The opinion of the court was delivered, at the circuit session in September, by
Redfield, Ch. J.I. The question made by the plaintiff in regard to the two loads of stone drawn by the defendant and placed upon the road before consulting the highway surveyor, as the jury were required to find that it was properly done, and done with a view to remedy a defect in the road, and was approved and adopted subsequently by the surveyor, it seems to us the transaction should be regarded in the same light as if it had been previously directed by the surveyor, and that there was no just ground for claiming damages of the defendant in an action of trespass, as if it were a mere tort; or, indeed, under the finding of the jury, for claiming damages at all.
*829II. In regard to the construction of the deed being submitted to the jury without .limitation or restriction, and without specific instruction, the jury being required merely to give it such a construction as they judged the parties intended, it was no doubt error. We have had occasion to speak upon this subject so frequently, and it is so obvious and so familiar a principle of the law, that it seems almost useless to use many words upon the subject. If the facts in regard to the relative location of the road and the lot were in dispute, or more properly, if there had been any question in regard to the north side of the road, as if the road had run due north and south at this point, it might have been a case of latent ambiguity, or, as some of the English cases denominate it, a case of equivocation, and it might have been proper, under proper evidence, to have submitted to the jury which side of the road was intended by the north side. But notwithstanding this error, if the jury took the correct view of the deed, there is no occasion for a new trial. For the case is this: the title of the whole lot being in George Alexander, he deeds to the plaintiff all except “ that part of said lot which lies on the north side of the road, at the north-east corner of said lot, being about three-fourths of an acre,” — and to the defendant he deeds that part of the lot “ lying in the north-east corner of the lot, being that part which lies on the north side of the road, three-fourths of an acre more or less.” Both deeds bear the same date.
Now, it is obvious that the description is the same in effect in both deeds, and that there is nothing definite in the description, except its being on the different sides of the road. For the quantity is not fixed definitely in the deed to the defendant, and, if it were, it would not determine the locality. The part of the lot, too, defines nothing with certainty. But the side of the road is definite, a road having but two sides. And, if one is called north, it imports that which is more north than the other, that is, more north than south. That is easily discovered in this case, if the plan is reliable. And, as both plans are referred to in the case, we have used the one presented upon the trial, (having waited a long time for the other.) By this plan, the road at this point runs from north-west to south-east, one side being north-east and the other south-west. The side intended by the north side of the road, is, therefore, the north*830east side, as the opposite side is opposed in toto to a northern direction. The quantity of land is not much affected whether the deed is made to include the piece nearest the corner of the lot only, as the other small fringe is almost connected with it, and is also upon the north side of the road. In either case, it is about three-quarters of an acre. The small fringe is not strictly in the north-east corner of the lot, but it is upon the north side of the road. And unless we say the deed to the defendant meant to include all the land upon the north side of the road, there is nothing definite about it. And, it seems to us, as the deed finally fixes upon that definition, and that is certain and unmistakable, it should govern. “ And is that part of said lot which lies upon the north side of the road,” &c. Even if it were necessary to qualify the other parts of the description, which are uncertain, as the quantity and the corner of the lot, as if the quantity should be two acres, and á portion of the land extend so far south as to be nearer the south-east corner of the lot than the north-east, still, as most of the land is in the northeast corner of the lot, and this little strip or fringe is all upon the north side of the road, if it were all connected there could be no question at all as to the proper construction of the deed. And we think the road crossing the line of the lot at a single point, for a short distance, should not vary the construction of the deed, and that it must be construed to convey all the land in that lot upon the north side of the road.
Both deeds bearing the same date affords something of a natural presumption that the intention probably might have been to deed that portion of the lot upon either side of the road, so as to leave the road for the division between the different owners.
The jury; therefore, without proper instructions, having adopted the proper construction of the deed, there is no occasion for a new trial.
Judgment affirmed.