Hill

At and before the time of the execution of the contract hereináfter set out, the plaintiff was the owner of timber-lands adjacent to and including a portion of Ryan’s Slough, in the county of Humboldt. This slough is connected with Humboldt Bay, and is of sufficient size and depth to float rafts of saw-logs from plaintiff’s lands. Hear the head of tide-water in this slough, plaintiff had a landing, at which he dumped logs into the slough, and thence floated them to market on Humboldt Bay. During the same time Allan McKay, Alexander Connick, and John A. Sinclair, copart *8 ners under the name of McKay & Co., were engaged in the business of logging on lands adjacent to Ryan’s Slough, above the plaintiff’s landing, and above tidewater, where the capacity of the slough was considerably less than at and below plaintiff’s landing. Besides, at plaintiff’s landing, the slough was often obstructed by his logs. McKay & Co. therefore desired to carry their logs by railroad to a point on the slough below plaintiff’s landing, but in order to do this they must acquire the right of way for their road over plaintiff’s land. Under these circumstances, the following agreement was executed:— ■

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