following words and figures: “150 perches to a stone on the .Union Canal, thence by the-said canal north 78° west 24 perches to. a stone, thence north 84f° west 14 perches to a,stone- • south 85west 25XV perches to a stone, north 87west 24=-perches, to a stone, thence by lands of Adam Kurtz south 81° west-15^-. perches to a stone, corner of lands of Christopher Reed, thence by said lands,” etc. The title which Ramsey thus acquired has by sundry mesne conveyances become vested in this-plaintiff: The title of the plaintiff to the strip of land-in-. controversy, being the land upon which the right of way of the Union- Canal Company was located,...is entirely dependent, upqn the construction and effect of .this deed from Keiser to Ramsey. Did that deed vest in the grantee the fee in the land covered by the right of way of the canal, or any part thereof? If the effect of the call for the' canal as a boundary was .to extend the title of the grantee in the fee in the land coyered by any part of the right of way of the canal company, then how. far did the grant go? Did the grantee take title to the center of the canal, or clear over to the line of the Kurtz land, including the entire canal.and one-half of the public road on the other side?

The learned judge of the court below held that the case was analogous to that of a call for a street or a non-navigable river and must be given the same effect. He recognized the rule established by Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92; Fitzell v. Philadelphia, 211 Pa. 1, and the many other decisions of the courts of this state dealing with kindred questions, that, unless a contrary intent appears by express reservation or necessary implication, a grant of land bounded by a public highway, a non-navigable river, or an artificial ditch ordinarily carries title to the, middle of such highway, river or ditch,, if the grantor’s title extends so far. The learned judge, however, went very far beyond this rule, and held that the deed from Keiser to Ramsey vested in the. grantee the title in fee to the entire right of way of . the canal, not merely to the center line thereof.. He thus states his reasons for the conclusion reached. “These decisions,” referring to Paul v. Carver and kindred cases, “deal with cases where either the grantor was the owner of the land on both sides of the highway, or his title did not go beyond the middle of the same.” “They do not settle the question arising where the highway made the boundary of the grant is entirely upon the grantor’s land, but upon the margin of it, leaving him no land beyond. The decisions, therefore, cannot be understood as conflicting with the rule elsewhere laid down that grants such as last supposed carry title to the grantee not only to the middle, but all the way across to the farther side pf the highway:. Johnson v. Arnold, 91 Georgia, 659. Put. an examination of the authorities establishing the rises',.just stated shows that they are founded -in part upon Public; policy adverse to the retention by grantors of land abutting upon highways, and intended to be occupied thereby, of the soil underneath them ás distinct from the land granted,- and partly upon a presumption- of intent on the: part of the grantor justified by the inherent- improbability and actual unusualness of a purpose when parting with property so situated, to retain an interest in' a-narrow-strip of land unavailable while subject to its existing use and inaccessible, except perhaps' at its extremities, if that use should cease.' . . . After all,- the-rule laid down by the decisions — -a rule of property as’ well1 as of interpretation — is founded quite as' much upon public' policy as upon supposed intent."

We are unable to assent to the' conclusion of the learned judge of the court below for two reasons: (1) The rule as to the effect of a call for a highway as a boundary hás never, in Pennsylvania, been so far expanded as to' embrace the principle which it was in this case stretched to cover. (2) Even if the rule were as the learned judge held it to be, the'- conclusion at which he arrived utterly ignored- the fact, which he found Upon' sufficient evidence, that Keiser owned-the'fee in the-land upon both sides of the canal. There is'no fule of public policy recognized by any of the Pennsylvania easés which is antagonisticto. the- right of the owner of real estate' to- subdivide it in' any manner he sees fit, and selling, or retaining such lots- and strips of land as his fancy may suggest. All the cases recognize the right of a grantor to retain the fee in the bed of a street Or stream, while selling the adjoining la'nd. The rule that a caff for a highway as a boundary includes the fee to the middle thereof is based upon the ground that the street or' non-návigable stream is to be regarded- as a monument and the' grant go'es to the center of the’ monument, the middle of the street or stream. Chief Justice Lewis' said, in Paul v. Carver, 26 Pa. 223: “The general rulé is well established that where- a stream not navigable is called for in a deed as a boundary or monument, it is used as an entirety to the center' of it, and to- that extent the fee- passes. It would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the- title of the- gr'antee, in süch cases, to the' edge of the river'. So land bounded by an artificial ditch extends to the center of the ditch. So, where a street is called for as a boundary, the title passes to the center' of the street. ... If no other reason could be assigned in support of this rule of construction, the general understanding of the people, and the extensive and immemorial practice of claiming and acquiescing in such rights ought to have great weight.” He then referred to the inconvenience which in cities would result from the adoption of any other rule when a street was called for as a boundary, and concludes thus: “Influenced by these considerations the law has carried out the real intention of the parties by holding that the title passed to the center of the street subject to the right of passage. Where a street is called for as a boundary it is regarded as a single line. The thread of the road is the monument- or abuttal,” and cites Newhall v. Ireson, 62 Mass. 595. In the case • thus cited, Chief Justice Shaw said: “The road is a monument, the-thread of the road, in legal contemplation, is that monument or abuttal. . . .” Land may no doubt be “bounded by the side of a highway, but it must be done in clear and distinct- terms to control the ordinary presumption.” The deed construed in Cox v. Freedley, 33 Pa. 124, called for the side of a street as the boundary, and Mr. Justice Woodward, who spoke for the court, said: “ Deeds may expressly exclude the streets, but unless they do the implication is, from such terms as are found in this deed, that half the street is included. . . . Terms of description such as these, may be regarded, therefore, as having a technical meaning, and as importing a grant to the middle of the street, unless controlled by something else in the deed. There was no ambiguity on the face of the deed. The question raised was, what were the legal import and significance of the words employed by the parties?” It was said in Phinney v. Watts, 75 Mass. 269: “Though we cannot see any reason why the grantor should wish to exclude from his grant the very narrow strip of land between the brook and the edge of the water overflowing its banks — which would be worthless to him, while overflowed — yet this cannot be allowed to influence our judgment. The deed must be construed by the legal rules which are applicable to its terms.” In City of Boston v. Richardson, 95 Mass. 146, it was held that a deed bounding land generally by,- a highway, with no restricting or controlling words, conveys the grantor’s title in the land to the middle of the-highway, and we find in the opinion of Judge Gray in that case this, comprehensive statement of the rule: “The general rule of construction may.be thus stated; whenever land is de- ■ scribed as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title.in the land of which it has been made a part, as. a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant;, but when the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as - defining a boundary, and not as describing a title in fee, and which does, not in its description or nature include -the earth as far down .as the grantor owns, and yet which has width, as in the ease of a way, a river, a ditch, a wall, a fence,. a tree or a stake, and stones, then the center of the thing so running over or standing on the land is the boundary of the lot, granted.” In Warner v. Southworth, 6 Conn. 471, the deed called for a ditch as the boundary and it was held that the grant.extended to the center of the ditch. The court said in that case, “Iti such a case the ditch is to be treated as a .common fence or a stone wall.” In Champlin v. Pendleton, 13 Conn. 23, the' c’ourt said, “Land adjoining a highway may be so conveyed as. to exclude the highway, yet to produce this effect it must appear in-'clear and express terms that such was the intention of the parties, otherwise the inference of law is that the con-’ veyance carries, as parcel of the grant, the fee to the center of the highway, if the. grantor at that time owned to the center.”

•The .Pennsylvania decisions and the weight of authority elsewhere clearly hold the question to be one of construction ip ieach particular case,, upon the intent of the parties, as expressed; in. the descriptive parts of the deed, explained and. illustrated by all the .other parts, of the conveyance,, and by. the .localities, and subject-matter to which it applies. If a deed nails for a highway as a boundary and by express, terms, or clear implication reserves to the grantor the fee in-the land covered by the highway, the grantee takes only to the side thereof. When the deed calls for the highway as a boundary, “without more, a legal .presumption arises that the'intention of the parties is that the grant shall go to the middle of the highway. The effect of the rule is,'a?'stated' by Mr. Justice Woodward, in Cox v. Freedley, to give a technical meaning to terms 'of' description, calling for a highway as a boundary, as importing a "grant to'the middle of the-street, unless controlled by something else in the deed. The intention of the parties is clearly recognized as" the controlling element. When the call is for a highway as a boundary, unless a contrary intention clearly appears, the grantee takes title, as against the grantor, to the middle of the highway, but nothing more.-' The case of Johnson v. Arnold, 91 Georgia, 659, relied upon by the learned ’judge -of the court below, is in cbnflict with the. Pennsylvania decisions. The deed-in that case called for a road as its western boundary-. There was not and never had been a road upon the location, nor had the owner dedicated the land as a public highway. The road contemplated, a mere paper road,- was along the extreme western margin of the grantor’s ■ land, he owning nothing on the other side. It' was there held that the grantee took the'fee in the entire road, and that the utmost 'that the grantor could claim was the right to construct a road over the'location. ■ The exact reverse of this is the law of Pennsylvania; with us, where a street called for as a boundary in a deed is not a highway nor"dedicated to public Use, the grantee does hot'take title in fee to the center of it,'but-by implied, covenant, acquires an easement, or right of way over the lands: Spackman v. Steidel, 88 Pa. 453; Whitaker v. Phœnixville Borough, 141 Pa. 327; Gamble v. Philadelphia, 162 Pa. 413; Cole v. Philadelphia, 199 Pa. 464; Clymer v. Roberts, 220 Pa. 162; Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1. The question of the effect of a deed calling foh'á public'highway-as a • boundary, when the grantor owns 'the fee in the> entire highway ' and nothing upon the other side; was considered by the Supreme Court of the United States in Banks v. Ogden, 69 U. S. 57. Kinzie had laid out a plan of lots near-the 'city of Chicago, one of the Streets ran along the shore of Lake-Michigart and Einzie 'conveyed ope of the lots to Ogden, the.deed calling for'this street as a boundary; there was not in front of the lot sufficient land to give the street its full width, and beyond the street as thus narrowed was Lake Michigan, to which no one had or eould acquire title. There were subsequent accretions. by alluvion upon the street as thus bounded and the land was extended out considerably more than sufficient to give the street its full width. Banks acquired the title of Kinsey in the accretion and Ogden contended that under his grant, calling for the street as a boundary, he took to the lake and was entitled to the accretion. The supreme court of the United. States held that Ogden took under his grant the fee in one-half of the street as -it existed at the time of the grant and that the fee in the other half, next the lake, remained in the grantor. This decision is in direct conflict with the conclusion reached by the court below. In the ease of Canal Trustees v. Havens, 11 Ill. 554, the call in the deed was for a street which alone separated the land granted from the river — there was no land upon the other side. The grantee claimed the fee in the entire street, thus carrying his title to the river and- making him a riparian owner. The supreme court of Illinois held that the grantee took title to the middle of the street, “which is regarded as the boundary or monument, and the purchaser takes to the middle of the monument, as part of the grant.” It may here be observed that the deed from Keiser to Ramsey was made long prior to the Act of February 27, 1849, P. L. 90, and that statute could have no effect upon what passed under the grant. Even if Keiser had not been the owner of the fee in the land north of the canal, his deed to Ramsey did not vest in the latter the fee in the land north of the middle line .of the canal.

Even if the rule were, as stated by the court below, that a conveyance of land calling for a public highway as a boundary, when the grantor owns the fee in the land covered by the entire highway and nothing upon the other side, passes to the grantee the fee in the entire width of the highway that rule could have no application in the present case. The learned judge found as a fact, upon sufficient and uncontradicted evidence, that the public road north of the canal was the line between the lands of George Keiser and Adam Kurtz, at the time the former conveyed a part of hig lands to Daniel Ramsey. The evidence would have sustained a finding that the lands of Keiser actually extended north of the middle of that road, but leaving that evidence out of consideration, the road being found to be the line between the two tracts, the presumption of law arises, even in the absence of the title papers, that the land of Keiser extended to the middle of the road: Grier v. Sampson, 27 Pa. 183. Keiser therefore owned the land on both sides of the canal; his land north of the canal was, it is true, subject to the easement of the public road, but still the fee was in him. The deed did not call for the road as the northern boundary of the grant to Ramsey, but did call for a physical barrier to the southward, the canal which was then in full operation, as the boundary upon that side. There is no ground whatever for presuming that it was the intention of the parties that Ramsey should take the fee in the land covered by the southern half of the public road. The case was simply this, Keiser owned the land on both sides of the right of way of the canal company and he owned the fee in the land covered by that right of way, and he conveyed to Ramsey the land upon one side of the right of way calling for the canal as a boundary. The utmost that Ramsey could take under this deed would be the fee in the southern half of the land covered by the right of way of the canal company.

The learned counsel for the appellant contends that the reasons for this rule, that a grant which calls for a public road, street, or small stream as a boundary passes to the grantee the fee in the land to the middle of the road or stream, are entirely absent when the call is for a canal as a boundary, and that the rule has no application in this case. It is true that the owner of land abutting on the right of way of a canal or railroad cannot devote the land covered by the right of way to such uses as the owner of abutting property may make of land covered by a road or street, which were suggested in the opinion of Chief Justice Lewis, in Paul v. Carver, 26 Pa. 223, as among the probable reasons for the origin of the rule. The canal company has the right to the exclusive use and possession of its right of way. The owner of abutting property has no right, as such owner, to use the surface of the land covered by the right of way in any manner that any other citizen has not an equal right to so use it. His right in the canal is precisely the same as that of any other person, he may use it for the purposes Of navigation, subject to the regulations of the canal company,' authorized by law. This difference between the rights of an owner in a street or stream upon which the property abuts and those of an'owner of land in the right of way of a canal company which forms the boundary of his property has led to a conflict in the decisions of the courts which have been called upon to consider the question with which we are now dealing. In England the question ardse in Chambers Colliery Company v. Company of Proprietors of Rockdale Canal, Law Reports (1895), Appeal Cases, 564, and it was there held that the rule that a call for a highway as a boundary carried the title of the grantee to the center of the'highway was not applicable when the call was for a canal as a boundary, and that the grantee took title only to the side of the canal. It was held by the supreme court of Massachusetts, in Whitman v. Boston & Maine Railroad, 85 Mass. 133, that a deed which called for a canal as a boundary, “together with á privilege in said canal,” vested in the grantee the fee in the land-to the side of the canal only, with the privilege to use the canal for the purpose of navigation.' In that case, however, the canal company was the grantor and it owned both the lot and the- land covered by the canal in fee. On the other hand, it has been held in Conhecticut and Wisconsin that a deed calling for a .canal which is a public highway ás a boundary passes to the grantee the fee in the land to the center of the canal: Goodyear v. Shanahan, 43 Conn. 204; Lawson v. Mowry, 52 Wis. 219. While the question as to the effect of a call in a deed for a canal as a boundary has never in precise terms been passed upon by the Supreme Court of Pennsylvania, the principles involved have been considered and the question does not seem to be an open one. The eátate acquired by this caiial company when it condemned a right of way'through- the property of George Keiser was the same in its nature and incidents as that which is acquired by a railroad company when it condemns a right of way, or acquires by agreement with the owner of land a mere right of way, and not an estate in fee. The railroad company, like a canal company, has the right to exclusive possession of the surface of the land covered by its right of way, and the owner of abutting property has no right to trespass upon it or interfere with that possession, no matter whether he is the owner of the.fee subject to the right of way or not. The Supreme Court of Pennsylvania, in Rice v. The Clear Spring Coal Company, 186. Pa. 49, held that when a railroad company acquired a right , of way merely for the purposes of a railroad through a tract of land, the ownership in fee of the soil remaining in the grantor, and the land on each side of the right of way was subsequently sold in two separate tracts, the deed in the description of each tract calling for the railroad as a boundary, the grantee upon each side of the right of way took the fee in the land to the center of the right of way, subject to the easement, as part of the land granted, under the general rule of construction applied to such grants, that a conveyance of land bounded on a public highway carries with it a fee to the center of the highway as part and parcel of the grant. The cases are so precisely analogous that this decision must be accepted as determining the question now presented. The same conclusion was reached in Maynard v. Weeks, 41 Vermont, 617.

Daniel Ramsey, it is true, got the “93 acres 88 perches strict measure” which his deed called for, south of and exclusive of the right of way of the canal company. The call in his deed was for the canal as a boundary, a survey according to the courses and distances given in the description carried to the south side of the towpath of the canal. The call was not for the bank of the canal, nor for the water in the ditch, but for the canal generally. The canal was then in operation, and the call for the canal is to be construed as a call for the right of way upon which it operated. The effect of this call was to vest in Daniel Ramsey the fee in the southern half of the right of way, and the line to which the plaintiff’s title carries is the middle of the right of way.

The decree is reversed and the record is remitted to the court below with direction to enter a decree permanently restraining the defendants, and each of them, from further removing any stone from that part of the right of way of the Union Canal Company south of the middle line of said right of way, and that the defendants pay to the plaintiff the sum'of $47.25, as compensation for the stone removed by them from that part of the right of way of said canal company south of the middle line thereof, and that the defendants pay the costs in the court below. And it is further ordered that the costs of this appeal be paid by the plaintiff, the appellee.