
    Columbus Railroad Company v. City Mills Company.
    Argued October 30,
    Decided November 28, 1899.
    Complaint. Before Judge Felton. Muscogee superior court. -November term, 1898.
    
      Louis F. Garrard and William Garrard, for plaintiff in error.
    
      Brannon, Hatcher & Martin, contra.
   Simmons, C. J.

Where one corporation contracted in writing with another having undeveloped water-power in a river to pay to the latter a stated price “per horse-power per annum for the actual use of” such water-power “as fast as [the former] shall develop and actually use the same,” and* the written contract further stipulated that such undeveloped power was "to be only paid for when in actual use,” and further that it was the intention of the clause in the contract relating to this matter that none of the power therein mentioned “is to be paid for when not actually used,” Held, that the proper construction of the terms “actual use” and “actually used” would render the purchasing corporation liable to pay for waterpower developed by it under this contract for such periods of time only as it actually employed and availed itself of the benefit of the power in operating machinery, or otherwise; and that the amount of the compensation to be paid therefor should be arrived at by calculating what it would be for such periods at the yearly rate named in the contract. Judgment reversed.

All the Justices concurring.  