I dissent. While I appreciate that by present-day standards the contract appears inequitable and unjust, this is not sufficient reason to justify this court in deciding the contract was cancelled by the removal of the flume. This is the effect of the majority opinion, as it holds the provisions of Sec. 100-1-9, U.C.A., 1943 are controlling and the rights created by the contract extinguished. I would be only too happy to concur in the results if I could read and interpret the contract as does the author of the majority opinion. However, in order to arrive at the decision as rendered by the majority, it appears that rules of construction are violated, too much emphasis placed on too few words, common words given forced meanings, and a contract revised, to the extent of abrogation.
I will first dispose of the last principle discussed by Mr. Justice WADE, as I concur in that portion of his opinion, although I hardly see how it has any materiality under the holding of the majority opinion. In addition to the evidence mentioned in his opinion, which was sufficient to show there was not a mutual interpretation, there is an exhibit in the file which strengthens this conclusion. This exhibit is a letter written June 16, 1926, wherein the respondent company acknowledges receipt of a communication from appellant company protesting the construction of the contract as contended for by respondent, and asking that the matter be arbitrated in accordance with the terms of the contract. In this communication, the respondent company refuses to submit the question to arbitration. Furthermore, I find no place in the record where the trial court finds the contract ambiguous and subject to interpretation by mutual conduct of the parties. As stated by Mr. Justice WADE, the finding by the trial court was to the effect that the contract was unambiguous, and if the trial court can be sustained in this finding the conduct of the parties is of no particular importance. *Page 414
There is no serious dispute as to the general principles of law governing the construction of contracts. It is conceded that generally speaking, the cardinal rule in the interpretation of contracts is to ascertain the intention of the parties, from the wording of the contract, and to give effect to that intention if it can be done consistently with legal principles. In interpreting an agreement, a court is not at liberty to revise a contract while proposing to construe it. Neither can it create a new contract nor do away with the old one under the guise of interpretation. I am afraid the majority decision has done just that. The contract involved in this action should be interpreted as a whole, and the meaning gathered from the entire contract and all provisions should be so interpreted as to harmonize with each other. Insofar as possible this court should place itself in the situation occupied by the parties at the time the contract was executed. If we consider the contract with these principles in mind, it seems to the writer that the trial court correctly interpreted the terms and conditions and properly arrived at the intention of the parties.
My reasons for coming to this conclusion are these. Considering the recital provisions of the contract first, and I suggest this for the reason that while recitals in a written contract do not have the force of contract stipulations, nevertheless if they are clear and the operative part not clear, they (recital provisions) are of assistance in determining intent.
The first recital is to the effect that the appellant is interested in two separate projects: (1) It is desirous of enlarging the canal at certain points, and (2) placing a flume in the bed at a point near the head of the canal. The second recital is (1) that the annual cost of cleaning the canal at the points where appellant was to enlarge the canal was 14¢ per share, and (2) the annual cost of cleaning the same at the place of the flume amounted to about $6.
With these recitals in mind, the operative part of the contract more nearly approaches certainty. Broken down as between the parties, I find respondent consenting to the *Page 415 enlargement of the canal and the construction of the flume, and for payment for the enlargement we find the following language:
"* * * said first party (Swan Creek Canal Company) hereby consents * * * annually for the period of five years to pay in cash or labor at the option of said first party, fourteen cents per share on the outstanding capital stock of said first party, toward the expenses necessary in cleaning and repairing suchenlarged parts of said canal, and forever after the expirationof said period of five years, the expenses of cleaning and repairing said canal at such points shall be borne by said parties in proportion to their respective interests in and to the waters of the same * * *." (Italics added.)
To the writer of the language "such points" refers to the points where appellant enlarged the canal, not to the 1800-foot section where the flume was installed.
The above provision is then followed by this one stating the respondent's liability for payment of expenses on that portion of the canal where the flume was to be placed:
"* * * Said first party (Swan Creek Canal Company) also agreed to pay to said second party the sum of $6.00 per annum in lieuof the expenses of cleaning and repairing said canal where saidflume is to be located, so long as the said second party shall maintain such flume and canal where same is placed in good repair and condition." (Italics added.)
I agree with Mr. Justice WADE that "so long as" are words of limitation, and if this were all the provisions of the contract, the decision would be correct. However, I ascribe a different meaning to the latter phrase, "shall maintain such flume and canal where same is placed," and in doing this I give force and effect to terms and provisions set forth in subsequent parts of the contract.
We need not go into extended reasoning to determine whether or not the "and" as used in the sentence was intended by the parties to be used in the disjunctive or copulative sense. It appears to me that here again the duties are two-fold, and the words and phrases are used with that in mind. That is, the appellant is required to maintain both the flume and the canal. Not the canal "while the flume is *Page 416 placed," but "where the flume is placed." It will be noted that the $6 was paid in lieu of the expenses of cleaning and repairing the canal at this place. If the recital clause is accurate in showing the cost of cleaning and maintaining this section of the canal at $6 per annum, then the requirement that the $6 be paid so long as appellant maintains either the flume or the canal where it is placed is entirely reasonable and consistent and equitable when we consider the date of the contract.
The next provision of any importance to this decision is the following:
"Said second party in consideration of the premises and of the covenants and agreements herein of said first party, hereby agrees to use due care and caution in enlarging said canal andin building said flume and to do so in such manner as not to injure or weaken the bed or banks of the same and to foreverkeep said canal at said points in good repair and condition and to hold said first party free from any and all injury, loss or damage on account of any such change in said canal * * *." (Italics added.)
It will be noted from this that we are again faced with the same two requirements. The appellant agreeing to use due care and caution in (1) enlarging said canal and (2) building said flume and to forever keep said canal at said points in good repair and condition. "At said points" to me includes both the places where the enlargement is performed and where the flume is placed.
The next provision adds further information on the intention of the parties:
"Said second party further agrees to maintain the bed andbanks of said canal at the place of said flume in as good condition as at present and in such condition that if said flumeshould break or be removed the waters of said canal would flowthrough said canal the same as at present, etc., * * *." (Italics added.)
Here, again, we have words which indicate an intention to require appellant to keep the canal in good condition. The language clearly indicates the parties considered a removal of the flume and in that event appellant agreed that *Page 417 if the flume should be removed it would maintain the banks and bed of the canal at the place of removal, in such condition that the waters would flow there the same as at the time the contract was executed.
If we approach the problem as I visualize the position of the parties in 1903, as indicated by the wording of the contract, the following situation develops. Appellant was desirous of obtaining additional water through the canal system owned by respondent. Respondent was not adverse to this, but was only willing to contribute to the additional upkeep, the amount it had been costing prior to the enlargement except for that portion of the ditch below the flume. For the lower portion, respondent agreed that after five years the cost of maintaining the lower portion would be determined by the proportionate part of the water received. Had the parties intended to have the same provision apply to that portion of the canal where the flume was constructed, there would have been no reason to limit the contribution to the lower part. Further, there would have been no reason to segregate the costs and expenses on the upper and lower parts of the canal. The parties had the foresight to include the lower portion of the canal in the provision that each party should share in the increased costs, but expressly excluded the upper or flume portion. It seems entirely proper to assume that when the parties included only the lower part of the canal when dealing with sharing the expenses on a proportionate basis, they intended to exclude the upper portion from the provision for such contribution.
Had they intended to apply a different rate while the flume was in place and after it was removed, it would have been very easy to have so declared. The language of the contract leads me to believe they intended to require a contribution on the lower part of the canal, but to fix $6.00 as the flat amount to be paid, regardless of the presence or absence of the flume.
McDONOUGH, C.J., concurs in the dissenting opinion of Mr. Justice LATIMER. *Page 418