#### Meinecke, Appellant, vs. Smith, Respondent.

*March 10*

March *31, 1908.*

*■Contract: Construction: Right of way: Misuser: Injunction: Damages for failure to repair.*

1. A grant of a right of way should he construed with reference to the condition and state of the premises at the time the grant is made, and a court, if necessary, will 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.

2. By mutual agreement between plaintiff and defendant the former granted to the latter “a purely personal license to cross to and fro across” plaintiff’s land, “for his own personal use and in pasturing of stock and in getting to and from certain lands owned by” defendant “and held by him for farming and pasturage purposes.” In an action in equity to restrain defendant from using the road for hauling sand from a pit discovered and developed two years after the license was granted, *hela,*(1) that the clause “held by him for farming and pasturage purposes” was a limitation on the right to use the way, and not merely descriptive of defendant’s premises, and defendant, therefore, had only a license for his own personal use in pasturing stock and getting to and from his lands for farming and pasturage purposes and not for hauling sand; (2) that under the contract and the evidence defendant acquired no.interest in the land over which the road passed.

:3. Under a contract granting to defendant a right of way over plaintiff’s land defendant was to pay one half the cost of building the road. In an action to restrain defendant from making an unauthorized use of the way, a claim for damages for defendant’s failure to pay his part of the cost of constructing the road having no legal connection with the equitable cause of action sued upon, testimony offered to establish it should have been excluded.

*221Appeal from a judgment of the circuit court for Monroe county: J. J. Fruit, Circuit Judge.

*Reversed.*

The complaint in this action alleges, in effect, the ownership of certain lands by plaintiff, and that on the 25th day of May, 1903, plaintiff and defendant entered into an agreement, by the terms of which plaintiff for a valuable consideration gave to defendant a right of way across said lands. The agreement between the parties-contained the following provision: ■ ■

“Therefore it is mutually agreed .by and between the said parties hereto that the said first party hereby gives to said second party 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, with the express agreement and understanding that such right is purely a personal license only, and is to cease immediately upon the death of said second party, and is not assignable or transferable by him or his heirs to any person or company or corporation whatsoever.”

The complaint alleges that as a consideration for the agreement it was provided by the contract that the plaintiff should furnish certain material to be used in the construction of such right of way, and that plaintiff and defendant should each perform one half of the labor necessary to construct a roadway, the defendant to furnish at his own expense all brush, logs, and earth for said roadway; that the defendant refused and neglected to perform on his part; that plaintiff was compelled to construct said roadway at an expense of $150, and that defendant only expended $10; that plaintiff, notwithstanding defendant’s failure to comply with the agreement, permitted him to pass over said road for farming and pasturage purposes, but defendant opened a sand pit on lands occupied by him and reached by said road and hauled loads of sand over the same, and threatens to con*222tinue to do so against the protest of plaintiff, which said use for hauling sand has destroyed said road and put plaintiff to great expense and trouble in restoring the same for use by plaintiff, and that plaintiff will be greatly damaged thereby in the sum of $200-; that defendant is without visible means by which to respond in damages. The complaint contains the following’ prayer:

“Wherefore plaintiff prays that defendant may be barred and foreclosed of any and all rights under said written license by reason of the nonperformance by him of the conditions thereof, and that said defendant be forever enjoined and restrained from hauling sand or other heavy loads, not connected with husbandry, over said road, and that plaintiff may have judgment against said defendant for his damages already done and for his, costs.”

Temporary injunction was applied for and denied.

Defendant answered, admitting that the parties entered into the contract and that plaintiff was the owner of the lands described in the complaint, admitted that the agreement was based upon a sufficient consideration, and denied generally the other material allegations of the complaint.

The court found that plaintiff and defendant entered into the agreement on the 21st day of May, 19Ó3; that after-wards plaintiff and defendant built upon the lands referred to in the agreement a road about two rods wide leading to a tract of land consisting of 103 acres owned and occupied by defendant; that prior to the execution of said contract defendant purchased a strip of land for the use of plaintiff and defendant over which a part of said road was to be built, and the title was taken in the name of defendant for convenience, each party paying one half the consideration thereof and owning an undivided one-half interest thereof; that the evidence shows that the phrase in said instrument reading, “and held by him for farming and pasturage purposes,” was not intended to be a limitation of the right of *223defendant to use said road, but was intended only to describe the premises to which said road was to sun; that it was the intention of the parties that plaintiff should use said road in such manner as he saw fit in going to and from á certain slaughter hou'se owned by him, and that defendant should hare the right to use said road himself, his agents and servants in going to and from said tract of land owned by him, consisting of 103 acres, for 'hauling sand and for such other purposes as might be to his interest in the occupancy of said tract, and said right of way was not limited strictly to agricultural and farming purposes; that it was the intention of said parties by said instrument to create an interest in the land over which said road runs, and said right was to remain in defendant personally until his death; that after completion of said road the same was used by defendant in hauling hay, manure, wood, grain, and sand, and in 'driving cattle to and from said 103 acres; that said defendant has not permitted others, except his agents and servants, to use said road, and that said road has not been impaired or damaged by hauling loads thereover, and that the material allegations of the complaint are not proved by the evidence.

The court found, as conclusions of law, that the phrase in said instrument, “and held by him for farming and pasturage purposes,” is descriptive of the lands, and is not a limitation of the right of defendant to use said road; that said defendant under the agreement has the personal right to use the road in hauling sand and in such other manner as may be to his benefit in the occupancy of said 103 acres, and said right can be exercised by the servants and agents of defendant; that said contract created an interest in the lands over which said road runs in favor of defendant, and the right to use said road continues in him personally until his death, and that the case of the plaintiff is without equity and should be dismissed.

Judgment was entered dismissing the conqplaint and *224awarding costs to defendant. Dne exceptions were taken to-the findings, and plaintiff appeals from tlie judgment.

Eor the appellant there was a brief by *Graham & Gh'O-hami*and *Naylor <&.*McOaul, and oral argument by *W. B. Naylor*and *John G. Graham.*

Eor the respondent there was a brief by Masters, *Graves &*Masters, and oral argument by IB. *B. Graves.*

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 *225with 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 *226the 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 *227here, 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.