SLOANE, J., Dissenting.
I dissent from the majority opinion that land! which was formerly, but is no longer, a street or highway passes as of course from the grantor to the grantee by a deed to land bordering on said vacated street or highway.
The common-law rule governing the presumption in relation to conveyance of land bordering on a highway or stream has been formulated in our codes, as follows:
Civil Code, section 1112: “4. transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant.”
Section 2077, subdivision 4, Code of Civil Procedure: “When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.”
The obvious limitation to this rule is that in order for it to become operative there must be an existing highway or stream at the time of the transfer. How can it be logically contended that such a conveyance carries beyond the described limits where the highway no longer exists, more than in a case where it never existed?
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The only theory that can uphold this rule as to vacated streets is that taken by the majority opinion that the actual boundary of a tract bordering on a highway is the center line of such highway and that the abutting land of the highway is an integral part of the lot or tract, and remains such, after the highway is vacated. This is avowedly the position taken in Justice Olney’s opinion. He says: “Putting it another way, the fee in the half of the street upon which the lot abuts is in fact a part of the lot, so that a conveyance of the lot conveys the fee in the street as part of it.” If this is the correct theory it would logically follow that the soil of the street would remain a part of the lot although the easement of the street was abandoned. Such a consideration might be tenable under a description which, in terms, carries the boundaries to and along a street or highway, such reference to the street or highway being read as referring to the median line. But it cannot consistently apply to the conveyance of a lot as delineated on a map. In such a description the outlines and dimensions of the tract conveyed are plainly defined and limited by scale and diagram, which show the area within the lines of the plat and without the street. To hold that a lot so described extends to the center of the street is a contradiction of. terms. The
reductio ad absurdwm,
of such a construction is demonstrated by the department opinion of this court in the case of
Earl
v.
Dutour,
181 Cal. 58, [6 A. L. R. 1163, 183 Pac. 438]. In that case the plaintiff and defendant acquired title respectively to the easterly and westerly one-half each of lot 17 of the Hillard tract as per recorded map of said tract. On the westerly border of the lot as delineated on the map is a street sixty feet in width. The plaintiff, owning the easterly half of the lot, contended, in accordance with the view of the majority of the court here, that the lot exténded into the street and that his half of the lot extended from the easterly border halfway to the line marking the center of the street. As a result, if the lot as marked on the map happened to be an ordinary fifty foot town lot, but included in its legal entity thirty feet additional of street, the defendant would be left with thirty feet of street and ten feet of real available land as his westerly half of the lot.
There was some reason for plaintiff’s contention in that case, since the plat by a dotted line carried the apparent
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boundary of the lots to the middle of the street. Of course, the court held, as justice demanded, that in such case when the deed referred to the undivided half of a lot it meant lot and not street.
But let us consider a more extreme and not at all impossible illustration. Suppose we have a fifty foot lot abutting on the west upon a one hundred foot street. The owner conveys the west half of the lot. If the boundary of the lot is the middle of the street the grantee gets nothing but street.
It would be a queer construction that would define the two halves of a lot separately conveyed as including only the land within the prescribed boundaries of the map, but would embrace thirty or forty additional feet of street within its dimensions in the conveyance of the entire lot. It would present a condition in which the whole is greater than its parts. We must accept this incongruity as the legal effect of such a conveyance, or hold that the transfer by reference to lot numbers which carries title to the center of the adjacent street, does so by way of intendment as something appurtenant to but outside the land described, and not on the theory that the law enlarges the lot by extending its boundaries to the middle of the street.
Under the plain terms of the law, this can only result when the abutting land is at the time of the conveyance impressed with the public easement of a street or highway. It is said that the intention of the parties must prevail, and that in these conveyances the law presumes the intention of the grantor to transfer his title in the fee of the street, but that is true only when there is a street. Such is the doctrine laid down in the only decision of this court heretofore considering this question. In
Sanchez
v.
Grace M. E. Church,
114 Cal. 295, [46 Pac. 2], it was said as to land formerly part of a highway claimed under conveyance after the public way had been vacated: “A more serious question is whether the land in Messers lane to the middle of it did not become, when the lane was vacated, by a sort of accretion, parcel of the abutting.lots so as to pass with them by deed to Leonis without further designation. ... We think no such rule can obtain in this case; the conveyance of land bounded by a highway is presumed to carry title to the median line of the way, but there is no reason in a like
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presumption to include land which has formed, but no longer forms, part of a highway.” While the doctrine laid down in this decision is weakened as authority by uncertainty as to who was the owner in the fee of the lane, it is at least a clear and explicit expression of the view at that time approved by the court on this point.
The above doctrine is clearly adopted; by the supreme court of Minnesota.
White
v.
Jefferson,
110 Minn. 276, [32 L. R. A. (N. S.) 778, 784, 124 N. W. 374, 125 N. W. 262], presents a case directly in point. One Allie Hewitt owned “lots 23 and 24, Hewitt’s Outlots, First Division, according to the recorded plat thereof.” This ownership carried title to the center of an adjacent street. This street was vacated by the city council. Thereafter the defendants acquired title under a deed containing the foregoing description. Answering defendants’ claim that the vacated strip, which was still owned by the grantor at the time of the conveyance, passed with the deed to the lots, the court says: “On principle the answer is clear. In the first case, at the time of the transfer, the lots would front on a
street;
in the second case, they would not front on a street. A conveyance according to a plat is a conveyance by recorded metes and bounds, except where the lots front on a street.” The opinion in this case contains an exhaustive examination of the principle involved and the authorities on the subject, and quotes with approval the rule stated in
Sanchez
v.
Grace M. E. Church, supra.
Other decisions favoring the same rule are
Brown
v.
Tabor,
103 Iowa, 1, [72 N. W. 416];
Overland Machine Co.
v.
Alpenfels,
30 Colo. 171, [69 Pac.
574]; Harris
v.
Elliott,
10 Pet. 25, [9 L. Ed. 333, see, also, Rose’s U. S. Notes];
Chicago Lumber Co.
v.
Driving Park,
97 Iowa, 25, [65 N. W. 1017].
The presumption that a conveyance of land abutting on a public street or highway carries to the middle of the street is founded evidently on a rule of public policy which discourages the separation of the title to the soil of highways from the adjacent tracts on account of the intimate use and association of such streets to the abutting owner. For many uses the abutting soil of the streets is of value to the adjacent owner, where it would be valueless to a separate proprietor of the fee while subject to the easement of
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a street. (4 R. C. L., pp. 7, 8;
Norcross
v.
Griffiths,
65 Wis. 599, [56 Am. Rep. 642, 27 N. W. 606]; 9 Corpus Juris, p. 197, sec. 84.) None of these reasons of policy apply where the land is no longer part of a highway.
While there is an opposing line of authorities outside of California supporting the views of the majority opinion, I think the doctrine here contended for is more in harmony with reason and the fundamental rules governing title to real property.
No question is raised in the case before us as to continued rights of easement in these streets in behalf of adjacent owners, as are involved and the subject of discussion in
Danielson
v.
Sykes,
157 Cal. 686, [28 L. R. A. (N. S.) 1024, 109 Pac. 87], and
Eltinge
v.
Santos,
171 Cal. 278, [Ann. Cas. 1917A, 1143, 152 Pac. 915], cited in Justice Olney’s opinion. Nor is there any element of estoppel, as there might be in case of a grant by reference to a map showing the lands abutting upon streets, where the 'grantee accepts conveyance in reliance upon such map and without knowledge that the street had been vacated. In this case the streets had been closed for upward of twelve years, the proceedings vacating them were matters of record, and there is no pretense that the grantees were not aware of the fact at the time of their purchase.