Opinion by
We do not feel called upon to review specifically each of the thirty-nine assignments of error with which this case is burdened. It is enough to say, with respect to those which challenge the facts found by the learned judge, that upon a careful consideration of the evidence we see no ground for disturbing any of the findings. All have support in evidence that was clearly admissible; those least supported are inconsequential, while those material are amply sustained. We take the facts to be as found.
The plaintiff being the owner of a lot of ground contiguous to the defendant’s railroad, agreed with the president of the railroad company that he would construct and operate upon the lot of ground a sawmill, on condition that the company would for a consideration, of $50.00 convey to him a small adjoining lot, allow him to use still another lot for storing lumber, and would furnish him with siding conveniences for his use in shipping lumber. The contract was a verbal one, made in July, 1897. Every feature of it was complied with by the respective parties. The plaintiff built and operated his mill; the lot was conveyed to him by the company; and a disused siding was reconstructed for the purposes of the plaintiff’s business. Eor nine years after the making of the contract, the parties enjoyed the benefit and advantage that each had expected to derive from the transaction; the plaintiff had the advantage of the conveniences, and the defendant the benefit of the increased tonnage. In May, 1906, the defendant, against the protest and remonstrance of the plaintiff, removed the siding without attempting to substitute other facilities for it, thereby requiring the plaintiff in the conduct of his business to haul by teams his lumber to and from the point of shipment.
The conclusion of the learned trial judge on the question of ratification does not depend in the slightest degree upon the disputed findings of fact; nor does it rest upon any testimony which was admitted under objection. It is clear upon the undisputed facts of the case.
The effort to justify the removal of the switch on the ground that it was dangerous, followed no attempt on the part of defendant to furnish the plaintiff with another not open to such objection, as it had a right to do under its contract. The company could not take advantage of such circumstance to escape the burden of its contract, except as it discharged the alternative burden it originally assumed in such contingency for the protection of the other contracting party.
We see no merit in any of the assignments of error.
The appeal is dismissed at the cost of the appellant, and the decree is affirmed.