Petrie v. . Trustees of Hamilton College

*463 Vann, J. The general exception filed to the report of the referee was sufficient to authorize a review of his decision. (Otten v. Manhattan R. R. Co., 150 N. Y. 395, 399.) As the report was general in form, the presumption in support of the judgment rendered by the referee is that all the facts, warranted by the evidence and necessary to support said judgment, were impliedly found by him. (Amherst College v. Ritch, 151 N. Y. 282.) The learned Appellate Division did not state in its -order or judgment that the reversal was upon the facts, and hence the presumption required by statute is that it was founded wholly upon errors of law, and that the facts stand approved by that court. (Bomeisler v. Forster, 154 N. Y. 229, 236; Code Civ. Pro. § 1338.) As stated in the case last cited, “ our review is, therefore, confined to the consideration of whether, upon the decision made by the trial court upon the facts, the legal conclusion followed ” that the defendant was entitled to a dismissal of the complaint. As neither branch of the stream was known by any name prior to the conveyance in question, the description of the subject of the grant as “ the waters of Kirkland Glen brook which runs over my land ” was ambiguous, for that description might include the water of either or both branches, according to the intention of the parties. Upon proof of the fact that the name “ Kirkland Glen brook ” had never been used before, a latent ambiguity was presented, which, as defined by Lord Bacon, “is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity.” (Bacon’s Law Tracts, Reg. 23, p. 99.) As an illustration of his meaning he further said, “ If I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all, but if the truth be that I have the manors both of South S. and North S., this ambiguity is matter in fact, and, therefore, it shall be holpen by averment whether of them was that the party intended should pass.” As defined by Baron Alderson in Smith v. Jeffryes (15 M. & W. 561), “ a latent ambiguity is where you show the words *464 apply equally to two different things or subject-matters, and then evidence is admissible to show which of them was the thing or subject-matter intended.” A patent ambiguity appears on the face of the instrument while a latent ambiguity is raised by evidence, and to create the latter so as to open the contract to parol explanation it must be established by proof of circumstances' known to all the parties. As said in Stephen’s Law of Evidence, 231, “ If the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given, both of the circumstances of the case and of statements made by any party to the document as to his intentions in reference to a matter to which the document relates.” While the court is to construe the contract, if its construction depends upon the sense in which the words were used in view of the subject to which they relate, it is necessary by proof of collateral facts and surrounding circumstances to place the court in the position of the parties when they made the contract, so as to enable it to understand the meaning of the words used in reducing it to writing. (Bowman v. Agricultural Insurance Company, 59 N. Y. 521; Kenyon v. Knights Templar, etc., Society, 122 N. Y. 247; Thomas v. Scutt, 127 N. Y. 133, 141; Emmett v. Penoyer, 151 N. Y. 564; 1 Best on Evidence [Wood’s edition], 417; 2 Phillips Evidence, 746 [10th edition] ; 2 Am. & Eng. Encyc. of Law [2nd ed.], p. 295; Sargent v. Adams, 3 Gray, 72, 77.) In the case last cited there was an agreement to let the “Adams House,” which might include the entire building, including stores on the ground floor, or the part of the building above the stores fitted up for a hotel. It was held a case of latent ambiguity because the general term used in the contract applied with sufficient legal certainty to the entire building including the stores, or to the portion only fitted up for a public house, and consequently it was competent to show by parol in which sense the parties used the term. Both parties to this action, without objection, aided in solving the ambiguity raised by the evidence, as to the meaning and extent of the grant, by parol testimony. The evidence *465 given by the plaintiff tended to show that the water of but one branch of the stream was meant, while the evidence in behalf of the defendant tended to show that the watér of both branches was meant. As the quantity of water was not defined except by the needs of the college, there was no right of election to take one branch or the other, because the quantity conveyed might require a part of both branches. A question of fact was presented for the referee to pass upon, and the plaintiff supported his .version by his own testimony without corroboration. The defendant’s theory was supported by the testimony of two witnesses, one of them apparently disinterested. The referee accepted the latter version, and is .presumed to have found, as a fact, that “ the waters of Kirkland Glen Brook,” running over the plaintiff’s land, under the circumstances and as understood by the parties at the time the conveyance was made, meant the waters of both branches of the general stream. He was warranted in reaching this conclusion of fact, which the learned Appellate Division did not interfere with, the same as he was in reaching the conclusion that no fraud was practiced upon the plaintiff by the college in obtaining the deed, which fact also was left undisturbed. We regard these facts as decisive of the action upon the merits. The learned Appellate Division, as appears by their opinion, based their reversal upon the ground that the expression “ the waters of Kirkland Glen Brook ” was descriptive of one brook only, and that the plaintiff was, therefore, entitled to restrain the defendant from using the waters of both brooks. We think this construction was wrong, under the circumstances, because it disregards the facts presumed to have been found by the referee relating to the latent ambiguity, so raised and solved by the parol evidence as to show that the parties intended, by the expression used, to include both branches of the stream. The court below had power to reverse upon the facts, but it did not do so, and, although we have examined "all of the exceptions in the record, including those taken to rulings upon evidence, we find no error of law committed by the referee to justify a reversal of his judgment. *466 The judgment of the Appellate Division should, therefore, be reversed and the judgment entered upon the report of the referee affirmed, with costs. All concur, except Bartlett, J., not voting. Judgment accordingly.