Atkins v. Thompson , 155 Mass. 326 ( 1892 )

Morton, J.

We think the agreement between the plaintiff and the defendant gave to the latter the right to enter upon the land of the plaintiff and dig out the brook and lay sewer or drain ' pipes in it to drain the “ Stone Field ” belonging to the defendant, and did not give to the defendant the right to lay sewer or drain pipes anywhere else in the plaintiff’s land. Sewer or drain pipes laid in the brook would be laid through the land of the plaintiff. The damage which the defendant agrees to hold the plaintiff harmless from is that caused “ on account of said digging,” which is the digging out of the brook, not the digging of a trench anywhere through the plaintiff’s land. Moreover, the plaintiff’s lot being only fifty feet wide, it would seem hardly reasonable that the parties should have contemplated that the defendant should have the right to deepen the brook, and also to lay drain pipes through the lot. If such had been their intention, it would have been more plainly expressed. If, on the contrary, as we think was the fact, they intended that the defendant should have the right to dig out the brook that ran through the plaintiff’s land for the purpose of laying sewer or drain pipes in it to drain the “ Stone Field,” then the language chosen expresses that purpose with sufficient aptness. In the view which we take of the construction to be given to the agreement, even if the testimony of the conversation between the plaintiff and the defendant prior to the execution of the agreement was erroneously admitted, it could have done the defendant no harm.

Decree affirmed.