¶1The defendants contend that the land in the highways is not to be paid for because of the provision in the contract for a conveyance “ free from all encumbrance.” It is well settled that a public highway is not an incumbrance within the meaning of that term as used in covenants against incumbrances. ( Whitbeck v. Cook, 15 Johns. 483; Huyck v. Andrews, 113 N. Y. 81.) The plaintiffs have conveyed the premises,'including to the middle line of the boundary highways, “ free from all encumbrance.”
¶2The contention that the land in the highways is not to be paid for follows the premise that “ the contract sets boundaries to the land in the vendors’ possession and to be paid for.” The .contract does not purport to set definite boundaries' as in a description by metes and bounds, courses and distances, but, in place of that, merely identifies the property to be conveyed by a loose description, commonly found nowadays in conveyances of rural property, referring generally to the premises and highways bounding it. The entire farm, including the land in the highways, was in the vendors’ possession. (Gidney v. Earl, 12 Wend. 98 ; Jackson v. Hathaway, 15 Johns. 447; Cortelyou v. Van Brundt, 2 id. 357, 363; Babcock v. Lamb, 1 Cow. 238.) It may be begging the question to say that the description in a land contract is intended to include the land to be conveyed and to be paid for, but that appears to me to be self-evident. If the description sets definite bounds, it limits the land to be conveyed the same as that to be paid for. This description does not set definite bounds, and, because of that, includes the entire farm to the center of the highways bounding it. (Matter of Ladue, 118 N. Y. 213, and cases cited.) The rule that a general description of land as bounded by, along or upon a highway, street, or non-navigable stream, carries to the middle line thereof, is a rule of construction based on common experience and understanding, and, in respect of rural highways, has always been regarded in this State as settled law. (See Jackson v. Hathaway, supra.)The parties, then, described the premises in terms.which they knew, and which the law said, included the land in the highways. Hence, the case is the same as though said land had been included by express terms.
¶3The vendee was entitled to a conveyance of the land in the high*263way by virtue of the contract, or not at all; his assignee gets title to it by virtue of the grant or not at all. “ The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the centre of the road as part and parcel of the grant.” (Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61.) The law is not that the fee to the center of the highway passes with a grant of land abutting upon it (Jackson v. Hathaway, supra ; White's Bank of Buffalo v. Nichols, 64 N. Y. 65 ; Kings County Fire Ins. Co. v. Stevens, 87 id. 287), but that, unless expressly excluded, it is presumed to have been included. There is no warrant, therefore, for the contention that the grantee gets title to said land by operation of some artificial rule of law, and not by virtue of the contract in and of itself. Of course, if the vendor had not owned the land in the highway, the contract would not have required the conveyance of it for the reason that, in that case, the presumption of an intention to include it would be rebutted. It is to be assumed that the parties knew, when the contract was made, that the vendors owned to the center of the highways. Except in_ the case of the old Dutch roads, the public never acquired more than a right of way in our rural highways (Jackson v. Hathaway, supra); the presumption is that the public have only an easement (Fanning v. Osborne, 102 N. Y. 441, 445); and so generally has it been the case that adjoining owners have each contributed half of the land for the road dividing their properties, that the presumption is that the title of abutting owners extends to the center of the highways. (Haberman v. Baker, 128 N. Y. 253, 259.)
¶4The case then comes to this : The parties, knowing that the plaintiffs owned to the middle line of the highways, entered into a contract of purchase and sale of the entire farm; the vendee agreed to pay an average price per acre without excepting any part from the acreage to be paid for; he must pay, therefore, for all he contracted to buy. There is no pretense that he was willing or could have been compelled to accept a conveyance which excluded the land in the highway, and he can only be excused from paying for it upon the presumption that,’ though included with the land to be conveyed, the parties intended, without saying so, to exclude it from the land to be paid for, but there are no facts in this case to justify that presumption. The land in the highway is a very small part of the *264entire farm. It is presumably of value, it may be put to uses not inconsistent with the public use, the ownership of the fee is of value as a protection from added burdens, and there'is always the possibility of the extinguishment of the public easement. (Jackson v. Hathaway, supra; Haberman v. Baker, supra.) Upon the face of the contract there is no distinction between the land to be conveyed and that to be paid for. It is shown, I think, both by reason and authority, that the grantee acquired the land in the highways as part and parcel of the grant and was entitled to it perforce of the contract in and of itself, and it must follow that all is to be included in the acreage to be paid for in the absence of proof of facts and circumstances to justify the presumption that the parties otherwise intended.
¶51I can perceive no distinction between the case of a highway or stream on the boundary of a farm and one extending through it, so that both are included within the description of the premises to be conveyed: If such highway or stream is to be excluded from the acreage to be paid for, there would be equal reason for excluding those parts of the farm of little or no value; for example, an irreclaimable swamp, an inaccessible ravine, supposable cases. In fixing the average price per acre the parties are supposed to have considered the apparent facts and to have intended that the more valuable part ¡should make up for the less valuable.
¶6If the vendor had agreed to convey a stated number of acres for a lump sum by a contract containing a like description to this one, the case would be the converse of this. Plainly, in such case, the conveyance of the stated number of acres, including the land in the highway, would be all the vendee could demand.
¶7The supposed case of the city lot is not before us. While the rule is the same respecting the presumption of an intention to convey to the center of the street, it has been said that the presumption is less strong in the case of a street in a large city., (English v. Brennan, 60 N. Y. 609.) The question is one, of intention. The relative quantity of land in a street or highway might be so great and the price per square foot in relation to the value of the property might be so high as to justify a presumption that the parties intended that the square-foot price should be reckoned on the land outside the street, but no such considerations are involved in this *265case. Every farmer understands that the acreage of his farm includes the land in the highways ' extending through or bounding it. If the vendee did not intend to pay for the land in the highway he should so have stipulated.
¶8Woodward, J., concurred.
¶9Judgment for the defendants, without costs, in accordance with the terms of the submission.