(39 Misc. Rep. 628.)

#### JACQUEMIN v. FINNEGAN.

(Oneida County Court.

June, 1902.)

1. Streets — Pavino Material — Ownership.

At the time the street in front of plaintiff’s lot was paved, he paid an assessment therefor. Twenty years thereafter the city duly contracted for asphalt pavement in the street, and removal of the old pavement. The contractor removed the old pavement, piling the stone in the street. Plaintiff removed the curbstones that had been laid in front of his property onto his lot, and the contractor took them back to use in the street. Plaintiff then sued for conversion. *EeU*that, as against the city, plaintiff had no title to the stones, either by reason of having paid the assessment, or because they were laid in front of his lot.

2. Deeds —Boundaries—Street—Ownership.

A deed to a tract of land, “commencing at a point on the northerly side of Bleecker street, * * * and running thence at right angles with the street northerly 120 feet; * * * thence at right angles 40 feet; • * * thence southerly to the northerly side of Bleecker street; thence westerly along the northerly side of' Bleecker street to the place of beginning; said lot being 40 feet front and rear, and 120 feet deep,”— did not convey any part of the street.

Appeal from justice court.

Action by John E. Jacquemin against John C. Finnegan for appropriating certain curbing belonging to plaintiff. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

*208P. H. Fitzgerald, for appellant.

G. C. Morehouse, for respondent.

SMITH, J.

On February 16, 1881, the plaintiff, by a conveyance to him, became the owner of a lot on the north side of Bleecker street, in the city of Utica, in his deed bounded as follows:

> “Commencing at a point on the northerly side of Bleecker street, ten feet west of the east line of lot No. 22 in block 19, as the same is designated on a map made by Charles C. Broadhead, surveyor, in the year 3S10, for the representative of Rutger Bleecker, deceased, which map is on file in the clerk’s office of said county, and running thence at right angles with Bleecker street northerly 120 feet to the southerly line of said lot 22; thence at right angles with said last-mentioned line 40 feet to the northwesterly corner of a lot of land sold by Horatio Seymour to Cornelius Desmond; thence southerly along said Desmond’s westerly line to the northerly side of Bleecker street; thence westerly along the- northerly side of Bleecker street to the place of beginning; said lot being forty feet front and rear, and 120 feet deep.”

This lot is numbered “667 Bleecker street.” The plaintiff was in possession of these premises on July 9, 1902, and from the evidence it appears that he had been in such possession since the date of the deed to him. In 1882 Fowler & Baxter paved the street under a contract with the city of Utica.. The plaintiff had no contract with any one for that paving, and he paid no contractor for such paving, but he paid an assessment made by the city therefor in proportion to his frontage on the street. The plaintiff claims he paid for such paving, but testified that he means he paid an assessment for the pavement, gutters, and curbing made in 1882. The street is now being repaved under a contract made by the city with the Barber Asphalt Company. On the argument the parties stipulated that the determination to pave the street in question in front of the plaintiff’s premises was duly published in two official newspapers, as required by the city charter; also that the common council duly advertised for bids to pave the street in front of the plaintiff’s premises in two official papers, as required by the charter. The parties also stipulated to waive the question of title to real estate being in dispute. The proceedings under which the contract to repave the street .was let, and the paving is being done, seem to be in accordance with the city charter. The specifications under which the work is being done require the contractors to remove the curbing stones in question in order to lay the proper foundation, and properly do the paving they have contracted to do. The defendant was in the employ of the contractors, and under the order of the city engineer the contractors had caused the curbing in question in front of the plaintiff’s premises to be taken up. It was piled up in the street preparatory to doing the paving under their contract. The plaintiff caused the curbing stones thus taken up and piled in the street to be conveyed onto his lot. The defendant on July 9, 1902, caused them to be removed from the plaintiff’s lot, contrary to the objections of the plaintiff’s wife, acting as his agent. This action was then brought. The stones in question had been used as curbing in the street ever since the street was paved in 1882.

Various errors were committed by the justice in receiving and excluding evidence, but, from the conclusion I have reached, I do not *209deem it necessary to consider such errors. I have reached the conclusion that this action cannot be maintained, for two reasons:

i. The plaintiff was never the owner of the stones in question. He did not put them in the street. The city of Utica did. What the plaintiff paid was by way of tax, presumably levied in pursuance to law, to pay, with others, for the improvements to the street. Such improvements were made for the use and benefit of the public, including the plaintiff, and under the law the plaintiff, as an adjacent property owner, was obliged to bear such part of the burden as the law imposed ; but that did not give him the title to any part of the improvement made. If a town should find it necessary, as often is the case, to build a bridge or culvert in the highway or street, and such bridge or culvert is built pursuant to law, the taxpayers paying therefor, would the taxpayers thereby become the owners of the bridge or culvert? Clearly not. The street in question is under the control of the city of Utica, whose duty it is at all times to keep the street in a safe condition. To do this, the city is clothed with the authority to cause needful repairs to be made, and the law fixes the liability on the property owners to pay for such repairs. Section 99 of the city charter confers upon the common council the power to cause any street, highway, lane, or alley in said city to be graded, leveled, paved, or repaved, which is to be done by contract made therefor. It is held that the power to pave includes curbs, sidewalks, gutters, trimmings, and grading therefor. Elliott, Roads & S. § 461; Wilson v. City of Watertown, 3 Hun, 508; 2 Dill. Mun. Corp. § 780, note 1. And the city may do all of these acts in one contract. Railroad v. City, 5 Mun. Corp. Cas. 229. The plaintiff claims title to the curbing, not only because he was taxed to' put it down, but also because it was located on land which he says he owned in fee. In other words, because it is “superincumbent material” located on his land, the same as soil, gravel, stone, etc., found or located on his land is part of the land. But -it is held that the municipality has the right to reasonably use or appropriate soil or superincumbent materials while making repairs on or improving the highway. Bundy v. Catto, 61 I11. App. 209; Overman v. May, 35 Iowa, 89; Cook v. Hecht, 64 Mo. App. 273; Fetch v. Gilman, 22.Vt. 38; Baxter v. Winwooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84. According to some of the cases, soil may be taken from one part of the highway, and used upon another part (Bissell v. Collins, 28 Mich. 277, 15 Am. Rep. 217), or even upon a different highway which is within the jurisdiction of the same municipal authorities; both highways being regarded as parts of one plan of public improvement (City of New Haven v. Sargent, 38 Conn. 50, 9 Am. Rep. 360; Town of Palatine v. Kreuger, 121 I11. 72, 12 N. E. 75; Hovey v. Mayo, 43 Me. 322; Adams v. Emerson, 6 Pick. 58; Denniston v. Clark, 125 Mass. 216; Griswold v. Bay City, 35 Mich. 452; Huston v. Ft. Atkinson, 56 Wis. 350, 14 N. W. 444). It has been decided that the right of the public to the soil for the purpose of repairs or improvements is paramount to the claim of the owner of the fee, and accordingly he has been restrained by injunction from taking possession of earth which has been removed in repairing the highway. City of New Haven v. Sargent, 38 Conn. 50, 9 Am. Rep. 360. And *210so it has been held that he may be restrained by ordinance from removing surplus soil needed elsewhere for the streets. Town of Palatine v. Kreuger, 121 Ill. 72, 12 N. E. 75.

In Robert v. Saddler, 104 N. Y. 229, 10 N. E. 428, 58 Am. Rep. 498, a full review of the cases in this state on the subject is made, and'the result of the court’s consideration of the question is fairly stated in the headnote, as follows:

> . “Where the public have taken an easement for a street or highway, and the surface of the land is above the grade of the highway, so that, in order to reach the grade line, it is necessary to remove the superincumbent material, this may be Used on other portions of the road, on the premises of other landowners; but the public easement justifies only the taking of earth and soil which the process of construction or repair requires and necessarily compels to be removed.”

In Cotanch v. Grover, 57 Hun, 279, 10 N. Y. Supp. 758, Hardin, P. J., says:

> “If the removal of the earth in front of the plaintiff’s premises was made for the purpose of improving the street or highway by the village authorities, and for no other purpose, and they acted in good faith in such removal, with a view to benefit the public, their action was within their corporate powers.”

In view of these and other authorities, I think it well settled that, even had the plaintiff been the owner of the land to the center of the street, his title and interest would be subordinate to the rights of the city. The city would then have the right, as against the plaintiff, to utilize, in good faith, any of the “superincumbent material” needful for repairing the street. New curbing is now being put in along the street, and it cannot be said that the old material may not be needed in the improvements now being made. Indeed, the defendant attempted to show that the stones in-question were to be used in repaving the street, but was not permitted by the court below to do so. The defendant ought to have been permitted to show by proper proof that the stones in question were needed in making the present improvements, and were to be used therefor. The defendant had charge of the work, and knew for what purpose the stones were to be used. To hold that the plaintiff could recover is equivalent to holding that the plaintiff had the right, as against the city, to appropriate the stones- in question, — that his title was paramount to the rights of the city; and if he had been, permitted to hold the stone, if permitted to remove them, then the city would be deprived of their use, notwithstanding they rqight be needful in making the improvements. The curbing was lawfully taken up, by order of the city engineer, and piled in' the street. It was in the possession of the city when the plaintiff took it into his possession. The defendant caused it to be taken back to the street, and, if he is guilty of conversion, it is •as against the city, and not as against the plaintiff.

2. The plaintiff is not the owner of the land where the curbing in question lay.His lands are bounded on the south by the northerly side of the street. By the deed the lot conveyed to him is 40 feet front and rear, and 120 feet deep. The witness Rich measured the lot, and found that, measuring from the north line of the street, the lot was 120 feet deep, and it was 40 feet wide along the side of the *211street. This undisputed evidence shows the plaintiff has all the land called for by his deed located north of the street, as in the deed described. From the north line of the street to the center thereof is 33 feet, and I can see no way by which the deed can be construed to include the street, or any part of it. In Insurance Co. v. Stevens, 87 N. Y. 287, 41 Am. Rep. 361, the lands were described in the deed as “beginning at a point on the southerly side of the Wallabout Bridge road,” and running thence southerly, and, after various courses and distances, “north, 48 degrees 9 minutes west, to the Wallabout Bridge road, and from thence along said road to the place of beginning.” It was held that the grant did not include the highway to the center, but that the land was bounded by the southerly side of the highway. It was settled in this state-(Child v. Starr, 4 Hill, 369) that a boundary in a deed “along the shore” of a fresh-water river carried the grantee only to low-water mark, and that the bed of the river did not pass under the conveyance. So a boundary by the bank of a creek has been held to confine the grantee to the margin of the stream. Halsey v. McCormick, 13 N. Y. 296. I think the roadbed was excluded by the terms of the description, within the cases of Jackson v. Hathaway, 15 Johns. 447, 8 Am. Dec. 263; English v. Brennan, 60 N. Y. 609; Bank v. Nichols, 64 N. Y. 65; Blackman v. Riley, 138 N. Y. 318, 324, 34 N. E. 214; Halloway v. Southmayd, 139 N. Y. 390-412, 34 N. E. 1047, 1052 ; Deering v. Reilly, 167 N. Y. 184, 193, 60 N. E. 447.

The plaintiff not having acquired the title to, or being the owner of, the stones in question, and not being the owner of the land where they lay, he cannot recover in this action. The judgment is therefore affirmed, with costs to the defendant.