#### McCord, Appellant, vs. Edward Hines Lumber Company, Respondent.

*October 7*

October *24, 1911.*

*Landlord and tenant: Removal of docks from leased land: Protection of slips: Contract construed.*

Upon land bordering upon Superior Bay were docks and slips for shipping lumber. The docks belonged to a lessee of the land who had the right to remove them. In an agreement whereby the lessor consented to an assignment of the lease it was provided that “if the docks or any part thereof are removed they shall be so removed as to leave the slips intact, and such slips shall be protected from injury.” No such stipulation was contained in the original lease and no additional consideration entered into the consent agreement. *Seld,*that under the quoted provision the lessee was bound, in case the docks were removed, to protect the slips from injury in the process of such removal, but not to protect them from filling in or other injury thereafter.

Appeal from a judgment of tlie superior court of Douglas county: Chaeles Smith, Judge.

*Affirmed.*

At the times in question in this action the plaintiff and the McCord Lumber Company were the owners of certain property bordering on Superior Bay. The plaintiff subsequently became the exclusive owner of this property. Prior to 1899, the time plaintiff and his co-owner leased the lands in question to the defendant, a sawmill had been constructed upon this property. There had also been constructed thereon three open lumber docks and three slips for the purpose of conducting the business of manufacturing and shipping lumber. In 1899 the sawmill and all the docks and tramways, etc., were sold to the defendant, and at the same time a lease was made to the defendant for a period of ten years of all the lands upon which the mill and the other property were situated, with an option for its renewal for five years. The lease provided for an annual rental of $300 and the payment of the *205taxes by the lessee, also that tbe lessee was not to sublet tbe premises without tbe written consent of tbe lessor. Tbe lease stipulated:

“At tbe expiration of this lease, tbe lessee shall have the right to remove all buildings and improvements thereon, and shall have a reasonable time therefor.” '

In 1900 the defendant transferred the property owned by it, and with the consent of the plaintiff assigned tbe lease. In 1903 tbe mill property was burned and tbe subtenant surrendered the property and the land to the defendant. It was thereupon agreed between the plaintiff and the defendant that to restore the sawmill and to carry out the use of the premises under tbe original lease by a sublease would promote tbe best interests of both parties. To accomplish these purposes tbe defendant then sold the property which had not been destroyed by the fire, including the docks, tramways, etc., to the Murray-McCann Lumber Company of Ashland, and also made an assignment of tbe lease to tbe company. The plaintiff on November 2, 1903, consented to assignment by a written agreement between tbe plaintiff and tbe defendant. By this agreement the defendant guaranteed tbe payment of the rental and the taxes as agreed upon in the original lease to the defendant and also agreed to perform all the covenants on the part of the lessee. In addition to these agreements it was specified “also, that if the docks or any part thereof are removed they shall be so removed as to leave tbe slips intact, and such slips shall be protected from injury.”

The Murray-McCann Lumber Company entered upon the premises, rebuilt the mill, and operated it until some time in the year 1907, and while still in possession of the premises sold and removed tbe mill and much of the dock structures and piling. Tbe defendant has not dredged tbe slips nor constructed any protection for keeping them in tbe condition they were in prior to the removal of the docks, and tbe plaintiff claims that the slips have filled in. and will fill in because *206the defendant has removed the greater part of the dock piling and has omitted to construct a suitable protection in place thereof to prevent the slips from filling in.

The jury were instructed that under the terms of the consent to the assignment “the defendant was not required to protect the slips from filling to any greater extent than they were protected in that respect by the docks and piling constituting a part thereof as they existed when the Murray-McCann Lumber Company had completed its work on said premises and was ready to surrender the same. In other words, the defendant was not required to furnish any better or greater protection to the slips from filling in than that afforded by the docks at the time they were removed.”

The jury under the instructions returned a verdict for the defendant. This is an appeal from the judgment dismissing the action.

Eor the appellant there was a brief by Luse, *Powell &*Luse, and oral argument by *L. K. Luse.*

For the respondent there was a brief by *Olin & Butter,*attorneys, and *Grace & Hudnall,*of counsel, and oral argument by /. *M. Olin*and *H. H. Grace.*

SiebeckeR, J.

It is conceded that the defendant under the original lease and the agreement of November 2, 1903, whereby the plaintiff consented to the subletting of the premises by the defendant, had the right to remove the mill and the dock. The court instructed the jury that “the word 'dock’ or 'docks’ ... as used by the parties to this action in the agreement in question, includes all of the round piling and sheet piling, if any, and all of the caps and cross-ties placed on the tops of such round piling in the construction of the docks and superstructure as described by the evidence in this case.” No exception is taken by the appellant to this interpretation of the terms of the agreement, and we take it that the agreement is to be considered in the light of this meaning *207of tbe term. Tbe clause of tbe contract upon wbicb tbe plaintiff rests bis right to recover is, “that if tbe docks or any part thereof are removed they shall be so removed as to leave tbe slips intact, and such slips shall be protected from injury.” Tbe plaintiff contends that this stipulation imposes on tbe defendant tbe obligation to protect tbe slips from future injury from whatever cause if tbe docks should be removed by its authority under tbe lease. Applying this idea to tbe subject matter of tbe contract, we have an agreement requiring tbe defendant to erect some structure without specification as to its nature and kind, tbe manner in wbicb it is to be accomplished, or.tbe time during wbicb it will be tbe duty of tbe defendant to maintain it. Under such an interpretation of tbe terms of tbe stipulation it is difficult to ascertain what tbe parties contemplated, for there is nothing in it to suggest that they agreed on any particular protection or whether they 'intended tbe time for maintenance to be limited or perpetual. Nor can we infer from such implications that it was understood in what way this protection was to be accomplished. Tbe cost of tbe maintenance of tbe protection tbe plaintiff now claims should have been erected is so disproportionate to all tbe benefits received by tbe defendant under tbe lease as to negative tbe idea that it was contemplated by tbe parties. We have, then, a situation so full of uncertainties in so many respects, with conditions so burdensome in their weight, as to forbid such a construction if in tbe light of tbe subject matter of tbe transaction tbe language used is susceptible of a more reasonable interpretation. Tbe facts that no such stipulation is contained in tbe original lease and that no additional consideration entered into tbe consent agreement to a subletting of tbe premises tend to show that this stipulation imposes no obligations additional to those contained in tbe original lease, and that it was designed to specify tbe manner of performing tbe obligations already imposed.

*208Reading tbe language of tbe clause in question in tbe light of these considerations and examining its context and tbe words employed in their natural and ordinary sense, it seems evident that tbe parties did not have in mind tbe implication tbe plaintiff now invokes, but rather that tbe parties contemplated a construction thereof that should include no more than tbe defendant contends that it embraces. An examination of tbe language used in tbe first part of tbe clause definitely indicates that they were treating tbe subject with a view to having tbe slips kept intact while tbe docks were being removed, and that tbe last clause applies to tbe same thing but specifies that tbe docks shall be so removed that tbe slips will be protected from injury. This construes tbe parts of tbe sentence together and as dealing with one subject, leads to a reasonable and natural conclusion, frees it from all uncertainty, including tbe implication of plaintiff’s contention, and harmonizes it with tbe contents of tbe original agreement of tbe parties. We are therefore led to tbe conclusion that under tbe clause in question tbe defendant was obligated, if it removed tbe docks, to do tbe work in a way that would leave tbe slips intact, and in removing them to do all things reasonably necessary to protect tbe slips from injury. In this view tbe plaintiff is not entitled to have tbe slips protected against future injury.

As we understand tbe record there is no basis for claiming damages for injury to tbe slips in not leaving them intact or in not properly protecting them from injury in tbe process of tbe removal of tbe docks, and hence tbe judgment awarded must stand.

*By the Court.*— Judgment affirmed.

Maeshall, J., took no part.