In 1822 Isaac Hilton, Sr., the father of Andrew Hilton and Isaac Hilton, Jr., owned a large farm in Jefferson, with a county road running through it. His dwelling house and farm buildings wore situated on the west side of the county road, with a lane or leading way from the road to them. March 15, 1822, he conveyed the principal part of his farm lying on the west side of the county road, including his dwelling house and farm buildings, to his son Andrew. So far as material to the rights of the parties in this case, the boundaries and description of the premises in the deed are as follows : “ To the Great Spring bridge, at the middle of the highway ; then, as the highway runs, north thirty-seven degrees east twenty-eight poles, and north twenty-seven degrees east fourteen poles, to the road leading from the highway to said Andrew’s house ; then, in said road, northwest twenty and a half poles to the fence near said Andrew’s shed ; then north three degrees west seven and a half poles to a white oak tree in old fence.” The oak tree referred to was standing at the time of the trial, and there was no controversy between the parties as to *42that monument; but it was claimed that there had been some change in the shed, and the precise location of the shed and the fence near it, referred to in the deed, was in controversy; anil also the exterior lines of the lane or leading way, as located at the time of the conveyance.
Soon after the conveyance to Andrew, Isaac Hilton built a dwelling house and farm buildings on the east side of the county road, which he occupied, and April 9, 1826, he conveyed that part of his farm not conveyed to Andrew to his son Isaac, Jr., bounding the premises, so far as is in controversy, by Andrew’s land.
The parties agree that the premises conveyed by Isaac Hilton to Andrew, so far as involved in this case, are owned by the plaintiff; and the premises conveyed by him to Isaac, Jr., are owned by the defendant, except so far as the dividing line may have been affected by the acts of the parties at the time of the conveyance from John Trask to the plaintiff May 12, 1866.
The acts of trespass complained of were mainly done on the north half of the lane, and between the lines respectively claimed by the parties as the boundary line between their lands. This statement of the case is deemed material as bearing on the question of the construction of the deed from Isaac Hilton to Andrew Hilton.
It is claimed by the plaintiff that by the true construction of that deed the location of the dividing line upon the face of the earth is to be found by measuring from the point at Great Spring bridge in the middle of the highway, by the courses named in the deed, the distance of forty-two rods to a point in the lane, and thence in the lane northwest twenty and a half rods to the fence near the shed, and thence, by the course given, seven and a half 'rods to the white oak tree.
On the part of the defendant it is claimed that the first call in the deed of forty-two rods by the courses named, to the road, goes to the center of the lane, and the second call, “ then in said road northwest twenty and a half poles to the fence near said Andrew’s shed,” bounds the plaintiff by the center of the lane the given distance to a point opposite the fence near the shed; and that from that point the line runs by the course given to the white oak *43tree ; that the deed should receive the same construction, as far as the lane is an element of the description, as it should if the bound had been by a highway ; and several requests for instructions were made by the defendant’s counsel based upon this theory, which were not given ; and to the refusal to give the requests, and to the charge of the judge on this point, exceptions are taken.
The great rule for the interpretation of written contracts is that the intention of the parties must govern. This intention must bo ascertained from the contract itself, unless there is an ambiguity; and then evidence aliunde may be received and considered, so far as it has a legitimate tendency to show such intention. In ascertaining the meaning of the parties as expressed in the contract, all of its parts and clauses must be considered together, that it may be seen how far one clause is explained, modified, limited or controlled by the others.
In the description of the premises conveyed in a deed, monuments named, if they can be found, control courses and distances. If the monuments cannot be found, then courses and distances may govern; and in all cases where the location of the monument upon the face of the earth is in doubt, or there is more than one monument which will answer the call in the deed, courses and distances given may be resorted to as important in ascertaining the true location of the monument called for by the deed. These rules are so familiar and so well established that no citation of authorities is needed.
The main question raised by the requests for instructions is whether a deed, bounding the premises by a lane or leading way used by the grantor between his dwelling house and the highway, over his own land, and in which no one else has any rights, carries the fee to the center of such way. We think the established rule in this state is that it does not, but that the fee is limited to the side line of the lane. Bangor House v. Brown, 33 Maine, 309. None of the reasons exist which are stated by the courts as the foundation of the rule that when a deed bounds the premises by a highway or a stream it conveys the fee to the center. Johnson v. Anderson, 18 Maine, 76. The reasons why the rule appli*44cable to a grant bounding the premises by a highway does not apply to a way like the one involved in this case are well and clearly stated by Shepley, C. J., in Bangor House v. Brown, supra, and it is unnecessary to repeat them here.
In Massachusetts the court has held that the rule applicable to a boundary by a highway extends to private ways. Fisher v. Smith, 9 Gray, 441. But the opinion is a per curiam opinion of a divided court, and no reason is given for extending the rule to private ways; and we must assume that the words “ private ways ” are used by the court in that case as embracing only ways over the land of the grantor in which third parties have a legal right of passage, as the way involved in that case was of that character. When the owner of the fee uses his land as a passage way for any purpose connected with his buildings, or the management of his farm, and no other person has any right of way in such passage way, it is not a way in the legal signification of the word.
If, however, Fisher v. Smith must be held to be in conflict with Bangor House v. Brown, we prefer to adhere to the rule established by our own court. This conclusion disposes of the defendant’s requests for instruction upon this point.
We now come to the question, what is the true construction of the deed from Isaac Hilton to Andrew Hilton upon the point under consideration ? The first call is from a bound specified, by courses and distances, “ to the road leading from the highway to said Andrew’s house.” If this call stood alone, as we have seen, the line would terminate at the south side of the lane. But the next call is “ then, in said way, northwest twenty and a half poles to a fence near said Andrew’s shed; so that while the first call does not extend into the way at all, the next call starts in the way. It is admitted by the learned counsel for the defendant that the words “to the way” are terms of exclusion, and, unless by construction the line can be held to terminate in the center of the lane, are inconsistent with the next call, which starts “ in the way,” .and that an ambiguity arises as to the point where the line terminates in the way. This being so, it becomes a question of fact for the jury to determine whether the bound is at the south line of the way or in the way; and if in the way, at what point in it; *45and the courses and distances, which are stated with precision, become material, and the jury should consider them, as well as the other calls in the deed bearing upon the question, in determining where the line is located at that point upon the face of the earth ; especially as the location of the way at the time of the conveyance is in controversy.
From the point thus established, the line, by the second call, must be run in the lane, northwest, twenty and one-half rods, to the fence near the shed as located at the time of the conveyance ; and by the next call from that point by the course and distance named to the white oak tree; and the location of the fence near the shod being in controversy, the course and distance from that tree to the point where the line strikes the fence become material.
The instruction of the presiding judge was substantially in accordance with this view of the question, and we think was correct.
The construction put upon the deed from Trask to the plaintiff by the judge is in accordance with the rule we have declared; but if not in all respects correct, the further instruction given to the jury, that Trask had no greater title than Andrew Hilton took by his deed, and could convey no greater title to the plaintiff, removed all ground of exception on the part of the defendant.
The next ground of exception is the refusal to give the requested instructions numbered six and seven, as to the effect of the acts of the parties in running and marking the lines just before making the deed in 1822, and to the instruction given on that point.
Neither of the requests is sound as a legal proposition, and could' not have been properly given. The sixth request is, in effect, that, if before the deed was made the parties went upon the land and run and marked the lines, and the deed was made intended to embrace the same land, “ and the locating and marking and the description in the deed do not agree, the locating will control.” This request was based upon the evidence introduced by the defendant, tending to show that at the end of the line run from the highway in the lane northwest twenty and a half rods? a *46stake was driven by tbe parties in tbe center of tbe lane; and, if tbe jury believed tbe evidence, would require them to substitute tbe stake for the “ fence near the shed,” clearly designated in the deed as the monument. And to illustrate the rule contended for by the defendant more clearly, if the parties to a conveyance, before making the deed, set up a stake as a corner, and in the deed a marked tree is designated as the corner, it would require the substitution, by parol evidence, of the stake for the tree clearly designated by the deed, though they may be rods apart. We do not understand that the rule goes to this extent.
It is only where there are two or more monuments upon the face of the earth, each of which answers to the call of the deed, that proof of the one erected by the parties will govern; or where the parties run a line as of a certain course and distance, and then make a deed calling for a line of the same course and distance, intending it as the line run, or where the deed conveys a part of a lot by a line which shall embrace a certain quantity, and the parties have run and marked the line as embracing the quantity called for, and in cases similar in principle, that the running and marking of the line will be conclusive, although it may be found in fact to be of a different course and length, or embrace more land, than the deed calls for. The clear and unambiguous calls of a deed cannot be set aside and different ones substituted in their place by parol proof of the acts of the parties, either before or after the deed is made. Emery v. Fowler, 38 Maine, 175. Webster v. Emery, 42 Maine, 204. Madden v. Tucker, 46 Maine, 367. Knowles v. Toothaker, 58 Maine, 172.
The seventh request is even more objectionable, as it does not embrace the element that the description in the deed was intended to embrace the land included within the lines run and marked by the parties.
We think the charge of the judge on this point was full, clear t and correct, and stated the rule as strongly in favor of the defendant as he was entitled to have it.
The next exception is to the charge of the judge on the question whether the defendant was estopped to deny the location of the line as claimed by the plaintiff, by reason of his acts and *47silence in regard to its location prior to the taking of her deed by the plaintiff.
The counsel for the defendant admit that the rule given to the jury by the judge is correct as a general proposition, and the only ground of exception pointed out is that the instruction did not require the jury to find that, at the time of the declarations and acts of the defendant relied on by the plaintiff, the defendant knew where the true dividing line was. Without examining the law upon the question involved, it is sufficient to say that the defendant was a witness and did not claim that he did not know, at the time, where the line in fact was; but on the contrary, he testified that it was pointed out to him, and that he then claimed it to be where he now claims it. There was no question raised between the parties as to his knowledge of the location of the line, but tlie contention between them was whether it was pointed out to the plaintiff, or her husband who acted for her, to be where she, or the defendant, now claims it to be. The judge was not required to instruct the jury as to the law upon a question not in contention between the parties.
Another ground of exception is the charge of the judge on the question of the effect of a notice or claim made to the plaintiff’s husband, as to the location of the line, before she took her deed. It was conceded that the plaintiff, her husband and the defendant were present on the premises the day before the deed was made, and the evidence tended to show that the plaintiff’s husband acted for her during the survey of the lines. The evidence was conflicting as to whether a claim was then made to the husband that the line was where the defendant now claims it to be. But if such claim was made to him, the evidence tended to prove that it was not communicated to the plaintiff, and that she was ignorant of it. The judge instructed the jury, in substance, that, if the plaintiff’s husband was there acting for her as her agent, by her authority, in running and fixing the lines, and a claim was made to him by the defendant, it would be the same as if made to her, unless the defendant “ still knew that that notice was not given to the plaintiff herself, and he still permitted her to go on and complete the purchase without making his title known to her. That *48is to say, if he . . knew . . that the agent was not acting faithfully, was permitting her to pay for land which she was not to take; if he knew that, and knew that she was personally relying upon it, it would not excuse him for not making known to her his title.” We think this was a correct statement of the rule of law applicable to the case.
The defendant also excepts to the charge on the rule of damages. The clauses of the charge complained of are as follows : “ If he went on there with good reason to feel that he had title, acting honestly, although he would be liable for actual damages, he would not be liable for punitive damages. But if he went on there and committed the trespass wilfully, wantonly or maliciously, you would be entitled to add to the actual damages just such amount as, in your sound discretion and good judgment, taking all the circumstances of the case, all the effects necessarily connected with the act, he ought to pay, and she ought to receive, as a punishment for his wrong doing.” Again, “so that, if he went on there in this way, with a vindictive disposition, for the purpose of doing her harm wantonly, without regard to her rights, in a reckless manner, then she would be entitled to recover, as I said before, just that amount, in addition to actual damages, which in your sound discretion and good judgment you think, under all the circumstances of the case, he ought to pay as a punishment for his wrong doing.”
It is claimed that, this instruction was, in effect, directing the jury that they must give punitive damages if they found the trespass willful, wanton or malicious; when the true rule is that the jury may, in their discretion, if they think proper in such case, award punitive damages.
We think the language used could not have been só understood by the jury. It must be presumed that the jury understood the words used in their common and popular meaning, and not in their strict legal sense. The common definition of the verb entitle, when used in such connection, is “ to give a right or claim to.”
In the first clause the words “ be entitled ” were used in the same sense as the words “have a right,” and thus read, the jury *49were told that they had a right to add to the actual damages just such amount as. in their sound discretion and good judgment, under all the circumstances, the defendant ought to pay and the plaintiff ought to receive. This is certainly unobjectionable.
Giving the same meaning to the word “ entitled ”in the second clause Iho jury were told that, if they found the facts as stated by the judge the plaintiff had a right to recover just that amount in addition to actual damages which in their sound discretion and good judgment, they thought under all the circumstances of the ease the defendant ought to pay as a punishment for his wrong doing. This, certainly, was not a direction to the jury that they most, as matter of law, give the plaintiff some amount as punitive damages, but taking the language together the whole matter of punitive damages was submitted to their sound discretion and good judgment.
It was unobjectionable to say to the jury that if they found the trespass willful, wanton, or malicious, the plaintiff had a right to recover, or receive such sum as punitive damages as they, in the exercise of a sound discretion, might see fit to award her. It is difficult to perceive what legal right a jury has to award to a plaintiff damages which he has no right to recover. The plaintiff’s right to recover is dependent upon the discretion of the jury, and taking the charge on this question as a whole, that is its obvious moaning.
We see no cause to disturb the verdict on the ground that it is against the evidence, or that the damages are excessive.
Exceptions and motion overruled.
Appleton, C. <T., Danforth, Virgin and Peters, JJ., concurred.