#### Dudley Choate *versus*Parker Burnham Junior.

B in 1818 conveyed to C the eastern half of B’s dwellinghouse, and a lot of land on the eastern side of the house, “ *reserving however a privilege to pass and repass through said lot of land to the outer*cellar-way, *and through said way and cellar where it may do the least*damageC some years after brought an action of trespass gu. *clau.fr.*against B, who pleaded a right of way through the cellar, to which 0 new assigned that B passed from the cellar to B’s rooms above, without having any occasion to go into the cellar to do any particular business therein. *Held,*that by the reservation, B retained the right of passage through the cellar to his apartments above, even when he had no business in the cellar.

*It seems,*that evidence in such action to show that B had used the passage through the cellar in a certain mode, from the time of making the deed, to the time of the supposed trespass, without any objection being made by C, would be admissible, in order to show what was intended by the reservation.

This was an action of trespass *quare clausum fregit,*which was tried before *Putnam*J. The plea was, that the defendant had a right of way through the cellar of the plaintiff’s house. New assignment, that the defendant passed from the cellar to the rooms above [which belonged to the defendant] without having any occasion to go into the cellar to do any particular business therein.

The defendant relied upon a reservation in a deed which he made to the plaintiff on November 25, 1818, by which he conveyed to the plaintiff, the eastern half of the defendant’s “ dwellinghouse with the land under the same and cellar.” The deed also conveyed to the plaintiff a lot of land on the eastern side of the house, and “ also the privilege of passing and repassing up and down the cellar stairs the inside of said house, reserving however a privilege to pass and repass *through said lot of land to the outer*cellar-way, *and through said way and*cellar, *where it may do the least damage :*Also one half of the land in front of said house and at the western end and backside in common and undivided,” “reserving the western half of said house as stipulated above and cellar.”

The defendant was permitted to give parol evidence of such a use as he now claims, to pass &c., immediately after the deed, and continued from that time with the plaintiff’s knowledge, and without any objection until the time of the alleged trespass.

*281*Nov. 6th.*

The plaintiff’s counsel objected to the admission of this evidence ; and also requested the judge to instruct the jury, that the reservation under which the defendant justified, gave him the privilege of passing over the plaintiff’s land, and through the plaintiff’s cellar to the defendant’s cellar and back again, for the purpose of carrying any thing into the cellar, or taking any tiling out, or doing any thing therein, but not the privilege of so passing to and from the upper apartments of the defendant’s house directly, where the object is merely to go into or come out of the house, and that the evidence offered by the defendant, of the manner in which he had used the privilege, was not sufficient to control this construction of the deed. This construction was adopted by the judge for the purposes of the trial, unless the jury should be of opinion, from the evidence in the case, that the parties intended by the reservation of the way through the cellar, that the defendant and his assigns, owners and occupiers of the western part of the house, should pass to the apartments above the -cellar, and repass therefrom through the cellar, as the defendant claims, when they have nothing to do in the cellar. And the jury were instructed, that such intent and meaning of the parties to the deed might be inferred from the contemporaneous and subsequent usage, without any objection on the part of the plaintiff, he knowing such usage ; but that the burden of proof was on the defendant. The jury found a verdict for the defendant upon that ground.

If the whole Court should be of opinion that the parol evidence should have been excluded, and that the construction of the deed for which the counsel for the plaintiff contended was right, then the verdict was to be set aside. But if the defendant’s construction of the deed was right, or if the parol evidence was rightly admitted, judgment was to be rendered on the verdict for the defendant.

Choate, for the plaintiff.

The object of the reservation was, not to give the defendant a thoroughfare through the plaintiff’s cellar, but merely to give a right to go to his own cellar for eny proper purpose, through the cellar of the plaintiff.

Even if the reservation would admit of the construction which is maintained by the defendant, as well as that which is *282maintained by the plaintiff, still the deed ought to be constmed TM our favor> because every deed must be taken most strongly against the grantor. *Lojield’s Case,*10 Co. 106 ; Touch. 77, 78 ; Plowd. 134 ; *Jackson*v. *Hudson,*3 Johns. R. 382.

The parol evidence was improperly admitted. An alleged usage of parties is inadmissible to give a construction to a private modern deed, except to show boundaries. *Comstock*v. *Van Deusen,*5 Pick. 163. Such evidence is only admissible to give a construction to ancient charters, grants and statutes. *Rogers*v. *Goodwin,*2 Mass. R. 475 ; Phil. Ev. 419, 420 [476, 477] ; 3 Stark. Ev. 1028, 1029 ; 2 Inst. 282. In all the cases cited in these authorities, it is held that the usage must be ancient, as well as the instrument to which it gives a construction. With regard to ancient private grants, evidence of usage to explain them is admissible only where many persons are interested. But, if a private deed be ever so ancient, evidence of usage is not admissible, concerning only an individual. The case of *Cooke*v. *Booth,*2 Cowp. 819, in which a different rule is laid down, has been often disapproved of, and it is now established, that the acts of the parties cannot be admitted in evidence to give a construction to a deed. Phil. Ev. 422, 423 ; 3 Stark. Ev. 1033 ; 2 Evans’s Poth. 221 ; *Iggulden*v. May, 5 Bos. & Pul. 449 ; *S. C.*7 East, 237; *Baynham*v. *Guy’s Hospital,*3 Ves. 294; *Moore*v. Foley, 6 Ves. 232 ; *Iggulden*v. *May,*9 Ves. 324. The only exception to this rule is with regard to boundaries and extent of land conveyed, to prove which the acts of parties aré admissible. Extraneous evidence is sometimes admissible to show the circumstances under which a writing is made. *Fowle*v. *Bigelow,*10 Mass. R. 384; *Leland*v. *Stone,*10 Mass. R. 459 ; 2 Evans’s Poth. 185; *Freeland*v. *Burt,*1 T. R. 701. The construction claimed by the plaintiff is most reasonable, considering the circumstances under which this reservation was made. The construction claimed by the defendant would be very injurious to the plaintiff, and of no use to the defendant.

*J. Pickering*and *Saltonstall,*for the defendant.

The reservation clearly gives the right of way as claimed by the defendant. If there is any ambiguity, it is created by applying extrinsic evidence, and this is a *latent*ambiguity which may be. *283explained by parol evidence. Even if the reservation were unambiguous, it could not be construed without a reference to extrinsic facts. If the extent of the right of way is uncertain, it must be shown by usage, as in case of boundaries. *Storer*v. Freeman, 6 Mass. R. 435 ; *Peisch*v. Dixon, 1 Mason, 9 ; *Freeland*v. *Burt,*1 T. R. 701 ; 3 Stark. Ev. 1001, 1023, 1027. Parol evidence is always admissible to show the application of a writing to the proper subject-matter. 3 Dane, 362, 363, 398 ; Phil. Ev. 477 ; *Weld*v. *Hornby,*7 East, 195. The parol evidence given in this case, was not to construe the deed, but to define the subject-matter. Evidence is obviously required to show what the cellar in this case was ; it was not like a common cellar. The mode of using a way is analogous to possession of land, and may therefore be proved by parol evidence. 3 Dane, 403 ; *White*v. *Crawford,*10 Mass. R. 183 ; *Freeland*v. *Burt,*1 T. R. 701 ; *Thomas*v. *Thomas,*6 T. R. 671.

The opinion of the Court was afterward drawn up by

Parker C. J.

The plaintiff’s case seems, by the course of the argument, to depend upon the exclusion of the parol evidence, by which it was shown, that the use made by the defendant of the privilege reserved in his deed was unrestricted ; whereas it is contended by the plaintiff, that by the true construction of the language of the deed, the passage reserved through the cellar was limited to objects and purposes in the cellar itself, and that it did not intend a passage through into the upper apartments of the house.

But we cannot give this restricted construction to the terms of the.reservation. The words do not admit of it. It is a passage *through,*not *to*the cellar ; as it would have been if the parties intended to limit the right of passage to the purpose of depositing any thing in, or carrying any thing from the cellar. It is said the subject-matter ought to aid the construction, and so are the authorities cited ; but no aid is wanted. A passage *through*cannot mean a passage *into*or *out*only. If it appeared there was a passage through the cellar into the yard or ground belonging to the plaintiff or into a street, then it might well be contended that, judging from the subject-matter, it was not intended to reserve a right to go through the cellar *284for the purpose of ascending to the floor of the house ; nut no su°h ^act aPPears i so that there is nothing in the deed, or any facts or circumstances existing at the time it was made, which can control the operation of the words of reservation. There would seem to be no purpose in the reservation of a passage *through*but to get into the house by that avenue. There is no occasion therefore to consider the question of admissibility of the parol evidence. But this evidence is not of conversations or of any agreement different from the deed, but merely of the acts of the parties under the deed. Now if the words were ambiguous and not explainable by the context, the construction given by the parties themselves, as proved by the manner in which they exercised their respective rights under the deed, is certainly legal evidence. Mr. *Dane*says, (vol. 3, *p.*363, § 16,) “ It is now on the whole a well settled rule of evidence, that the acts of the parties or usage may be proved to explain doubtful words or clauses in a deed or other sealed instrument: ” — and he cites several cases which support that position. But we see no ambiguity which needs explanation. The evidence went only to rebut the construction contended for by the plaintiff; but as that construction, even without such evidence, could not prevail, there is no ground for a new trial because that evidence was admitted.