Farnsworth v. City of Rockland , 83 Me. 508 ( 1891 )

Walton, J.

The Revised Statutes, chap. 18, § 95, provide that, "when buildings or fences have existed more than twenty years fronting upon any way, street, lane, or land appropriated to public use, the bounds of which can not be made certain by records or monuments, such buildings or fences shall be deemed the true bounds thereof.”

The plaintiff owns a building which for more than thirty-five years has fronted on one of the principal streets in the city of Rockland, and it is conceded that it must now be regarded as one of the boundaries of the street. But it is not on a line with the adjoining buildings, and the city has taken measures to compel her to move it back. It is conceded that she will be entitled to damages, and the only question is how much.

The plaintiff contends that in order to ascertain the amount of land taken for the widening of the street, the measurement should commence on a line with the cornice on the gable-end of the building. The city contends that the measurement should commence on a line with the side of the main building.

The cornice projects about eight inches; and if the plaintiff’s method of measuring is adopted, she will be entitled to compensation for a width of twenty-two and a half inches. If the city’s method is adopted, she will be entitled to compensation for a width of only fourteen and á half inches.

We think the city’s method is the correct one. For more than thirty-five years the city has maintained a sidewalk close up to the side of the building. The exceptions so state. The side of the building, and not the projecting cornice of the roof, has, during all that time, in fact bounded the street. And the street has in fact been -widened only fourteen and a half inches. And the plaintiff will be obliged to move her building no more than that. For that amount of land she is undoubtedly entitled to recover compensation, and we fail to discover any reason why she should recover compensation for a greater width than that. It may be time, as she contends, that when a building is the boundary of land conveyed by deed, the boundary is the outermost portion of the building.

In Millett v. Fowle, 8 Cush. 150, the court held that, where a deed described one of the boundaries of the land as four feet from the " northerly side” of a building, the boundary ivas four feet from the extremest part of the building, which in that case was the edge of the eaves.

But in this State, in Calais v. Bradford, 51 Maine, 414, where a deed described one of the boundaries as eight feet four inches from the "south side” of a building, the court held that the measurement should be made from the corner board on the side of the building.

These decisions are in conflict. They can not be reconciled. In each case the measurement was to commence at the " side ” of the building. In the one case, the court held that that meant at the edge of the eaves. In the other, at the boarding on the side of the building.

But it is unnecessary to determine which is the more sensible conclusion ; for we are not now bounding land, we are bounding a right of way. Presumptively the plaintiff owns the land to the centre of the street. But the exceptions state that for over thirty-five years the city has maintained a sidewalk close up to the sill of the building, and its right to that portion of the way which is under the overhanging cornice of the roof is as valid as its right to any other portion of the way.

The building is two stories'high, and the cornice is on the gable-end of the building, and projects only about eight inches. Similar projections are very common. Not only cornices, but small balconies and bay-windows, often overhang sidewalks. And if they do not in any way interefere with or incommode the public travel, such structures are not unlawful. The owner of land over which a public way passes has a right to occupy the land above and below its surface to any extent that will not impair its usefulness for a way. Of course, a bay-window, or a balcony, or a cornice even, may be so low down, and project so far into a street, as to obstruct or incommode the public travel; and in such a case, the structure would be a public nuisance, and its removal could be compelled. But an eight-inch cornice on the gable-end of a two story building could never be so regarded. And whether in any particular case such a structure is or is not a nuisance is to be decided in the exercise of sound practical common sense, and not on merely imaginary or theoretical grounds. The public must not be made to suffer any real inconvenience, nor should the owner be deprived of any such reasonable use of his land as will not incommode the public.

The difference between land when bounded by a building, and a way when thus bounded, is very obvious. When land is bounded by a building, it would be unreasonable to assume that the parties to the conveyance intended that the main portion of the building should be on one side of the line, and the cornices, and other projecting finish, on the other. Hence the rule that, in such a case, the line shall be regarded as wholly on one side of every portion of the building. Not so a right of way. There is nothing unreasonable in the assumption that a mere right of way, even if created by an express grant, was intended to extend under the projecting finish of a building. Hence, the rule invoked by the plaintiff is not applicable; and especially not applicable, when, as in this case, the right of way is acquired by adverse use, and not by express grant. In the class of cases, where the extent of the way is determined by the use, its extent is necessarily co-extensive with its use. At least, such is the general rule ; and there is nothing in this case to take it out of the general rule.

If we should adopt the construction of the statute for which the plaintiff contends, and hold that all the bay-windows, and balconies, and cornices, which have for twenty years overhung our sidewalks, have become the boundaries thereof, we should have some very crooked and jagged side lines, and it would be difficult for our street commissioners to determine to what width it would be their duty to keep them in repair. We do not think the statute can be rightfully so construed. We think that when it declares that buildings which have for more than twenty years fronted upon a public way or street shall be deemed the bounds thereof, it means that portion of the building which rests upon the ground and does in fact bound and limit the way, and not the cornices or other projections which, far above the heads of travelers, may happen to overhang the sidewalk.

As the construction of the statute contended for by the plaintiff was sustained by the court at the trial in the court below, it is the opinion of the law court that the exceptions must be sustained and a new trial granted.

Exceptions sustained.

Peters, C. J., Virgin, Libbey, Haskell and Wi-iitei-iouse, JJ., concurred.