FOX et al. v. MILLER et al., 150 F. 320

GIT.BERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The principal question here presented, and the only one necessary to be decided, is what is the proper construction of the terms of the lease.

The lease gives to the appellants “a right of way 50 feet wide to be used for logging purposes either for a road, flume, tram or in any manner the party of the second part may decide upon as will best meet their needs in the transportation of their logs or forest products.” The court below construed this to be a grant of a right of way for the purpose of a road, flume, or tram only, and held that the words which followed should be disregarded because vague and indefinite. We are unable to agree with this construction. The grant was of a right of way 50 feet wide for logging purposes.

It is not disputed that the stream, as it was used by the appellants, was within the limits of the grant. It had been used for floating logs to the lake in the years 1902 and 1903.

One of the appellees testified that at the beginning of the negotiations the agent of the appellants “spoke to me about getting a right of way through our land and for driving logs through the creek to get an outlet.” The lease itself contains the provision that the rights thereby granted “shall not conflict and may be amenable to grants or leases of like nature heretofore granted to others by thp parties of the first part.” Such rights theretofore granted to others must have been rights to float logs through the creek, as no other use of the land for that purpose had been made.

The lease in specifying that it grants a right of way 50 feet wide to be used for logging purposes, either for road, flume, or tram, goes on to provide that it may be used in any manner the parties of the second part may decide upon, “as will best meet their needs.” These words must have been inserted for a purpose. There was at least one way, other than the ways enumerated, in which the premises could be used, a way long used and recognized in logging, a way in which the premises had theretofore been used and in which they could he used with the least expenditure of money.

That was by floating logs through the channel. That this was within the contemplation of the lessees is shown by the contemporaneous

interpretation which they placed upon their grant. In the spring immediately following the execution of the lease they began to drive logs down the channel, and no objection was made by the appellees. In the following October the appellants improved the channel and ditched 300 feet thereof. The appellees, so far as they could do so by their silence, assented to this construction of the contract. .They made no objection or protest until February, 1905.

When they did have recourse to the law, it was in the first instance not for the purpose of disputing the construction which the appellants had placed on the lease or to enjoin them from using the ditch, but to enforce the payment of a second installment of rent, on the ground that the contract called for an annual payment of $200, instead of $200 for the entire term.

The attendant circumstances, the antecedent use of the land, the contemporaneous construction placed upon the granted right by the grantee thereof, the acquiescence therein by the grantor, may all be referred to to determine the true construction of such an instrument. In view of all these considerations, and especially in view of the express terms of the lease, we entertain no doubt that it was the intention of the parties to the contract that the land might be used as it was used.

The evidence of damages to the freehold resulting from ditching through a portion of the channel is not substantial or convincing. ' The decree is reversed, and the cause is remanded, with instructions to dismiss the bill.