Goodeno v. Hutchinson , 54 N.H. 159 ( 1873 )

Poster, J.

It would seem to be immaterial, for the purposes of this

case, whether the westerly line of the premises conveyed by the plaintiff to the defendant runs southerly or due south from the terminus of the northerly line, since it is conceded that the westerly line, whatever may be its precise direction, is either the easterly margin or the centre of the road, and that the land in controversy is the easterly half of the abandoned highway. This being so, it is as if the language of the deed descriptive of the westerly boundary were “ thence southerly on said road,” or “ thence southerly bounded by said road;” and the case falls precisely within the authority of Meed’s Petition, 13 N. H. 381, which recognizes and adopts the long-established and well-settled rule of law, that where land sold is bounded by a highway, or upon or along a highway, the thread or centre line of the same is presumed to be the limit and boundary of such land, in analogy with the case of a stream of water not navigable, unless there is some further circumstance to control such a construction of the deed. 3 Washb. R. P. (3d ed.), 360; 3 Kent’s Com. *434.

An examination of numerous cases leads to the conclusion that this principle of construction is so firmly established that it will be controlled only by very decisive circumstances, or by such words or specific description as plainly indicate a contrary intention. In Hoboken Land Co. v. Kerrigan, 31 N. J. (Law) 16, where the line began at a corner on the side of the road, and ran by courses and distances, but without reference to the road, which, if accurately followed, would exclude it, it was held not to extend beyond the line thus plainly indicated. And wherever the terms of the deed show an intention to make the side line rather than the centre of the road the boundary, it will be so construed; as in the case where land was bounded “ easterly by said thirty-foot street, by a line which is parallel with and one hundred and ninety feet distant from B street.” B street being one hundred and sixty feet eastwardly from the eastern margin of the thirty-foot street, it was held to exclude the street, the boundary being limited by metes and distances.

But in Berridge v. Ward, 10 C. B. (N. S.) 400, where the deed conveyed land bounded by a highway, it was held to extend to the filum vice, although the colored plan of the lot sold, and admeasurement, extended only to the line of the road.

In Kimball v. Kenosha, 4 Wis. 331, the court say, — “ Unless the street or road is expressly excluded, the grantee takes to the centre.” And in Morrow v. Willard, 30 Vt. 118, the court held that bounding “ south on a highway ” passes the soil to its centre line; but if the deed had said “ bounded by the north line of the highway,” it would have excluded it altogether. See the cases cited in the American notes to 2 Smith’s L. C. (4th ed.) 187; Winter v. Peterson, 4 Zab. 527; Sherman v. McKeon, 38 N. Y. 266; Paul v. Carver, 24 Pa. St. 207; Cox v. Freedley, 33 Pa. St. 124; Johnson v. Anderson, 18 Me. 76; Stark v. Coffin, 105 Mass. 328; Chatham v. Brainerd, 11 Conn. 82; Champlin v. Pendleton, 13 Conn. 23; Grear v. Barnum, 37 Conn. 229. In the latter case, Carpenter, J., after stating the “ established rule of law ” that a conveyance of land bounded on a public highway carries with it a fee to the centre of the road as part and parcel of the grant, says, — “ If the deed, in terms, bounded the premises on the highway, the application of this rule could not be disputed. It being established that the land is in fact bounded upon the highway, the mere fact that it is not so described in the deed will not vary the construction. In either case, the presumption that it was not the intention of the grantor to withhold his interest in the road to the middle of it, after parting with all his right to the adjoining land, will be the same. Unless such intention appears the presumption applies.”

This brings us to the consideration of the question, whether the proposed testimony, concerning the understanding and agreement of the parties that the east side of the highway should be the west line of the land conveyed, was competent. And wé are unable to discover any grounds upon which such evidence could properly be admitted.

There is no latent ambiguity in the terms of the description of the boundary when the true rule of construction is applied. “ To the road ” means to the centre of the road. The boundary is thus perfectly defined; and the remarks of Bellows, C. J., delivering the opinion of the court in Coburn v. Coxeter, 51 N. H. 162, seem to be peculiarly applicable : “ If this evidence be admissible to control the deed, it would be difficult to conceive of a case where it would not be admissible, for here, clearly, there is no latent ambiguity in’respect to this boundary. The most that can be said is, that the parol evidence shows that the parties intended to convey a different tract of land; but if it be so, the only remedy is by proceedings in equity to reform the deed, for at law it is conclusively presumed that all previous negotiations are merged in the deed.”

“ The duty of the court is to ascertain not what the parties may have secretly intended, as contradistinguished from what their words express, but, what is the meaning of the words they have used.” 1 Gr. Ev., sec. 277; Proctor v. Gilson, 49 N. H. 65.

Facts, existing at the time of the grant and prior thereto, may be proved by parol evidence, with the view of establishing a particular line or bound as being the one contemplated by the parties, when, by the terms of the deed, such line or bound is left uncertain ; but here there is no question as to which of two or more lines or bounds is intended, but a bound is expressed which has a fixed and settled legal meaning; and in such a case parol evidence cannot be admitted to contradict or control the language of the deed. 3 Washb. R. P. (3d ed.) 347.

In accordance with these views there must be

Judgment on the verdict.