CORRESPONDENCE AND INFORMATION 



87 



to ascertain who actually ownctl the fee 

 of the land taken for highwa}' purposes, 

 the law supplies a strong presumption 

 that the proprietors oji either side own to 

 the center of the highwa \-. That is the 

 normal situation, and strong proof is nec- 

 essary to controvert the claim of any pro- 

 prietor to his fee to the center of the high- 

 way. Of course if a single proprietor 

 originally owned all the land through and 

 over which the highway passes, he re- 

 mains the owner of the fee of the entire 

 highway after it is opened. Now sup- 

 pose he conveys by deed his land abutting 

 on the east side of the highway to an- 

 other. At the time of this conveyance 

 he owned the land both east and west of 

 the highway, and also the highway itseli, 

 subject only to the public use. If, in his 

 deed of the land east of the highway he 

 describes the land as "bounded on the 

 west by a highway." then the grantee of 

 the deed will take the fee not only to the 

 edge of the highway, but to the center of 

 it ; for it is also the law that a deed bound- 

 ing land on or along a highway shall be 

 construed as intending and making a 

 conveyance to the center line thereof, 

 unless it be expressly stated in the deed 

 that it is otherwise intended. Thus every 

 deed of land adjoining a highway tends 

 to reestablish the normal situation if it 

 has ever been upset ; for few deeds will 

 be found in the records where the grantor 

 has exoresslv limited his grant to the 

 ed^e of the highway. 



The normal situation may be changed 

 in still another wav. It has been seen 

 that the Town or State, when opening a 

 highway, under ordinary process of law, 

 takes only an easement, or right of way 

 over the land, and not the complete own- 

 ership. Yet it occasionally hanpens that 

 a proprietor of land voluntarily gives a 

 deed to a Town for highway ourooses, 

 which conveys the entire fee to the Town, 

 pnd not onlv the usual right of way. It 

 has been held that the Town has author- 

 ity to accept such a deed and accordinelv 

 it mav own the fee of the land. In this 

 case the grantor has no rights left in the 

 land of the highway, at least so long as 

 the hiofhway remains as such. 



In case a highway is abandoned by the 

 public authority, the ownership, or fee 

 of the land is unaffected in the normal 

 case, because the fee has never left the 

 abutting proprietors. While the highway 

 remained, their enjovment of the fee was 

 simply curtailed by the public use or ease- 



ment, and now that the easement has ter- 

 minated the ])roprietors are restored to 

 the full use and enjoyment of the fee, 

 without that curtailment. Of course the 

 case is different where the Town (for ex- 

 ample) has received from the owner a 

 deed of the hig^hway land. There the 

 Town owns the fee of the land, and the 

 grantor of the deed owns nothing, at 

 least so long as the highway remains. 

 Why, then, cannot a Town, after obtain- 

 ing grants of land for highway purposes, 

 proceed to close the highways and sell 

 the land to anyone who will buy it? It 

 cannot do so because the Town is a cor- 

 poration whose character empowers it to 

 act only for governiuental or civic pur- 

 poses ; and dealing in real estate is not 

 such a purpose. The Town cannot hold 

 land at all for such a purpose or for any 

 other purpose not directly connected with 

 government or civic welfare. Thus, if a 

 highway of wdiich the Town owns the 

 fee be abandoned the fee immediately re- 

 verts (returns) to the grantor who con- 

 veyed to the Town, or if he be dead to his 

 heirs. The grantor has never lost quite all 

 of his interest in the land by conveying to 

 the Town. He retained a contingent in- 

 terest because the Town could take only 

 upon a condition implied in law that it 

 would use the land for proper public 

 uses. The abandonment of the highway 

 is breach of such condition, and revests 

 title in the grantor or his heirs. 



Your readers will perhaps be most in- 

 terested in the rights w^hich the abutting 

 proprietors and the public, respectively, 

 have in the trees and herbage growing on 

 land within the limits of a highway. The 

 above discussion is necessary to a proper 

 understanding of these rights, which we 

 now take up. We assume, in what fol- 

 lows, that the normal situation prevails. 

 viz : an open, travelled highway over 

 which the public has a mere easement or 

 right of way, and of W'hich each abutting 

 proprietor owns the fee of the land to 

 its center line. 



In law, everything that grows upon 

 land, or is so attached or annexed to it as 

 to be practically inseparable from it, is 

 part of the real estate itself. Thus, title to 

 a tree, a shrub, or to a house, follows title 

 to the land, for each of these is in law a 

 part of the land. Since the abutting pro- 

 prietor owns the land to the center of 

 the highway it follows that he also owns 

 the trees, shrubs and other natural pro- 

 ducts found thereon, and such is the law" 



