The opinion
Riddick, J., (dissenting.) While I agree with most of the propositions of law stated in the opinion of my associates in this ease, I am not able to concur in the meaning given by them to the contract between Hamlin and Brown, or in their finding in reference to the removal of the road. To recapitulate the facts briefly, Brown and Hamlin were both engaged in the business of sawing and manufacturing lumber. Hamlin purchased.of the Hearne Lumber Company a logging railroad running from Wyandotte, on the St. Louis, Iron Mountain & Southern Railroad, across lands owned in part by Brown and in part by Hamlin. Brown had a logging railroad of his own, connecting with or crossing this road purchased by Hamlin; and he and Hamlin entered into a contract by which each gave to the other the right of way over his lands, and the right to push cars and haul logs over the road of the other. The contract also contains the following provision in reference to the railroad which had been or was about to be purchased by Hamlin, who is designated in the contract as party of the first part: “It is further agreed that the above-mentioned railroad shall remain where located for a period of five years from date of this agreement, or longer if the party of the first, part so desire; but if the party of the first part wishes to discontinue and remove said railroad at any time after the period of five years, the party of the second part shall have the preferred privilege of buying the same, or any portion thereof, by paying therefor the then market price for snch old rails, splices, bolts and nuts, based on the delivery of same at Gifford, Ark.” Now this contract, which it is unnecessary to read in whole, may be in some respects a little vague and uncertain, but the clause above quoted very clearly sets forth the conditions or circumstances under which Brown had the option of purchasing Hamlin’s road. He had this only in the event that Hamlin should wish to ‘‘discontinue and remove” the railroad. In that event Brown had the option to purchase by paying the price of the iron, which is about all of a railroad that could be removed. The Wyandotte & Southeastern Railway Company now seeks to condemn this logging road for its right of way, and Brown contends, because Hamlin is interested in that company and consents to the condemnation, that Hamlin has removed the logging road or intends to remove it, and that therefore he has the right to purchase it under his contract with Hamlin.
But how can we say that there has been a removal of this road, when it has remained and is now in the same place as it was when this contract was made? To say that there has been a removal as to Hamlin only, in other words, a constructive removal, is to announce something that cannot be true. A railroad cannot at'one and the same time remain stationary and be removed. To say so is just as absurd as to speak of a train running forty miles an hour while standing still. Moreover, the contract, the circumstances under which it was made, and the language used show that the parties contemplated that Brown should only have the option to purchase in the event that Hamlin desired to discontinue and actually remove the road. If Hamlin intended to abandon and remove his road, it would then only be worth to him the value of the iron, for that is all of the road that it would pay to remove. And this explains why the value in the event of a removal was fixed at the price of the iron. It is hardly conceivable that Hamlin would have agreed to sell his right of way, roadbed, ties and rails at the price of the rails only, unless he intended to abandon his roadbed and right of way. But in this case he does not wish to either abandon or remove his road, and yet the court holds that he lias removed or intends to remove it, and in assessing the damages for the right of way treats Brown as the owner of the entire road except the rails.
The court, as a reason for this judgment, says that Brown by this contract intended to prevent Hamlin from discontinuing the road as a logging road, but the contract does not support this view. It states that Brown shall only have the right to purchase in the event Hamlin desires to discontinue and remove his road. It may be that it would have been prudent for Brown to have written his contract differently. But it takes two to make a contract, and, if he had done so, it is possible that Hamlin would not have agreed to it. In any event, the contract as written only permits Brown to purchase when Hamlin concludes to remove the road, and I think to construe it as the court has done is to make a new contract much more favorable to Brown than the one agreeed to by Hamlin.
If the Wyandotte & Southeastern Railway Company is lawfully incorporated, and had the right to condemn this logging road purchased by Hamlin from the Hearne Lumber Company, as the court declares in its opinion, then I think the damages assessed for the taking of such road should be the same as if Hamlin had no connection with the road seeking to condemn. If this is a fraudulent scheme on the part of Hamlin, then no condemnation should be permitted; but if the corporation has the right to condemn, as the court holds, and with which ruling I concur, then the damages for the taking of the logging road should be assessed just as if neither Brown or Hamlin had any connection with the railroad company asking the condemnation.
If the Iron Mountain or some other raih’oad in which neither Brown or Hamlin was interested was seeking to condemn this road, it would be unjust to allow Brown damages for that portion of the road owned by Hamlin, and in this case I think it is equally wrong and unjust to allow him such damages. Whatever right or interest Brown had in this road should be fully paid for, and one of his rights, which should be considered in assessing his damages, is the right given him by the contract to purchase in the event Hamlin removed the road. But there has been no removal of the road, and he has no right to claim pay for Hamlin’s interest in the road because Hamlin consents to the condemnation and he opposes it.
Taking the basis on which the court assessed the damages, I think the amount allowed is moderate; but, for the reasons stated, I think the assessment is based on an erroneous view of Brown’s interest in the road condemned, and I therefore dissent.