(dissenting) — Applying the same rules for interpretation cited by the majority, I come to a different conclusion.
The plaintiff does not seek recovery from this defendant because it allowed water to escape the banks of its canal. Plaintiff institutes this action alleging indemnity provisions of a 1913 permit entitle them to recover, or in the alterna*954tive, that they were damaged by an uncompensated constitutional taking or damaging.
In 1913 Yakima County, on behalf of a local, drainage district, obtained from the railroad a permit to place a drainage culvert beneath its existing tracks in several locations, one of which is involved in this action.2 The permit provides the.railroad may participate in the design, construction, operation and maintenance of the culvert and *955have final approval over all such work, at no expense to the railroad.
In 1961, the United States of America, Yakima County, and the Sunnyside Valley Irrigation District executed an agreement, to which plaintiff was not a party, which states:
5. (a) The County conveys and quitclaims to the United States the right to use for the purposes herein stated.
(b) The rights herein granted include but are not limited by the following enumeration:
(1) A permanent right to perform betterment and rehabilitation work . . .
Section 8 sets forth the agreement on behalf of the Sunny-side Valley Irrigation District:
perform all necessary operation and maintenance work . . . operate and maintain the drains in such condition as to provide at all times the designed capacity of such drain for seepage, waste and run-off waters from the lands within Drainage Improvement District No. 9, including waters that shall flow thereon from lands lying at a higher elevation.
(Italics ours.) By entering into this agreement, the district did not obligate itself, under the indemnity provisions of the 1913 permit, for any damage suffered by the railroad not proximately caused by their operation or maintenance work. If the failure of the culvert to handle the volume of water had been attributable to faulty maintenance, such as allowing brush and debris to block the culvert, the defendant perhaps would be liable. However, no such allegation is made. The only basis for recovery is that the culvert was inadequate in size to handle the volume of water on June 30, 1969. Had this volume of water been caused by a flash flood, the railroad’s position would be the same; but I would continue to contend that that is not the obligation which the defendant assumed. The volume of water on June 30, 1969, was not within the “designed capacity of such drain for seepage, waste and run-off waters . . .” as contemplated by the 1961 agreement.
*956Restatement of Contracts § 164 (1932)3 creates a presumptive interpretation that an assignee is presumed to have promised to perform the obligations and duties of the promissor “in the absence of circumstances showing a contrary intention.” The 1961 agreement, as between the signators, divides the rights, duties and obligations of Yakima County between the United States and this defendant. The United States was conveyed the county right to use the property and to perform betterment and rehabilitation work thereon. The defendant agreed only to perform maintenance and operation work. By so doing, defendant did not assume the entire obligatory provision of the permit, and in particular, the size and structure of the culvert itself in contemplation of the volume of water that appeared on June 30,1969.
Thus, we differ on an interpretation of the defendant’s obligations under the 1913 permit and the 1961 agreement. Cf. Chatham Pharmaceuticals, Inc. v. Angier Chem. Co., 347 Mass. 208, 196 N.E.2d 852 (1964); 4 A. Corbin, Contracts § 906 (1951); 3 S. Williston, Contracts § 418A (3d ed. W. Jaeger 1960).
I should further comment that plaintiff’s second claim, namely that of uncompensated condemnation, is not well taken. This incident did not result in permanent or irreparable harm, but was a temporary injury which was repairable and of necessity was repaired. Temporary interference with a private property right, which is not continuous nor likely to be reoccurring, does not constitute condemnation *957without compensation. Cf. Colella v. King County, 72 Wn.2d 386, 433 P.2d 154 (1967); Boitano v. Snohomish County, 11 Wn.2d 664, 120 P.2d 490 (1941); Wong Kee Jun v. Seattle, 143 Wash. 479, 255 P. 645, 52 A.L.R. 625 (1927).
I would affirm the judgment.
Petition for rehearing denied December 31, 1974.
Appealed to Supreme Court January 7, 1975.
The pertinent portions of the permit state:
“1. The second party [Yakima County] will pay all taxes and assessments that may be levied or assessed against the improvements.
“2. The entire cost shall be borne by the second party; the division superintendent of the Company will decide what portion if any of the work will be done by the Company, and for such portion the second party will pay the Company the estimated cost before the work is done; if the actual cost exceeds the estimate, the second party will pay the additional amount when called upon; if the actual cost is less than the estimate, the- Company will repay the surplus. All work hereunder by the second party shall be done in a first-class workmanlike manner to the satisfaction of the division superintendent of the Company, and in accordance with plans and specifications which he may prescribe or approve. The division superintendent of the Company shall have the right at any time when in his judgment it becomes necessary or advisable, to require any material used in the work to be replaced with the same or with material of a more permanent character; also to require additional work or changes of location as a matter of safety, or of appearance, or on account of additional tracks being laid, change of grade, or for any other reason connected with the operation of the railroad of the Company; all of which shall be done at the expense of the second party in the manner herein provided.
“3. The second party agrees that the improvements shall not' at any time damage the railroad or structures of the Company, or be a menace to the safety of its operations; and to indemnify and save harmless the Company from all loss and damage to its tracks, roadbed, structures, rolling stock and other property, and from injuries to persons, occasioned by the improvements.
“4. This .permit cannot be transferred or assigned by, the second party without the written consent of the Company.
“5. If the second party shall at any time cease to maintain and operate the said water pipe lines, or shall fail faithfully to perform every agreement of this instrument, the Company may forthwith terminate this permit and may forthwith expel - the second- party from its premises; and at the end of the permit the second party .will.restore the premises of the Company to their former state.”
“(1) Where a party to a bilateral contract which is at the time wholly or partially executory on both sides, purports to assign the whole contract, his action is interpreted, in the absence of circumstances showing a contrary intention, as an assignment of the assignor’s rights under the contract and a delegation of the performance of the assignor’s duties.
“(2) Acceptance by the assignee of such an assignment is intrepreted, in the absence of circumstances showing a contrary intention, as both an assent to become an assignee of the assignor’s rights and as a promise to the assignor to assume the performance of the assignor’s duties.”