34 Conn. 43 | Conn. | 1867
At the time the deed was executed the ditch in question was six feet deep and six feet wide at the top, with sides sloping to two feet wide at the bottom. The deed confers authority upon the plaintiffs to deepen the ditch as deep
The defendant dug the ditch for the purpose of draining the premises conveyed, which was low swampy Hand adapted to the production of peat for fuel. The- land was sold by the defendant and purchased by the plaintiffs for the' purpose of carrying on the business of preparing the peat for market. Such business requires that the land should be thoroughly drained.
The parties to the deed considered that the ditch already existing might be found incapable of draining the land to the extent desired, and hence the clause in question was inserted in the-deed.
The defendant contends that the clause should be construed as granting the right to deepen the ditch, but as conferring no authority upon the plaintiffs to widen it; that the expression is equivalent to an express prohibition against widening the ditch, however necessary it might be found to be in deepening it. This claim of the defendant would render the clause inoperative, for the ditch was but two feet wide at the bottom, and it is manifest that at that width it could not be lowered to any practical effect even by curbing. Should the sloping sides be cut down perpendicularly from the top and the whole excavation be deepened, the original ditch would be widened as well as deepened, for it cannot be said that the ditch was six feet wide, the width of the top, any more than it could be said that it was but two feet wide, the width of the bottom. Hence, if the defendant’s construction is correct, he has granted a privilege of no practical benefit to the plaintiffs, and contrary to the manifest intent of the parties.
The plaintiffs claim that the defendant granted the right to deepen the ditch in the usual mode in similar cases, which consists in sloping the sides to an extent necessary to prevent their caving in, and render them safe from the ordinary flow of the water through the ditch.
They claim that the defendant himself has furnished a practical illustration of the mode by the ditch which he con
The controversy in the case has reference to the mode of deepening the ditch. Some mode must have been understood by the parties, for it is easy to see that the ditch could not have been deepened without resort to some mode of protecting the sides. Either mode claimed is in accordance with the language of the deed, for the deed does not in terms forbid the widening of the ditch to an extent necessary to deepen it. If it was practicable to deepen the ditch by curbing, it would be necessary for the plaintiffs to cart the materials for the purpose upon the defendant’s land. That would be a trespass unless the plaintiffs were protected by their deed, but the deed is silent in granting permission so far as its language is concerned. One mode or the other of deepening the ditch must therefore be-granted by implication, for it isa rule of construction that when a right is granted, whatever is necessary for the reasonable enjoyment of the right, and without which the right would be useless, is granted by implication, if the grantor possesses the means to make it beneficial. Thus where a man grants a tract of land in the middle of his field, the right of ingress and egress arises by implication. So a grant of a coal mine with the right of sinking pits, confers the right to place upon the land such machinery to drain the mine and draw the coal as is usual in the working of similar mines. 2 Washburn on Real Prop., 624; Bardwell v. Ames, 22 Pick., 358 ; Green v. Putnam, 8 Cush., 29. If a man grants a piece of land for the purpose of constructing a mill dam upon it by the grantee, he thereby grants the right to place a part of the dam upon the adjoining land of the grantor if absolutely necessary. Dryden v. Jepherson, 18 Pick., 385 ; 2 Washburn on Real Prop., 624.
Inasmuch therefore as the deed is silent in relation to the mode of deepening the ditch, it contains a latent ambiguity, and where that is the case the extrinsic circumstances may always be shown in order to ascertain in what sense the par
Should we interpret the deed by the aid of these circumstances we can have no doubt that the grantor intended to confer the right to deepen the ditch in the usual mode in similar cases. Suppose the defendant while owner of the land had' sent his servant, skilled in the business of digging ditches in similar places, with the simple direction to deeyen the ditch. Would the servant have supposed that the defendant intended that the unusual and extraordinary mode of deepening the ditch by curbing should be resorted to, when the extra expenses of that mode would equal many times the value of the land necessary to be taken in deepening the ditch in the usual mode, and more especially when he found the ditch to be deepened had sloping sides constructed by the defendant in accordance with the usual mode of ditching such lands ? It is easy to see that the defendant would have had cause to complain if his servant had departed from the usual mode in deepening the ditch. He would have said that inasmuch as he had given no special directions in regard to the mode of doing it, his servant should have followed the customary mode in similar cases.
What would have been true in the case supposed, is true in the case under consideration. If the defendant had intended to restrict the plaintiffs to a mode of deepening the ditch different from the usual one, he should and would have done it specifically in his deed. This he did not do. and he therefore intended the usual mode in similar cases.
There is no error in the judgment complained of.
In this opinion the other judges concurred.
