The opinion of 'the Court was delivered by
.Mellen C. J.Meady, being the owner of a piece of land nearly in .the form of a paralellogram, extending in a south-east direction from a county road at the north-west end of the tract, and bounded on the south-west side by land of one Blanchard, sold the south-west half of the tract to the plaintiff, Brown; and the deed contains this clause, “ and the said Alexander {<;(the defendant) hereby reserves to himself the right of pass- “ ing and repassing with teams in the most convenient place, <£ across the land conveyed.” The object which the parties had in view, in reserving this right of way, is apparent upon the report of the case, namely, because Meady had no convenient way in which he could pass, on his own land, from his buildings near the north-west end of the lot, to his mowing field at the south-east end of it. The case further finds, that the *395same hill or precipice, forming the before-mentioned obstruction, extends so far upon the land conveyed to Brown, that the most convenient way in which the defendant could reach his mowing field (without going on Blanchards land) was by the route which he took. The private way which had been used by the consent of the plaintiff, defendant, and Blanchard, for several years before the deed was given, ran from the public road before named, over a part of the north-west end of Brown’s lot in an easterly direction, to and on the land of Blanchard, and so that, in order to reach his mowing field he must again cross over Brown’s lot, after leaving the private way. And the defendant could pass only by sufferance on Blanchard’s land. These are the principal geographical facts in the case; and they are presented without objection from either of the parties; and, as mentioned in the case of Comstock v. Van Deusen, they were properly presented and received as facts surrounding the question, and necessary to its correct decision.
What then is the true construction of the language employed in the reservation ? In the first place the object was to secure to Meady “ a right,” not an indulgence. It was a right to pass over the land of Brown; for the reservation goes to diminish the value of his land, and in its operation must have been intended to give the same rights to Meady, as though Brown had by his deed granted the easement to Meady. If we consider the contracting parties as acting with understanding, and Meady with common prudence, we must presume that the design was to reserve to himself a right to pass to his mowing ground without being a trespasser on any one, or resisted by any one, and a right which would answer his purpose. , The presiding Judge, we think, gave too restricted a construction to the word, “ across.” We cannot think that, in then existing circumstances, the'design in using that word was, merely to reserve a right to cross Meady’s land, and trust to an indulgent owner of the adjoining land for permission to go a step further. The word, “ across,” may mean, “ over” : it does not necessarily exclude the idea of passing over a parrallelogram in a longitudinal direction. To pass across a bridge, is a common expression ; but does not mean, to pass from one side of it t<A *396the other. In the cited case of Comstock v. Van Deusen, the reservation was, “ to cross lot, No. 16, above-mentioned.” Wilde J. says, in delivering the opinion of the Court, “ the “ words of the grant are to be understood according to their “ common meaning, unless it appears that the parties intended “ to use them in a different sense. The way claimed by the de- “ fendant is not across the plaintiff’s lot, according to the usual <£ acceptation of the word: and it cannot be presumed from “ the facts and circumstances reported, that it was otherwise “ understood by the parties.” In Senhouse v. Christian, it was decided that a right to make transverse roads across the slip of land in question, was not conveyed, by a grant of a way from A. to B. in, through and along a particular way. Duller says, “ here the limits of the grant are mentioned.” —■ This is very different from the case before us. The counsel for the plaintiff has also contended that the defendant had once made his election, by travelling in the private way above-mentioned. This argument is not sustained by the facts of the case. The passage across the end of the lot, to the private way on Blanchard’s land, was the result of a temporary arrangement made by the parties in this action and Blanchard, for mutual accommodation. It depended for its continuance on the uncertain indulgence of Blanchard. All this has no resemblance to the designation, claimed of right, under the reservation in the deed. He was obliged to resort to this course, as the plaintiff would not, though requested, mark out a way, many months before. The way designated is in the most convenient and proper place j of course, the act of which the plaintiff complains as a trespass on his land, was only the due exercise of a legal right.
We are all of opinion that the action cannot be maintained. According to the agreement of the parties, a nonsuit must be entered.