cation of the highway has not been accepted and the highway has not been opened. Paine v. Consumers' Forwarding & Storage Co. (1895) 19 C. C. A. 99, 37 U. S. App. 539, 71 Fed. 626; Harrison v. Augusta Factory (1884) 73 Ga. 447; Johnson v. Arnold (1893) 91 Ga. 659, 18 S. E. 370; Miner v. New York (1874) 5 Jones & S. (N. Y.) 171; Trowbridge v. Ehrich (1906) 116 App. Div. 457, 101 N. Y. Supp. 995, modified in (1908) 191 N. Y. 361, 84 N. E. 297; Andrews v. Youmans (1890) 78 Wis. 56, 47 N. W. 304.

In Manchester v. Hodge (1908) 74 N. H. 468, 69 Atl. 527, it appeared that a street had not been laid out, but the location thereof was in the minds of the parties. It was held that the grantee took to the center of the street when it was laid out.

In Pettibone v. Hamilton (1876) 40 Wis. 402, it was said: "We agree with counsel for the plaintiffs, that the recording of the plat operated to place the owners of the front lots which Dr. Darling had previously conveyed by metes and bounds on the same footing in respect to the alley and 'Darling place,' as though such conveyances had been made after the plat was recorded."

In Clark v. Providence (1873) 10 R. I. 437, the court said: "This is the mode in which additions to our cities are generally made. It is contemplated that the strips marked as streets shall in time become highways. And the same reasons of public policy which have led to the decisions that, as a general rule (with some exceptions), a deed of a lot upon an acknowledged highway is presumed, in the absence of facts or declarations to the contrary, to carry the fee to the center, would apply to a case of the sort we have described. Upon any other principle, whenever, through some legal defect, a supposed highway was decided not to be a highway, the decision would have a retroactive effect upon the construction of all the deeds of land bordering upon it."

In Bissell v. New York C. R. Co. (1861) 23 N. Y. 61, the court said: "If, as regards these grantees, it is a strect, and if, in nis conveyances, he

intended it as a street, as all the cases hold he did, I am not able to see why the legal inference, as regards his conveyance, is not the same as if it were a public highway. There is no more reason to presume the intention in the grantor in such a case to withhold his interest in the road to the center of it, after conveying all his right and title to the adjoining lands, than there would be were this to all intents and purposes a public street. The question in each case becomes one of presumed intention arising upon the conveyance itself; and I am not able to perceive how it is possible to deduce a different intention in one case from that which, the law has settled, shall be inferred in the other. Did not Mumford, when he caused these lots to be laid out on either side of this street, and this street designated, named, and put down on the map, and these lots numbered, and when he conveyed these lots to purchasers with a reference to this allotment and survey, intend that this should be a street, by the name of Erie street? No one will pretend that he did not. Did he not, by selling these lots to purchasers with reference to this map and street, and conveying the lots to them on both sides of the street, thereby, so far as these grantees are concerned, dedicate this as a street? No one can claim to the contrary. All the cases affirm it. Did he not, then, in making these conveyances to these purchasers, intend to convey lands upon a street, so far as the grantees in these deeds are concerned, and did not these purchasers so understand it? No one can doubt it for a moment. If such was the intention of the parties to these conveyances, then I am not able to perceive why the conveyance does not carry with it the usual legal inference that a conveyance bounded by a highway does; to wit, that it carries with it the fee to the center of the road."

In a jurisdiction wherein an accepted statutory dedication rests the fee in the municipality, it has been held that a conveyance, often an offer to dedicate, gives the grantee a fee to the center of the street, subject to the ac

ceptance of the outstanding offer to dedicate. Hamilton v. Chicago, B. & Q. R. Co. (1888) 124 Ill. 235, 15 N. E. 854.

But in Plumer v. Johnston (1886) 63 Mich. 165, 29 N. W. 687, it was held that where an offer to dedicate had not been accepted at the time of the conveyance, the grantee took only to the side of the proposed street, the court saying that the doctrine that the fee to the center is conveyed "is applied to actual highways, and not to mere paper highways." See to the same effect, Merrill v. Newton (1894) 99 Mich. 225, 58 N. W. 70.

The majority of the Pennsylvania decisions hold that a conveyance of land bounded by an unopened street gives title only to the side line. Neely v. Philadelphia (1905) 212 Pa. 551, 61 Atl. 1096; Daughters of American Revolution v. Pennsylvania R. Co. (1911) 229 Pa. 636, 79 Atl. 127; Andreas v. Steigerwalt (1905) 29 Pa. Super. Ct. 1; Spencer v. Carlisle (1916) 63 Pa. Super. Ct. 513.

It has been said in that jurisdiction that the street must either be open or referred to in the deed as existing. Bliem v. Daubenspreck (1895) 169 Pa. 282, 32 Atl. 337. And see to the same effect, Patterson v. Harlan (1887) 3 Pa. Co. Ct. 560, on rule for new trial in (1888) 5 Pa. Co. Ct. 211; Falls v. Reis (1873) 74 Pa. 439.

In Clymer v. Roberts (1908) 220 Pa. 162, 69 Atl. 548, it was held that though the street has not been opened, if the deed expressly bounds land by the center line thereof, the grantee takes the fees to the center. But, in another case, a description of land as bounded by a street which was plotted but not opened was held to carry only an easement in the street. Cole v. Philadelphia (1901) 199 Pa. 464, 49 Atl. 308.

b. Abandonment or vacation of highway before conveyance.

In Ott v. Kreiter (1885) 110 Pa. 370, 1 Atl. 724, land bounded by a street was conveyed after the passing of an ordinance vacating the street, but before the street was actually closed. It was held that the grantee took to the center of the street. See to 2 A.L.R.-3.

the same effect, Amerman v. Missouri, K. & T. R. Co. (1916) Tex. Civ. App.

182 S. W. 54, wherein it was said: "Appellants' contention that the Amerman deed did not pass title to appellee to the center of that portion of Pearl street upon which the property described in said deed abuts is based upon the proposition that, because the city had released its rights in the street prior to the execution of said deed, the street had ceased to exist, and therefore the general rule that the conveyance of property bordering on a street or public highway, which calls for such street or highway, passes title to the vendee to the center of the street or highway, is not applicable. The contention is not sound. The abandonment by the city of any rights it may have had in said street in no way affected the existence of the street. The rights of all persons owning property abutting thereon or adjacent thereto, and who held under conveyances referring to and calling for said street, to keep the street open, were not dependent upon whether the public accepted the dedication or abandoned its rights thereto."

In Terrett v. New York & B. Steam Saw-Mill & Lumber Co. (1872) 49 N. Y. 666, it was held that the grantee took to the center, though the street had been discontinued by an act of the legislature at the time of the conveyance.

In Overland Mach. Co. v. Alpenfels (1902) 30 Colo. 163, 69 Pac. 574, the question was discussed, but not decided.

But it has been held that a conveyance of land bounded by a street after the abandonment of the street gives no title to the fee therein. White v. Jefferson (1910) 110 Minn. 276, 32 L.R.A. (N.S.) 778, 124 N. W. 373, wherein it was said: "What had been a street would be mere land. It would be taxable as land and so descend. Its transfer would be subject to the appropriate section of the Statute of Frauds. That it was not numbered nor properly named on the plat would be wholly insignificant. The case would be the same as if no street had

ever existed; and, instead of being designated as 'street,' the tract had been marked 'sand hole,' or 'mound,' or any other name, or had had no name. The land which had been a street assumed exactly the same legal status as any other land which had not been impressed with a public easement. There is neither mystery nor magic in the word 'street.' The easement of use is the significant fact." See to the same effect Empenger v. Fairly (1912) 119 Minn. 186, 137 N. W. 1110.

c. Location of premises with respect to highway.

Where land as conveyed does not extend to a highway, the subsequent dedication of the intervening strip by the grantor does not extend the grantee's title to the center of the highway. Valley Pulp & Paper Co. v. West (1883) 58 Wis. 599, 17 N. W. 554.

So, in Huff v. Hastings Exp. Co. (1902) 195 Ill. 257, 63 N. E. 105, it appeared that land was conveyed to a line 25 feet from the line of a street. The intervening strip was subsequently dedicated by the grantor. It was held that the grantee took no rights in the fee of the street.

If a highway is laid off entirely on a tract of land, running along the margin thereof, a conveyance of the tract vests in the grantee the fee in the whole of the soil of the highway. Taylor v. Armstrong (1863) 24 Ark. 102; Re Robbins (1885) 34 Minn. 99, 24 N. W. 356, 57 Am. Rep. 40; Wait v. May (1892) 48 Minn. 453, 51 N. W. 471; Healey v. Babbitt (1884) 14 R. I. 533.

d. Ownership of fee in highway. Where the grantor of premises abutting on a highway owns only an easement therein, his conveyance of the premises of course does not, no matter what may be the description, give any right to the fee of the highway. McDonald v. Kummer (1913) 56 Colo. 153, 160, 137 Pac. 51; Somerville v. Johnson (1882) 36 N. J. Eq. 211; Humphreys v. Eastlack (1902) 63 N. J. Eq. 136, 51 Atl. 775; Dunham v. Williams (1867) 37 N. Y. 251; Webber v.

Gillies (1908) 112 N. Y. Supp. 397; Day v. Chambers (1884) 62 Tex. 192; Church v. Stiles (1887) 59 Vt. 642, 10 Atl. 674; Burbach V. Schweinler (1882) 56 Wis. 386, 14 N. W. 449.

In Dunham v. Williams (1867) 37 N. Y. 251, the court said: "In the present instance, the presumption in favor of the adjacent owners was repelled by affirmative and decisive proof that the fee of the roadbed was not vested in them nor in the parties through whom their title was deduced."

In Burbach v. Schweinler (Wis.) supra, it was said: "But if the fee, by the law governing the platting of villages at the time, became vested in the county, nothing is conveyed within such alley, and it is wholly excluded from the operation of the deeds. This position is assumed and ably urged by the learned counsel of the respondent, and supported by the citation of numerous decisions of this and other courts. The principle is that the purchaser buys with full notice of the streets and alleys on the plat, and subject to them."

In Church v. Stiles (1887) 59 Vt. 642, 10 Atl. 674, it was said: "The rule is one of construction, and is limited to those cases where the 'grantor owns the fee' of the highway; for if it was covered by the description in the deed there would be no necessity of calling in the aid of a presumption. The grantor owning the fee, the law presumes he intended to convey it, and not retain a narrow and oftentimes a long strip of land which, for all practical purposes, would be of no value to him. But where the grantor does not own the fee of the land, the law will not presume that he intended to convey that which he did not own."

Where a statutory dedication of a street is made, the fee passes to the municipality, and a subsequent purchaser of abutting property "is estopped by the solemn act of his grantor, from claiming title to the center of the street." Illinois & M. Canal v. Haven (1850) 11 Ill. 554; Gebhardt v. Reeves (1874) 75 Ill. 301; Helm v. Webster (1877) 85 Ill. 116.

VII. Conveyance by state or municipal

ity.

It has been held that a conveyance by a municipality of land abutting on a street stands on the same footing as a private conveyance with respect to the rights of the grantee to the fee. Ryerson v. Chicago (1910) 247 III. 185, 93 N. E. 162, following Chicago v. Rumsey (1877) 87 Ill. 348, on the ground that it had become a rule of property.

On the other hand, it has been said: "Where the grantor is a corporation, holding a street for public purpose and disposing of the adjacent lots for private use, the boundary of the private property by that held for public purposes will be the dividing line between the two, the same as when one lot is bounded by another." McDonald v. Kummer (1913) 56 Colo. 153, 137 Pac. 51.

In Graham v. Stern (1901) 168 N. Y. 517, 85 Am. St. Rep. 694, 61 N. E. 891, it was said: "There is an obvious and a material distinction between the case of a conveyance by an individual of lands bounded upon or by a street, and that of a similar conveyance by municipal authorities. The presumption that obtains, ordinarily, in the one case, I think, should be regarded as offset, in the other, by another presumption that the municipality would not part with the ownership and control of a public street once vested in it for the public benefit. The city was the proprietor of these common lands and they were mapped out for the municipal advantage, in their improvement by future grantees. There was an obvious purpose to subserve, when making grants of lands, in the retention of the ownership of the soil of the streets, which would be absent in the case of a grant by an individual. The municipality was vested with the fee in the soil of the streets and the trust attached that they should be held and kept open as public streets. It is, altogether, the sounder proposition, in my opinion, that the grant of title to property bounded by or upon a city street, derived from the public authorities, in the absence of any more

definite description, carries only to the line of the street; inasmuch as, in legal intendment, the street was held as, and should remain, a public highway."

In Gere v. McChesney (1903) 84 App. Div. 39, 82 N. Y. Supp. 191, the case of Graham v. Stern was construed obiter as holding that "the city has an interest in retaining the fee of the street, and cannot be presumed to have intended to convey the same to its grantees."

But in Paige v. Schenectady R. Co. (1904) 178 N. Y. 102, 70 N. E. 213, involving a conveyance by the state, that case was distinguished on the ground that it therein appeared that the city held the fee of the streets in trust for street purposes, and the general rule was declared as follows: "In this state, as between a grantor and grantee, the conveyance of a lot bounded upon a street carries the land to the center, and there is not a distinction, in this respect, between the streets of a city and country highways. The rights of the public in a street or highway are no higher or other than those of a mere easement, and the proprietors on each side presumptively own the soil in fee to the center thereof. . The same rule applies where the conveyance is from the state or commonwealth and the land is described as abutting upon a street, without any reservation, or declaration of intention not to convey to the center. Such a conveyance, like a conveyance between individuals, is presumed to carry the title to the center of the street, subject to the public right of way over it." See to the same effect, as to conveyances by the state, Ex parte Jennings (1826) 6 Cow. (N. Y.) 518; Chenango Bridge Co. v. Paige (1880) 83 N. Y. 178, 38 Am. Rep. 407; Smith v. Rochester (1883) 92 N. Y. 463, 44 Am. Rep. 393; Cheney v. Syracuse, O. & N. Y. R. Co. (1896) 8 App. Div. 620, 40 N. Y. Supp. 1103; Syracuse Solar Salt Co. v. Rome, W. & O. R. Co. (1899) 43 App. Div. 203, 60 N. Y. Supp. 40, affirmed in (1901) 168 N. Y. 650, 61 N. E. 1135; Gere v. McChesney (1903) 84 App. Div. 39, 82 N. Y. Supp. 191.

In Pennsylvania, in a conveyance by the state, it has been held that the grantee takes the fee to the center of a highway as in case of a private conveyance. Hines v. Kingston Coal Co. (1898) 186 Pa. 43, 40 Atl. 151; Willock v. Beaver Valley R. Co. (1909) 222 Pa. 590, 72 Atl. 237. In the case last cited it was said: "The town of Beaver was not laid out by the exercise of the sovereign power of the state, but by express legislative authority, directing the proper officers of the commonwealth, the owner of the soil, to lay out the same for the purpose of sale to private purchasers. The purpose was to encourage the building of a town at that point. The officers of the commonwealth had no power to act in the premises except such as was conferred by the legislature, and this power, when conferred, authorized the laying out of a town, and provided for the sale of lots. If the plan of lots in the present case had been laid out by an individual in precisely the same manner as the commonwealth has done, and lots had been sold with streets as boundaries, the title of the fee to the center of the streets would have passed to the purchasers. This is the rule of our cases from Paul v. Carver (1856) 26 Pa. 223, to Neely v. Philadelphia (1905) 212 Pa. 551, 61 Atl. 1096. There is no sufficient reason why the same rule should not apply to the com

monwealth under the facts of the case at bar. The reasonable construction to be placed upon the acts of assembly authorizing the laying out of the town and the sale of lots in this case, and of the acts of the officers intrusted with the execution of these powers, is that the legislature intended the purchasers of lots to enjoy every privilege and be invested with every legal right passing to any purchaser of a lot abutting on a public street, and this would pass the title of the fee to the center of the street to the purchaser, as in the case of a purchase from an individual grantor.”

In Schutze v. Dabney (1918) Tex Civ. App. —, 204 S. W. 342, the court, after referring to the rule applicable to private conveyances, said: "The reasons for this rule, however, do not apply when the government, state or municipal, owns the land, and makes a conveyance calling for a highway. It is the duty of the government to maintain such highway, a which is not imposed upon an individual owning land contiguous thereto. Accordingly it is held that, where a government owns land, including a highway, and conveys the same, calling for such highway, such conveyance does not convey the fee to any portion of the highway, in the absence of language showing such intent."

duty

W. A. S.