Campbell Lumber Co. v. Deep River Logging Co.

• Decision Date: 14 November 1912
• Citation: 71 Wash. 70,127 P. 566
• Parties: CAMPBELL LUMBER CO. v. DEEP RIVER LOGGING CO. et al.
• Court: Washington Supreme Court

127 P. 566

71 Wash. 70

CAMPBELL LUMBER CO. v. DEEP RIVER LOGGING CO. et al.

Supreme Court of Washington

November 14, 1912

Department 1. Appeal from Superior Court, Pacific County; Sol Smith Judge.

Action by the Campbell Lumber Company against the Deep River Logging Company and another. From a judgment for plaintiff defendants appeal. Reversed and remanded, with instructions to dismiss.

See also, 68 Wash. 431, 123 P. 596.

E. E. Coovert, of Portland, Or., for appellants.

Kollock & Zollinger and J. Bruce Polwarth, all of Portland, Or., for respondent.

CROW J.

On July 31, 1909, the Weyerhaeuser Timber Company, a corporation then the owner of the N. 1/2 of section 37, township 11 N., of range 8 W., of the Willamette meridian, in Pacific county, for a consideration of $18,000, sold and conveyed to the defendant Pacific Logging Company, a corporation, all timber on the N.W. 1/4, with the right to remove the same within five years. On September 12, 1910, the Weyerhaeuser Timber Company, as party of the first part, sold and by warranty deed conveyed to the plaintiff, Campbell Lumber Company, a corporation, as party of the second part, the N.E. 1/4 of the section. The deed contained the following clause: 'The first party also expressly reserves and excepts unto itself, its successors and assigns, forever, the right at all reasonable times to freely pass and repass over said land or any part thereof, with persons, teams, railway tracks, or in any other manner usual or customary in hauling or delivering timber, or timber products, so that the first party, its successors or assigns, shall allways have the full right to transport logs, timber, or timber products, over said land in the usual and customary way.' Early in July, 1911, the defendant Pacific Logging Company and the defendant Deep River Logging Company, a corporation, for the purpose of removing the timber from the N.W. 1/4, caused a logging road 8 feet in width to be constructed, which for a distance of 300 feet crossed the northwest portion of the N.E. 1/4 of the section owned by the plaintiff, Campbell Lumber Company. This railroad was constructed without plaintiff's permission or consent and against its protest. On August 7, 1911, the Weyerhaeuser Timber Company executed and delivered to the defendant Pacific Logging Company the following written instrument, which was duly acknowledged: 'Whereas the Weyerhaeuser Timber Company, a corporation of the state of Washington, having sold to the Campbell Lumber Company and conveyed to them by deed dated September 12, 1910, the N.E. 1/4 of sec. 35, township 11, north of range 8, west of the Willamette meridian, and reserved in said deed the following exception and reservation, to wit: 'The first party also expressly reserves and excepts to itself, the successors and assigns, forever, the right at all times to freely pass and repass over said land or any part thereof with persons, teams, or railway tracks, or in any other manner usual or customary, in hauling or delivering timber, or timber products, so that the first party, its successors or assigns, shall always have the full right to transport logs, timber, or timber products over said land in the usual and customary way.' Now, therefore, for and in consideration of One ($1.00) Dollar to it paid by the Deep River Logging Company, a corporation of Oregon, hereby grants, bargains, sells, ratifies and confirms to the said Deep River Logging Company, and to its successors and assigns, the right to pass and repass with persons, teams, railway tracks and transport logs, timber and timber products over the same, in the usual manner over and across the N.E. corner of sec. 35, township 11, north of range 8, west of the Willamette meridian, for the purpose of hauling and transporting saw logs taken from the N.W. 1/4 of sec. 35, and sec. 34 all in township eleven north of range 8 west of the Willamette meridian until such timber and logs are all removed; said rights hereby granted being excepted and reserved in that certain deed made by the said Weyerhaeuser Timber Company to the Campbell Lumber...