It is certainly true, that the construction of a written document is matter of pure law, where the meaning is to be collected from the document itself; but where the meaning is to be judged of, by extrinsic circumstances, the construction is usually a question of fact for the jury. 1 Stark. Ev. 429. So where a writing is ambiguous, it has been submitted to the jury for them to infer the intent of the party. Lloyd v. Maund, 2 Term Rep. 760. 762. In this case, there is no direct agreement recognizing the right of filling up New Creek ; nor was the agreement itself before the court. The substance of a contract, made about forty years ago, was given from the *128recollection of an ancient witness. Under such circumstances. court thought it proper to leave it to the jury to say, whether that contract, in any manner, recognized the right of the mill owners to fill up New Creek. And when I consider the nature of the testimony to prove this contract, and the variety of extrinsic circumstances adverted to, by the defendants, to arrive at the result they desire, I am not satisfied that this direction was wrong.
But however this may be, it is certain, that the defendants cannot complain, unless they can establish another proposition, viz. that the contract claimed to have been proved, did recognize the right in Scribner to fill up New Creek,or did rebut the presumption against him from lapse of time. How then is this?
For about twenty-one years, the plaintiff, and those under whom he claims, have had the enjoyment of the waters upon their meadows, by the influx and reflux of the tides through New Creek. The defendants and those under whom they claim, have seen them in this enjoyment, during that time, and never claimed, that the meadow proprietors had not a perfect right to such enjoyment, and have never offered to disturb them in it. If, during all this time, they had the right to disturb them, it is fair to infer, that it was relinquished, unless they, on their part, can show a recognition of that right, or satisfactorily account for their neglect in asserting it. This the defendants attempt to do, by the contract spoken of, by the witness Morehouse. That contract, so far from recognizing the existence of such a right, does not allude to it. It no where appears, that Scribner claimed this right; much less, that the meadow proprietors conceded it. So far from his agreement not to shut up New Creek, being the consideration of their permitting Scribner to put up flood-gates, they grant him this as a privilege, for which the only apparent consideration was his shutting out the water from their meadows, in the season of getting hay. Neither the court, nor the jury, therefore, were authorized to say, that that right was recognized, by this agreement; and it would be too much to infer from the grant of one privilege to Scribner, the existence of a right in him, which might have compelled that grant, when such a right is not alluded to in the contract.
It is said, that the presumption under which the plaintiff claims, is founded upon a supposed neglect; and that this con*129tract, removes any presumption of such neglect. To this, it would here, perhaps, be a sufficient answer, that it does not appear, that this claim was made at the trial. But waiving that answer, it is believed, that the agreement no more proves this than the other proposition.
The defendants claim, that they have been guilty of no negligence in not exercising their rights, because, by the contract alluded to, that exercise was unnecessary to them. This is not the argument in terms ; but it seems to be in effect. The fact that the defendants were poor and unable to assert their rights, or that they were rich and did not need the advantage of them, would be alike inefficacious. Such circumstances have never been admitted as a sufficient excuse for non-user, or as sufficient to rebut the presumption of law founded upon uninterrupted enjoyment.
It is said, that as the defendants were not interrupted, they could not sue. But they could have done, at an earlier period, what they have done, now: they could have filled up New Creek, by which they would have asserted their own right, and interrupted the enjoyment of the plaintiff.
It is not easy, therefore, to see why these defendants do not stand upon the same ground as any other persons, who have lost their right, by lapse of time. It would certainly be no excuse for one, who had suffered another to occupy the water of a river, for more than fifteen years, for the use of a mill, that he did not need the water for his own mill, but that after that time, his springs having failed, he needed all the water himself. Ingraham v. Hutchinson, 2 Conn. Rep. 584. 590.
It is further claimed, that the agreement alluded to, imposes an obligation on Scribner not to fill up New Creek. This is to assume a consideration for that contract, which no where appears; and unless the right to fill up the creek is recognized in this agreement, it is difficult to discover how Scribner is bound not to fill it up. It appears to me, that the proprietors of the meadows may as well claim, that Scribner, by that contract, admitted their right to the free use of New Creek, as they permitted him to erect gates, as he can claim that as an admission of his right to fill up New Creek. And nothing contained in that agreement bound Scribner, either in law or hon-our, to forbear the exercise of his rights.
I think, therefore, that there ought not to be a new trial.
*130Hosmer, Ch. J. and Peters, J. were decidedly of the same opinion. Bissell, J.had some doubt whether the case was properly submitted to the jury, being inclined to think, that it should have been left to them to find, whether the agreement was, or was not, a substitute for the right to fill up New Creek, with a direction, that if they should find that it was, it was an answer to the presumption from lapse of time ; but on further consideration, he acquiesced in the decision of the Court.
Daggett, J., having been of counsel in the cause, gave no opinion.New trial not to be granted.