enjoyment of the right of eminent domain. One case might require but a temporary use; another case might require the permanent and apparently perpetual occupation and enjoyment of the property by the public. The right to take must be coextensive with the necessity of the case, and the measure of compensation should, of course, be graduated by the nature and duration of the estate or interest of which the owner is deprived. To hold otherwise, would be to pay the owner in full for his lands, and also to allow him to reclaim them, greatly enhanced in value, perhaps, by improvements placed upon them by the public.1

§ 312. The rights, which this ownership of the fee, where it exists, gives, are subject in practice to endless modifications, depending upon the exigencies of the public, and the location of the highway. The more ancient decisions limited the rights of the public to that of passage and repassage, and treated any interference of the soil, other than was necessary to the enjoy ment of this right, as a trespass. But the modern decisions have very much extended the public right, and, particularly in the streets of populous cities, have reduced the interest of the owner of the soil to a mere naked fee of only a nominal value.2 "These streets," says Edwards, P. J., speaking of the streets of New York city, and announcing what seems to be the modern doctrine in regard to the streets of a city, "for many years, have been used for the construction of sewers, and for

1 Affirmed in Rexford v. Knight, 1 Kernan, (N. Y.) R. 308; 15 Barb. (N. Y.) Sup. Ct. R. 627, which was the case of a canal; and see The Commonwealth v. Christian Fisher, 1 Penrose & Watts, (Penn.) R. 462; case of Philadelphia and Trenton Railroad, 6 Whart. (Penn.) R. 25, 44; Railroad v. Davis, 2 Dev. & Batt. (N. Car.) R. 451; Bonaparte v. Camden and Amboy Railroad Co. 1 Baldwin, (Cir. Ct.) R. 206. In the latter case, it was said, if the soil be taken by the sovereign power of the State, without the owner's conveyance, it would revert upon the discontinuance of the road; because the power of the State is only to take land for public purposes. Munger v. Tonawanda Railroad Co. 4 Comst.

2 Ante, § 241, et seq.

the laying of water and gas-pipes, and no one has ever seriously questioned the right of the city to authorize their use for such purposes, and no adjoining owner, as far as I am aware, ever pretended to claim compensation for such use. These urban servitudes, as they have been called, are the necessary incidents of a street in a large city; and whether the streets be laid out and opened upon property belonging to the corporation, or whether they became public streets by dedication, or by grant, or upon compensation being made to the owner of the fee, they have all the incidents attached to them which are necessary to their full enjoyment as streets. It is an elementary principle of the law, that where a power, right, or thing is granted, either to a natural or an artificial person, all the incidents are granted which are necessary to the enjoyment of the power, right, or thing. And whether the corporation be the owner of the fee of the streets in trust for the public, or whether it be merely the trustee of the streets and highways as such, irrespective of any title to the soil, it has the power to authorize their appropriation to all such uses as are conducive to the public good, and do not interfere with their complete and unrestricted use as highways; and, in doing so, it is not obliged to confine itself to such uses as have already been permitted. As civilization advances, new uses may be found expedient. It was upon this principle that the existing railways in this city and in Albany, and the tunnels in the city of Brooklyn and in the village of Whitehall, have been sanctioned." 1

2. Presumptions from Adjacent Ownership.

§ 313. Where the land, bounding on the opposite sides of a highway, belongs to the same person, the presumption is, that he owns the fee of the entire highway; where it belongs to different persons, the presumption is, that each owns to the centre

1 Milhau v. Sharp, 15 Barb. (N. Y.) Sup. Ct. R. 210.

1

2

of the way,―ad ad medium filum viæ.1 And so of the waste land on each side of the way, unless, indeed, it communicate with other larger wastes belonging to the lord of the manor.2 The presumption, however, is not artificial and of positive institution, but is founded on the supposition that the way was originally granted by the adjoining proprietors in equal proportions, and may be rebutted by proof of the contrary. Where, therefore, an adjoining owner enclosed a portion of the highway, which he continued to cultivate, so enclosed, for twentyeight years, it was held, that even on the supposition that the public easement was thereby discharged, the line of separation between the opposite proprietors remained, as it was, previous to the enclosure, the centre of the original highway. In Headlam v. Headley, the plaintiff, as adjoining proprietor, claimed a slip of greensward, across which extended a highway, whose width, including the greensward, was about sixty or seventy yards. It appeared that this greensward had been generally treated as waste land, and as a portion of a neighboring common, to which on one extremity it adjoined, and that it had been used as a common for cattle for a long space of time, by persons in the next village. There was no evidence that the plaintiff had exercised any acts of ownership over it; but he rested his claim upon the general presumption of law. It was said by Bayley, J.: "It is difficult in many cases to discover the origin of roads. They are sometimes made over

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1 Stevens v. Whistler, 1 East, 51; Cooke v. Green, 11 Price, 736; Witter v. Harvey, 1 McCord, (So. Car.) R. 67; Willoughby v. Jenks, 20 Wend. (N. Y.) R. 96; Bingham v. Doane, 9 Ham. 165; 3 Kent, Comm. (5th ed.) p. 432; Copp v. Neal, 7.

2 Steele v. Prickett, 2 Stark. R. 463; Doe v. Pearsey, 7 B. & C. 304; Grose v. West, 7 Taunt. 39; Barrett v. Kemp, 7 Bing. 332; Scoones v. Monell, 1 Beav. 251.

3 Watrous v. Southworth, 5 Conn. R. 305; Peck v. Smith, 1 Conn. R. 127; Rex v. Edmonton, 1 M. & Rob. 124; Rex v. Hatfield, 4 Ad. & El. 164; Poole v. Huskisson, 11 Mees. & W. 827.

4 Headlam v. Headley, Holt, R. 463.

waste or common lands, in which case, the rights of the soil, subject to the public easement, are in the lord of the manor. In other cases, they are allotted by the owners of adjoining lands, and then the property in the soil continues in such owners, subject to the rights of passage. I think the presumption of the private rights of the plaintiff are negatived by the circumstances of this case, so far at least as to make it incumbent on him to adduce some evidence of property, or act of ownership, from which property may be inferred. In the absence of such evidence, I shall direct the jury to presume the locus in quo to be common land or waste." In Illinois, where by statute the recording by the proprietors of a plat of land, laid out into town or city lots, intersected by streets, passes the fee in the streets to the corporation, it has been held, that the purchasers of a lot designated upon such a plat, only acquires a title to the land included within the actual limits of the lot as designated. He takes no interest in the street, except in common with the public, and cannot claim title to the centre of it.1

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3. Boundaries by Highways.

§ 314. "The established inference of law," says Chancellor Kent, "is, that a conveyance of land bounded on a public highway, carries with it the fee to the centre of the road, as part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice; and it was said in Peck v. Smith, that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto,

1 Canal Trustees v. Havens, 11 Ill. R. 554.

2 3 Kent, Com. (5th ed.) p. 433.

to sustain such an inference; and it may be considered as the general rule, that a grant of land bounded upon a highway or river, carries the fee in the highway or river to the centre of it, provided the grantor at the time owned to the centre, and there be no words or specific description to show a contrary intent." The soil under the highway, if it passes at all, passes as parcel of the land, and not as an appurtenant.1 Therefore, whether the soil passes or not, is purely a question of intention, to be ascertained in each particular case from the descriptions contained in the deed, explained and illustrated by all the other parts of the conveyance, and by the localities and subject-matter to which it applies.*

§ 315. It may be stated, as the fair conclusion from the authorities, that a grant of land, described as bounded generally "by," or "on," or "along" a highway, carries the fee to the centre of the highway, if the grantor owned so far;3 and, on the other hand, where the descriptive words are "by the side of," "by the margin of," or, "by the line of," or expressions equivalent thereto, the soil of the way is excluded. This rule, however, has not uniformly prevailed. In Massachusetts, for instance, the Courts have more generally favored a construction which excludes the way. Thus, in Sibley v. Holden," where

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1 Parker v. The Inhabitants of Framingham, 8 Met. (Mass.) R. 266; United States v. Harris, 1 Sumner, (Cir. Ct.) R. 21; Webber v. Eastern Railroad Co. 2 Met. (Mass.) R. 147; Witter v. Harvey, 1 McCord, (So. Car.) R. 67. 2 Webber v. The Eastern Railroad Co. 2 Met. (Mass.) R. 151.

3 Bucknam v. Bucknam, 3 Fairf. (Maine) R. 463; Johnson v. Anderson, 6 Shep. (Maine) R. 76; Peck v. Smith, 1 Conn. R. 103; Chatham v. Brainard, 11 Conn. R. 103; Styles v. Curtis, 4 Day, (Conn.) R. 228; Reed v. Leeds, 19 Conn. R. 182; Reed's Petition, 13 New Hamp. R. 381; Hunt v. Rich, 38 Maine R. 195; Id. 309.

4 Hughes v. The Providence and Worcester Railroad Co. 2 R. I. Rep. 508; Jackson v. Hathaway, 15 Johns. (N. Y.) R. 447; Jones v. Cowman, 2 Sandf. (N. Y.) R. 234; Child v. Starr, 4 Hill, (N. Y.) R. 369; Union Burial Ground v. Robinson, 5 Whart. (Penn.) R. 18; Noble v. Cunningham, 1 McMullin, (So. Car.) R. 289.

5 Sibley v. Holden, 10 Pick. (Mass.) R. 249.