STORY, Circuit Justice.
The general principle of the common law is. that the soil, over which a street or highway is laid out. still remains the property of the original owner, subject to the easement, and he may pass the title thereto, notwithstanding the incumbrance. This principle is not now contested; and the only question is. how far it applies to the actual circumstances of the present case.
First, it is said, that the land on both streets (No. 2 abutting on opposite sides on them) will pass under the inquest as “ap-[191] purtenanees” of No. 2. It may be admitted, that land may pass as "appurtenances" to other land, if such be the clear intent of the parties, as gathered from the terms of the deed or other instrument of conveyance; for, in such a case, the law does not insist upon strict propriety in the use of language, but is content to expound the words of the parties. and give effect to the instrument, according to the real and unquestionable meaning of the parties. But. strictly speaking, in a legal sense, land can never be appurtenant to land. But a thing, to be appurtenant to another, must be of a different and congruous nature such as an easement or servitude, or some collateral incident belonging to and for the benefit of the land. In Co. Litt. 121b. it is said, that nothing can be appurtenant, unless the thing agree in quality and nature to the thing whereunto it is appurtenant; as a thing corporeal cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal. And there are many other authorities to the same effect in Com. Dig. “Appendant and Appurtenant.” and “Grant,” E, 9. In a case, therefore, where the words of a 'grant pass land “with its appurtenances.” the law will, in the absence of any controlling words, deem the word appurtenances to be used in its technical sense; and that construction will not be displaced, until it is made manifest from other parts of the grant, that some other thing was actually intended by the parties. I say, until it is made manifest; by which I mean, clearly and definitely ascertained, that the word is used in another sense. 1 add also, from other parts of the same grant; for it is not open to parol evidence to explain or vary the legal sense. If there is nothing in rerum natura, upon which the word can operate, that does not entitle the court to desert the legal sense. It has been said by the counsel for the defendant, that there were buildings on No. 2, to which the word “appurtenances” is commonly applied. But such buildings are in no just sense “appurtenances"; but if annexed to the freehold, they are a parcel of tin' land, and pass as such by the deed. It is not. however, necessary to show, that there are things granted, to which the word applies. It is often thrown in by conveyancers without any actual knowledge of the premises, to avail, as far as it may avail, by way of cautionary enlargement of the principal grant, if there be any thing, on which it may operate. If there be in fact no appurtenances, then the word, like other expletives in a deed, is merely nugatory. The authorities cited at the bar upon this point are full to the purpose. and especially Leonard v. White, 7 Mass. 6, Jackson v. Hathaway, 15 Johns. 447. and the very late ease of Tyler v. Hammond. 11 Pick. 193. in the supreme court of Massachusetts. See also Com. Dig. "Chimin”; 2 Saund. 400, and note; 6 Mass. 332. To which I would add Whitney v. Olney [Case No. 17,595].
Now, in the present inquest (sufficiently loose in all its proceedings, and inartificially conducted, considering the magnitude of the interests at stake), there is nothing, upon which the court can put its finger, that in any manner justifies it in supposing the jury intended by “appurtenances" any thing but what are such in the legal sense. They appraise “one other lot, No. 2, with the ap-purtenanees,” then describing it by metes and bounds. These metes and bounds do not include the streets, or either of them. The lot is bounded by the streets, not over them. All the other lots are bounded on one of these streets; and there is no mention of “appurtenances” in the description of either of them. Tet if the intention were to include the land belonging to the streets, it must have been equally direct in regard to all these lots, as in regard to No. 2. The truth is, that no particular stress was laid on the word “appurtenances.” If the streets had been private ways, the right to • use them would have been "appurtenances" in the strict sense. But. as highways, they were public easements. This distinction may not have been attended to by the parties; and therefore the word “appurtenan-e.es" may have been inserted from greater caution. But the omission of it, in regard to the other lots, rather leads to the conclusion, that it was a chance hit; without intention or object. At all events, the fact, that all the lots are bounded by abuttals, which ex-elude the streets, irresistibly shows, that the jury did not intend to include them. If they had so intended, some positive expression would have been found. It has been said, that the duty of the jury was, to value the land only, and not to describe its boundaries. If it were so. it is too late to correct the error. But 1 am of opinion, that it was their duty to describe the land taken by definite bounds, in order to show the extent of this acquisition of property by the United States, in n proceeding in invitum. The description should be as defi-uite and clear, as in a common grant. The title of the United States might otherwise have been brought into jeopardy. How, indeed, could the jury value the land without ascertaining its extent"; So far, then, as the title of the United States is sought to be maintained upon this inquest, it appears to me unsustainable.
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STORY, Circuit Justice.
The general principle of the common law is. that the soil, over which a street or highway is laid out. still remains the property of the original owner, subject to the easement, and he may pass the title thereto, notwithstanding the incumbrance. This principle is not now contested; and the only question is. how far it applies to the actual circumstances of the present case.
First, it is said, that the land on both streets (No. 2 abutting on opposite sides on them) will pass under the inquest as “ap-[191] purtenanees” of No. 2. It may be admitted, that land may pass as "appurtenances" to other land, if such be the clear intent of the parties, as gathered from the terms of the deed or other instrument of conveyance; for, in such a case, the law does not insist upon strict propriety in the use of language, but is content to expound the words of the parties. and give effect to the instrument, according to the real and unquestionable meaning of the parties. But. strictly speaking, in a legal sense, land can never be appurtenant to land. But a thing, to be appurtenant to another, must be of a different and congruous nature such as an easement or servitude, or some collateral incident belonging to and for the benefit of the land. In Co. Litt. 121b. it is said, that nothing can be appurtenant, unless the thing agree in quality and nature to the thing whereunto it is appurtenant; as a thing corporeal cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal. And there are many other authorities to the same effect in Com. Dig. “Appendant and Appurtenant.” and “Grant,” E, 9. In a case, therefore, where the words of a 'grant pass land “with its appurtenances.” the law will, in the absence of any controlling words, deem the word appurtenances to be used in its technical sense; and that construction will not be displaced, until it is made manifest from other parts of the grant, that some other thing was actually intended by the parties. I say, until it is made manifest; by which I mean, clearly and definitely ascertained, that the word is used in another sense. 1 add also, from other parts of the same grant; for it is not open to parol evidence to explain or vary the legal sense. If there is nothing in rerum natura, upon which the word can operate, that does not entitle the court to desert the legal sense. It has been said by the counsel for the defendant, that there were buildings on No. 2, to which the word “appurtenances” is commonly applied. But such buildings are in no just sense “appurtenances"; but if annexed to the freehold, they are a parcel of tin' land, and pass as such by the deed. It is not. however, necessary to show, that there are things granted, to which the word applies. It is often thrown in by conveyancers without any actual knowledge of the premises, to avail, as far as it may avail, by way of cautionary enlargement of the principal grant, if there be any thing, on which it may operate. If there be in fact no appurtenances, then the word, like other expletives in a deed, is merely nugatory. The authorities cited at the bar upon this point are full to the purpose. and especially Leonard v. White, 7 Mass. 6, Jackson v. Hathaway, 15 Johns. 447. and the very late ease of Tyler v. Hammond. 11 Pick. 193. in the supreme court of Massachusetts. See also Com. Dig. "Chimin”; 2 Saund. 400, and note; 6 Mass. 332. To which I would add Whitney v. Olney [Case No. 17,595].
Now, in the present inquest (sufficiently loose in all its proceedings, and inartificially conducted, considering the magnitude of the interests at stake), there is nothing, upon which the court can put its finger, that in any manner justifies it in supposing the jury intended by “appurtenances" any thing but what are such in the legal sense. They appraise “one other lot, No. 2, with the ap-purtenanees,” then describing it by metes and bounds. These metes and bounds do not include the streets, or either of them. The lot is bounded by the streets, not over them. All the other lots are bounded on one of these streets; and there is no mention of “appurtenances” in the description of either of them. Tet if the intention were to include the land belonging to the streets, it must have been equally direct in regard to all these lots, as in regard to No. 2. The truth is, that no particular stress was laid on the word “appurtenances.” If the streets had been private ways, the right to • use them would have been "appurtenances" in the strict sense. But. as highways, they were public easements. This distinction may not have been attended to by the parties; and therefore the word “appurtenan-e.es" may have been inserted from greater caution. But the omission of it, in regard to the other lots, rather leads to the conclusion, that it was a chance hit; without intention or object. At all events, the fact, that all the lots are bounded by abuttals, which ex-elude the streets, irresistibly shows, that the jury did not intend to include them. If they had so intended, some positive expression would have been found. It has been said, that the duty of the jury was, to value the land only, and not to describe its boundaries. If it were so. it is too late to correct the error. But 1 am of opinion, that it was their duty to describe the land taken by definite bounds, in order to show the extent of this acquisition of property by the United States, in n proceeding in invitum. The description should be as defi-uite and clear, as in a common grant. The title of the United States might otherwise have been brought into jeopardy. How, indeed, could the jury value the land without ascertaining its extent"; So far, then, as the title of the United States is sought to be maintained upon this inquest, it appears to me unsustainable.
A question of more difficulty arises upon the construction of the act of 1731; whether it was simply’ intended to authorize the creation of servitudes or easements in the lands, over which the committee had laid out streets, lanes, and squares, according to the plan confirmed by the legislature: or whether it was intended to ves.t in the town the title and freehold of the soil itself, over which these streets, lanes, and squares were so laid. In other words, whether the [192] ■town was to acquire the whole property in the land taken .for streets, lanes, and . squares, paying damages to the full value; or was to acquire only a right of way, or public use, paying damages only for such right, and leaving the general ownership in the land, as it was before. It is unnecessary to consider, how far the legislature possessed a constitutional authority to take the lands for either purpose, depriving the owner of the right of a trial by jury to ascertain his damages; for Harris took no such exception, and received a compensation awarded according to the provisions of the act. But it is material to state, that by the terms of the act it is declared, that “all actions that shall be brought for recovering possession of any land lying within any of the streets, lanes, squares, &c. laid out as aforesaid, or for damages sustained or occasioned thereby, shall be utterly and for ever barred.” In the ordinary mode provided by law for laying out town ways, streets, and highways under our general statutes, it is clear, that an easement only is created; and, subject to that, the general propriety remains in the owner of the soil at the time of laying it out. He may use it for any purposes, not inconsistent with the easement. He is entitled to any profits from the herbage on the way-side, and may maintain trespass for any wrong or dispossession by any intruder. The present act in terms bars for ever actions brought for possession of any such lands; and therefore, taken in its literal signification, it may seem intended to bar for ever all possessory rights and remedies. It is true, that it does not purport to transfer any right. But the question made is, whether it does not so by fair implication. Could the owner, after the act, enter into possession, and thus destroy the easement? Could he enter into possession and cultivate the soil, not obstructing the easement? The pressure of the cause appears to me mainly to rest on this point; for, if all the right ol' Harris, and of those under whom he claimed, to the soil, was intended to he extinguished or to be vested in the town, then the defendant is guilty of a trespass. If not, then the title belonged to Harris; and the grant of the town, except so far as it operated as an extinguishment or discontinuance of the street over ■ the premises, was utterly void. It is plain, how the town understood the act. They acted upon it as transferring the title in the land to them; and they accordingly, by their vote in 1801. intended to grant it to the United States, so long as the navy yard should be continued in that place. This mistake, however, on the part of the town, if it be a mistake, cannot change the legal ■right of the parties; but the case must bo decided .wholly upon the terms and intent of the act of 1781.
After reflecting a good deal upon the subject, my mind has at last come to the con-elusion, that the act of 1781 was not intended to pass the freehold in the lands, but to create only an easement, which might be, and probably then was, contemplated to be perpetual. I will shortly state the reasons, which have conducted me to this result. In the first place, every act of a special nature, in derogation of private rights, ought to be construed strictly. This principle of construction is founded in the common law. And in cases of this nature, it acquires additional force from the constitutional provision in the bill of rights of the constitution of Massachusetts, that, “whenever the public exigencies require, that the property of any individual shall be appropriated for public-uses, he shall receive a reasonable compensation therefor.” The right, therefore, to take private property for public uses is limited to cases of public exigency. If the legislature expressly, or by necessary implication, state the exigency to exist, and the extent to which the property is to be taken, that would in common cases be decisive. But if the words used be equivocal, and upon the act it stand indifferent, whether a right of way only, or a right of freehold be taken, the natural construction would be. that the legislature intended an easement only, as that. would be eo-extensive with the exigency of the public use. Now, it is perfectly obvious, from the preamble of the act of 1781. that the committee of the town were appointed to regulate the streets, lanes, and squares in that part of Charlestown, which was laid waste; and that they had “proceeded to lay out the same,” that is, to lay out the streets, lanes, and squares. This power, thus given by the town, was an excess of municipal authority, and not within the purview of any of the general statutes for the opening or widening of streets and highways. It was. therefore, ipso facto void, unless it received the confirmation of the legislature by some new enactment. The act of 1781 gave such confirmation. But the confirmation was intended to go no farther than the original authority. given by the town, extended: or at least no farther than the acts of the committee under it had gone. There is not a word in the statute, which looks beyond the acts of the town and committee: or which purports to provide for more extensive operations. The power given by the town to the committee tvas. to regulate the streets, lanes, and squares, in the part of the town laid waste. It is not easy to give any very exact sense to the term "regulate" in this connexion. It ordinarily implies, not so much the establishment of a new thing, its the arrangement in proper order of such as already exist. It might have meant no more than to ascertain, and fix, the lines and limits of the existing streets, lanes, and squares. But a liberal interpretation might perhaps fairly include the power to widen, alter, and extend the streets, lanes, and squares in that part of the town, so as to provide for the public convenience, [193] and the mutual connexion of the whole. The committee appear to have acted upon this interpretation; and after such a .lapse of time it would he too much to hold it unsound, or unjustifiable, especially when it has received a legislative sanction.-
Assuming then, that the power to regulate, included the power to lay out streets, does the latter naturally or necessarily include the power to take away the freehold trom the owner of the soil, or only to create an easement over it? In the construction of the ordinary statutes respecting highways, the power given to selectmen, and other public functionaries, “to lay out” streets and highways, has always been held, tas has been already stated,) not to take away the freehold, but to create an easement only. The extraordinary power given to the committee is only a substitution of them for the ordinary functionaries. The power is the same; but the persons, who are to exercise it, are different. In what manner does this change the nature or extent of the power itself? It is a great misfoi*tune in this case, that we cannot find the original doings of the committee in the town records; nor the petition of the town, on which the act of 1781 was founded; nor indeed any other proceedings relative thereto. We are compelled to rely wholly on the preamble of the statute for every memorial of the acts of the town and the committee. Under such circumstances, it seems to me, that we are bound to construe the statute cypres, and to subject its terms to the same interpretation, as words of a similar import have in the ordinary highway laws. The legislature ought to be presumed to use the words in the common sense, and under the same limitations, which the common law implies, unless some other intention is clearly manifested. The prohibition to maintain any action for possession, or for damages, does not necessarily import such an intention. It is true, that in common cases of highways, the owner of the soil may maintain an action for possession, subject to the easement. The words of the act of 1781 seem to bar such an action. But their generality may well be limited to cases, where a possession is sought inconsistent with the easement. The same clause bars any action for damages. What damages? Clearly for laying out the streets, not for taking the fee of the lands. The fourth section of the act provides for the manner of ascertaining the damages; and, though it speaks of appraising the value of the lands and buildings taken under the act, yet the preamble to that section expressly shows, that it is the damages done “by laying out the streets." and not by transferring the fee to the town. For all the purposes of the act, the public use is just as complete and perfect by the establishment of the streets, as by a transfer of the fee. The latter was not necessary for any avowed purpose of the town, or of the committee, or of the legislature.
It has been urged, that the act of 1781 did not extend to the land in controversy; for Water or Battery street and Meeting-House street were not laid out over the premises until many years after the passage of it If the plan and report of the committee did not in fact contain a laying out of these streets in a legal sense, (for the time of their being actually opened is quite a different consideration,) it is perfectly clear, that the act of 1781 does not apply to them; for it confirms past proceedings only in laying out, and does not purport to authorize future proceedings of a like nature. And here, again, we are in the dark; for the proceedings of the town, as to these streets in 1795 or 1796, and in 1798 and 1799, cannot be found; and we have no means of ascertaining their import or effect. The plan alone remains; and that certainly extends the lines of the streets, as they were subsequently opened. In my view of the case, the adoption of the plan by the legislature in 1781 must be deemed, in a legal sense, a laying out of streets at that time; and the subsequent proceedings of the town were not a new laying out. but merely an opening of the old streets in conformity to the plan. Upon this point the argument is not. therefore, sustained.
But, for the other reasons already stated, my judgment is, that the laying out of the streets over the premises in 3781 did not transfer the fee from the then owners' of the land, but left it in them, subject to the easement. And, according to the agreement off the parties, the United States are to become, nonsuit.