Samuel D. Harris and others v. Jesse D. Elliott, 10 Pet. 25

Mr. Justice Thompson delivered the opinion of the Court. This is an action of trespass, and the declaration contains two counts. In the first count the locus in quo is described as a certain close situated in the town of Charlestown, measuring four-hundred feet in length and'forty feet in width, formerly called Henley street: and in the second count, the locus in quo is described as a close in the same town, measuring seven hundred and fifty feet in length and forty feet in width, formerly called Battery or Water street.

And upon the trial of the cause, the following questions occurred, upon which the opinions of the judges were opposed, and the points have been certified to this court, viz: 1. Whether the soil and freehold of the street called Henley or Meeting-house street, and of the street called Battery or Water street, did or did not pass to the United States, under and by virtue of the term appurtenances, used by the jury in their verdict, in desciption of lot No. 2, or by the description in said verdict of lots Nos. 1 and 3, or by the proceedings by which the land was taken by the United States. 2.

Whether the limitations contained in the said statute of October 30, 1781, is a bar to the plaintiffs’ right to recover the soil and freehold of said streets. 3. Whether, upon the discontinuánce of a highway in Massachusetts, by the public; the soil and freehold of such highway reverts to the owner of the land taken for such highway. 4. And upon the facts above stated, whether the plaintiffs have any right or title to the land taken for said streets on which the trespass is supposed to have been committed.

It appears from the statement of facts in the case, that in the year 1780, a committee, appointed by the town of Charlestown, projected certain streets in the town, and laid them down on a plan,or map, which was deposited and now remains in the office of the secretary of state of the commonwealth of Massachusetts : and that on the 30th of October 1781, the legislature of that state passed

an act confirming the-doings of that committee, and barring actions in certain cases therein specified. John Harris, the ancestor of the plaintiffs, about the year 1793, became the purchaser and owner of certain tracts of land, which comprised the two parcels described in the declaration, and which are parts of the land through which- said streets are laid down on the said plan or map, in the year 1780; although, in point of fact, Battery or Water street was not laid out and opened until the year 1795 or ’6, and Henley or Meeting-house street not until the year. 1798. or !9.

These streets passed over the land of John Harris, and he réceived from the town of Charlestown a compensation in damages .for taking the land belonging to him for the streets. In the year 1800, the government of the United States, under the authority of

an act of the legislature of Massachusetts,purchased of John Harris several parcels of land now included within the limits of the navy yard, in the town of Charlestown ; and in the year 1801, by an arrangement between the town; of "Charlestown and the United States, these streets, so far as they were within the limits of the navy yard,-were closed up, and have ever since been discontinued, and ceased to be used" as public highways ; and have been used as a part of the navy yard.

The act of the legislature of Massachusetts consenting to the purchase, and ceding the jurisdiction; provides, that if the agent of the United States, and the owners of the land so to be purchased, cannot agree in the- sale and purchase thereof, application may be made to any court of general sessions of the peace of the county of Middlesex, which court is authorized to summon a jury to value the same. .

The agent of the United States and John Harris, not agreeing as to the value of the land so taken by the United States, the same was, ascertained by a jury duly summoned according to the provisions of the act; and by the proceedings of the jury for that purpose, and the return made thereupon, five lots of land were appraised, which belonged to John Harris, which are particularly described by metes and bounds, and some parts of the land so appraised, is bounded upon and by the said streets; but no part of the locus in quo in either count in the declaration, is included within such bounds and description.

The description of one of the lots so taken and appraised, begins as follows: “ One other lot of land, with the appurtenances, containing one-half of an acre, bounded as follows, &c., particularly describing the lot, but not including the highway; and one of the questions arising under the first point is, whether, under the term appurtenances, the soil and freehold of the street passed to the United States. This term is not used in the description of either of the other lots.

The inquest of the jury, after particularly describing by fnetes and bounds, each lot, concludes in each case, as follows: “Which same tract of land, on our oaths, we appraise and value at-,” and the act of the legislature of Massachusetts declares, that such parts of the land so valued and paid for by the United States, shall be forever vested in the United States, and . shall and may be taken possession of and appropriated to the purposes aforesaid.

This inquest, therefore, shows that the jury appraised the land, only included within the description; and the act only vests the title to such land as shall be appraised. The streets were clearly not appraised, and so did not pass to the United States; unless they passed as an incident under the term appurtenances. If, from the use of this term, connected with and explained by the other parts of the inquest, it clearly appeared to have been the intention of the jury to include the streets; it might be considered a part of, and explanatory of the description, and be carrying into effect the intention of the jury.

But if no such conclusion can be drawn, the term must receive its legal and appropriate

interpretation. -There is no ambiguity in the description of the lot, necessary to be explained ; and it is difficult to conjecture what could have been the understanding of the draughtsman by the use of the terra.

It is not introduced in the description of any of the other lots: ' It does, to be sure, appear that there was upon this lot several houses, and none upon any of the other lots: and it is not unlikely that it was intended to apply to the buildings upon the lot; but this was unnecessary, as they would pass with the land : although, from the facts as disclosed in the case, we cannot discover any appropriate application of the term, yet we cannot undertake to say that there was not any right or interest incident to this lot, which would pass under the term appurtenances.

But there is no ground to warrant a construction that it was used in reference to the soil and freehold of the street, or any thing to take it out of the strict, legal, and technical

interpretation of the term. This term, both in common parlance’ and in legal acceptation, is used to signify something appertaining to another thing as principal, and which passes as an incident to the principal thing. Lord Coke says (Coke Lit. 121, b.) a thing corporeal cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal. According to this rule, land cannot be appurtenant to land. In the case of Jackson v.

Hathaway, (15 Johns. 454,) the court say it is impossible to protect the defendant on the ground thit the adjoining road passed by the deed, as an incident, to the lands professedly granted. A mere easement may, without express words; pass as an incident to the principal object of the grant; but it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries. And in the case of Leonard v. White (7 Mass.

Rep. 6,) it was decided, that by the grant of a grist mill, with the appurtenances, the soil of a way, immcmorially used for the purpose of access to the mill, did not pass; although it might be considered as a grant of the easement for the accommodation of the mill. (Cro. Eliz. 704.

Cro Char. 57. 3 Salk. 40.) The answer, therefore, to this branch of the question, must be that the soil and freehold of the streets did not pass under and by virtue of the term appurtenances, nor is there any thing in-the description of lots Nos. 1 and 3, in the verdict of the jury; nor in the proceedings by which the land was taken by the United States, from which it can be inferred that the soil and freehold of the streets passed to the United States. R has been shown by the notice already taken of the verdict and proceedings, that they do not include the streets..

The same answer must, therefore, be given to this branch of the question. 2. That part of the act of the 30th October Í781, under which the second question arises, is as follows : [Section 1.] “ That the said proceedings of the committee be, and hereby are confirmed, and all actions that shall be brought for recovering possession of any land lying w’ithin any of the streets, lanes, squares, &c., laid out.as aforesrid, or for damages sustained, or occasioned thereby, shall be utterly and forever barred.” The

preamble to this act refers to the destruction of Charlestown by fire, and that a committee had been appointed by the town for regulating the streets, lanes, and squares in that part of the town which had been laid waste by the fire; and that the committee had proceeded to lay out the same, a plan of which had been deposited in the secretary’s office. This

preamble states that the committee was appointed to regulate the streets, which might not perhaps, in strictness, authorize them to alter the streets; but the act, in several parts of it, evidently looks to and provides for cases where the streets were widened and altered. This mode of laying out streets was not according to the general law of Massachusetts, and the object of the act was to legalize and confirm the proceedings of the committee, and to bar all actions to recover possession of any land so taken for streets, lanes, squares, &c., or for damages sustained by any one thereby.

This bar of all actions, was to protect and establish the doings of the committee in laying out the streets; but does not seem to look to any question relating to the soil and freenold of the streets, if the easement should at any time thereafter be discontinued.

This question is- not stated with precision, and might, perhaps, admit of a more general view of the act of 1781, and open the inquiry whether the right of the plaintiffs to the soil and freehold of the streets was not taken away by it; but as the cause must go back for further proceedings, we. do not think proper to enter - into the more general consideration of this act, or touch the question as to its effect upon the plaintiffs’ right to the soil and freehold of the streets. But only decide that such right, if it exists, is not barred by the first

section of the act. 3. Upon the third point, the law in Massachusetts is well settled, that where a mere easement is taken for a public highway, the soil and freehold remains in the owner of the land, encumbered only with the easement, and that upon the discontinuance of the highway, the soil and freehold revert to the owner of the land (4 Mass. Rep. 427, 6 Id. 454, 13 Id. 259, 16 Id. 33.) 4.

The fourth question is too general, embracing the merits of the whole case, and does not present any single point or question ; and it has been repeatedly ruled in this court, that the whole case cannot be brought here, under the act of 1802, upon such a general question. This act provides only for bringing up in this manner specific questions, upon which the judges in the.circuit court may be opposed in opinion.

Several questions growing out of the facts in this case have been suggested at the bar deserving consideration; but they are not stated in such specific pointy as is required by the settled course of the court, and no opinion will of course he expressed upon them.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Massachusetts, and on the points and questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act oi Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, on the first question so certified as aforesaid, that the soil and freehold of Henley or.

Meeting-house street, and of Battery or Water street, did not pass under and by virtue of the term appurtenances, used by the jury in. their verdict, nor was there any thing in the description of lots one and three in the verdict of the jury that passed the soil and freehold of the said streets to the United States. 2. On the second point, it is the opinion of this Court, that the right of the plaintiffs to recover the soil and freehold of the said streets is not barred by the limitations contained in the statute of October 30, 1781, as set forth in the record. 3.

On the third point, it is the opinion of this Court, that upon the discontinuance of a highway in Massachusetts by the public, the soil and freehold of such highway revert to the owner of the land taken for such highway. 4. On the fourth question, no specific point being stated, this Court can express no opinion, as it has been repeatedly ruled in this Court, that the whole case cannot be brought here under the act of Congress of 1802, upon such a general question. Whereupon it is ordered, and adjudged, by this Court, that it be so certified to the said circuit' court.