Cook, J.,
delivered the opinion of the court.
In July, 1902, appellant made a contract with appellee, in writing, which contract is in the following words, viz.:
"This agreement made and entered into this tenth day of July, A. D. 1902, by and between the Yazoo & Mississippi Yalley Railroad Company, party of the first part, and W. K. Herrin, of Robinsonville, Mississippi, party of the second part, witnesseth: That the party of the first part hereby grant unto the party of the second part license and permission to place a railroad track scale in the track of the party of the first part at Rob-insonville, Miss., under and subject to the following conditions and stipulations:
"1. The said track scale shall be constructed. at the sole expense of the party of the second part and under the supervision of the roadmaster of the party of the first part and to his satisfaction and at such place as he may direct, and at such time and in such manner as not to interfere with the operation of the railroad of the party of the first part.
[870]*870“2. The party of tlie second part hereby agree to permit the party of the- first part to use the said scale, free of charge, whenever it may desire..
“3. The party of the second part hereby agree to indemnify the party'of the first part for any expense or damage it may incur or suffer, caused by the construction, use or maintenance of the said scale.
“4. The party of the second part hereby agree to take up and remove the said scale within thirty (30) days after being notified in writing by the party of the first part to do so, and if the party of the second part shall fail to comply with such request, the party of the first part shall have the right to take up and remove the said scale at the risk and expense of the party of the second part.
“5. This agreement shall be binding on the heirs, executors, administrators and assigns of the party of the second part.
“In testimony whereof, the parties hereto have caused these present to be executed in duplicate the day and year first above written. The Yazoo & Mississippi Valley R. R. Co., by J. T. Harahan, Second Vice President. W. K. Herrin. Form Approved B. L.”
Shortly after the execution of this contract, in February, 1903, Mr. Herrin installed a railroad track scale on the track of the appellant railroad company. The scale was installed under the supervision óf the appellant, and the cost of its emplacement amounted to- one thousand, nine hundred and ninety-five dollars and thirty-five cents. The scales were thereafter used by the firm of Herrin Bros., of which firm appellee was the senior member. The business of Herrin Bros, was located at Rob-insonville, in Tunica county, but W. K. Herrin, appellee here and plaintiff below, resided at Clarksdale, in Coaho-ma county. It seems, that after the scales had been erected, Mr. Herrin, for a valuable consideration, assigned to Abbey & Leatherman, planters and merchants, located at Commerce, a few miles from Robinsonville, a [871]*871half interest in the scales. It appears that some time in September or October, 1909, the railroad company decided to remove the scales, and after making some effort to inform Abbey & Leatherman of their purpose, without results, the employees of the railroad removed the scales, over the protest of Mr. Herrin’s representative. Mr. Herrin had no personal knowledge of the removal of the scales until after they were removed, or while the removal was going on. This suit was instituted by Mr. Herrin to recover damages for the removal of the scales. We judge from the averments of the declaration and the briefs of counsel that the plaintiff proceeded upon the theory that the railroad company, “willfully, maliciously, knowingly, intentionally, and with the purpose to oppress and injure the plaintiff and the said uses, with force and arms entered upon the said railroad track scale aforesaid, belonging to said plaintiff aforesaid, . . and then and there undermined, uprooted, broke to pieces and otherwise destroyed and damaged and converted and disposed of to its own use the said scales,” etc.
We gather from the evidence that for some months prior to the removal of the scales the scales had not been used by Mr. Herrin to any considerable extent — only a few times at best, either because of a wreck, or derailment, near or on the scales, switching charges; or lack of occasion for using the scales. The precise reason is not clear. Appellee was advised that the appellant was removing the scales from its right of way, and filed a bill in the chancery court, praying for an injunction restraining appellant from removing the scales, but the work was completed before the injunction was served; therefore this suit.
Appellee refused to take possesion of the scales and the material used in its emplacement, but it seems that later a formal tender was made and refused.
To get the right start, it is necessary to'understand the contract under which Mr. Herrin installed the scales [872]*872on the right of way of the railroad company, a public service corporation. It will be noted that the language employed in the granting clause of the contract defines the thing granted, viz.:
“License and permission to place a railroad track scale in the track of the party of the first part at Robin-sonville. ’ ’
After this follows the conditions imposed upon the grantee in consideration of this “license and permission.” The conditions in the first paragraph are that the scale shall be constructed under the supervision of representatives of the grantor and at the sole expense of the grantee. Furthermore, the scales were to be constructed at the time and at the place and in such manner as the grantor deemed best for the free exercise of the grantor’s business as a common carrier. Again, the railroad reserved the right to use the scales, free of charge, whenever it desired to do so. Again, the grantee agreed to indemnify the grantor from any expense or damage it might incur or suffer from the construction, use, or maintenance of the scales. Again, the grantee agreed to take up and remove the scale whenever notified; and within thirty days, at his own expense, and, failing to do so, the grantor reserved the right to remove the scale at the expense of the grantee. Lastly, it is provided that the agreement shall be binding on the heirs, executors, administrators, and assigns of the grantee, Mr. Herrin. There is a notable absence of any covenants on the part of the grantor, after granting Mr. Herrin the privilege to construct at his own expense and according to the directions of.the railroad company, a track scale. There is not a word in the entire contract fixing the time when the license shall begin or terminate, but Mr. Herrin is required to remove the scales • within thirty days after notice to do so — and if he fails to do so, the railroad company expressly reserved the right to remove the scales at Mr. Herrin’s expense and risk.
[873]*873In this case, it appears that the company did not give Mr. Herrin any notice to remove the scales, but undertook the job itself. Not having given the notice, the expense of removing the scales must be borne by the company. We can see nothing in the contract requiring thirty days’ notice of the termination of the contract.
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Cook, J.,
delivered the opinion of the court.
In July, 1902, appellant made a contract with appellee, in writing, which contract is in the following words, viz.:
"This agreement made and entered into this tenth day of July, A. D. 1902, by and between the Yazoo & Mississippi Yalley Railroad Company, party of the first part, and W. K. Herrin, of Robinsonville, Mississippi, party of the second part, witnesseth: That the party of the first part hereby grant unto the party of the second part license and permission to place a railroad track scale in the track of the party of the first part at Rob-insonville, Miss., under and subject to the following conditions and stipulations:
"1. The said track scale shall be constructed. at the sole expense of the party of the second part and under the supervision of the roadmaster of the party of the first part and to his satisfaction and at such place as he may direct, and at such time and in such manner as not to interfere with the operation of the railroad of the party of the first part.
[870]*870“2. The party of tlie second part hereby agree to permit the party of the- first part to use the said scale, free of charge, whenever it may desire..
“3. The party of the second part hereby agree to indemnify the party'of the first part for any expense or damage it may incur or suffer, caused by the construction, use or maintenance of the said scale.
“4. The party of the second part hereby agree to take up and remove the said scale within thirty (30) days after being notified in writing by the party of the first part to do so, and if the party of the second part shall fail to comply with such request, the party of the first part shall have the right to take up and remove the said scale at the risk and expense of the party of the second part.
“5. This agreement shall be binding on the heirs, executors, administrators and assigns of the party of the second part.
“In testimony whereof, the parties hereto have caused these present to be executed in duplicate the day and year first above written. The Yazoo & Mississippi Valley R. R. Co., by J. T. Harahan, Second Vice President. W. K. Herrin. Form Approved B. L.”
Shortly after the execution of this contract, in February, 1903, Mr. Herrin installed a railroad track scale on the track of the appellant railroad company. The scale was installed under the supervision óf the appellant, and the cost of its emplacement amounted to- one thousand, nine hundred and ninety-five dollars and thirty-five cents. The scales were thereafter used by the firm of Herrin Bros., of which firm appellee was the senior member. The business of Herrin Bros, was located at Rob-insonville, in Tunica county, but W. K. Herrin, appellee here and plaintiff below, resided at Clarksdale, in Coaho-ma county. It seems, that after the scales had been erected, Mr. Herrin, for a valuable consideration, assigned to Abbey & Leatherman, planters and merchants, located at Commerce, a few miles from Robinsonville, a [871]*871half interest in the scales. It appears that some time in September or October, 1909, the railroad company decided to remove the scales, and after making some effort to inform Abbey & Leatherman of their purpose, without results, the employees of the railroad removed the scales, over the protest of Mr. Herrin’s representative. Mr. Herrin had no personal knowledge of the removal of the scales until after they were removed, or while the removal was going on. This suit was instituted by Mr. Herrin to recover damages for the removal of the scales. We judge from the averments of the declaration and the briefs of counsel that the plaintiff proceeded upon the theory that the railroad company, “willfully, maliciously, knowingly, intentionally, and with the purpose to oppress and injure the plaintiff and the said uses, with force and arms entered upon the said railroad track scale aforesaid, belonging to said plaintiff aforesaid, . . and then and there undermined, uprooted, broke to pieces and otherwise destroyed and damaged and converted and disposed of to its own use the said scales,” etc.
We gather from the evidence that for some months prior to the removal of the scales the scales had not been used by Mr. Herrin to any considerable extent — only a few times at best, either because of a wreck, or derailment, near or on the scales, switching charges; or lack of occasion for using the scales. The precise reason is not clear. Appellee was advised that the appellant was removing the scales from its right of way, and filed a bill in the chancery court, praying for an injunction restraining appellant from removing the scales, but the work was completed before the injunction was served; therefore this suit.
Appellee refused to take possesion of the scales and the material used in its emplacement, but it seems that later a formal tender was made and refused.
To get the right start, it is necessary to'understand the contract under which Mr. Herrin installed the scales [872]*872on the right of way of the railroad company, a public service corporation. It will be noted that the language employed in the granting clause of the contract defines the thing granted, viz.:
“License and permission to place a railroad track scale in the track of the party of the first part at Robin-sonville. ’ ’
After this follows the conditions imposed upon the grantee in consideration of this “license and permission.” The conditions in the first paragraph are that the scale shall be constructed under the supervision of representatives of the grantor and at the sole expense of the grantee. Furthermore, the scales were to be constructed at the time and at the place and in such manner as the grantor deemed best for the free exercise of the grantor’s business as a common carrier. Again, the railroad reserved the right to use the scales, free of charge, whenever it desired to do so. Again, the grantee agreed to indemnify the grantor from any expense or damage it might incur or suffer from the construction, use, or maintenance of the scales. Again, the grantee agreed to take up and remove the scale whenever notified; and within thirty days, at his own expense, and, failing to do so, the grantor reserved the right to remove the scale at the expense of the grantee. Lastly, it is provided that the agreement shall be binding on the heirs, executors, administrators, and assigns of the grantee, Mr. Herrin. There is a notable absence of any covenants on the part of the grantor, after granting Mr. Herrin the privilege to construct at his own expense and according to the directions of.the railroad company, a track scale. There is not a word in the entire contract fixing the time when the license shall begin or terminate, but Mr. Herrin is required to remove the scales • within thirty days after notice to do so — and if he fails to do so, the railroad company expressly reserved the right to remove the scales at Mr. Herrin’s expense and risk.
[873]*873In this case, it appears that the company did not give Mr. Herrin any notice to remove the scales, but undertook the job itself. Not having given the notice, the expense of removing the scales must be borne by the company. We can see nothing in the contract requiring thirty days’ notice of the termination of the contract. By its failure to give the notice the expense and risk of the removal was assumed by the company; and, if there was a tortious destruction or injury to the property, that would be a conversion, but detruction or loss will not be regarded as tortious if it was necessary to the protection of the property of the company, or to the safe operation of the road. 38 Cyc., 2017.
Mr. Herrin proceeded upon the idea that the contract conveyed to him at least a thirty days’ term; that the company obliged itself to give him thirty days’ notice; that he had the right to use the scales for thirty days after notice. If this view of the contract is correct, no matter what may have been the exigencies, the railroad company would be gnilty of conversion if it removed the scales without giving the notice.
It seems to us that in interpreting this contract, we must necessarily take into consideration the fact that one of the parties to same was a public service corporation, controlled by duties and obligations which it owed to the entire public. When we do this, we can understand why'the contract was a one-sided contract — why all of the conditions were imposed upon Mr. Herrin and none on the common carrier.
Inasmuch as this case was conducted upon the mistaken theory that Mr. Herrin had a term of at least thirty days, and when the railroad company removed his scales without notifying him, they thereby converted his property, there was no serious effort to prove that the property was destroyed or seriously damaged. Mr. Her-rin never examined the property after it was removed —he refused to have anything to do with it — he considered the scales as the property of the company. This is [874]*874made manifest by tbe fact that Mr. Herrin resorted to injunction proceedings at once when he was informed that the railroad company was removing the scales. We think the railroad company acted advisedly when it entered into the contract, and, no doubt, carefully refrained from giving Mr. Herrin any fixed term, however short. It realized that something might occur, at any moment, which would render it absolutely necessary to assume undivided control of all of its equipment and right of way. But whether the company was so far-seeing or not, there is nothing in the contract which required the company to terminate the contract by any sort of notice. The company reserved the right to require Mr. Herrin to remove the scales, at his own expense, within thirty days. It did not see fit to avail itself of this right, and therefore it cannot compel Mr. Herrin to pay the cost of removal. ,The evidence does not support the theory of conversion, and therefore the judgment of the circuit court will be reversed.
Reversed and remanded.