In the matter of Hopson.

blood;" if in the smallest degree I can contribute to such. results, I perform a high and grateful function, and experience in its discharge a corresponding satisfaction.

The order for an attachment in this case is vacated, the writ of habeas corpus discharged, and the prisoner is to remain in the custody of the provost marshal, to be dealt with according to law. (a)

[AT CHAMBERS, August 25, 1863. Before Bacon, Justice.]

(a) A certiorari was sued out, for the purpose of obtaining a reversal of the above decision. At the general term, held in the 5th district, on the 6th of October, 1863, Mr. R. Conkling, of counsel for the provost marshal, raised the objection that under the act of congress and the proclamation of the president of the United States suspending the writ of habeas corpus in certain cases, dated September 15, 1863, it was not proper for the court to entertain the case further. After hearing arguments upon this point, a majority of the judges could not agree that the proclamation did not prevent any further action in the case; and consequently the court declined hearing an argument upon the merits.

The conclusion thus arrived at by the general term seems to be sustained by a decision of the United States district court, for the southern district of New York, made in the following case, in September, 1863.

IN THE MATTER OF JOHN DUNN.

A writ of habeas corpus was issued in the above matter, by Judge Betts, on the 10th day of September, 1863, returnable on the 12th, and on the 12th adjourned to the 15th, for the purpose of allowing General Canby, the party on whom the writ was served, to make a return. And by order of the court the proceedings were further adjourned to the 19th of the same month, and the prisoner was ordered to be confined in the Park barracks, city of New York.

Thomas E. Pearsall, for the petitioner.

Samuel J. Glassey, opposed.

BETTS, J. The papers in the above matter having been this day laid before the court, and the counsel for the petitioner thereupon moving the court to command the release and discharge of the said John Dunn by virtue of the said writ of habeas corpus and the proceeding thereupon, from his previous imprisonment and detention in the military service of the United States, and the proclamation of the president of the United States, bearing date September 15, 1863, being argued in objection and bar to said motion, by counsel for the military authorities having custody of the prisoner sought to be

Perrin v. New York Central Rail Road Company.

released by the aforesaid writ of habeas corpus; and the counsel for the respective parties being heard, and the premises understood by the court; it is considered and adjudged by the court that the proclamation aforesaid of the president of the United States is valid and efficient in law; and that by force thereof all authority and right in this court to act further in the within matter of the said writ of habeas corpus is suspended and stayed.

Whereupon, it is ordered by the court that the motion of the counsel for the petitioner be denied; and that the party to whom the aforesaid writ was directed from this court be acquitted and discharged from further obedience thereto.

PERRIN VS. THE NEW YORK CENTRAL RAIL ROAD COMPANY.

Where the owner of a tract of land lying in a city, caused the same to be plotted out and subdivided into lots, and a map thereof to be made, and filed and recorded in the county clerk's office, on which was an open space, bounded on three sides by said lots, and on one side opening into a public street or highway, such open space being laid down and designated on said map as "park ;" and the owner subsequently sold and conveyed to different persons all the lots abutting on said open space, describing them by their numbers and by reference to said map; Held that the owner, when he laid out and poltted his tract of land, intended the open space to be a park, and not a mere street or passage way leading by and to the adjoining lots; and that the conveyances of those lots, executed by him, in which the lots were bounded on said "park," did not carry the grantees to the centre of the open space or park, but only to the exterior lines thereof.

THIS

case.

HIS was an action to recover the possession of land in the city of Rochester. The land sought to be recovered is that designated "park" on the maps annexed to the printed The defendant, by its answer, claimed that the premises in controversy had, upon a certain map made by the plaintiff, in 1848, of a tract owned by him, been designated as a street, park or open piece of ground, appurtenant to certain lots laid down on that map; and that the said street, park or open space of ground became and was fully dedicated by the plaintiff as a street or highway, for the use and benefit of the adjoining lots, and as appurtenant thereto, VOL. XL.

5

Perrin v. New York Central Rail Road Company.

and for the exclusive use and benefit thereof. That all the lots adjoining said street or park were sold by the plaintiff by reference to the said map, (a) and were now held and owned by the defendant; and that the plaintiff, in and by such dedication and sale, had parted with all his title to, and interest in, the lands sought to be recovered.

The action was tried at the Monroe circuit, in February, 1862, before Justice JOHNSON, without a jury. The following facts were proved, or admitted, on the trial. In 1849 the plaintiff was the owner in fee and in possession of a tract of land called the Frankfort tract, in the city of Rochester, of which the premises in controversy were a part. In that year the plaintiff caused said tract to be plotted out and subdivided into 36 lots, and a piece designated "park,"

(a) The following, diagram, condensed from the map, will give some idea of the situation of the locus in quo.

Perrin v. New York Central Rail Road Company.

bounded, on three sides, by nine of the said lots, numbered 19, 20, 21, 22, 24, 25, 26, 27 and 28, and on the fourth side (the east) by a public street known as Jones street; and he caused a map of said plot and subdivision to be made for him by James M. Bruff, and filed and recorded in the Monroe county clerk's office. The land represented on the said map as "park" is the same parcel of land particularly described in the complaint. The plaintiff subsequently sold and conveyed all the said nine lots abutting on the said "park," at different times and to different persons, describing them, in every conveyance, by their numbers, and by a reference to the said map filed and recorded as aforesaid. In 1855 the defendant, under such conveyances from the plaintiff and his grantees, acquired the title to, and now owns and occupies, all of said nine lots abutting on the "park." The description in one of the said conveyances from the plaintiff, was as follows: "All that piece or parcel of land situate in the second ward of the city of Rochester, being lots numbers 19, 20, 21 and 22, said lots known and distinguished on D. Perrin's map of a subdivision of a part of the Frankfort tract in said city, made by James M. Bruff, surveyor, and recorded in Monroe county clerk's office, in liber 83 of deeds, at page 215." In each of the other conveyances the description was the same, the numbers of lots only being changed. There is no means of access, by any public street or private way, to any of said nine lots last named, other than lots 24 and 28, except through the said piece called "park," and the rail road track shown on a map marked B. which runs out to the public streets of the city. After the sale of lots 20 and 26 by the plaintiff, dwelling houses were erected thereon, and the piece called "park" was used as the only way of access thereto so long as the dwelling houses remained thereon. They so remained until 1855, when the defendant took possession and removed the same. The piece of land in controversy is now used by the defendant for ingress and egress in respect to the lots so occupied by the defendant, and for

Perrin v. New York Central Rail Road Company.

other purposes. The defendant has constructed two rail road tracks, running north and south, across and on the piece in dispute, and uses and occupies the same for other purposes; and was, at the commencement of this action, and still is in the possession of the whole of the premises described in the complaint, claiming to be the exclusive and absolute owner thereof.

The court found the above facts, substantially, and also that the space called "park" was designed by the plaintiff as a park for the use of the persons who should purchase and own the lots fronting upon and bounded by the same, and also as a street or way of ingress and egress for said persons, with their carriages and teams, and other persons having occasion to go to and upon said lots, but not for the use of the public generally, otherwise; and that it was dedicated by the plaintiff for those purposes. And the judge found and decided as matter of law that the defendant was the owner of the said space or "park," and was entitled to the possession thereof. Judgment was ordered, in its favor, accordingly, and the plaintiff appealed to the general term.

F. A. Whittlesey, for the appellant.

T. R. Strong, for the respondent.

By the Court, WELLES, J. The question to be determined in this case is, whether, when the plaintiff conveyed the lots abutting on the premises in question, he parted with his title to such premises; and that depends upon the question whether those premises can properly be regarded as a street. If it was designed by the plaintiff as a street, lane, alley or way for ingress and egress in order to afford communication between the lots abutting upon it and Jones street, which was one of the public streets of the city of Rochester, the law is settled that the conveyance of those lots by the plaintiff carried the grantees to the middle or centre of the