Lackey v. St. Louis & San Francisco Railroad

Fletcher, L, delivered the opinion of the court. We cannot agree with the learned court below that the contract between the appellee company and W. L. Lackey imposed no obligation upon the company to keep open the ditches which the contract mentions. It seems clear to us that, taking into consideration the situation of the parties, the mischief which was sought to be remedied and avoided, and the language of that part of the contract which recites that there is a release of all future damages that may accrue “on account of damage to the same and all that the same may sustain in any way by reason and during the continuance of the maintenance and operation of said railroad thereover as the same is now constructed,” the company’s duty demanded that the ditches should not be allowed to so fill up as to cause a recurrence of the trouble. It may be true, as ingeniously argued by appellee, that the language above quoted from the contract, if used in another connection, would be identical in meaning with the expression “proper construction and maintenance,” as that term is employed in judgments rendered in condemnation proceedings; but we must construe the language in the light of this particular •contract and the situation of the parties thereto. Certain it is that the contract would avail Mr. Lackey nothing, so far as future injuries are concerned,«unless the ditches are kept open, and Lackey is without authority to go upon the railroad right of way for that purpose. Furthermore, weight must be given to the fact that for many years the company kept these ditches open, thereby giving a practical and contemporaneous construction to the contract in harmony with appellant’s contention. We are forced to conclude that the court erred in sustaining the railroad company’s demurrer to the replication filed in answer to the second special plea, and the judgment is reversed iand case remanded.