Hill v. McKay

Citations

• 94 Cal. 5
• 29 P. 406
• 1892 Cal. LEXIS 627

Syllabus

<p>Construction of Logging Contract—Grant of Right of Way — Landing “down Stream” — Change of Location to Different Stream — Liability for Purchase of Logs.— The owner of timber adjacent to a slough, who also owned landings thereon for logging purposes, near the head of tide-water, granted to persons engaged in logging above his landings a right of way over his land for logging purposes, to a point below his landings, for a period of years, the grantees agreeing, in consideration thereof, to pay a certain sum annually, and that provided they made landings and deposited their logs “ down stream from the present landings ” of the grantor, they would purchase yearly all logs hauled by him and deposited in the slough, paying therefor the prevailing market rates. The grantees of the right of way constructed a logging railroad over it to a point on the same slough a short distance below the landings of the grantor, where they established a landing, and bought the logs of the grantor yearly during its continuance at that point. They afterwards extended their logging railroad farther down stream, and constructed a new landing, located below the junction of the slough with another slough, it being disputed whether the latter slough had the same name as the former or a different name, and refused thereafter to purchase logs from the grantor under the contract. Held, that the grantees of the right of way were liable to the grantor for a failure to purchase his logs under the contract, without regard to whether the new landing was on the same or a different slough, there being nothing in the agreement to limit the words “down stream” to any particular slough.</p> <p>Id. — Conflicting Evidence as to Extent of Slough — Instruction Taking Question from Jury. — The evidence being conflicting as to whether the slough on which the grantor’s landings were situated extended down to and included the new landing of the grantees, and no instruction having been submitted to the jury as to