Opinion
No. 4895.
Argued March 7, 1961.
Decided April 28, 1961.
1. A conveyance of land bounded by "the line of" a highway was presumed to run to the center thereof in the absence of express exception or other limitation by unequivocal declaration in the deed.
2. Where as a result of conveyances between the parties' predecessors in title of lands bordering public waters the plaintiffs acquired ownership of lands upon both sides of a highway north of a certain division line, and of a triangular tract south of the division line between the water and the highway, while the defendants acquired land south of the division line on the opposite side of the highway together with certain wharves on the shore within the highway layout where the plaintiffs owned the underlying fee, it was held that as to the wharf located south of the division line the defendants had a prescriptive right as against the plaintiffs to maintain and use it, but as to the other they had acquired no such right. So also, the defendants were held to have acquired a prescriptive right as against the plaintiffs to use the shoreline within the highway layout for themselves and their guests for bathing, boating and fishing purposes subject to any rights of the public.
BILL, to remove cloud on title, and to enjoin the defendants from entering on the plaintiffs' land situated on the shore of Paugus Bay in Laconia; and from maintaining docks, pipes and valves thereon. Trial by a master (Theo S. Jewett, Esq.) who made certain findings of fact upon the basis of which he recommended that the petition be dismissed. Thereafter the parties were heard by the Superior Court (Grimes, J.) who set aside certain findings and rulings made by the master, denied the prayer of the bill in part, but enjoined the defendants from maintaining any wharves on the lake shore, and from using a specified dock and from maintaining water pipes from the vicinity of a well on the plaintiffs' land to the lake. The Trial Court also entered a decree removing "any clouds upon the plaintiffs' title by reason of the purported conveyance of wharves or docks and the right to maintain water pipes between the well and the lake."
The defendants' exceptions "to the rulings of the Court and the findings inherent therein" were reserved and transferred by the Presiding Justice.
In the year 1906 predecessors in title to the parties to this action effected a partition of lands owned by them in common by means of cross conveyances. Two deeds were given by one co-tenant to the other under date of July 14, 1906, and a third deed was given by the second co-tenant to the first under date of October 3, 1906. As a result of these conveyances, the plaintiffs' predecessor acquired full ownership of a triangular tract bounded on its westerly side "by the easterly shore of Lake Paugus so-called." The southerly side of the tract was described by a specified course from the lake "to the Weirs Boulevard to an iron pin." The description proceeded: "thence northerly on the line of said Boulevard land 181 feet" to a specified division line, thence westerly by the latter line to the lake. In point of fact, the intersection of the westerly line of the boulevard as laid out by the city of Laconia in 1898, with the division line marking the northerly boundary of the tract is at the present shore of the lake, so that the tract conveyed is virtually triangular.
As a result of these three conveyances, the plaintiffs' predecessor also acquired full ownership of land on both sides of the boulevard northerly of the division line referred to, while the defendants' predecessor became the sole owner of land southerly of the division line, on the easterly side of the boulevard and across from the triangular tract now owned by the plaintiffs.
In 1933, a new layout of the highway by the State resulted in alteration of its course to a more northeasterly direction beginning at a point about mid way of the length of the triangular tract so that the traveled way proceeding northerly departed completely from the course of the 1898 layout. As now located upon the ground the original 1898 layout proceeds northerly directly to the lake, and the two docks in question are situated within its limits.
The master found that the plaintiffs owned no land easterly of the west line of the 1898 layout, and that land lying between that line "and the present state highway line is still within the limits of the highway." The master further found that the defendants' predecessor by his deed of the triangular tract to the plaintiffs' predecessor "intended to convey . . . a parcel on the shore but extending easterly only to the side line of the Boulevard or Weirs Highway."
These findings were set aside by the Trial Court, which ruled that the deed of the triangular tract "conveyed the fee to the center of the highway as laid out in 1898, subject to the rights of the public acquired by said layout."
In consequence of this ruling, the Court also set aside the findings of the master that the defendants are riparian owners of the shore line within the 1898 right of way, and that they are entitled to maintain the two docks on this portion of the shore. The Court ruled that "the defendants' right to the use of the land within the limits of the 1898 layout is limited to their right as members of the public. This does not include the right to maintain a wharf."
The deed by which the defendants acquired title to the land across the boulevard from the triangular tract purported to convey "two wharfs, or docks, on the shore of Lake Paugus . . . and all the right, title and interest of the grantor to certain water pipes and valves located on the shore of Lake Paugus and used to supply water to the [conveyed] premises." The Trial Court ruled that one of these docks, which housed the pipes in question, belongs to the defendants but that they have no right to maintain it. The Court likewise ruled that the evidence did not warrant the master's finding that they had a right to maintain it, because "the evidence falls short of supporting the finding that the defendants have acquired any such right . . . by prescription or adverse possession."
Similarly a finding by the master that the plaintiffs have a right to use the second dock situated partly on the right of way and partly on the triangular tract belonging to the plaintiffs was set aside by the Trial Court upon the ground that the defendants had no title to this dock, and that the evidence was insufficient to establish a right in them by prescription or adverse use. The Trial Court likewise set aside the master's "findings that the defendants have acquired by prescription the right to maintain pipes from the vicinity of the well to the lake" because "not supported by the evidence." Other facts are stated in the opinion.
Harold E. Wescott (by brief and orally), for the plaintiffs.
Nighswander, Lord Bownes (Mr. Bownes orally), for the defendants.
Underlying the action of the Trial Court was the ruling that the conveyance of the triangular tract to the plaintiffs' predecessor in title operated to convey the fee to the center of the highway as laid out in 1898, and that in consequence the defendants do not own the shore within the 1898 layout and have no "littoral rights thereto." In the partition of the land which had been jointly owned by the predecessors in title of the parties to this action, the east boundary of the triangular tract was fixed by the deed of July 14, 1906 to the plaintiffs' predecessor. The subsequent conveyance to him given in October by the defendants' predecessor conveyed a single tract on both sides of the boulevard (cf. Baldwin v. Wallace, 84 N.H. 71), from which the triangular tract was reserved by exception. It was therein described by reference to the prior deed of the triangular tract, and was referred to, in the October deed, as a lot "bordering on the shore . . . one hundred eighty-six (186) feet and extending back to said Boulevard."
The issue is what did the parties intend by the description in the deed of July 14, 1906 of a boundary which ran "to the . . . Boulevard to an iron pin . . . thence northerly on the line of said Boulevard." Did they intend to bound the lot by the westerly side line of the boulevard or by its center line? We think that the Trial Court correctly ruled that the center line was intended.
Under the firmly established law of this jurisdiction a conveyance of land bounded by a stream or a highway is presumed to run to the thread of the stream or the center of the highway, unless a contrary intention is plainly disclosed. "An intent that the soil in the river and street shall be owned by a person who does not own the abutting land is so improbable that it would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the title of the grantee to the edge of the street and the edge of the river." Smith v. Furbish, 68 N.H. 123, 126, and cases cited.
The deed to the plaintiffs' predecessor in title contained no express exception of the narrow strip lying between the westerly side line and the center line of the highway layout. Nor did it contain any "clear and unequivocal declaration" that this strip was not conveyed to the plaintiffs' predecessor. The description of the course of the easterly boundary of the tract as one proceeding northerly "on the line of said Boulevard land" was not such a declaration. In Woodman v. Spencer, 54 N.H. 507, the court was called upon to construe a deed of land in which one boundary ran "northerly on the easterly side of said road," and held that the conveyance was to the center of the highway, relying upon "the strong and controlling presumption that it was not the intention of the grantor to except from the operation of his deed, and so retain, in himself, the fee to such a long, narrow strip of land . . . and that it was not the intention of the grantee to accept a deed which should give him none of the usual rights . . . in the soil of the highway, and which may have the effect to leave his premises inaccessible in case the rights of the public in the road should be surrendered." Id., 511. See also, Kent v. Taylor, 64 N.H. 489; Sleeper v. Laconia, 60 N.H. 201. Under the established rule, the presumption that the conveyance to the plaintiffs' predecessor in title extended to the center line of the existing highway was not overcome, and the ruling of the Trial Court is sustained.
The Trial Court also ruled that the defendants' right to use the land within the limits of the 1898 layout is restricted to their right as members of the public and does not include a right to maintain a wharf. As against the city it may be true that the defendants' right "does not include the right to maintain a wharf" as the court ruled in reliance upon Hoban v. Bucklin, 88 N.H. 73, 87, but the city is not a party and seeks no relief, and the plaintiffs have no standing to enforce the public right.
As against the plaintiffs, the ruling is correct as applied to maintenance by the defendants of the wharf, housing the water pipes. The denial of the defendants' right to maintain the wharf housing the pipes rests upon an implied finding that it is situated north of the division line established by the 1906 deeds, where the plaintiffs own the underlying fee. The ruling by the Trial Court that the "evidence falls short" of supporting a finding of a prescriptive right to maintain this wharf is sustained, since the evidence was that it was built to house the pipes less than twenty years before commencement of the action. For the same reason, the injunction against maintaining the pipes to the water of the lake was properly entered.
The Trial Court erred however, in ruling that there was no evidence to sustain the master's findings with respect to the second wharf or dock known as the "Sundeck." It could reasonably be found that this wharf or one like it had been used for many years prior to the time when the other wharf was built, and hence the defendants have a prescriptive right to maintain and use it, as against the plaintiffs. The Court was bound by the master's finding that the defendants "have gained the right to occupy [the Sundeck] by over twenty years user by themselves and their predecessors in title." The same evidence warranted the finding of a prescriptive right as against the plaintiffs to use the shoreline within the 1898 layout "for themselves and their guests for bathing, boating and fishing purposes, subject to any right of the City." Since the area available for this use is virtually minuscule, we are not impressed by the argument that the defendants' rights should be defined in terms of the number of users to be permitted.
The injunction against maintaining and using the "Sundeck" is therefore dissolved; and the portion of the decree which purports to remove a cloud upon title by reason of the "purported conveyance" of this dock or wharf should be modified so as to permit the continued use of the "Sundeck" by the defendants and others in their right. In other respects the injunction and decree are sustained.
Exceptions sustained in part and overruled in part; remanded.
All concurred.