Snoddy v. Bolen

Black, C. J.

This is an action of ejectment to recover “all the lead and zinc mines” in that- part of Allen street which lies east of lot 16 in Hough & Furnas’ addition to Webb City. Lot 16 -fronts fifty feet on the west line of the street, and the street is sixty-two feet wide, so that the surface of -the ground in question is fifty by sixty-two feet. The essential facts are these: A. W. Hough and Isaac Furnas, being the owners of .sixteen acres of land, laid the same off into lots, streets and alleys. At the same time they executed the following deed: Wfe, A. W. Hough and Isaac Furnas, “owners of the land described in the annexed plat of Hough & Furnas’ addition to Webb City, do hereby release and convey to Jasper county, in the state of Missouri for public purposes all -the streets’ and alleys as designated on said plat, except the right to all valuable minerals in said land, which we hereby reserve, together with-the right to mine the same.”

■ .This deed bears date the twenty-third of May, 1877; it and the plat were recorded on the sixteenth of June,'1877. • On the last mentioned date Hough conveyed his half interest in lots-1 to 36, both inclusive, to Furnas “together with all valuable minerals in the streets and alleys .of said additions, east of the middle *484 of Webb street, as reserved on the recorded plat-thereof.” Webb street is the first north and south, street west of Allen street; and lots 1 to 36 include all. the lots east of Webb street. Allen street runs north and south and is wholly on the’sixteen acres. The east, line of that street is the east line of the addition. Hough and Furnas owned no land adjoining the street on the east.

On the sixteenth of June, 1877, Furnas conveyed the thirty-six lots, describing them by their numbers and making no mention of the minerals in the streets, or alleys, to O’Keefe, as trustee, to secure a debt of $612. He made default in the payment of the debt, and the lots were sold under the terms of the deed of trust, and Pinney became the purchaser, and received a trustee’s deed dated the eighth of August, 1887. The defendants-hold under Pinney by various mense conveyances.

The plaintiff put in evidence two deeds, executed in-June, 1889, one from Furnas to Bell and the other' from Bell to the plaintiff, conveying “the .right to all valuable minerals in the streets and alleys in Hough and Furnas’ addition to Webb City, east of the center of Webb street, with the right to mine the same.”

The defendants entered and removed a large quantity of lead and zinc from beneath the surface of that, part of the street in question. They were still in possession when this suit was commenced. •

It will be seen from the foregoing statement that Furnas became the sole proprietor of all the lots east of Webb street and of all the minerals in the streets and alleys east of the center of that street, so that he was the owner of the minerals in Allen street. The question in the case* is whether his deed to O’Keefe, conveying the lots.by their numbers and reference to the recorded plat, but making no mention of the minerals in the streets, conveyed the minerals in the streets *485 and alleys. If it did, then the judgment, which was for the defendants, must be affirmed; but if it did not, then the judgment should be reversed and the cause remanded.

The rule of law is well settled in this country and in England that a conveyance of land bounded upon a ■public street carries the fee to the center of the street, unless the contrary intent is clearly expressed. The authorities asserting this rule are so numerous that it is deemed sufficient to cite the text-books where the cases are collected. 3 Kent’s Commentaries [13 Ed.], 433; 4 Lead. Cas. in the American Law of Real Property, 378; 2 Devlin on Deeds, sec. 1024; Elliott on Roads and Streets, 549; 3 Wash, on Real Property [5 Ed.], 451; Angell on Highways [3 Ed.], sec. 314; 2 Smith’s Lead. Cases [8 Am. Ed.], 173. And where a plat represents the lots to be bounded by a street, a deed referring to the plat and describing the lots conveyed by their numbers will pass to the grantee as against the grantor and his assigns the fee to the center of the street. Jarstadt v. Morgan, 48 Wis. 245; Gould v. Railroad, 142 Mass. 85; Clark v. Parker, 106 Mass. 554; Banks v. Ogden, 2 Wall. 57; Weisbrod v. Railroad, 18 Wis. 35; Cox v. Railroad, 48 Ind. 178. It is held in two or three states that the center line rule does not apply where the plat is made out and recorded in conformity with the statutes of such states, upon that subject; but this is because the courts of those states hold that the statutes vest the entire title, beneficial and otherwise, in the corporation, so that the dedicator' has no interest left in him which is the subject of grant. As to the cases asserting this rule, more will be said hereafter.

In some cases the rule that the center of the street is to be taken as the boundary will be extended so as to include the whole street, as where one lays out a street entirely on his own land and on one side thereof so that *486 the-boundary of the .land and the boundary of the street coincide. Healey v. Babbitt, 14 R. I. 533; In re Robbins, 34 Minn. 99; Taylor v. Armstrong, 24 Ark. 102. Such is the case now in hand.

But it. is earnestly insisted that the general rule before stated has no proper or just application to this-case, because Hough, and Furnas had, by the deed of dedication, separated the minerals in the streets so as to make them a separate estate in fee. It may be well enough here ,to determine the exact character of the estate,retained by Hough and .Furnas. An exception in a deed.is always a part of a thing in being and a part of the .thing granted; while a reservation is of a thing not in being and is newly created, as. rents and the like. Coke onLitt., secs. 476, 147. An exception withdraws from the operation of the conveyance some part of the thing granted, which, but for the exception, would have .passed to the grantee under the general description; while a reservation is the creation, in behalf of the grantor, of some new right issuing out of the thing granted; that is to say, something which did not exist as an independent right. ■ 5 Am. and Eng. Encyclopedia of Law, 455, and cases cited. The terms are often used without noting the distinction, and this no doubt for the reason that that which is called a reservation in a deed will be construed to mean, an exception, where it is necessary to do , so to carry out the object which the parties to the deed had in view. Winthrop v. Fairbanks, 41 Me. 307. The language used in the deed must be considered with reference to the subject-matter and the circumstances of .the particular case. Barnes v. Burt, 38 Conn. 541; Stockwell v. Couillard, 129 Mass. 232; Whitaker v. Brown, 46 Pa. St. 197. There can .be no doubt but the qualifying words used, in the deed from Hough and Furnas to the .county amount to an exception, the thing excepted from the , *487 grant being'the “valuable minerals” in tbe streets and alleys. Tbe minerals thus excepted remained in tbe grantors in the same right as before tbe grant, and passed to Furnas by tbe deed to him from Hough. Coal, mineral and stone under tbe surface of tbe earth are subjects of grant and exception; and when excepted in a deed become a separate and distinct inheritance. They may be conveyed separate from tbe surface. Wardell v. Watson, 93 Mo. 108; Caldwell v. Fulton, 31 Pa. St. 475; Lillibridge v. Coal Co., 143 Pa. St. 293; Coal Co. v. Mellon, 152 Pa. St. 286.

Furnas, therefore, bad an estate in fee in tbe mineral in place beneath tbe surface of tbe streets reserved by tbe exception in tbe deed dedicating tbe streets to public use. Does this circumstance take the grant made by him to O’Keefe out of tbe general rule before mentioned, that a conveyance of land bounded on a street carries tbe entire fee to tbe center of tbe street? In answering this question it is deemed proper to see -upon what ground tbe rule is founded, tbe reason upon which it is based. Says. Kent: “Tbe established inference of tbe law is, that a conveyance of land bounded on a public highway, carries with it tbe fee to tbe center of tbe road, as part and parcel of tbe grant. Tbe idea of an intention in tbe grantor to withhold this interest in a road to tbe middle of it, after parting with all bis right and title to tbe adjoining land, is never to be presumed. It would be contrary to universal practice. * * * It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as tbe general rule that a grant of land bounded upon a highway or river carries tbe fee in tbe highway or river to tbe center of it, provided the grantor, at tbe time, owned to tbe center, and there be *488 no words of specific description to show a contrary intent.” 3 Kent’s Commentaries [13 Ed.], star p. 433. He uses almost the exact language used in the very early and now leading case of Peck v. Smith, 1 Conn. 103.

Redfield, J., when speaking of the views expressed by Kent, says: “But, if anything whatever is attempted to be made out of the rule, beyond a mere show, the reasoning of the chancellor is the only ground upon which it can stand, that is, to treat it as a rule of policy merely (and not one of intent chiefly) to be applied in all cases where there is not a clearly defined intention to the contrary.”

In Baker v. St. Louis, 7 Mo. App. 429, approved by this court in 75 Mo. 671, two persons owning in common a block of ground upon a street conveyed a strip next to the street to the city for the purpose of widening the street so as to give space for a market house, with a clause of reverter, in the event the property should not be used for such purpose. Before breach of the condition subsequent, these two persons executed deeds of partition, describing the parcel conveyed to each as bounded on the street. In a controversy commenced after the breach of the condition, it was held that the partition deeds carried the fee to the center of the street, subject to the public easement, as there was no express reservation to the contrary.

Enough has been said to show that the rule stands on the ground of policy and a presumption raised by the law to carry out the policy. The presumption is that the grantor did not intend to withhold any interest in the street or highway. The presumption may be overcome, but it must be overcome by something, stated in the deed, which shows clearly and distinctly an intention to withhold an interest in the street. The rule is of the utmost importance, and is necessary to prevent afterthought, strifes and litigation like the one *489 now on hand, over detached strips and gores of land, generally of no value to anyone save the lot owner. In the vast majority of cases the rule works out the real intention of the parties at the date of the deed.

The rule being based upon these grounds, we can not see how its application can be made to depend upon the extent of the interest which the grantor may have in the street, there being some interest in him. In a common law dedication, whether by parol or in writing, and where property has been condemned for street purposes alone, the fee from the surface to the center of the earth remains in the owner. In all such cases a conveyance of a lot bounded by a street will pass the fee to the center of the street. Here Hough and Furnas conveyed the streets to the county for public use, that is to say for street purposes, and then excepted the minerals. If the center of the street rule applies where the grantor owns the fee from the surface to the center of the earth, how can it be said it does not apply because he simply owns the fee to the minerals, or to a stratum of rock or coal1? The reason for applying the rule is as strong in the one case as it is in the other. As the deed of trust from Furnas to O’Keefe contains no exception or reservation, the minerals in the streets and alleys passed by that deed as a part and parcel of the land granted.

This conclusion,' it is believed, finds support in Railroad v. Witherow, 82 Ala. 193. It is there said: “In the absence of a statute to the contrary, a conveyance of land bounded by a public highway, or of lots in a city bounded by a public street, carries with it the fee to the center of such road or street, as a part and parcel of the grant; and the grantee has the exclusive right to the soil, subject to the right of way implied from the original dedication, whatever that right may be held to embrace, which varies with the decisions of the *490 different courts;” thus showing in the opinion of that court that the application of the rule does not depend on the extent of the right vested in the public.

In Tousley v. Mining, etc., Company, 24 Kan. 328, the mining company filed a plat and thereby laid off a tract of land into lots, dedicating the streets and alleys to public use, but setting forth in such dedication that, it reserved to itself all the mineral under the surface of the streets and alleys. The company then sold two lots-to Tousley and Neal without any reservation or condition. The latter mined from these lots under the half of the street next to them, and the mining company brought an action for damages. The court waived the question whether the reservation was void under the statute of "that state concerning town plats, but said: “Conceding that the reservation was valid, that the fee did not pass to the public, then it seems to us that the warranty deed of the lots conveyed all the grantor’s interest in the street up to the center. That such was the rule at common law, will not be questioned.” There is in point of principle no difference between that case and the one now in hand. Indeed, it is directly in point and the conclusion there expressed is in entire accord with what we have before said in- this case.

Counsel for plaintiff place much reliance upon Zinc Co. v.LaSalle, 117 Ill. 411. That case and the prior oneof Canal Trustees v. Haven, 11 Ill. 554, and the subsequent, case of Union Coal Co. v. LaSalle, 136 Ill. 119, hold that where a plat has been executed and filed pursuant to the statute of that state, the lot owners have no right to remove coal from beneath the surface of the streets, and that a conveyance of a lot bounded by a street carries no interest whatever in the street. A like construction is given to a statute in Iowa relating to town plats. City of Des Moines v. Hall, 24 Iowa, 236. See, also, 6 Bush (Ky.), 332. These cases are all based upon tho ■ *491 construction given by those courts to statutes of their respective states, and that ■ construction is this, that, upon executing and filing a plat pursuant to the statute, the entire fee in the street passes to the corporation. The dedicator and his grantees, it is held, have no interest in the streets, legal or otherwise, except that in common with the public, namely the right of passage over them. We are at a loss to see how these cases aid or assist the plaintiff. If the principle at the bottom of them be applied to this case it must follow that Furnas had nothing which he could convey, either to O'Keefe or to the plaintiff's grantor, and the plaintiff acquired nothing by the deed to her. But these cases have no application to this one, for it is conceded on all hands that Furnas had an interest which he could convey. It may be observed that an entirely different construction has been given to the statutes of Wisconsin and Minnesota concerning town plats, which statutes are said to be the same as that of Illinois. Kimball v. Kenosha, 4 Wis. 321; Milwaukee v. Railroad, 7 Wis. 98; Schurmeier v. Railroad, 10 Minn. 82.

■ Our statute in force when Hough and Furnas executed the deed to the county provides that such maps ■ and plats, made, acknowledged, certified and- recorded as provided, “shall be a sufficient conveyance to vest the fee of such parcels of land as are therein named,, described or intended for public uses in such city; town, or village, when incorporated, in trust and for the uses therein named, express or intended, and for no other use or purpose. If such city, town or village shall not be incorporated, then the fee of such lands conveyed as aforesaid, shall be vested in the proper -county in like, trust, and for the uses and purposes aforesaid, and no other.” G. S. 1865, sec. 8, p. 248. Whilst this statute vests the fee in the streets in the city, town, village or county, still it is held in trust for street purposes and *492 for no other use or purpose. Every other beneficial use is in the lot owners, and this interest of the lot owner will pass by a conveyance of the lot. No other deduction can be made from the cases heretofore decided by this court. Hannibal Bridge Co. v. Schaubacher, 57 Mo. 584; Price v. Thompson, 48 Mo. 361; Ferrenbach v. Turner, 86 Mo. 416, and cases cited. But it is unnecessary to pursue the inquiry, because the dedication in question was not a statutory one, and because it is conceded on both sides of this contest that Furnas owned the minerals in the streets and alleys; and we have before seen that his title to the minerals in the streets and alleys passed as part and parcel of the grant to O’Keefe.

Counsel for plaintiff place much reliance upon Kincaid v. McGowan, 88 Ky. 91. We have before said that mineral in place may be made the subject of an exception or of a separate grant, and therefore agree to all that is said in that case. No question as to the effect to be given to a deed conveying lots bounded by a street or a highway was considered or involved in that ease. It is, therefore, not in point on the real issue here.

An effort is made in the briefs filed in behalf of the plaintiff on the reargument of this cause in this court, to show that Hough and Furnas, in platting the sixteen acres retained a strip of land along the east side of Allen street. If they did retain such a strip, then it is very clear that the deed of trust from Furnas to O’Keefe passed the title in that street only to the center thereof, so that the plaintiff would be the owner of the minerals in the east half of it. But no such question was made or even intimated in the trial court, and hence there is no such question before us on this appeal. The monuments placed on the ground when locating the streets and lots must control, and there is nothing in the record to show that the east line of Allen street was' not located on the east line of the sixteen acres. As the *493 record stands, there ca,n be no other conclusion than this, that the east line of the sixteen acres and the east line of Allen street are one and the same line.

It follows from what has been said that the judgment should be, and is, affirmed.

Gantt, Sherwood and Burgess, JJ., concur. Brace and Macearlane, JJ,, dissent. Barclay, J., not sitting.