Opinion by
Mr. Commissioner Slater.
The correctness of the findings of-fact and conclusions of law herein must be determined in the main by the proper legal construction to be placed upon the written contracts of the parties, namely, the contract of June 28, 1902, between defendant and O. A. Palmer for the sale of the timber, and that of July 10, 1902, between defendant and the Portland City & Oregon Railway Co. for a right of way through defendant’s premises.
The second and third findings of fact are unquestionably supported by the evidence. It would have relieved the case, however, of much confusion and perplexity, if the written contracts made by the parties had been inserted in full in the findings, leaving the legal effect thereof to be stated in the conclusions of *574law. As it is, there is much confusion of matters of fact with conclusions of law. Plaintiff contends that the court should have found that defendant, by his contract of June 28, 1902, gave to Palmer and his successor a'license to remove the'saw timber to the sawmill on “the land lying east of the center of the county road, and running about north and south through the N. £ of the N. E. \ of section 1, township 2 S., range 3 E.,” instead of finding, as it did in the third finding, “that said contract did not give a right to remove said timber in any particular direction nor to any particular place, or mention how or to what place the timber was to be removed.” And in connection therewith, plaintiff claims that conclusion of law No. 7 is erroneous. We shall consider them together.
1. It is- conceded, however, by plaintiff’s attorney in his brief that the contract mentioned does not in express terms grant a license to take the timber off in any particular direction or to any particular place, but he argues that the contract contains no restriction as to where or in what direction the timber is to be removed, and that the parties, by_ their acts subsequent to the making of the contract, fixed and located the place and direction of removing the timber. This is undoubtedly correct, and the court has 'by the third finding substantially found that there was no restriction as to where or in what direction the timber was' to be removed; and it also found in the eleventh finding that, when the railroad company began building its line across the said land of defendant, it found plaintiff in possession thereof, removing the timber and with skidroads across the proposed right of way. This latter finding, taken in connection with finding No. 3, concedes all that plaintiff can rightfully claim, and is sufficient for the purpose of establishing plaintiff’s right as claimed by it to exercise its license at and across defendant’s land where the right of way intersected its skidroads. It is not material to what point beyond the right of way plaintiff may have taken his logs. The place of exercising the license granted was not fixed by the contract, but was afterwards determined by the parties, and such location thereof became binding on them the same as if it had been fixed in the contract in the first in*575stance: Curtis v. La Grande Water Co. 20 Or. 34 (23 Pac. 808, 25 Pac. 378: 10 L. R. A. 484). From this it must necessarily follow that conclusion of law No. 7 is erroneous, and cannot be sustained, for the licensee had built its skidroads and was using them for the purpose expressed in the granted license without objection by the licensor. The right became vested at the point of user.
2. If this right was interfered with during the term of the license by the licensor, or by any one acting under his authority, it is no answer to an action therefor to say that there were other equally accessible directions and places open to plaintiff, over and to which the timber could have been removed, and that there was no damage to the plaintiff because the road was not left open in the direction complained of.
3. Plaintiff’s objections to the remaining findings, so far as they may be material to a decision of the case, are covered by the terms of the defendant’s so-called contract of July 10, 1902, with the Portland & Oregon Railway Co. This instrument is signed only by the defendant, with two witnesses, and is acknowledged in the same form as a deed. In effect, it purports on its face that, in consideration of $1 paid to him by the Portland City & Oregon Railway Co., and in consideration of the advantages of the location of its line through and upon his land, he agrees with the company at any time within 12 months from that date to execute a deed, the form of which is set out at length in the contract, containing a prospective grant of a right of way across defendant’s lands, in consideration of the location of a railway through and upon his lands and the advantages which may accrue' to him therefrom. But it is evident by the very words of the contract that none of "the terms of the proposed deed were intended to become effective, as granting any rights, until it had been executed. It is not a contract by the defendant saying to the' company that “when you locate and build the road on my land, and in consideration thereof, I will execute the following deed,” from which language an implied right of entry might be derived; but it is a contract that for the consideration of $1, and the advantage of the location of its line through and *576upon his property, the defendant agrees to execute a deed within 12 months, which, by its express terms, is to grant a right of way “with the unrestricted right and privilege to enter upon, locate and construct their railway,” etc. This expressly negatives any implied right in the company arising out of this contract to enter upon the land for the purpose of building a railroad prior to the execution of the deed. In this respect the sixth finding is more favorable to plaintiff than the facts justify; but, taken in connection with finding No. 12, the true legal effect of the contract in our judgment is correctly stated.
4. Nor does the record disclose that defendant at any time before June 28, 1903, the date of the expiration of the year in which plaintiff was to remove the timber therefrom, had made any contract or conveyance granting a right of way to any one over the lands in question, so that finding No. 5 must be in accord with the evidence. Plaintiff, however, contends that on December 30, 1902, it was granted by defendant an extension of time, amounting to one year, in which to take off the timber, and the record does contain a writing signed by defendant to that effect, but it is conditional, not absolute. The condition is “in case O. A. Palmer, keeps operating the mill at Boring Junction under his contract with F. S. Morris.” This is a condition precedent, and there is no evidence in the record that the condition was complied with so as to make the extension effective.
5. A more serious objection, however, to the consideration of this evidence is that plaintiff has alleged in the complaint that he was allowed one year only by the defendant by the contract of June 28, 1902, in which to remove the timber, and it does not plead any modification thereof, so that plaintiff is bound by it» pleading to the one year limitation alleged.
6. On July 11, 1903, defendant and his wife, for the expressed consideration of $1, quitclaimed unto the Oregon Water Power & Railway Co., successors to Portland City & Oregon Railway Co., a strip of land 100 feet wide, being 50 feet in width on each side and parallel with the center line of the main track of the railway, as the same was then established and constructed, upon, over and across defendant’s land, but the date of the ex-*577eeution of this instrument is after the expiration of plaintiffs contract, and when all of its rights thereunder had ceased to exist, and hence the execution thereof by defendant could not in any event have been a violation of his contract with plaintiff. The entry, therefore, in March, 1903, of the Oregon Water Power & Bailway Co. upon defendant’s land then in the possession of plaintiff under its license, as found by the court, and the building by the railroad company of the embankment complained of, was, as against plaintiff, an unauthorized trespass, for which defendant was not liable; but plaintiff is bound to protect its own rights, and neither party is liable for the infringement of the rights of the other by the acts of a trespasser: 18 Am. & Eng. Enc. Law (2 ed.), 1135.
These legal deductions having been correctly and substantially found and stated by the court in conclusions 1 to 6 inclusive, and disregarding the seventh, which is erroneous, and the eighth and ninth, which are immaterial, the findings are sufficient to support the judgment, which necessarily should be affirmed. Affirmed.