Gaylord v. King , 142 Mass. 495 ( 1886 )

C. Allen, J.

The first question which we have considered is, whether the plaintiff has shown a title in herself to the soil of that part of the highway where the trees stood; and we think she has not. She relies, primarily, upon the grant by the town in 1788, and upon the rule of law, now well established and familiar, that grants of land bounding on a way will be presumed to extend to the centre of the way, if the grantor owns the soil thereof, and if a clear intention to the contrary is not to be gathered from the language of the deed, construed in the light of the existing circumstances. In the present case, such clear intention to the contrary sufficiently appears. It is assumed, throughout the discussion, that, prior to the proceedings of 1787 and 1788, the town owned the whole street in fee. The street was then wide, and the whole purpose of the proceedings was to narrow it. The land conveyed was not independent land bounding on the street, but was a part of the street; it is nowhere in the grant itself expressed, in terms, to be bounded on the street or way. Those words are used only in the report made to the town by its committee. We look in vain for any indications of an intention, on the part of the committee or of the town, to change the nature of the title of the town in the soil of the ways as newly laid out. Every presumption is against it. The town was a continuous corporate body, having perpetual succession, and no heirs. Owning the whole street, no reason can be conjectured why, in carrying out its plan of narrowing it, an intention should be inferred to convey the soil to the centre. If in any place the street were narrowed by taking a small strip on each side, and the street should afterwards be discontinued, the construction contended for would lead to the result that the town’s title would then be only in separate isolated lots. As a part of the vote granting the land, it was provided that “ the town way in each tract respectively should be discontinued; ” words winch throw a strong light upon the intention and understanding of the parties at the time. On the whole, without at all departing from the general rule for the construction of grants bounding upon a way, it is manifest that the intention of the town was merely to grant the land over which the town way was to be discontinued. See Phelps v. Webster, 134 Mass. 17.

The proceedings and votes of the town in 1809 and 1810 afford no ground for inferring an intention to grant the soil to the centre of the street, for reasons which are covered by what has been said in reference to the proceedings and vote of 1787 and 1788.

The plaintiff contends that the town is estopped to deny her title, by reason of the proceedings in 1883; but the town thereby lost no title which it already had to land included in the street. It is quite probable that by far the larger portion of the laud included in the highway as laid out by the county commissioners was clearly and without dispute included in the way as already existing, and there is nothing to show that the place where the trees stood was then for the first time taken into the highway. Indeed, it is plain that it was not so. Nor could the proceedings of the commissioners deprive the town of land which it owned in fee. The essential elements of an estoppel are wanting.

It thus appearing that the plaintiff did not own the land on which the trees stood, that portion of the Pub. Sts. e. 54, § 6, reenacting the Gen. Sts. c. 46, § 6, applicable to “ shade trees standing,” does not apply; and the only remaining question is, whether these trees are shown to have been shade trees planted pursuant to a license or authority of the selectmen, or other proper municipal officer. The plaintiff contends that there is a legal presumption of such license or authority, arising from the facts that they were planted and have remained sixteen or seventeen years without objection, and that she had mowed the grass there for nearly thirty years. Such presumption, in order to be effectual for the plaintiff’s purposes, must be a conclusive presumption ; since the auditor’s report, which there were no facts to control, states explicitly that the plaintiff had no such authority, either verbal or written. But there is no such conclusive legal presumption. The mere absence of expressed objection is not sufficient to meet the requirement of the statute. There must be enough" to show, by inference or otherwise, an actual license or authority, which is negatived here. -

Exceptions overruled.