Sewall, J.,
delivered the opinion of the Court.
The plaintiff’s right of action depends altogether upon the question, whether the gate, which the defendant opened and left open, had been lawfully erected by the plaintiff, upon a road over which the defendant claims a right of passing and repassing as in an open road, not liable to any obstructions or encumbrances.
The defendant purchased of Daniel Sanger, in 1808, a tract of land bounded on the road. At that time, and for several years before, the road had been open and unencumbered, and it so continued for more than two years afterwards.
The plaintiff contends, however, that this was not an open road of right: and he rests his title to maintain the gate removed by the defendant, upon the memorandum annexed to the indenture exe cuted on the 13th of April, 1805, by himself, one Richard Sanger [382] and the said Daniel Sanger, the defendant’s grantor. The road, which, in the body of the instrument, the parties have agreed and established as an open road, to be fenced out and kept open forever, according to the argument for the plaintiff, is to be en- [ * 383 ] cumbered with a * gate at the will of any one of the parties; any one of the three may keep it up; and although all should consent to remove it at any time, yet one may afterwards revoke his consent, and replace the gate.
This is the plaintiff’s construction of the nota bene; and it is necessary, and must be adopted throughout, to maintain this action. For the gate having been once removed, with the consent of the three contracting parties, at the time when the road was widened, the plaintiff must show ar right to replace it, to maintain this action, notwithstanding his concurrence in the removal.
We think it impossible to adopt this construction, for this among other reasons, — that it makes this postscript repugnant to the other parts of the instrument, and subversive of the intentions of the parties, as therein expressed. The instrument is, among the parties to it, to be construed as a grant of an open road; (1) which became thereby appurtenant to their several estates, to be enjoyed as an easement and privilege obtained at a common expense. Their purpose of an open and unencumbered road appears in their stipulations for fencing it out, as well as in the words in which the road itself is described. And this is so clear, as to justify an entire rejection of the note subjoined to the instrument, if it was capable of no other construction than that given it by the plaintiff’s counsel. It is not easy to say what the meaning of it is; and one may conjecture that the word not was omitted in the writing, and that the expression intended was, “ the gate is not to be kept up, except by consent.” But we have no authority to supply this word; and yet to make sense of the clause, we must suppose a much longer supplement. The gate is to be kept up, except by consent it shall be pulled down or removed. These words must be added ; and in this reading, the word except has properly the sense of until; and then the removal determined the right. The clause was evidently introduced for a temporary purpose, and not with any view to control and alter the whole tenor of the instrument, before agreed and settled by the parties. [ * 384 ] * The construction of written instruments is with the
Court. And even when extraneous evidence is admissible to aid the construction, as it may be in some cases, so far as to ascertain the circumstances under which the writing was made, and the [383] subject matter to be regulated by it; yet the Court is to direct the effect of that evidence, and what shall be the construction, if certain facts are proved.
The jury, in the case at bar, were left too much at large in this respect; besides that we think, independently of the extraneous evidence, the additional clause cannot have the meaning given to it which is essential to the plaintiff’s right of action; and, with the extraneous evidence, it is manifest that the meaning adopted by the parties at the time was totally different from that now contended for by the plaintiff, judging of the intentions of the parties by their conduct.
The testimony of Daniel Sanger, as to his meaning in the covenants to which he was a party, was properly rejected; but the written evidence, and the facts proved for the defendant, of which the evidence was properly admitted at the trial, lead to an opposite conclusion from that which the jury have drawn ; and their error is in a matter of law, the construction of the written instrument, in which they are to be directed by the opinion of the Court.
The verdict is set aside, and a new trial is to be granted at the motion of the defendant, (a)
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Sewall, J.,
delivered the opinion of the Court.
The plaintiff’s right of action depends altogether upon the question, whether the gate, which the defendant opened and left open, had been lawfully erected by the plaintiff, upon a road over which the defendant claims a right of passing and repassing as in an open road, not liable to any obstructions or encumbrances.
The defendant purchased of Daniel Sanger, in 1808, a tract of land bounded on the road. At that time, and for several years before, the road had been open and unencumbered, and it so continued for more than two years afterwards.
The plaintiff contends, however, that this was not an open road of right: and he rests his title to maintain the gate removed by the defendant, upon the memorandum annexed to the indenture exe cuted on the 13th of April, 1805, by himself, one Richard Sanger [382] and the said Daniel Sanger, the defendant’s grantor. The road, which, in the body of the instrument, the parties have agreed and established as an open road, to be fenced out and kept open forever, according to the argument for the plaintiff, is to be en- [ * 383 ] cumbered with a * gate at the will of any one of the parties; any one of the three may keep it up; and although all should consent to remove it at any time, yet one may afterwards revoke his consent, and replace the gate.
This is the plaintiff’s construction of the nota bene; and it is necessary, and must be adopted throughout, to maintain this action. For the gate having been once removed, with the consent of the three contracting parties, at the time when the road was widened, the plaintiff must show ar right to replace it, to maintain this action, notwithstanding his concurrence in the removal.
We think it impossible to adopt this construction, for this among other reasons, — that it makes this postscript repugnant to the other parts of the instrument, and subversive of the intentions of the parties, as therein expressed. The instrument is, among the parties to it, to be construed as a grant of an open road; (1) which became thereby appurtenant to their several estates, to be enjoyed as an easement and privilege obtained at a common expense. Their purpose of an open and unencumbered road appears in their stipulations for fencing it out, as well as in the words in which the road itself is described. And this is so clear, as to justify an entire rejection of the note subjoined to the instrument, if it was capable of no other construction than that given it by the plaintiff’s counsel. It is not easy to say what the meaning of it is; and one may conjecture that the word not was omitted in the writing, and that the expression intended was, “ the gate is not to be kept up, except by consent.” But we have no authority to supply this word; and yet to make sense of the clause, we must suppose a much longer supplement. The gate is to be kept up, except by consent it shall be pulled down or removed. These words must be added ; and in this reading, the word except has properly the sense of until; and then the removal determined the right. The clause was evidently introduced for a temporary purpose, and not with any view to control and alter the whole tenor of the instrument, before agreed and settled by the parties. [ * 384 ] * The construction of written instruments is with the
Court. And even when extraneous evidence is admissible to aid the construction, as it may be in some cases, so far as to ascertain the circumstances under which the writing was made, and the [383] subject matter to be regulated by it; yet the Court is to direct the effect of that evidence, and what shall be the construction, if certain facts are proved.
The jury, in the case at bar, were left too much at large in this respect; besides that we think, independently of the extraneous evidence, the additional clause cannot have the meaning given to it which is essential to the plaintiff’s right of action; and, with the extraneous evidence, it is manifest that the meaning adopted by the parties at the time was totally different from that now contended for by the plaintiff, judging of the intentions of the parties by their conduct.
The testimony of Daniel Sanger, as to his meaning in the covenants to which he was a party, was properly rejected; but the written evidence, and the facts proved for the defendant, of which the evidence was properly admitted at the trial, lead to an opposite conclusion from that which the jury have drawn ; and their error is in a matter of law, the construction of the written instrument, in which they are to be directed by the opinion of the Court.
The verdict is set aside, and a new trial is to be granted at the motion of the defendant, (a)
But if there really was an ambiguity on the face of the instrument, it would at least be questionable whether the parol testimony was properly introduced to explain it. —2 Phil. 538, 547, 561, 562,7th ed. — Stark. 4, p. 1041. —In Halliley vs Nicholson, (1 Price, 404,) it was held that parol evidence, to explain an imperfectly-worded written contract, even where some parts of it were difficult to be understood alone j and that although the chief question in the case was the nature of the contract which had been rendered doubtful by partial and incomplete alteration, and which, therefore, seemed to require to be supplied and perfected by some such additional words as the evidence rejected, would have furnished; and although it contained dubious words, involving in it uncertainty as to whether it purported to be a sale of particular merchandise to arrive by a certain vessel, or of such merchandise generally, whenever the contracting party should receive sufficient to supply the purchaser with the quantity. — See Doe vs. Westlake, 4 B. & A. 57.— Greaves vs. Ashlin, 3 Camp. 426. —That a legal instrument is not to be construed by testimony relative to the acts and understanding of the parties, seems to be well settled. — 2 Phil. 7th ed. p. 547. —Baynham vs. Guy’s Hospital, 3 Ves. 298. — Moore vs. Foley, 6 Ves. 238. —Eaton vs. Lyon, 3 Ves. 690. — Laguldm vs. May, 9 Ves. 325.—2 B. & P. 452.— Clifton vs. Walmesley, 5 D. & E 566 -- Ed ]