Meinecke v. Smith

Keewiu, J. The proper construction of the contract referred to in the statement of facts is the main question for-consideration here. The action is in equity to restrain the use of the road for hauling sand from a pit discovered and developed some two years after the contract was made and for other relief. It is claimed on the part of appellant that the use of the road for other than farming and pasturage-purposes is improper and unauthorized under the terms of the contract, while on the part of the respondent it is insisted that the contract gives him the right to- use the road in any manner he sees fit, and therefore the use he made of it himself, his servants and agents in hauling sand for sale and such other purposes as might be to- his interest in the-use and occupancy of his land was authorized under the-contract. We have been able to find little by way of adjudicated cases which afford assistance in construing the-contract. We are therefore forced to construe it with the aid of such light as may be gathered from its terms and the situation of the parties when it was made. As before observed, when the contract was made and for about two years thereafter it wa's not known that a sand pit existed upon the premises of defendant to which the right of way led. The land was used for farm and pasturage purposes, and the use for hauling sand over the road by defendant could not have been in the contemplation of the parties when the contract was made. This fact is important in construing the-contract. A grant of a right of way should be construed [225] with reference to tlie condition and state of the premises at the time the grant is made. Cahill v. Layton, 57 Wis. 600, 16 N. W. 1. And a court will, if necessary, put itself in the place of the parties and read the instrument in the light of the circumstances surrounding them at the time it was made. Merriam v. U. S. 107 U. S. 437, 441, 2 Sup. Ct. 536. The question, therefore, arises whether, in the light of proper rules of construction, the terms of the contract are sufficiently broad to include such use. It is familiar law that in construing a contract the intention of the parties is to be gathered from the whole instrument and all parts of it, and all words therein will be given effect where this can be done without doing violence to any part of the agreement. 9 Oyc. 579. It is obvious from the words of the contract that the rights granted were quite strictly guarded. The right mentioned as given to defendant was “a purely personal license to cross to and fro across said entire strip of lands above mentioned for his own personal use and in pasturing of stock, and in getting to‘ and from certain lands owned by said second party and held by him for farming and pasturage purposes.” The court below fo-und that the phrase in the contract, “and held by him for farming and pasturage purposes,” was not intended as a limitation of the right of respondent to use said road, but was intended to describe the premises to which the road was to run. We do not think this is the true construction of the instrument. If these words be construed as descriptive of the premises they are surplusage, because the' premises to which the road runs is well understood without them. Besides, the phrase could not in any way enlarge, limit, or qualify the instrument if treated as words of description. The tract over which the right of way extends is particularly described, and such description carries the right of way to the premises of defendant. But, regarding the words as words of limitation upon [226] the use, they have an important hearing and. cannot he regarded as surplusage, since they can be read as a limitation on the use without doing violence to any part of the instrument. The contract, wre think, rightly understood, merely gives the defendant a license for his own personal use in pasturing stock and getting to and from his lands for farming and pasturage purposes, and the court below was in error in holding that the phraSe in question was not intended to he a limitation of the right of defendant to use the road, hut only as descriptive of defendant’s premises; therefore the respondent merely got a right of way for farming and pasturage purposes. Holding as we do on the construction of the contract, it seems clear that the use to which the road was put by defendant wa's an unauthorized one. Binzel v. Grogan, 67 Wis. 147, 29 N. W. 895; Parks v. Bishop, 120 Mass. 340; 14 Cyc. 1206. It has been held that a right of way for agricultural purposes is of a limited and qualified character and does not include the right to transport lime from a quarry. Washh. Easem. (4th ed.) 284 ("187). The court below also found that the instrument in question created an interest, in land over which the road runs and that said right was to remain in defendant until his death. We think in this finding the court was in error. There is no proof that any interest in the land upon which the road is located ever passed to the defendant. The instrument itself purports to give defendant no interest’ in the land; only a mere license to pass* over it. Lockhart v. Geir, 54 Wis. 133, 11 N. W. 245; Keystone L. Co. v. Kolman, 94 Wis. 465, 69 N. W. 165. The finding to the effect that defendant has not permitted others except his agents and servants to haul sand upon said road is not material upon this appeal in view of the fact that he had no right himself to do the acts complained of. As to how far the defendant might take to his assistance his servants in using the road for authorized purposes under the contract we need not consider [227] here, since that question is not before us. He would doubtless be confined to tbe ordinary and usual use made of such road by a licensee for farming and pasturage purposes. Tbe court below further found that tbe road bad not been impaired or damaged by tbe hauling of sand or heavy loads thereover. It is claimed by appellant that this finding is not supported by tbe evidence. Upon this question we find tbe evidence conflicting, and after a careful reading of it we cannot say that tbe clear preponderance of tbe evidence is against tbe finding. Tbe contract provides that each party shall contribute one half of tbe expense of building tbe road. Evidence was admitted under objection to tbe effect that tbe expense of building tbe road was. $137.53 and that defendant paid of such expense only $10.50, leaving a balance on bis share of $58.26. Tbe claim, however, for this damage was a purely legal-claim, having no legal connection with tbe equitable cause of action sued upon, and wre think the testimony offered to establish it should have been ruled out. Tbe court made no finding upon this question and evidently did not pass upon tbe plaintiff’s right to recover for it; tbe theory of tbe court obviously being that tbe question was considered as relating to tbe equitable relief, if admissible for any purpose. Tbe only theory upon which this balance could have been considered upon any aspect of the case would be on the ground of insolvency of defendant, and there is no evidence of insolvency. If the plaintiff has any claim for tbe alleged balance due be can pursue bis remedy in an action at law. It follows from what has been said that tbe judgment below must be reversed, and tbe action remanded with directions to render judgment in favor of plaintiff restraining defendant from using the road in question for hauling sand over it from tbe sand pit on defendant’s premises, and froin using said road otherwise than for farming and pasturage purposes. By the Court. — It is so ordered.