The deed under which the defendants claim does not convey to Boss a paint shop in terms, but describes a tract of land by metes and bounds which do not include the land on which the ladder-rack stands. But the defendants claim a right to maintain the ladder-rack because the maintenance of such a contrivance, upon the spot where this one is, is essential and reasonably necessary to the enjoyment of the premises conveyed. Counsel do not appear to differ as to the law. The defendants cite Riddle v. Littlefield,53 N.H. 503, Winchester v. Hees, 35 N.H. 43, Dunklee v. Railroad,24 N.H. 489, Cocheco Mfg. Co. v. Whittier, 10 N.H. 305, and New Ipswich Factory v. Batchelder, 3 N.H. 190, to which may be added Horne v. Hutchins,71 N.H. 117, 123, 124. The plaintiff does not controvert the rule of these authorities, but says that an easement cannot pass by implication merely upon the ground of convenience, citing Batchelder v. Bank, 66 N.H. 386, Smith v. Blanpied, 62 N.H. 625, Smith v. Smith, 62 N.H. 429, and Wentworth v. Philpot, 60 N.H. 193. This proposition the defendants do not deny, but claim that the conclusion of the trial court that the ladder-rack was not indispensable, nor necessary to the enjoyment of the granted premises, but merely very convenient for one using them as a paint shop, is erroneous.
Upon the authorities therefore, as the parties have placed their case, the only question is whether the maintenance of a ladder-rack in the passageway was essential and reasonably necessary to the enjoyment of the granted premises. If this question is one of fact (see Winchester v. Hees,35 N.H. 43, 48), the defendants are concluded by the finding of the trial court, for there was some evidence in its support. But assuming (without deciding) that the question is open here, no different result can be reached. Although the deed does not convey a paint shop in terms, it might be found from the fact of long use that the tract conveyed was sold to be used as a *Page 479 paint shop. A ladder-rack is understood to be a contrivance for storing ladders when not in use. If, for carrying on the work in a paint shop, ladders were necessary to such an extent that the work could not be carried on without them, so that they must be kept at hand ready for use in the shop when required, it might be found that some place on or adjoining the premises was essential to the use of the tract conveyed as a paint shop. It is common knowledge, however, that painters do not use ladders in connection with work done in a shop, but to enable them to do work outside and away from the shop — to reach the elevated portions of other buildings. Ladders are necessary to the trade of a house painter, and consequently a place to store them when not in use may be essential. A building or shop in which to store supplies and to paint such objects as can conveniently be brought thereto may also be necessary. But as the ladders are not used for the work in the shop, it is not necessary that they be stored in or near it. It may be more convenient to have all tools of the trade kept proximately in the same place, but it is not necessary. Local conditions might make some other location more convenient for the storage of the ladders. But it is plainly not essential nor reasonably necessary that all the tools of a house painter's trade be kept together; and as ladders are not used in the proposed enjoyment of the premises conveyed, it cannot be said that their storage in or near the premises is necessary to the beneficial enjoyment thereof which the law presumes the grantor intended the grantee should have. Horne v. Hutchins, 71 N.H. 117, 124. It is not to be presumed that there is no other tract of land in Portsmouth upon which a ladder-rack may be erected.
The case is very similar to Cocheco Mfg. Co. v. Whittier, cited by the defendants. There, in a grant of certain lands and water privileges, the defendant reserved to himself the right to draw from a pond on the premises so much water as might be necessary to full such quantity of cloth as he might have occasion for and claimed that the reservation implied a right to build a mill on the tract to so use the water reserved. But as it appeared that there were other lands adjoining upon which the mill might be erected and the water used, the reservation did not authorize the defendant grantor to erect a mill upon the tract conveyed, although he was not then an owner of the adjoining land. The court say: "It is not a matter of necessity, in order to the use of the water reserved, that he should occupy the land granted, with a mill, although it may be a matter *Page 480 of convenience." The defendants can enjoy the use of the tract conveyed without storing their ladders in the adjoining passageway; hence there is no necessary implication of a right to so use the passage.
But the construction of this deed is not to be determined by the application of arbitrary rules, but by ascertaining the true meaning and real intention of the parties. Dunklee v. Railroad, 24 N.H. 489, 507. As expressed in later cases, the meaning of the parties is to be ascertained from all the competent evidence, which includes the circumstances under which the language was used as well as the words themselves. The entire tract had been owned by one Mendum for some years. There were buildings on each end, with a common passageway between them extending back from the street. The sale was by an administrator. The deed refers to a plan dated shortly before the deed. Comparison of the deed with the plan shows that it probably was written from the plan. The dimensions given of the tract conveyed embrace only the land under the easterly building. A right of way is given in the passageway, subject however to the incumbrance of two projecting hoods over doors in the westerly building, which did not, however, come to the ground and would not, it would seem, have been a material obstruction of the right of passage conveyed. These hoods appear upon the plan. The ladder-rack does not, although it obstructs the use of the way and its maintenance has diminished the rental value of tenements in the easterly building. The absence of the rack from the plan has some tendency to show that it was regarded as a temporary structure. Its obstruction of the way and damaging effect upon the rental value of the easterly buildings are reasons why it might not have been thought wise to grant a right for its permanent maintenance. At any event, it seems clear that the deed was made to convey the premises as shown by the plan; and it seems probable that if any easement in the way, other than that specifically granted, had been intended should pass by the deed, specific enumeration would have been made in so carefully drawn a document. This must be so unless by mistake the ladder-rack was omitted from the plan, and the mistake followed in drafting the deed. Advantage, however, cannot be taken of the mistake, if there was one, except in a proceeding to reform the deed.
Exceptions overruled.
All concurred. *Page 481