Williams, Ch, J.
The plaintiffs claim damages for trespasses committed upon lands, over which are highways, in the town of Chatham ; of which lands, they say, they are the owners. Their title rests upon a vote of the proprietors of the town of Middletown, passed on the 9th of January, 1786, [81]*81confirmed, by subsequent acts of the town of Middletown, and a resolution of the General Assembly.
The town of Chatham was incorporated in 1767; and the vote above referred to, released to said town all the right, title and interest of said proprietors in the common and undivided lands lying in said town of Chatham, for the purpose of highways, or to remain as common for the general use of the inhabitants of said town.
The defendants claim, that no title to the highways remained in the ancient proprietors of lands in the town of Middletown; of course, that no title passed to the plaintiffs, but that the freehold of the highways was in the owners of the adjoining lands ; and that they only could maintain this action ; and so were the jury instructed.
Was this charge correct? If it was, or if the plaintiffs acquired no title to the lands in question, by the grant of the proprietors, they cannot recover, unless they prove themselves adjoining proprietors. For the claim now made by the plaintiffs, that if the defendants show no title in themselves, or claim none, they can have no defence, cannot be acceded to, by the court. If the case of Phelps v. Yeomans can be supported upon no other ground, it cannot be law. As the reasons of the court are not given in the report, it is not exactly known upon what ground the judgment was given. But that a person can maintain an action for damages done to property to which he has no title, and of which he has not the possession, is contrary to the dictates of natural justice, as well as the principles of law.
It is said, the defendants are mere tort-feasors; and shall they set up the title of another, when they have no rights ? If the defendants show the title of another, then they show that they are accountable to that other, and not to the plaintiffs. And as a recovery by these plaintiffs would be no bar to a recovery by the real owner, and could not even be given in evidence against the claim of such owner, it would be strange indeed if the defendants could not be permitted to show, that the plaintiffs had no interest whatever in the property which they claimed to be injured. No lawyer would contend, that a declaration in trespass, in which neither title nor possession was alleged to be in the plaintiff, would be sufficient. These then are material allegations, and must be proved ; and if the plain[82]*82tiff must prove a title, it is not easy to comprehend why the defendant may not disprove it, if he can, or what rule of law would prevent his disputing a material feet alleged by the plaintiff. This objection being disposed of, the question arises, had the proprietors of the ancient town of Middletown any interest in these highways, at the time of the vote of January 9th, 1786 ?
The lands on which the trespasses were committed, were highways in existence long before that vote. And it was decided, long since, by this court, that the ancient proprietors of a town, having laid out land as a highway, and conveyed the adjoining lands as bounded on the highway, had no remaining right in that highway. Stiles v. Curtiss, 4 Day 329. It was also soon after decided, that when a highway was laid out under the statute, the adjoining proprietors could maintain trespass for an injury upon the highway in front of their land. Peck v. Smith, 1 Conn. Rep. 103.
Before these cases, this subject had been much agitated in this state. It was supposed, that the rights of the adjoining proprietors were, by these decisions, recognized and settled : a title to the highways was prima facie, at least, in them. So it was supposed, at the trial of this cause upon the circuit. A recent authority from Massachusetts questions the decision in Peck v. Smith. Tyler v. Hammond, 11 Pick. 194. 213, 14. But it is in accordance with the decisions in the state of NewYork. Cortelyou v. Van Brundt, 2 Johns. Rep. 357. Judge Kent recognises the principle as that of the common law. “ The law,” says that eminent jurist, “ with respect to public highways and fresh water rivers, is the same, and the analogy perfect, as concerns the right of soil. The owners of land on each side go to the centre of the road. The established inference of law is, that a conveyance of land bounded on a public highway, carries with it a fee to the centre of the road, as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in the road to the middle of it, after parting with all his right to the adjoining lands, is never to be presumed.” “ It would require an express declaration to sustain such an inference.” 3 Kent’s Com. 432, 3. Judge Swift, upon a review of the cases in his Digest, adheres strongly to his opinion. 1 Swift's Dig. 108. In the Common Pleas in England, since Peck v. Smith, Gibbs, Ch. J. [83]*83says, that "prima facie the presumption is, that a strip of land lying between the highway and the adjoining close, belongs to the owner of the close ; as the presumption also is, that the highway itself ad medium filum viae does.” Grose v. West, 7 Taun. 39.
It is said, that in the cases adjudged in this court, there was great diversity of opinion among the judges, and so this case is entitled to little weight. It is true, that upon some points arising in the case of Peck v. Smith, there was a great diversity of opinions. But amidst all the difference of opinion, no one of the judges held, that when a highway was laid out in the ordinary manner, the fee remained in the proprietors, not owners of the adjoining lands. In the case of Peck v. Smith, five of the judges held, that the fee of the highway was in the adjoining proprietors. Reeve, J. held, that these proprietors had a freehold interest subject to the easement, but that the ultimate fee was in the public. One judge gave no opinion ; and in Stiles v. Curtiss, J. C. Smith, J. gave a decided opinion, that the fee was in the adjoining proprietors; and two judges held, that the fee was in the public. So that of nine judges, who have given opinions on this subject, seven held, that while the highway was continued, the freehold was in the adjoining proprietors; and all agreed, that the original proprietors, as such, had no interest. So far, then, as regards the point now in controversy, this can hardly be called a divided opinion.
Without going over the argument upon the subject, or examining the cases cited in Peck v. Smith and Stiles v. Curtiss, we feel bound to regard those opinions; and had the respectable opinions from Massachusetts led us to doubt upon this point, we should be very unwilling to disturb titles settled under the authority of those cases, or open again the flood-gates of litigation upon a subject, which so long agitated this community. And although we do not go so far as one of those judges, and hold, that the ownership of the adjoining lands on each side of the way, furnishes conclusive evidence that such owner has a fee in the highway, yet we do hold, that it furnishes prima facie evidence of that fact, and that strong testimony is necessary to rebut it. Such was the opinion of judge Swift in Peck v. Smith. And that land adjoining a highway or water-course, may be so conveyed as to exclude the highway or water-course, [84]*84is admitted. Such were the cases of Jackson d. Yates & al. v. Hathaway, 15 Johns. Rep. 447. 452. Watrous v. Southworth, 5 Conn. Rep. 305. 310. Headlam v. Hedley, 1 Holt’s N. P. Ca. 463. (3 Serg. & Lowb. 157.) The same principle seems to be recognised in more recent cases in New-York. Case of Seventh Street, 1 Wend. 262. 270. Case of Lewis Street, 2 Wend. 472.
Do the plaintiffs bring their case within this class ? The plaintiffs are not adjoining proprietors, except of one piece on the West side of the highway ; and as to that, the jury have found a license. The defendants are proprietors of the other piece on the West side of the highwayand third persons are proprietors of the lands adjoining the highway on the Last, except the burying-ground, which requires a separate consider ration.
But it is claimed, on the part of the plaintiffs, that the deeds themselves shew, that it was not intended to convey to the cen-tre of the highway. In this motion, the deeds are not all given, by which the title is deduced ; but enough are given to shew the questions raised upon the trial. On the West side, where the defendants’ lot lies, the deed to Benjamin Sutliff describes the land as follows : “ Beginning four rods Westward of the South-West corner of Noah Smith’s Goodale lot, running West 26° S. four rods ; then West 3° N. 15½ rods, to the river, at high-water mark ; then North 26° E. 16½ rods; then East 3° S. 20 rods ; then South 26° W. 14¾ rods, to the first station: Bounded Westerly, on the river; Northerly, on common land ; Easterly, on highway or common land ; Southerly, partly on land granted to H. G. &c., and partly on common land left for highway.” This deed bounds the grantee Easterly on the highway. If this means the centre of the highway, it is incumbent on the plaintiffs to shew how that meaning is varied. This, they claim, they have done; and that a station is taken, or a starting point given, four rods from the Goodale lot, and the courses and distances given until they come back to that point; by following which, it is said, the highway will not be touched, unless it he to cross it. In answer to this, it may be asked, where is this station ? Is its position shown with any accuracy ? Are any facts disclosed upon this motion, by which the court can determine whether these courses and distances, if followed, would bound the lands [85]*85conveyed upon the side of the highway or the centre of it ? Or whether the lands would touch the highway at all? To rebut the proof arising from giving the highway as a boundary, the plaintiffs should have shown where these courses would have led, and what bounds were described by them.
But supposing these courses and distances would not reach to the centre of the highway, is there any thing upon the face of the deed, which shews an intention to exclude that part of the highway ;-any thing which shews, that these grantors, in the year 1786, when the fee of this land was worth but a trifling sum, intended to reserve to themselves a remainder in this little strip of land, after a highway should have been extinguished? Is there such evidence of it as is sufficient to vary the construction otherwise to be given to such instruments ? On the one hand, a boundary is given, the legal import of which is well settled ; on the other, is a point to be ascertained by mensuration, and to be returned to, by courses and distances ; and these boundaries differ. There can be no doubt which are to govern, unless we overrule well settled principles of law, lately re-cognised in Belden v. Seymour, 8 Conn. Rep. 19. and in Higley v. Bidwell, 9 Conn. Rep. 447.
Suppose we apply the argument of the plaintiff’s to the Western boundary, as well as the Eastern. These courses and distances may not, and probably do not, touch Connecticut river. Are the grantees under these deeds to be shut out from the waters of the river, and thus deprive their lots of much of their value ? This can hardly be pretended. And if the courses and distances cannot vary the boundary on one side of these lands, they cannot on the other.
But it is said, these lands are bounded Easterly on highway or common land ; and shall the boundary be in one place, if it proves to be highway, and in another place, if it proves to be common land ?
This argument is certainly ingenious ; but it is believed to be rather specious than solid. What was meant by the draftsman of this deed, by the expression “or common land?” It is conceded, there is no record of this highway. The evidence of its existence is prescriptive. When the original deeds were drawn, there was probably some doubt as to the existence of the highway. The words “ or common land,” were therefore introduced, and copied into the subsequent deeds, intending, as [86]*86may well bo supposed, the same thing as is meant in the same deed, when, as to the Southern bounds, it speaks of “ common land left for a highway.” If this was the intention, it would not admit such a construction as is claimed on the part of the plaintiffs. And even if it was not, we do not see sufficient evidence to remove the presumption arising from the great fact, that the deeds give the highway as the Eastern boundary, if it is ascertained there is a highway there. It is not necessary to say what would have been the construction had this proved to be common land.
As to the deed on the East side from Clay to Goodale, it is said, there are only courses and distances given, and no boundary on the highway. It is to be observed, that this deed conveys only a small part of the land subsequently conveyed, by the deed to Noah Smith-only three roods-while the other conveys four acres, three roods and twenty-seven rods, and bounds him expressly on the highway. We see nothing, therefore, which ought to lead to a different result as to that part of the highway.
The next question is, whether the plaintiffs have title to the burying ground ; for the land in the highway in front of that ground, must be subject to the same rules as the residue of the highway.
The plaintiffs rest their claim to the fee of this ground upon the same conveyances under which they claimed the highways; and the court below was of opinion, that they gained title, by virtue of those conveyances, (there being no adverse possession) if any interest remained in the proprietors. On the part of the defendants, it was claimed, that those proprietors had no such interest; first, because they had granted all their right to the first ecclesiastical society of Chatham; secondly, because this society had acquired the title by possession. It was put to the jury on the question of possession. The plaintiffs claim, that the question which they wish to try, whether the right acquired by this possession was a mere easement or an absolute title, was not submitted to the jury. But if the society had an absolute title by grant, this question as to the effect of the possession, will be of no importance. The nature of that grant will be first considered.
It appears, that on the 13th day of January, 1712, the town of Middletown granted to the inhabitants on the East [87]*87side of the great river, one acre of land [describing it] for a burying ground ; and appointed a committee to locate it.
Two questions arise under this grant. Did it convey any title to this society ? And if it did, what was the nature of this title ?
No objection was made, on the trial, to this grant, that it was made in town meeting, and not in proprietors’ meeting. Nor can such an objection prevail; because by an ancient act of Assembly, passed in the year 1723, such grants were confirmed., as the proprietors of that early period constituted the great mass of the inhabitants qualified to vote at town meeting. But the claim was and is, that as the society was not then incorporated, there was no grantee who could take under that vote.
The defendants claimed, that the society was formed, by the voluntary association of the inhabitants of Middle-town, residing on the East side of Connecticut river, in 1712, who, on their application, were, by that name and style, incorporated in 1714; and in connexion therewith, they exhibited the grant referred to, accompanied with proof, that the society immediately entered into possession of said ground, appointed a sexton and grave-digger, from year to year, to take care of it, and to bury therein ; and have ever since used the same exclusively, and erected monuments therein, and in 1791, fenced the same. It was also shown, that the town of Chatham was not incorporated until the year 1767.
The plaintiffs, on their part, did not deny the possession of the society ; for they also claimed to have proved, that the society had occupied and possessed said burying-ground, for the purpose of a burying-ground for their dead, and for no other purpose whatever.
The dispute, then, at the trial, was, not as to the possession by the society, but as to the nature of it.
The question then fairly arises, did the society, upon the facts then admitted and proved, take any thing under the grant of 1712? The object of this grant was, not to convey a quarry, but a place to be used as a repository for the dead; not intended as a matter of profit, but designed to be devoted to a very different purpose. It was, in, short, a grant for pious and charitable uses. Transfers for such objects have been considered as standing upon very different grounds from that of ordinary con[88]*88veyances. The supreme court of the United States have often been called to consider the effect of such transfers, and have uniformly holden them good, although at the time no grantee was in esse. Thus, in the case of the town of Pawlet v. Clark & al. 9 Cranch 292. 331., where one share of the town lands was reserved for a glebe for the church of England as by law established, the court said, that grants of this kind to pious uses, where there was no corporation in existence that could take, at the time of the grant, were aft exception to the general rule, that there must be a person in esse capable of taking ; that by virtue of the grant, the estate passed out of the donor and remained in obeyance; and that the property was dedicated to the designated use, just as a highway is dedicated to public use. It is said, that, as in this case, judgment was given for the plaintiffs, it was not necessary to decide this question ; but the great object of the parties was, to ascertain the rights of the parties under that grant; and the court, in pursuance of a course of practice in that court, gave an opinion calculated to terminate the controversy upon the greatpoint which had been litigated between them, although the particular case might have been deckled without an opinion upon that point.
A similar question arose in the case of Beatty & al. v. Kurtz & al. 2 Pet. 566. 584. There, in laying out a town, a lot Of ground was designated as, “for the Lutheran church,” and had long been used, by the German Lutherans, for a burying-ground and a place of worship ; and the plaintiffs, further, had avowed that it was appropriated for the Lutherans, and that, they were entitled to it. After the death of the father, his son, the plaintiff, entered upon and claimed this land ; and the members of the society, who had never been incorporated, brought a bill for an injunction ; and it was supported as a dedication of the lot to pious uses ; and the court, after reviewing and confirming the opinion given in Pawlet v. Clark, say : “ It was originally consecrated for a religious purpose, and has become a repository for the dead ; and it cannot be resumed, by the heirs of C. Beattie.” It was said, that this, being in chancery, proceeded upon the ground that the legal title had not passed. To this it may be observed, that the society was not incorporated when the suit was brought; of course, could not claim a legal interest. Had it been otherwise, however, it would not [89]*89follow, that application might not probably have been made to a court of chancery to prevent the dilapidation of monuments, &c., for which no pecuniary compensation could be a satisfaction.
Again, more recently, this subject was presented to that court, in the case of The city of Cincinnati v. Lessee of White, 6 Pet. 432. 436. The original proprietors, while they had only an equitable interest in the property, set apart certain lands as a common, for the use of the town forever. After they acquired the legal estate, the original owners, or their assigns, brought ejectment for this land ; and the court held, that they could not recover. Thompson, J. in delivering the opinion of the court, says, that appropriations of this kind were exceptions to the general rule requiring grantees; and in this class of cases, there may be instances contrary to the general rule, where the fee may be in abeyance until there is a grantee capable of taking it; where the object and purposes of the appropriation look to a future grantee in whom the fee is to vest. The case of Beatty v. Kurtz did not, says the judge, turn upon the bill of rights of the state of Maryland, or the stat. of Eliz relating to charitable uses, but rested upon more general principles. Other remarks were made peculiarly applicable to this case. The fact of dedication is not left to inference from the circumstance that the land had been enjoyed as a common for many years ; but the actual appropriation for that purpose, is established, by the most positive evidence.” “And the fee might, ba considered as in abeyance until a competent grantee appeared to receive it, which was as early as 1802, when the city was incorporated. And the common having been taken under the charge and direction of the trustees, would be amply sufficient to show an acceptance, if that was necessary for securing the protection of the public rights.” 6 Pet. 439.
In this case, as in that, the fact of dedication for public use, is not a matter of inference. It appears upon the records of the town of Middletown more than a century ago ; and it also appears, that upon the petition of the inhabitants of Mid-dletown, East side of the great river, this society was soon after incorporated; and immediately entered into possession, more than half a century before the town of Chatham was incorporated ; and has ever since used it, for the purposes mentioned in the grant. If in the Cincinnati case, the fee might re[90]*90main in abeyance from 1789 to 1802, it surely might, in this case, remain in abeyance from 1711-12 to 1714. And if the acts of the trustees of that city from 1802 to 1832 constituted an acceptance, the occupation, by the society, of this burying-ground, for 120 years, would be at least equally sufficient.
So far then as the opinion of the supreme court is an authority, this question is settled; and although this is not an opinion upon constitutional law, obligatory upon this court, yet the opinions of the judges composing that court, in all cases, are entitled to our greatest confidence and respect. And upon a question of this kind, it would be with great reluctance we should depart from their decision, as it would he peculiarly unfortunate, that upon a question of title to real estate, different rules of construction should be adopted, by two courts, both of whom may have to decide, not only similar questions, but the same questions in different cases upon the same instrument
The plaintiffs have failed to satisfy this court, that it is necessary to adopt a different construction. So far from it, we think it is only carrying into effect the provisions of our ancient statute, that estates granted for the maintenance of the ministry of the gospel, or schools of learning, or for the relief of the poor, or for any other public and charitable uses, shall forever remain and be continued to the uses to which they have been or shall be granted, according to the true intent and meaning of the grantor, and to no other use whatever.
Whether the fee remains in abeyance until the grantee comes into esse, according to the opinion of the supreme court of the United States, or whether it continues with the grantor until that time, as is held by the late learned Chief Justice of Maine, in the case of Shapleigh v. Pilsbury, 1 Greenl. 280., it is not necessary for us to determine ; as either construction would, in this case, have precisely the same effect. But we are satisfied, that the appropriation of 1712 did look to a future grantee, in whom the fee was to vest ; and that upon the incorporation of the inhabitants on the East side of the great river, and their taking possession of the premises, for the purpose expressed in the grant, the grant became operative, according to the true intent and meaning of the grantors.
The effect of the grant being settled, the next inquiry is, as to its extent: does it convey a fee, or only an easement ?-the soil itself, or only the right of burial in that soil ?
[91]*91That a right of burial may exist in one person, or one set of persons, while the fee of the land is in another, is a proposition too plain to have required the numerous authorities cited to prove it; and that such easements are not uncommon in Great-Britain, cannot be denied ; but when we recollect the situation of this country, at the commencement of the last century, and the then prevailing idea in relation to t he tenure of land, it is very improbable, that this artificial course would have been taken here. The most of our lands were forests, owned by the original proprietors of the towns in which they were located, who divided and allotted them among each other, as their necessities required.
In the early settlements, if an individual wanted to build, he made it known to the town; and a quantity of land was allotted to him, and a committee appointed to locate it; and if a school-house or meeting-house lot was wanted, similar proceedings were had. Surely, in such cases, it was not intended merely to convey the use of the land, and leave the reversion in the original proprietors. Estates other than allodial were, at that time, hardly known, in our state; and incorporeal he-reditaments were seldom heard of; and the land was of too little value to subdivide the interest in such a manner. Nor is there anything in the terms of the vote, by which this grant was made, which shews, that it was intended to create an easement. It is a grant of one acre of land for a burying-place. It was the land, which was granted, though the object was designated. It was a grant of the same kind as one to J. S., to erect a dwelling-house upon. It is not a grant of a mere right to bury, but a grant of the land for that purpose. “The word lan d, comprehends any ground, soil or earth whatsoever.” Co. Litt. 4. And by a grant of “ all his woods, pastures, meadows,”, the soil itself passes. Ib. By the word ground, the soil generally passes: and as deeds are to be construed most strongly against the grantor, then he who means to limit a technical meaning, must qualify general words thus used by him. Thus, where “sea-grounds, oyster-layings, shores and fisheries,” were granted, with liberty to fish, &c., it was held a grant of the soil. Scratton v. Brown, 4 Barn. & Cres. 485. (10 Serg. & Lowb. 385.)
It was said in argument, that the supreme court, in some of the cases cited, considered the rights acquired under those [92]*92grants as mere servitudes or easements. It is true, that expressions of that importare used; but no question as to the nature of the interest had been raised or discussed, in those cases. These expressions, therefore, cannot be considered as intended to convey the settled opinion of the court. However that may be, in this case, the words of the grant, the small value of land, and the then existing notions as to titles, concur in inducing the belief, that the grantors intended what the words of the vote indicate,-a transfer of the whole interest in this land.
Whether a base fee was thus created, as was claimed by one of the defendants’ counsel, or what consequences will result from a desecration of this ground, by the society, are questions which were not presented at the trial below, and cannot be important as it respects the rights of the parties now before the court. They may never arise. At all events, the court are not disposed to anticipate them. It is enough for us to say, that as no right remained in the original proprietors to this burying-ground, the plaintiffs could acquire none; and therefore, cannot claim any interest in the adjoining highway.
The view taken of the plaintiffs’ title makes it unnecessary to examine several questions presented upon the motion and discussed at the bar.
As the plaintiffs have failed to establish their title to the premises, they can have no claim to damages. The verdict, therefore, is right; and there can be no new trial.
The other Judges were of the same opinion.
New trial not to be granted.