I dissent. The contract between the parties involved in this controversy is comprised of an agreement in writing and a quitclaim deed. The two instruments must be construed together. (Lyon v. Dailey Copper, M. S. Co., 46 Mont. 108,126 P. 931; Cooper v. Goble, 77 Mont. 580, 252 P. 362; sec. 7533, Rev. Codes 1921.) Contracts must be interpreted not only by the language used, but from the surrounding circumstances existing at the time the contract is agreed upon. (Quirk v. Rich,40 Mont. 552, 553, 107 P. 821.)
The consideration moving from the plaintiff to the defendant in the contract before us was the use of the waters of the two springs described in the contract after such waters were used in and discharged from the plaintiff's hydro-electric plant into ditches connecting with the Sturgis ditch; the consideration moving from the defendant to the plaintiff was $500 cash and defendant's agreement to care for and maintain the Sturgis ditch for the purpose of protecting plaintiff from damages arising from the ditch's overflowing and injuring the lands and premises of adjoining land owners or tenants. The condition that had troubled the plaintiff theretofore arose from snow and ice blocking the ditch, impeding the flow of the discharged waters therein, and the overflow flooding the lands of others for which it was held in actions for damages.
The special interrogatories were submitted to the jury as follows: *Page 461
"Interrogatory No. 1. Did the usual and customary method of operation of plaintiff's hydro-electric plant at the time of the execution of the contract between the plaintiff and defendant produce and maintain in and through the Sturgis ditch a continuous flow of water? Answer: Yes.
"Interrogatory No. 2. If there was a continuous flow of water at the time mentioned in Interrogatory No. 1, did the change in operations which took place thereafter cause a cessation of such continuous flow? Answer: Yes.
"Interrogatory No. 3. If you find that the change in operations caused a cessation of the continuous flow of water in the Sturgis ditch, did that cessation materially increase the burden upon the defendant in keeping said ditch clear of ice and snow and capable of carrying the water discharged from the electric plant of plaintiff beyond or over what it would have been if the continuous flow had been maintained? Answer: Yes."
Subsequent to the execution of the agreement the plaintiff abandoned the use of the waters of one of the two springs, and without the consent or approval of the defendant. The Sturgis ditch ran through flat land for approximately two miles; it was open country and the wind had a free sweep across the ditch; the ditch was approximately 10 feet wide and 5 feet deep, and in places 15 feet deep. The testimony is to the effect that when snow was on the ground and a blizzard was on, the ditch would fill and block the flow of water within a period of half an hour. It is a matter of common knowledge that flowing water greatly reduces the labor necessary to keep such a ditch clear of ice and snow, and that is the import of the jury's answer to interrogatory No. 3; that is, that when the plaintiff ceased to use the waters of Brown springs, the continuous flow of water in the ditch ceased and such cessation increased defendant's burden in keeping the ditch open.
Here we have a contract between the parties where the burden placed upon one of the parties was materially increased by the voluntary act of the other subsequent to the execution of the contract, and no additional consideration given the party whose *Page 462 burden was so increased, and its consent was not asked nor given. This contract binds the defendant "henceforth and forever," but obviously the plaintiff takes the position that it shall be bound only at its pleasure. If it may cease to use and cause to flow through its plant the waters of one of the two springs that it used when the contract was made and entered into, then it may with equal right cease to use both of the springs and all of the water, without consulting the defendant, and if it might do that one, two or three years after the contract was entered into, it could, with equal right, have ceased the day after the contract was made, and also have kept defendant's $500. Logically, I am unable to see how any other conclusion could be arrived at under the majority opinion; the plaintiff is given a free hand to do as it pleases, while the defendant is held to strict compliance with the terms of the contract, irrespective of any breach by the plaintiff.