dissenting.
I cannot agree there has been a change in the “bases” referred to in the contract dated December 14, 1934 between the Appellant Charles F. Ball, Jr., and Ditchley, Incorporated.
The Appellees contend that the “bases” have changed in that water is to be supplied from a new well and the water system is to be operated by a non-profit organization, with connection and service charges to the users. The Appellant Ball contends that the “bases” are the same now as when the contract was entered into: water is still to be transmitted through a pipe across his property. He claims the right to free water so long as the pipe crosses his property or, rather, the right to tap the pipe on his property and draw free water for his use so long as the water is available from this tapping. In other words, the Appellant Ball says that free water is the price stipulated in the contract for continued use of his land for the transmission of water; that his right to free water can be eliminated by the relocation of the line so that the water no longer passes through his land.
To resolve the question we must, of course, consider first the language of the contract; moreover, in my opinion, we should stop there unless the words are ambiguous. The entire contract, except for the signatures, reads:
“It is hereby understood and agreed that DITCHLEY, INCORPORATED will install a tap connection, size one-half inch, together with a valve box in their water main which crosses the property of C. F. Ball, Jr., location of same to be designated by said property owner. It is further agreed that the said C. F. Ball, Jr. may at any time connect to said water main; that he may use water from the aforementioned main without any charge so long as he does not abuse the service.
“It is further understood and mutually agreed that the clause in the contract referring to no charge for water will exist as long as this system is operated on these basis.
*95“DITCHLEY, INCORPORATED reserves the right to make semi-annual inspection of any and all plumbing connected and operated from their water mains.” [The last two words of the second paragraph were quoted in the opinion of the trial judge as “these bases”. Although I believe it more probable that “this basis” was intended, it will be assumed the words should read “these bases”.]
The bases referred to in the contract are “these” bases; by the terms of the contract, Ball is to have free water so long as the system is operated on “these” bases. The word “these” by definition means something that has been referred to. And I should think it obvious that a writer who uses “these” intends to refer to something he has already said in that writing, be it an editorial, treatise or other form, including a legal document. If that be so, what has been referred to, before “these bases”, in the Ball contract? The only previous reference in the contract is to the agreement that Ditchley, Incorporated would install a connection to its water line that was to cross the property of Charles F. Ball, Jr., and that Ball could use the water from this main, without any charge for the water so long as Ball did not abuse the service. Quite significant is what the preceding description of “these bases” does not refer to. It does not refer to a well or the source of the water, nor does it refer to the maintenance or operation of the water system or the charges to be made to other users of the water. Yet, these are the only changed bases disclosed by the evidence, and Ball’s contract is now being avoided because of circumstances not mentioned or referred to in the writing.* In my opinion it should not be so avoided. I find the language of the contract unambiguous, and that the bases referred to in the contract, the transmission of water across Ball’s property, have not changed.
Next, on the question whether the Ball contract can be enforced according to its terms, despite the contemporaneous grant of an easement to Ditchley, Incorporated for the stated consideration of $1.00 paid to Ball: I believe that Sale v. Figg, 164 Va. 402, 180 S.E. 173, cited in the majority opinion, is ample authority for the proposition that the collateral undertakings set forth in the Ball contract were not merged into the grant of easement, and that these undertakings are enforceable. Moreover, in my opinion, the Ball contract does not alter or contradict the legal effect of the grant of easement, anymore *96than a purchase money deed of trust should be held to alter or contradict a conveyance in fee simple, absolute on its face.
My views would necessitate a reversal of the decree as to Charles F. Ball, Jr. and wife. The majority did not reach the point whether oral agreements between Ditchley, Incorporated and other Appellants-landowners were sufficiently proved or enforceable, and I believe no purpose would be served by a discussion of that question here.
True, the contract does refer to Ditchley, Incorporated, which no longer owns the system. But Appellees’ counsel properly conceded at oral argument that a change of ownership was insufficient to avoid Ball’s rights.