(dissenting.)* It seems to me that the majority opinion places a wrong construction on the contract. Under such construction we have these parties contracting to arbitrate, not only the damages that result from a carrying out of the contract, but — a thing almost inconceivable — w*e have them contracting to arbitrate damages that might result from a breach of the contract. Is it possible that parties would contract to arbitrate damages when the selfsame contract provides that, in case there *221arises a particular condition from -which damages might result, the condition itself should 'be so remedied that there be no damage? As 1 read this contract, plaintiff contracted to allow the city to extend its sewer pipes 8oo feet onto his quarter section of land and there discharge the sewerage. It is fair to assume that, at this point, the lay of the land w'as such as to afford an opportunity for discharging the sewerage onto the surface of the land. It is evident that both parties labored under the belief that the sewerage would probably then run off without any damage to the land — that there would not be sufficient of it to create a running stream across the land. Laboring under the above belief, they contracted: First, as to the consideration that should be paid plaintiff for those damages that must of necessity result, and for the easement; and, second, as to wha-t should be done to meet a contingency that might arise but which was not really expected — an amount of sewerage that flowing on the surface of the land, would work a permanent injury. Plaintiff, fearing that the anticipated damages might exceed $1,750, procured the insertion of the provision under which, if he desired, he could demand arbitration and procure a greater amount, if entitled thereto ; but clearly this was to cover no other damag'es, except those resulting from the fulfillment of the contract.
This arbitration could be demanded months before plaintiff could make any demand under paragraph 10, and -might be had months before either party could .know that conditions would ever arise calling for tiling under paragraph 10. On the other hand, suppose that, in July, 1910, plaintiff -discovered that there -was such a volume of sew'erage as to entitle him to have the city tile his land to take care of same. Hie could not demand damages on account thereof; neither, if an arbitration was then pending, could the arbitrators, when determining the elements of damages to be -by them considered, have included damag'es from this excess of sewerage, for the very obvious reason that the remedy was not to be a recovery of damages, but a removal of the cause thereof-;, and the city would have until November, 1910, before it was in duty bound to remove such cause.
At the timle this contract -was entered into, neither party could tell whether the further requirements of the city would increase the volume of the sewerage to such an extent as to re*222quire that the land be tiled. Paragraph io was inserted to meet this contingency, and provided a most reasonable and just w'ay of meeting same. The increased use of sewerage might, as it apparently did in this case, bring about a condition demanding tiling within five years. Such condition might have arisen as soon as the system was installed, or it might not arise for a long period of years; 'but the parties intended that when, if ever, it did arise, this condition should be remedied, not paid for. Such being the clear intent of the parties, it certainly wias never contemplated by them that the provision in relation to arbitration should apply to the situation provided against in paragraph io. This is made absolutely clear by the fact that, under the contract, the city could not have refused to put in the tiling, basing such refusal on the ground that the $1,750 paid by it fully compensated plaintiff for all damages — both those arising from the performance of the contract and those arising from an excessive flow of sewerage.
PO'LLEY, J. I concur in the views expressed in the dissenting opinion of Judge W'HilTING.