Anderson

Two actions to quiet title were tried together in the court below. As the actions were originally brought, there were a number of parties, and the parties plaintiff and defendant were not the same in each, but there occurred such disclaimers, transfers of interest, and shifting of posi tion that at the time of trial the controversy had in each case been reduced to one between J. F. Anderson, whom we may call the plaintiff, and Citizens Savings and Trust Company, a corporation, whom we may call the defendant, each claiming to be the owner of the property involved, the latter as trustee for two minors by the name of Lempertz. Judgment went for the plaintiff in the court below in each action, and the defendant appeals. 'Both actions present the same questions and, for purposes of discussion, may be treated as one.

There is no dispute as to the material facts. It appears that one J. G. Griffiths was originally the owner of a considerable tract, including the land in controversy. He subdivided the tract into blocks and lots, with streets, and recorded a map of the tract as so subdivided. This map showed lot 1 in block 7 as the lot forming the easterly end of the block and extending…

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…