Bangor House Proprietary v. Brown , 33 Me. 309 ( 1851 )

Shepley, C. J.

— An aqueduct, owned by the plaintiffs appears to have passed through a street, formerly called Centre street, in front of the defendant’s dwellinghouse, nearer to it than the centre of the street, and about six feet below the surface of the earth.

A lot of land numbered seventeen, a part of which constitutes the defendant’s house lot, was conveyed by the owners to Elliott Yalentine, on September 28, 1832, bounded “southerly on Centre street, there measuring 120 feet,” “ as the same is laid down on a plan drawn by Zebulon Bradley, in December, 1829.” The title of the defendant is derived from, Valentine.

The owners of land, including this lot, caused Bradley to draw a plan thereof in December, 1829, and to designate upon it building lots and streets. They soon afterwards caused Centre street to be prepared for use as a street or way.

As the law has been established in this State, when land conveyed is bounded on a highway, it extends to the centre of the highway; where it is bounded on a street or way existing only by designation on a plan, or as marked upon the earth, it does not extend to the centre of such way.

ed. The owner of land, who has caused it to be surveyed and designated as containing lots and streets, may not be able to dispose of the lots as he anticipated, and he may appropriate the land to other uses; or he may change the arrangement of his lots and streets to promote his own interest, or the public convenience in case the streets should become highways. He does not by the conveyance of a lot bounded on .such a way hold out any intimation to the purchaser, that he is entitled to the use of a highway to be kept in repair, not at ^ his own, but at the public expense, for the common use of all. '■ While he does by an implied covenant assure to him the use j of such designated way in the condition in which it may be S found, or made at his own expense. By a repurchase of that ( title, the former owner would be entitled to close up such ( way, as he would also by obtaining a release of the right of J way. The occasion of such difference in effect may be ascertain-'*’

There is no indication in such cases of an intention on the part of the grantor to dispose of any more of his estate., than is included by the description, -With a right of way for its convenient use.

When a lot conveyed is bounded on a highway expected to be permanent, the intention to have it extend to the centre of it is inferred, (among other reasons noticed by this Court in former cases,) from the consideration that the vendor does not convey or assure to the vendee a right of way, the law affording him in common with others a more permanent and safe public way, to be kept in repair at the public expense. The vendor not being burdened by an implied covenant, that the vendee shall have a right of way, has no occasion to retain the fee of the highway for that purpose. Hence arises one motive inducing him to convey all the rights, which he can convey to land covered by the highway.

In argument for the defendant it is insisted, that Cenfare street at the time of the conveyance had become a highway by dedication of the owners of the land.

It might be sufficient to observe, that such a position dkjes not appear to have been presented at the trial, for decision bj the jury or for instruction by the Court.

Without insisting upon this, the testimony presented in the bill of exceptions does not sustain the position.

If an owner of land should cause it to be surveyed into lots and streets, and a plan thereof to be made, and should also cause the streets to be made convenient for use, and continue to keep the land enclosed as his own property, it would not be contended, that a dedication of it to the public could be inferred from these acts. There must be some act of the owner, from which it can be clearly inferred, that he intended to surrender it for public use, and not for the use of certain persons only. The simple facts, that a person pursued! such a course respecting his land, and that he opened a way j for the use of a purchaser of a lot, would not, alone consider- j ed, authorize an inference that it was dedicated to the public for common use. There should be some evidence, that it was generally used with his knowledge, as public convenience might require, to authorize such a conclusion. Nor could the i owner compel the public to accept and adopt such streets as highways. There should be evidence that they had been commonly used to authorize an inference, that they had been accepted as public ways.

In this case, there is not only no evidence that Centre street at the time of the conveyance of the defendant’s lot to Valentine had been used as a public way, but there is evidence, that it was not kept in repair, and that part of it only is used as a street. Exceptions overruled, and judgment on the verdict.