(dissenting). I am unable to concur in the result of the foregoing opinion. It will be observed that the railway company, by virtue of its deeds from Taylor and Ware obtained an absolute fee-simple title, by purchase, to the lands on which it constructed its line of road across the Taylor farms;, that by these purchases and deeds the railway company acquired' more than a mere right of way easement over the lands in question ; that the words “right of way” as mentioned and used in the-contract “Exhibit C.” was simply descriptive of the real estate: *542conveyed by the deeds and not descriptive of the title conveyed, otherwise there would be a direct conflict between the contract and deeds, and which as we view the matter must be construed in the light that will harmonize rather than conflict the provisions thereof. While I agree with the proposition that the contract, “Exhibit C,” is not merged into or superseded by the deed, but that the deed and contract are both binding component parts of an entire transaction'which should be construed together; still, I am of the view, under the evidence in this case, that plaintiff has failed to show facts sufficient to warrant a recovery of damages against defendant for a breach of his contract. It will be observed from the evidence that a great part of the irrigation ditch, as originally situated on the Taylor land, prior to the purchase and construction of its road by the railway company, was on the land so purchased by the defendant for railway purposes, and that part of the ditch became the absolute property of defendant, and that this right of way and the railroad tracks cross and re-cross this ditch some eight times within one-half mile distance, and at some places the track and right of way pass obliquely over and across this ditch. It will also be observed that this contract, “Exhibit C,” dees not provide that defendant will maintain the said irrigation ditch in the original condition it was in immediately prior to the construction of the railway, but does, provide that the company zvill so maintain said ditch as not to interfere zvith proper irrigation of said lands; in other words, the railroad company has not obligated itself, by the terms of this contract, to irrigate plaintiff’s farm for him, but only to leave said ditch in such condition that plaintiff may properly irrigate his own land, if he so desires. The plaintiff has been permitted to recover on the theory that the construction of the railroad interfered with the irrigation of plaintiff’s land from this ditch as it originally existed. This theory, I believe to be erroneous, as the company did not, by this contract, undertake to 'maintain this ditch in its original condition, but only undertook to maintain the ditch bo that it would not interfere with the proper irrigation of the ’ lands. There is no evidence' in this case of any kind tending to show that the construction of the railway in any manner interfered with the proper *543irrigation of the lands, if plaintiff had desired to so irrigate the ■same. There is no testimony that plaintiff ever attempted to irrigate the land after the construction of the railway. The evidence merely shows that after the construction of the railway the lands were not property irrigated by means of the ditch as it originally existed, and by reason thereof plaintiff had less crop .than before the construction of the railway. On the other hand, the testimony conclusively shows that defendant constructed a bridge across this ditch, at' the head thereof, thereby leaving the water at the head of this ditch undisturbed on both sides of the railway track so that it might be used for the purposes of proper irrigation. Further than this defendant was not required to do under the provisions of this contract. For these reasons the judgment of the circuit court should be -reversed.
SMITH, P. J., I concur in the foregoing opinion.