Low v. Tibbetts , 1881 Me. LEXIS 40 ( 1881 )

Barrows, J.

The question is, whether the fee in the locus (which is a strip about twelve rods in length, by forty-four feet in width, being a section of a duly located street in the village of Spring Yale, running along the bank of Mousam river, cutting a lot formerly owned by the plaintiff very unequally, and leaving the largest part of it on the side farthest from the river, and a little irregularly shaped laud between street and river) is in the plaintiff, or in the defendant.

After the street ivas built, plaintiff conveyed bis lot to defendant, describing first the more important part, as "situate in the village of Spring Yale . . . beginning on the north easterly side of the new road leading from the Province ■ Mills Bridge to the cotton mill, and at the southerly corner of the lot as now fenced belonging to school district number one, . . and running (course given) by said road ... to a stake,” and thence around the rear of the lot, "to the place begun at; also the land now owned by said Low between said road and Mousám river.”

The well settled doctrine in this State is, that a grant of land bounded on a highway, carries the fee in the highway to the cen-tre of it, if the grantor owns to the centre, unless the terms of the conveyance clearly and distinctly exclude it, so as to control the ordinary presumption. Oxton v. Groves, 68 Maine, 372. Here the principal piece is bounded by the road as a monument or abuttal. So is the land lying opposite "between the road and the river.”

Is there enough in the language used, to exclude the street from the conveyance ? The mere mention in the description of a fixed point on the side of the road as the place of beginning or end of one or more of the lot lines, does not seem to be of itself sufficient. Cottle v. Young, 59 Maine, 105, 109; Johnson v. Anderson, 18 Maine, 76; nor will similar language, with reference to monuments standing on or near the bank of a stream, in lines beginning or ending at such stream, prevent the grantee from holding ad medium filum aquae. Pike v. Monroe, 36 Maine, 309; Robinson v. White, 42 Maine, 210, 218 ; Cold Spring Iron Works v. Tolland, 9 Cush. 495, 496. The case of Sibley v. Holden, 10 Pick. 249, cited by plaintiff, was commented on by this court, in Bucknam v. Bucknam, 12 Maine, 465, and that of Tyler v. Hammond, 11 Pick. 193, in Johnson v. Anderson, 18 Maine, 78 ; and the apparent force of these decisions is somewhat restricted and explained, by the learned court which pronounced them, in Newhall v. Ireson, 8 Cush. 598, and Phillips v. Bowers, 7 Gray 24; although it is apparent from the last case and from Smith v. Slocomb, 9 Gray, 36, that the Massachusetts court lays less stress upon the ordinary presumption, and requires less distinctness in the terms of the deed to obviate it, than we have done in the cases above cited from the 18th, 59th and 68th of our own reports. See also, Perkins’ note to Sibley v. Holden, in the second edition of Pickering’s Reports, vol. 10, p. 251.

Had the plaintiff run his first line "by the north easterly side line of said road,” instead of "by said road,” and conveyed the land "lying between the southwesterly side line of said road and Mousam river”, instead of that "lying between said road and Mousam river,” a different question would have been presented.

Ill the absence of the very few words which were necessary to make plain an intention on the part of the plaintiff to reserve the fee in the land covered by the street to himself, we think the ordinary presumption and construction must prevail.

Nonsuit confirmed.

Appleton, C. J., Walton, Virgin, Libbey and SymoNds, JJ., concurred.