Cordelia M. Pitney and Others, Appellants, v. Howland K. Huested, Respondent.
Boundaries— a grant bounded by a dug-way, owned by the grantor, carries the title of Ms grantee to the center of the dug-way.
A deed bounding the premises thereby conveyed “ on the north by the dug-way, at the north end of the horse shed,” when supplemented by proof that the dug-way extended from a turnpike in a village to the Hudson river, and at the time of the execution of the deed was in use by the public as a foot path, between the street and the river, with the permission of the grantor (the owner of it), and that occasionally horses and wagons passed over it, conveys to the grantee the land to the center of the dug-way, and an easement in the whole thereof.
Appeal by the plaintiffs, Cordelia ]VI. Pitney and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 28th day of January, 1895, upon the decision of the court rendered after a trial at the Saratoga Special Term.
The action was brought to restrain the defendant from continuing to occupy and obstruct a private way, as to which the plaintiffs claimed title by grant to the center, and easement of passage in the whole thereof. The defendant erected a building in the alleged way.
In the grant in 1846 from Hunter, the common grantor, to Nelson, whose title the plaintiffs acquired by the same description, the northern boundary is, “ On the north by the dug-way at the north end of the horse shed.”
The defendant’s grant from the same grantor, Hunter, in 1852, bounds his land on the south by the land sold Nelson, as above mentioned.
The dug-way, no doubt, was originally a ravine or gulch, extending from the turnpike in the village of Stillwater to the Hudson river; it was thirty-one feet long, and was cut, probably, by the surface water, through the river bank, here composed of soft slate, making a descent of thirteen feet from the street to the river. The banks are ragged, sloping sharply from the surface of the river bank to the bottom of the dug-way, where it is five or six feet wide. It is open at each end, and was, when the grant was made in 1846, used as a foot path between the street and the river by the public
*106with the permission of the owner, and occasionally horses and wagons passed over it.
It is now in about the same condition, except that it has been filled in somewhat by rubbish. The plaintiffs’ premises front upon the public street.
The defendant gave evidence tending to show adverse user. He has recently built a barn upon it. The trial court dismissed the complaint.
C. C. Lester, for the appellants.
George B. Lawrence, for the respondent.
Landon, J. :
If we treat the dug-way as a strip of land by which the plaintiffs’ land is bounded on the north, the grant to the plaintiffs would not extend to its center line. Ordinarily, when land is bounded by a stream, ditch, lane, alley, wall or way, which belongs to the grantor, the grant extends to the center thereof, and in respect to the way, conveys an easement over the whole thereof and reserves an easement as to the half conveyed. (White's Bank of Buffalo v. Nichols, 64 N. Y. 65; Bissell v. N. Y. C. R. R. Co., 23 id. 61; Perrin v. N. Y. C. R. R. Co., 36 id. 120 ; Child v. Starr, 4 Hill, 369.)
But when land is described as bounded by other land, as land, and not as a line, or way for egress or ingress, then the side of the -land mentioned, and not its center,, is the boundary. (City of Boston v. Richardson, 13 Allen, 146.)
Upon the evidence, we think this dug-way was regarded as a lane or alley forming a right of way from the highway to the river, and was not merely a strip of land, and hence the grant to the plaintiffs was to the center thereof, and conveyed an easement in the whole thereof.
We do not think the evidence sufficient to justify the finding of adverse user by the defendant and his grantors for twenty years.
The judgment is reversed, new trial granted, costs to abide the event.
All concurred.
Judgment reversed and a new trial granted, costs to abide the event.