(dissenting).
Mrs. Burditt’s claim and suit are not covered by the indemnity agreement for at least two reasons: (1) The place of the accident on the described right of way was not a part of the leased premises; (2) the accident and the injuries resulting therefrom did not in any manner arise or grow out of the business conducted by Ryan on the leased premises, or the use or occupancy thereof by Ryan, or by other persons at Ryan’s instance or with Ryan’s consent or knowledge.
The indemnity clause with which we are here concerned is as follows:
“Ryan shall indemnify and save Great Northern harmless from any and all personal injuries, damages, claims, suits, costs, and recoveries of every name and nature which may in any manner arise or grow out of the business conducted by Ryan on the leased premises, or the use or occupancy thereof by Ryan, or by other persons at Ryan’s instance or with Ryan’s consent or knowledge during the term of this lease, whether due or not due to the negligence of Great Northern, its contractors, officers, agents, and employees; and in the event any suit or action shall be brought against Great Northern to recover on account of such loss, damage, injury, or destruction herein-before agreed to be borne by Ryan, Ryan shall appear and defend any such suit or action and pay any judgment that may be obtained against Great Northern.”
Both the lower Court and the majority of this Court rely as a basic reason for their conclusions that the right of way granted by Great Northern to Ryan is a part of the leased premises on the fact that the right of way was described in the lease under the heading “Premises”
Judge Jameson, in his opinion, R. 61, 62, 186 F.Supp. 660, 663, on this subject, stated:
“[1] Is the right of way a part of the ‘leased premises’ ? This question must be answered in the affirmative. The section of the instrument denominated ‘2. Lease’ has sixteen subsection, from A to P inclusive. Subsection A is entitled ‘Premises’. This in turn has three subparagraphs, the first leasing an area bounded in red on an exhibit attached to the lease, ‘together with all buildings and improvements’, and the second granting a right of way for use ‘in common with Great Northern’ for ‘ingress and egress’ along a route bounded in green, and providing that Great Northern should have the right to substitute other land for the right of way and should maintain the right of way at its own expense.
“The right of way is included under A as a part of the ‘premises’. There is no contention that the right of way is a public highway. Ryan, and those doing business with Ryan, are entitled to use the right of way in common with Great Northern solely by reason of the grant contained in paragraph 2(A) (2). This grant of an easement was an integral and necessary part of the lease agreement if Ryan were to enjoy the use and occupancy of the land and improvements described in paragraph 2(A) (1). Moreover, unless the parties intended the right of way to be a part of the leased premises, there would be no reason for includ*637ing the portion of the agreement granting the right of way under the heading ‘A Premises.’ ”
The majority say:
“The right of way is given to Ryan in paragraph 2(A) (2) of the lease under the general heading ‘(A) Premises’, and the use granted is described as ‘equivalent in use to the rights enjoyed by the public in the use of public highways, for ingress to and egress from Ryan Tract.’ Ryan and those having business with Ryan are permitted to use the right of way in order that Ryan may occupy and use the land and buildings described in paragraph 2(A) (1) of the lease. The right of way is a necessary and integral part of the agreement of the parties and is described in the agreement under the heading ‘Premises’. We think * * there is no merit in appellant’s contention that it is not part of the ‘leased premises,’ for it appears from the instrument that the intention of the parties was to include the right of way within the term ‘leased premises.’ ”
The reliance upon the circumstances that the right of way is described under the title “Premises” disregards or minimizes other equally important provisions of the lease. Note the language of Paragraph 2(A) (1) of the lease:
“Great Northern leases, lets, and demises to Ryan those certain premises situated in * * *, located and bounded as indicated by a red line on Exhibit ‘A’ attached hereto and made a part hereof, together with all buildings and improvements, specifically including a building labeled machine shop, situated thereon, which for ease of reference is herein designated Ryan Tract.” (Emphasis supplied.)
And consider and compare the same with the language of Paragraphs 2(A) (2) and 2(A) (3), both likewise under the heading “Premises”.
Paragraph 2(A) (2) provides:
“Great Northern grants to Ryan for the term of this lease and any extensions thereof the right to use, in common with Great Northern, a right of way not less than twenty (20) feet wide and equivalent in use to the rights enjoyed by the public in the use of public highways, for ingress to and egress from Ryan Tract by any and all means of locomotion or conveyance along the route located and bounded by green lines on Exhibit ‘A’; provided, however, that during the term hereof Great Northern may substitute for such right of way any other right of way of equal width, with comparable surface conditions and equal scope and convenience of use. Great Northern shall maintain the right of way according to the present standard of maintenance at its sole cost and expense.”
The land leased was designated as Ryan Tract. The right of way, indicated by green lines on Exhibit A, was not part of the Ryan Tract.
Paragraph 2(A) (3) provides:
“Great Northern grants to Ryan, during the term of this lease and any extensions thereof, an irrevocable license and permission to use the adjoining premises of the Great Northern as required to maintain and repair the building, the use to be made of said adjoining premises by Ryan to be subject to the approval of Great Northern’s superintendent in respect to ensuring the safety and continuity of railroad operations.”
A contention that the land, the adjoining premises of Great Northern, the subject matter of “an irrevocable license- and permission to use,” described in Paragraph 2(A) (3), is a part of the-leased premises because of the fact that 2(A) (3) is set forth in the lease under the heading “Premises” would obviously be without merit. If the said land mentioned in 2(A) (3) is not a part of the *638leased premises, a contention that the right of way is a part of the leased premises because of the mere fact that it is described under the heading “Premises” would be unreasonable and inconsistent.
It seems apparent that the right of way was not intended to be anything except just that — a right of way. The instrument or lease does not afford to Ryan any use of the right of way other than the right of ingress and egress and the grant of right of way was not exclusive but was in common with Great Northern, But the use and possession of the land leased was exclusive to Ryan as indicated by Paragraph 2(P):
“(P) Possession-
Sole and exclusive possession of the leased premises shall be delivered to Ryan upon the execution of this instrument, and Great Northern , „ , „ ’ _ . ■shall at all times during the term , - 6 X1 , hereof protect and assure the exclusive possession of said premises by yan'
Sole and exclusive possession of the right of way was not granted to Ryan. No expression is contained in the lease to the effect that the right of way is a part of the leased premises. The unsupported inference that the right of way was included in the leased premises disappears when considered with the above referred to and other provisions of the lease.
The term “right of way” is defined as meaning a right of passage over another person’s land, and it has been said that this definition has been so universally incorporated into innumerable decisions that it may be said to be generally accepted. 77 C.J.S. 393; and see Almada v. Superior Court, Cal.App., 149 P.2d 61, 64, where it is stated:
“Webster’s New International Dictionary defines a right of way as 'a right of passage over another person’s land.’ And this definition has been so universally incorporated into innumerable decisions that it may be said to be generally accepted. Sometimes it is a right of way for a road, sometimes for a ditch, sometimes for a canal, but whatever the particular right of way may be for, it is a right of passage over another person’s land, or, in other words, an easement to use the land of another ^or suck particular purpose,
The fact that the easement was necessary to the enjoyment by Ryan of the use and occupancy of the land leased seems to be considered by the lower Court and the majority here as a circumstance or reason for their determination that the right of way was a part of the leased premises. That fact does not make the right of way a part of the leased premises. ^ that were so> then in every in" stance where a right of way is granted giving ingresg and egregg to Ieaged prem_ iseS) the rigM of way would be a part of the leased premises.
mt. A u , . +. , That it was not the intention of Great ,T ,, ,, , , _ Northern or the understanding of Ryan ^ ^ ri M of way was to be included ag ^ of the leaged premises ia indicated by Paragraph No. 1, “Recitals of Fact” 0f the lease:
«2. Recitals of Fact:
“(A) Great Northern owns a buiiding situated upon land owned by * * * Tbe buüding a for- ' mer machine shop, is no longer desired for use by Great Northern but after extensive remodeling can be adapted to other business purposes, Ryan is currently engaged in the wholesale distribution of food products and, under its articles of incorporation and bylaws, is at liberty to engage in many broad business pursuits and accordingly believes that after remodeling to suit its purposes, it can utilize said building. Ryan desires, therefore, to lease that land owned by Great Northern and outlined in red upon Exhibit ‘A,’ attached hereto and made a part hereof, and the machine shop situated thereon> * 4 "•
From the foregoing it is apparent that the place of the accident on the described right of way was not a part of the leased premises.
*639The second reason why the indemnity clause does not apply here: The accident and the injuries resulting therefrom did not in any manner arise or grow out of the business conducted by Ryan on the leased premises, or the use or occupancy thereof by Ryan, or by other persons at Ryan’s instance or with Ryan’s consent or knowledge.
Judge Parker, in his dissenting opinion, in Cacey v. Virginian Ry. Co., 4 Cir., 85 F.2d 976, in considering an indemnity clause “against claims arising ‘by reason [of] or in consequence of the occupancy or use’ of the premises leased,” construed language similar in effect to that used in this lease. There he stated, on page 979:
“Sometime after the defendants had purchased the property in the neighborhood of the steps, they were approached by an agent of the railway company and told that, if the steps were to remain, it would be necessary for the defendants to secure an encroachment lease for the property affected, just as they had done with respect to a water pipe which they had laid under the railway company’s tracks. Nothing was said as to indemnifying the company against liability for crossing accidents due to the negligent operation of its trains; and the lease as executed contains no express provision to that effect, but merely a general provision to indemnify against claims arising ‘by reason or in consequence of the occupancy or use’ of the premises leased. The lease, which was an ordinary form of encroachment lease, embraced merely the land covered by the steps; the description of’ the premises leased being as follows, viz.: * * *
“Paragraph 1 of the covenants contained in the lease is that the land leased is to be used as a ‘location for steps.’ Paragraph 6, which is the one here material, is as follows : ‘The party of the second part agrees to indemnify The Virginian Railway Company and save it harmless from any and all claims and costs that may arise or be made, for injury, death, loss or damage resulting to the Railway Company’s employees or property, or to other persons or their property, including the lessee, or the occupants of said premises, by reason or in consequence of the occupancy or the use of the said premises, or the use of the property of the Railway Company adjacent thereto.’ * * *
“Okley Stike was injured while crossing the railway tracks at this crossing, as a result of the negligence of the railway company in the operation of one of its trains, and recovered a verdict and judgment in the sum of $10,000 on account of this negligence; but the claim upon which the verdict and judgment were obtained was clearly not one arising ‘by reason or in consequence of the occupancy or the use’ of the steps, or of the crossing to which they led, but one arising ‘by reason and in consequence of’ the negligence of the railway company in the operation of its train. Where one properly using a crossing is injured as a result of such negligence, it is not the use of the crossing but the negligence which causes the injury; and the claim thereupon arising cannot properly be said to arise ‘by reason or in consequence’ of the use of the crossing, for these terms import a causal relationship. The use of the crossing no more establishes such causal relationship, even though the injury would not have occurred but for such use, than the use of a street could be said to be the cause of an injury caused by a falling sign, merely because the person injured would not have been struck by the sign if he had not been using the street. The distinction between the cause of an injury and a mere condition without which it would not have occurred is well recognized in the law. For the distinction between the two, see 11 C.J. 37, note b; [and cases cited in the opinion]. And a *640contract indemnifying against claims arising by reason or in consequence of the use of property ought not to be construed to cover a case where the use of the property was not the cause of the arising of the claim but merely furnished a situation in which the negligence of another gave rise to the claim. If it had been intended to indemnify against liability for claims arising out of injuries occurring at the crossing, there would have been no trouble in so providing by appropriate language.”
Applying the rule of law enunciated by Judge Parker to the admitted facts of this case, it is evident that the accident and resulting injuries to Mrs. Burditt did not in any manner arise or grow out of the business conducted by Ryan on the leased premises, or arise or grow out of the use or occupancy thereof by Ryan, or by other persons at Ryan’s instance or with Ryan’s consent or knowledge during the term of this lease, whether due to the negligence of Great Northern, its contractors, officers, agents and employees.
The judgment of the lower Court is erroneous for the reason that the accident did not occur on the leased premises and also for the reason that the accident and the injuries resulting therefrom did not’in any manner arise or grow out of the Ryan business.
The District Court does not assume nor could it be successfully contended that the indemnity provision here under consideration would apply to an accident occurring on the right of way and caused by the negligence of Great Northern in its movement of a train or car operated solely in the interest of its business as a common carrier, or otherwise, and not in any manner engaged in or connected with Ryan’s business. The instrument itself indicates that such was not the intent of the parties.
Great Northern retained and enjoyed the right to use the right of way in pursuance of its own business as a common carrier, or otherwise, to the exclusion of Ryan’s business. There is nothing in this record to show that Great Northern’s train or car was being operated in furtherance of the business carried on by Ryan or whether it was, at the time of the accident, engaged in its own business or in the business of others.
The indemnity clause contains no language imposing liability upon Ryan for negligent acts of Great Northern over which it had no control in an operation of Great Northern’s business as a common carrier, or otherwise, exclusive of any connection with Ryan or Ryan’s business. Such a liability cannot be read into the contract. The liability of the indemnitor Ryan cannot be extended by construction or implication beyond the terms of the contract. And furthermore, if such an intention had been expressed, grave doubts would exist as to its legality.
In his opinion, R. 68, 186 F.Supp. 660, 665, the District Judge said:
“The rule here applicable was well stated in 6 Corbin on Contracts 864, § 1471 as follows: ‘A railroad or other carrier may lawfully contract with one permitted to use a spur track or to occupy part of the right of way that the latter shall not only exempt the former from liability for negligent harm but also that the latter shall indemnify the former against liability for harm to third persons arising out of such use, even though the harm was caused by negligence of servants of the former. This Assumes That The Promisee’s Negligence Was Not In Performance Of Its Duties As A Common Carrier.’ ” (Emphasis supplied.)
Corbin cites Cacey v. Virginian Ry. Co., 4 Cir., 85 F.2d 976, 978. The majority there stated :
“[2] It has been repeatedly held that a railway company not acting as a common carrier may exempt itself, by contract, from liability for negligence. National Transit Co. v. Davis, Director General of Railroads (C.C.A.) 6 F.(2d) 729; Sunlight *641Carbon Co. v. St. Louis & S. F. R. Co. (C.C.A.) 15 F.(2d) 802; Hartford Fire Insurance Co. v. Chicago, M. & St. P. R. Co., 175 U.S. 91, 20 S.Ct. 33, 44 L.Ed. 84; Santa Fe, P. & P. R. Co. v. Grant Brothers Construction Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787.”
A correct adjudication of this case requires a determination of the issue: Was Great Northern, in the operation of its equipment at the time of the accident, engaged as a common carrier, or otherwise, in its own business to the exclusion of any connection with Ryan’s business? An affirmative answer to this question would entitle plaintiff to judgment in its favor. Thus, we have a genuine issue as to a material fact, the existence of which precludes the entry of summary judgment.
The judgment of the lower Court should be reversed.