Chicago, Milwaukee & St. Paul Railway Co. v. H. W. Wright Lumber Co.

Dodge, J. The question presented is one of construction of á written contract, mainly by means of its own words, aided, if in the examination of those words there arises any ambiguity, by certain undisputed facts surrounding the parties at the time it was made. As has often been said, the construction or meaning intended to be conveyed by the words of a wanting is seldom aided by argument or precedents. The one charged wdth the duty of construction must assume that parties intended to express that Avhich the words used convey to his mind. As in case of wills, the all-dominating rule is to ascertain what the parties intended, and to give effect to it. To this end no single sentence or paragraph stands by itself, [51] but the whole instrument must be read together, and, if possible, a purpose, ascribed to each part thereof which is consistent with every other part. Wis. M. & F. Ins. Co. Bank v. Wilkin, 95 Wis. 111, 69 N. W. 354; Brittingham & H. L. Co. v. Manson, 108 Wis. 221, 225, 84 N. W. 183. It is only when it is found impossible to give a meaning to one part consistent with any other that repugnancy exists, and the duty arises to cho.ose as to which phrase shall exclude the other. The appellant selects a clause requiring the respondent tó convey or procure to be conveyed to it a right of way for said track, and claims that this can be satisfied only by a formal conveyance of the exclusive use, for all railway purposes, of ¿ strip of land 100 feet in width, perpetually, except in the case of abandonment by the railway company. Respondent points to the seventh paragraph of the contract, providing that at any time within the term of the contract the lumber company shall convey all its right, title, and interest to the right of way and the spur track thereon for about $12,000, as suggesting the obvious understanding of the parties that, when the first paragraph had been complied with, respondent would still retain in this tract of land a substantial and valuable interest, which clearly would not be the cage after a conveyance such as is now demanded. We see no éscape from the conclusion that the parties had in mind such a situation, and as a result that they must have contemplated such a “conveyance,’’ or such meaning for the expression “right of way,” in phrasing the first paragraph, as would be consistent with that result. Hence we must recognize that from the words of the contract itself arises a measure of ambiguity as to one or the other, or both, of these expressions. This justifies us in considering the situation of the parties, as disclosed mainly by'the contract, but with some aid from the facts conceded and found, which are set forth in the statement of facts. It is to be noted, first, that the right of way to be cónveyed according to the first paragraph is á right of way “for .said [52] spur track;” tbat spur track is tbe one which, according to the second preliminary paragraph, the parties proposed to construct and operate in order to reach and transport respondent’s timber and for other purposes. The other purposes are stated in the contract as the carriage over the track of such' freight as the railway company can obtain from others. But the parties themselves fixed a term to their entire contract, namely, the term of ten years, or until such earlier date as shall complete the entire cutting and transportation of respondent’s timber. There is nothing in the contract to indicate that they contemplated joint construction or operation of this spur track for any longer period. Why, then; should a right of way “for said spur track” be for any longer period ? We confess inability to find a satisfactory answer to this query. That such was the limitation in mind is very strongly suggested by the consideration that the price to be paid for the property in this right of way and spur track, which both parties contemplated as remaining in the lumber company, and as having a large value, remains the same throughout this ten year’s. It was only during the term of the contract that the railway company had a right to buy it; and whenever it did so, whether in the first or the last year, it was to pay the' same price for it. It was only during that term that the railway company was to pay the lumber company anything for the privilege of transporting lumber of other people. Now, if at the end of the ten-year term that duty was to cease, and yet the railway company would continue to have a'perpetual occupancy of that right of way and the spur track thereon for so long as it chose to operate a railroad, which might be. forever, clearly the value of respondent’s interest was a steadily diminishing quantity. It would be absurd to suppose that the railway company would agree to pay as much in the ninth year of the term as in the first, when by the lapse of the one remaining year it would in all practical effect acquire it for nothing. On the other hand, if we adopt the respondent’s53 construction that this contract provides for the operation of this spnr track merely for the term of the contract, and for the providing hy the lumber company of a right of way merely for that purpose, the signification of the seventh paragraph is at once clear and reasonable. It then becomes apparent that it was made in contemplation of the possibility that the railway company might wish to permanently maintain and operate- a railroad over this same right of way, not for the purposes of the spur track to reach and transport defendant’s timber, but for the general purposes of a railroad. In that event it was to have the option to acquire a permanent right of occupancy of this strip of land for its own purposes. In that case, and that only, it took to its own use the grading, etc., which had been constructed by the lumber company, and would gain benefit from it. The parties upon that view must have contemplated that the railway company was vested with an .alternative choice: First, to use and occupy the right of way and grade thereon constructed by the lumber company merely for the purpose of earning the profits resulting from the hauling of the defendant’s timber and such incidental freight as might be obtainable meanwhile, and then to abandon it — having been to the expense of laying its tracks and one bridge — while the defendant would have been at the expense of acquiring the right of way and constructing the grade; or, on the other hand, to elect to maintain a permanent railroad, and thereupon to pay the respondent that which it had expended in making the structure thereafter to be owned and used by the railway company. Special stress is laid by appellant on the condition expressly required to be embodied in the first conveyance that the right of way should revert in case the railway company removed its rails, etc., “and not otherwise.” This, however, is as applicable to a right of way for a ten-year term as to one in perpetuity. It was quite as essential to defendant’s purposes, if the railway abandoned the contract before its completion, that the right [54] of way should at once revert, so that it could immediately he used as an outlet for defendant’s timber by laying new track, as it could be at any subsequent time. There are other provisions of the contract which, to our minds, confirm the views above expressed; but their recitation would not advance us beyond the point we have already reached. Our conclusion agrees with that of the trial court to the effect that, until it elects to purchase and pay. for defendant’s structures thereon, plaintiff is entitled only to- such right of way as is needed for the spur track which the contract requires the parties to- maintain and operate, namely, for the term of ten years, or until completed cutting and transportation of defendant’s timber within that term. That, as we understand, has never been refused; hence no decree of specific performance is necessary, and dismissal of the complaint was proper. By the Gourt. — Judgment affirmed.