I concur in the reversal and rendition of the judgment in the court below. I concur in the opinion of Justice THOMAS, in so far as it holds the contract in question was at an end, and all agreements and covenants therein terminated, before this suit was brought.
I do not concur in other parts of the opinion, as to whether or not the covenants created by the contract ran with, or did not run with, the land. I do not desire to commit myself on this question, because I do not believe it necessary to now decide it. I am of the opinion that question was not before the lower court, and therefore not before this court.
As I interpret the contract, it fixed its own duration at one year, and by express terms provided the only mode by which it could be renewed, and the record shows it was never so renewed. The mere fact that the railroad track was continued to be used by some or all of the parties after the expiration of the life of the contract, without a renewal thereof in the mode provided by the contract, does not serve to keep in force all the covenants and agreements created by the contract. This contract is not one to which we should apply the doctrine or rules of law which presume a tenancy at will, or for years, or by the month, from the mere fact of holding over after the expiration of the time specified.
This contract should be construed as when it was made, and not as to conditions which may exist six or seven years thereafter. To construe it differently from what I construe it would have the effect of giving the railroad company, and the successors in title to some of the land, a perpetual easement and right of way over the lands of other parties to the contract, or an easement wholly at the will of the railroad company and its successors in rights. Surely the parties to this contract never contemplated or intended such a result. To hold them to such a result, the language used in the contract, and their acts under it, ought to be clear, certain, and unambiguous to that end.
It is very true that the parties are all sui juris, and are therefore bound by their contract; and if they have made for themselves a hard one, they should be required to live up to it. But to hold parties to a contract, almost, if not quite, unconscionable, the language used, and acts done under and in connection with it, must be clear and definite, and not uncertain. If susceptible of two constructions, one of which will prevent such ruinous results to the parties, that construction should be adopted rather than the one which would award "the pound of flesh."
There is certainly no express language in this contract that it should exist six or seven years, or be in perpetuity, or at the will of one party only, or that it, with all its covenants and agreements, could be renewed and extended, by one or several of the parties, by merely refusing to terminate at the end of the time prescribed by the contract. No such language is to be found in the contract, nor do the acts of the parties under it necessarily require us to so imply or conclude from all the facts in the case; to the contrary, the contract is in writing, and is voluminous, and goes into details. It contains express provisions as to the life of the contract, which is fixed at one year. It has also express provisions as to how and when it can be renewed. There is absolutely no evidence that the contract was ever renewed in this mode or manner, at the time specified, or at any other time. The whole effect of the evidence on this subject is that, the railroad company, and some of the parties to the contract, continued to use the track after the expiration of the year, and no steps were taken to oust the railroad or some of the parties from its use for several years after the expiration of the time specified.
This, in my judgment, did not suffice to continue the contract in full force and effect, as if it had no time limit and if it did not provide in terms when and how it could be renewed. *Page 593
The provisions of the contract, at or near the end of the thirteenth paragraph, as to the mode and manner of terminating it, can have no application now, for the manifest reason those provisions of necessity refer to a time when the contract was in force. The life of the contract was only one year from the making of it. The mode provided for renewing it only authorized its renewal for another term of one year. As before stated, there never was a renewal; but if there had been, or if one be inferred or implied, it would be for a year only. Hence, the provisions as for the termination necessarily refer to the time when the contract was in force. A fair construction of the contract leads to the conclusion that its entire life could not by any means be longer than two years from its date. Of course, the parties to this contract could, by the consent of all the parties, have abandoned it, and have made a new one, or modified the original; but there is no evidence that they ever did or attempted so to do, either in writing or by parol. The mere fact that the track was used by some or all of the parties after the life of the contract did not revive the contract with all its provisions, and make it one in perpetuity, or at the will of one party only.
It results that the contract in question afforded no defense to this action of ejectment, because it had expired by virtue of its own limitations, long before the action was brought. If the defendant has any rights in and to the premises, they arise from some other source, and not from this contract. As this contract was the only source relied upon by defendants to show title or right to occupy the premises, it follows that it had none, and the judgment should have been rendered for the plaintiff.
ANDERSON, C. J., and McCLELLAN, J., concur.