Miller, P. J.
The plaintiff’s claim to the right of way in question in this action is sought to be maintained, first, by virtue of the deed from Thomas Milner to James Kershaw, the defendant’s grantor; and, secondly, as a prescriptive right, acquired by the plaintiff by virtue of a conveyance to him by Thomas Milner, Jr, on the fifth day of November, 1845, and the subsequent use of the same, with the acquiescence of the defendant and his assent to the right claimed by the plaintiff.
First. As to the deed from Milner to Kershaw, it conveys a lot of land by boundaries, and then concludes as follows: “It being the intention of the parties of the first part to convey twenty-one feet and four inches of the north part of the said public-house, together with the use of a lane or pass-way, twelve feet wide, from the green, and in rear of the said public-house, to the north line of the lot above deeded, to be kept open for the purpose of passing to and from the rear of the said public-house to the public common.”
By the language employed I think it is apparent that the parties intended only to convey the land, and to except the lane or passway from the effect of the conveyance. The concluding sentence, above cited, qualifies the description so as to exclude from it the lane or passway, except the use thereof in common with others. The deed conveyed the land to the grantee, subject to the use of the lane or pass way, which it declared should be kept open. The grantee owned other lands at the north as well as south of the premises conveyed ; and it was the manifest and clear intention of the parties that the lane or passway should be kept open and used as might be required for the benefit of the lands thus situated. If it was designed only for the use and advantage of the grantee, it was unnecessary to provide that it should be “ kept open for the purpose of passing to and from the rear of the public-house to the public commonas the grantee had such a right on his own land, independent of any such provision.
In Walts v. Kinney (6 Hill, 82) a lease of a mill, after an [259]*259absolute demise, with a full use of the water, contained a further clause restricting the use of the water; and it was held that the lessee did not acquire an unqualified right of using all the water which the dam would contain; but that he must so use the dam as not to raise the water beyond what was provided for in the last condition of the lease. (See S. C., 14 Wend., 41; and 23 id., 486.) This case is directly in point, and sustains the position that the provision in the deed relating to the passway qualifies and restricts its operation.
Nor was there any occasion for providing that the passway should extend to the “ north line” of the lot deeded, if the provision was intended for the benefit merely of the grantee, as beyond the south line was on the land conveyed. The fact that “north” instead of “south” was used is strong and convincing evidence of the intention of the parties; and, in the absence of any evidence showing a mistake or misapprehension in this respect, it certainly is not to be presumed that any such existed. It would be doing violence to the plain import of the deed to assume that the parties intended directly contrary to its obvious meaning.
It is said that the clause in question, if a restriction, amounts to nothing because it is not in favor of any person or estate. I think it is not a restriction or reservation, but what is called, in law, an exception which must necessarily be in favor of the grantor who conveys and those who may claim under him. In Ives v. Van Auken (34 Barb., 567) the proper office of an exception in a deed, as distinguished from a reservation, is said to be to exempt from its operation “a part of that which is granted or comprised within its terms. It must be of such part as is severable from the rest.” * * “ The character of a reservation is always something issuing or coming out of the thing or property granted, and not a part of the thing itself; and, to be a good reservation, it must always be to the grantor or party executing it, and not to a stranger to the deed.”
The right of way is included within the general bounda[260]*260ries and is severable from the rest, and, therefore, comes within the definition in the case cited. It does not issue or come out of the property granted but stands alone by itself, and, therefore, is not a reservation. It is not, in any way, similar to a reservation of the privilege in a well, which issues out of the land, but rests upon a different principle. (See Ives v. Van Auken, supra.) In Craig v. Wells (11 N. Y. [1 Ker.], 315), which is relied upon by the defendant’s counsel, it was held that a clause in a deed excepting and prohibiting the right of rising waters of a mill site for certain purposes did not create a condition, exception or reservation ; that it could not be construed as a covenant, limiting the use of the property, and was a mere prohibition' of the use of the thing granted, and, as such, was void. The decision is placed upon the ground, in part at least, that the prohibition is inconsistent with the title conveyed by the deed. The case is not analogous to the one at bar; and the point decided does not affect the question now considered.
It is a general principle, applicable .to the construction of all instruments, that whatever may be fairly implied from the terms or language of an instrument is, in judgment of law, contained in it. (Rogers v. Kneeland, 10 Wend., 218; Hall v. Samson, 19 How., 489.)
Applying this rule, it is obvious, I think, upon the face of the conveyance, that it was intended that the pass way or lane which the grantee was entitled to use was to be kept open for the benefit of the grantee and his assigns.
The deed from Thomas Milner to De Forest, which conveys the lot lying immediately south of the land conveyed to Kershaw, after a grant of the land described by boundaries, contains the following language: “ Also the use of a lane, twelve feet wide, from the green to the twelve feet above deeded, reserving the right to James Kershaw and his assigns to pass and repass across the said twelve feet in rear of the house, which is to be kept open as a passway.”
[261]*261This conveyance merely transfers the use of the land, subject to the right of Kershaw and his assigns to pass and repass, and declares that it shall be kept open as a passway; which means, I think, for the benefit of the grantor and his assigns, who aré or may thereafter become interested.
It is claimed by the defendant’s counsel that the two deeds should be construed together. The rule, no doubt, is that separate instruments, executed at the same time and relating to the same subject-matter, may be thus construed and taken as different parts of the same agreement. (Hills v. Miller, 3 Paige, 254; Stow v. Tifft, 15 John., 458.) But to authorize this to be. done, the instruments must be between the same parties. (Craig v. Wells, 11 N. Y., 315.) As these two deeds were separate and distinct, and between different parties, there is no reason why they should be considered together as a part of the same transaction. Whether read and construed together or separately, I think, makes no difference ; as the reasonable construction of both is that it was intended to keep open the passway for the benefit of all parties who were or who might thereafter become interested.
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Miller, P. J.
The plaintiff’s claim to the right of way in question in this action is sought to be maintained, first, by virtue of the deed from Thomas Milner to James Kershaw, the defendant’s grantor; and, secondly, as a prescriptive right, acquired by the plaintiff by virtue of a conveyance to him by Thomas Milner, Jr, on the fifth day of November, 1845, and the subsequent use of the same, with the acquiescence of the defendant and his assent to the right claimed by the plaintiff.
First. As to the deed from Milner to Kershaw, it conveys a lot of land by boundaries, and then concludes as follows: “It being the intention of the parties of the first part to convey twenty-one feet and four inches of the north part of the said public-house, together with the use of a lane or pass-way, twelve feet wide, from the green, and in rear of the said public-house, to the north line of the lot above deeded, to be kept open for the purpose of passing to and from the rear of the said public-house to the public common.”
By the language employed I think it is apparent that the parties intended only to convey the land, and to except the lane or passway from the effect of the conveyance. The concluding sentence, above cited, qualifies the description so as to exclude from it the lane or passway, except the use thereof in common with others. The deed conveyed the land to the grantee, subject to the use of the lane or pass way, which it declared should be kept open. The grantee owned other lands at the north as well as south of the premises conveyed ; and it was the manifest and clear intention of the parties that the lane or passway should be kept open and used as might be required for the benefit of the lands thus situated. If it was designed only for the use and advantage of the grantee, it was unnecessary to provide that it should be “ kept open for the purpose of passing to and from the rear of the public-house to the public commonas the grantee had such a right on his own land, independent of any such provision.
In Walts v. Kinney (6 Hill, 82) a lease of a mill, after an [259]*259absolute demise, with a full use of the water, contained a further clause restricting the use of the water; and it was held that the lessee did not acquire an unqualified right of using all the water which the dam would contain; but that he must so use the dam as not to raise the water beyond what was provided for in the last condition of the lease. (See S. C., 14 Wend., 41; and 23 id., 486.) This case is directly in point, and sustains the position that the provision in the deed relating to the passway qualifies and restricts its operation.
Nor was there any occasion for providing that the passway should extend to the “ north line” of the lot deeded, if the provision was intended for the benefit merely of the grantee, as beyond the south line was on the land conveyed. The fact that “north” instead of “south” was used is strong and convincing evidence of the intention of the parties; and, in the absence of any evidence showing a mistake or misapprehension in this respect, it certainly is not to be presumed that any such existed. It would be doing violence to the plain import of the deed to assume that the parties intended directly contrary to its obvious meaning.
It is said that the clause in question, if a restriction, amounts to nothing because it is not in favor of any person or estate. I think it is not a restriction or reservation, but what is called, in law, an exception which must necessarily be in favor of the grantor who conveys and those who may claim under him. In Ives v. Van Auken (34 Barb., 567) the proper office of an exception in a deed, as distinguished from a reservation, is said to be to exempt from its operation “a part of that which is granted or comprised within its terms. It must be of such part as is severable from the rest.” * * “ The character of a reservation is always something issuing or coming out of the thing or property granted, and not a part of the thing itself; and, to be a good reservation, it must always be to the grantor or party executing it, and not to a stranger to the deed.”
The right of way is included within the general bounda[260]*260ries and is severable from the rest, and, therefore, comes within the definition in the case cited. It does not issue or come out of the property granted but stands alone by itself, and, therefore, is not a reservation. It is not, in any way, similar to a reservation of the privilege in a well, which issues out of the land, but rests upon a different principle. (See Ives v. Van Auken, supra.) In Craig v. Wells (11 N. Y. [1 Ker.], 315), which is relied upon by the defendant’s counsel, it was held that a clause in a deed excepting and prohibiting the right of rising waters of a mill site for certain purposes did not create a condition, exception or reservation ; that it could not be construed as a covenant, limiting the use of the property, and was a mere prohibition' of the use of the thing granted, and, as such, was void. The decision is placed upon the ground, in part at least, that the prohibition is inconsistent with the title conveyed by the deed. The case is not analogous to the one at bar; and the point decided does not affect the question now considered.
It is a general principle, applicable .to the construction of all instruments, that whatever may be fairly implied from the terms or language of an instrument is, in judgment of law, contained in it. (Rogers v. Kneeland, 10 Wend., 218; Hall v. Samson, 19 How., 489.)
Applying this rule, it is obvious, I think, upon the face of the conveyance, that it was intended that the pass way or lane which the grantee was entitled to use was to be kept open for the benefit of the grantee and his assigns.
The deed from Thomas Milner to De Forest, which conveys the lot lying immediately south of the land conveyed to Kershaw, after a grant of the land described by boundaries, contains the following language: “ Also the use of a lane, twelve feet wide, from the green to the twelve feet above deeded, reserving the right to James Kershaw and his assigns to pass and repass across the said twelve feet in rear of the house, which is to be kept open as a passway.”
[261]*261This conveyance merely transfers the use of the land, subject to the right of Kershaw and his assigns to pass and repass, and declares that it shall be kept open as a passway; which means, I think, for the benefit of the grantor and his assigns, who aré or may thereafter become interested.
It is claimed by the defendant’s counsel that the two deeds should be construed together. The rule, no doubt, is that separate instruments, executed at the same time and relating to the same subject-matter, may be thus construed and taken as different parts of the same agreement. (Hills v. Miller, 3 Paige, 254; Stow v. Tifft, 15 John., 458.) But to authorize this to be. done, the instruments must be between the same parties. (Craig v. Wells, 11 N. Y., 315.) As these two deeds were separate and distinct, and between different parties, there is no reason why they should be considered together as a part of the same transaction. Whether read and construed together or separately, I think, makes no difference ; as the reasonable construction of both is that it was intended to keep open the passway for the benefit of all parties who were or who might thereafter become interested. The use of the passway alone was intended to be conveyed; but it was to remain open for the benefit of the other land which the grantee owned, as well as for the grantees in the several deeds.
Second. As to the plaintiff’s right to the way by prescription, it appears that the plaintiff acquired title by deed on the fifth of November, 1845, to a parcel of land, with the privilege of using the lane in the rear, which was opened in 1842 or 1843 by Kershaw himself, and was used by plaintiff" Milner and Kershaw until the defendant built over it in 1858 or 1859. ' The defendant agreed to pay and did pay rent to the plaintiff for his interest, by reason of closing the passage, from 1860 to L864 inclusive; thus admitting plaintiff’s right. As some of the testimony shows, he afterward agreed to open it if required to do so; and first denied the plaintiff’s right in December, 1868, or January, 1869. Here was an uninterrupted adverse user of over twenty years, [262]*262which is held to confer a complete prescriptive title to a way or other easement, the extent of which is also to be exclusively governed by the user. (Corning v. Gould, 16 Wend., 534, 535; Parker v. Foot, 19 id., 309; Miller v. Garlock, 8 Barb., 153; Townsend v. McDonald, 12 N. Y., 381; Flora v. Carbean, 38 id., 111.) The plaintiff’s claim, so far as this question is concerned, rests upon his deed, accompanied by acts asserting his right and the acquiescence of the defendant to the claim made. Under such a state of facts, it is not necessary to indulge in any presumption as to a grant, as it was actually in existence.' The use of the way was evidence merely of its extent and character.
It is further insisted by the counsel for the defendant that even if there was a right of way in favor of the land lying north, yet, inasmuch as the plaintiff’s office stands one-half upon other land besides that which he purchased of his grantor, the right of way does not extend to his office.
The doctrine is well settled that the owner of a right of way across one piece of land to another cannot use it to pass into an additional piece owned by him, and which lies adjacent to it. (IIowell v. King, 1 Mod., 190, 191; Colchester v. Roberts, 4 M. & W., 769, 774; Wash, on Ease., 60, 185; Shroeder v. Brennemam,, 23 Penn., 348; French v. Marsten, 24 N. H. [4 Hort.], 443.) Nor can the right of way be extended and enlarged, without the assent of the parties, beyond the purpose originally intended. (Allan v. Gomme, 11 Adol. & E., 759, 772, 774; 3 P. & D., 581; Wash, on Ease., 192.) The lot being in a village, it is a fair assumption, I think, that the right of way was intended to embrace any building which might be erected upon it. This construction was placed upon it by the acts and conduct of both the parties; for it had been used in that manner for upward of twenty years. While, then, the right of way was open to the plaintiff’s lot, there was, I think, no authority to use it for the benefit of that portion of the lot which he purchased from another party.
In this respect the justice erred in refusing to find that the [263]*263plaintiff acquired no right of way, under the deeds given in evidence, to and in favor of the land which he purchased of the Bank of Chenango, and in refusing to find that the plaintiff acquired no such right by user. As, however, the judgment can be modified so as to confine the plaintiff’s right to the land which he purchased of Thomas Milner, Jr., the error of the judge in these particulars is not fatal. The plaintiff is entitled to have the lane opened for this purpose; and if he uses it or attempts to do so beyond what he is entitled to the defendant can seek the proper redress.
The objection urged, that the case was one for a jury and not the court, is not well taken. Although the question as to the extent of the way and the manner of its use was proper for the determination of a jury, as well, pez-haps, as the question of adverse possession, yet, as this was an equity cause, and the relief demanded purely of an equitable character, I think, that the defendant was not entitled, as a matter of right, to a trial by jury. It was, therefore, a matter of discretion; and the exercise of this is not reviewable. (Code, §§ 253, 254; McCarty v. Edwards, 24 How., 236; Cheseborough v. House, 5 Duer, 125; Wilson v. Forsyth, 16 How., 448; People v. A. & S. R. R. Co., 1 Lans., 319; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y., 46.)
The appeal by the plaintiff is not well taken, and I think the court was right in holding that the plaintiff was only entitled to a limited right of way, and such as was reasonably necessary and convenient for the purposes for which it was granted. (Wash, on Ease, 188; Huson v. Young, 4 Lans., 63; Bakeman v. Talbot, 31 N. Y., 366.)
There is no other objection urged which requires discussion. Neither party should have costs of this appeal.
The judgment of the court below should be modified in conformity with the suggestions made.
Ordered accordingly.