City of Seattle v. Northern Pac. Ry. Co.

• Decision Date: 16 January 1942
• Docket Number: 28383.
• Citation: 121 P.2d 382,12 Wn.2d 247
• Parties: CITY OF SEATTLE v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

121 P.2d 382

12 Wn.2d 247

CITY OF SEATTLE v. NORTHERN PAC. RY. CO.

No. 28383.

Supreme Court of Washington

January 16, 1942

Department 1.

Action by the City of Seattle against the Northern Pacific Railway Company to recover a sum of money alleged to be due as defendant's proportionate share of the cost of reconstructing the approaches to bridges under a contract entered into between plaintiff and defendant. From a judgment, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Donald A McDonald, Judge.

A. C Van Soelen and John E. Sanders, both of Seattle, for appellant.

Robert S. Macfarlane, Dean H. Eastman, and Earl F. Requa, all of Seattle, for respondent.

STEINERT Justice.

Plaintiff the City of Seattle, brought suit upon a written agreement made with defendant, Northern Pacific Railway Company, and sought thereby to recover the sum of $6,117.47 alleged to be due and owing from the railway company as its proportionate share of the cost of reconstructing the approaches to two bridges located within the city. Defendant admitted that $3,290.27 was due and owing from it and tendered the conceded amount by paying it into court. Plaintiff declined to accept the tender as full payment and proceeded with its action. Upon a trial without a jury, the court found that the total amount owing by defendant was considerably less than the amount claimed by plaintiff, though somewhat greater than that tendered by defendant. Judgment was entered in favor of the plaintiff in the sum of $3,552.69, the amount found by the court to be due, and from such judgment plaintiff has appealed.

In 1916 and 1917, the City of Seattle, hereinafter referred to as the appellant, was faced with the problem of building a number of bridges over the ship canal connecting Lake Union and Lake Washington with the tidewaters of Puget Sound. The railroad tracks of the Northern Pacific Railway Company, hereinafter designated as the respondent, ran, in certain localities, along the banks of the canal and the shores of the lakes. A dispute arose between appellant and respondent as to whether the spaning of respondent's tracks in connection with these bridges was for the purpose of separating the grade of the streets from the grade of the tracks, or was necessitated merely by reason of the elevation of the streets intended to be connected by the bridges, regardless of the existence of the railroad tracks. The question whether or not respondent would be liable, in whole or in part, for the cost of the bridge work here involved depended entirely upon the determination of that controversy. The dispute resulted in a written agreement executed by and between the parties on July 23, 1917, pursuant to a city ordinance passed by the city council on March 26, 1917, and approved by the mayor on March 28. It is upon this agreement that appellant's action is founded. The pertinent portions of the agreement read as follows:

'Whereas, The City of Seattle is now engaged in the construction of a bridge across the Salmon Bay Lake Washington Canal Waterway at each of the following named points:

'(a) The extension of Eastlake [Avenue] to its intersection with Tenth Avenue Northeast;

'(b) Fremont Avenue;

'(c) Fifteenth Avenue Northwest, and

'Whereas, the bridge at point (a) crosses the railroad track of the Northern Pacific Railway Company between Ninth and Tenth Avenues Northeast, and the bridge at point (b) crosses, on the south bank of the canal, the Lake Union Belt Line of the Northern Pacific Railway Company, and, on the north bank of the canal, the main line of the Northern Pacific Railway Company, and the bridge at point (c) crosses certain tracks of the Northern Pacific Railway Company, and certain tracks owned jointly by the Northern Pacific [Railway Company] and Great Northern Railway Company on the north bank of the canal, and

'Whereas, there is a dispute between the City of Seattle, and the Northern Pacific Railway Company as to whether the spanning of the tracks of the railway company hereinBefore described is for the purpose of separating the grade of the streets from the grade of the railroad tracks, or is necessitated merely by the street elevations regardless of the existence of the said railway tracks,

'Now, therefore, for and in consideration of the premises, and to effect a compromise and settlement of said dispute, it is hereby agreed by and between The City of Seattle, a municipal corporation of the first class of the State of Washington, hereinafter called 'the City', and the Northern Pacific Railway Company, a corporation organized and existing under the laws of the State of Wisconsin, and doing business in the State of Washington, hereinafter called 'the railway company', as follows:

'1. That the railway company shall bear and pay one third of the cost and expense of constructing, reconstructing and maintaining those portions of the above described bridges over its right of way at said points (a) and (b), and one-sixth of such cost and expense at point (c).' (Italics ours.)

It is to be understood that all the issues raised by this case are concerned with the approaches to the bridges, rather than with the actual bridges themselves, since respondent's tracks pass beneath the approaches rather than under the parts of the structures more precisely termed bridges.

The bridge at Fremont avenue, point (b), and the cost of its construction or reconstruction are not involved in this action. However, for reasons which will appear later, it may be noted that the contract specifically provides that at point (b) (Fremont) the bridge crosses respondent's tracks on both the south bank and the north bank of the canal, while with reference to point (c) (Fifteenth avenue northwest) the bridge is described as crossing respondent's tracks only on the north bank of the canal, there being no mention of the south bank whatsoever.

The complaint in this proceeding comprises three causes of action. The first pertains to the bridge at pont (a), which is commonly known as the University Bridge. During 1916 and 1917, the appellant city constructed, or was engaged in constructing, at that point a wooden bridge 39 feet, 8 inches wide, with two 6-foot sidewalks. No question is here involved with respect to the cost of that original construction or with respect to respondent's payment of its proportionate share of the expense thereof.

In 1931 and 1932, pursuant to appropriate city ordinances, appellant rebuilt the University Bridge, or, more accurately speaking, constructed with permanent materials a new bridge, together with the necessary approaches, in place of the original structure. The new bridge and the approaches thereto, however, were constructed to a width of 58 feet, with two 6-foot sidewalks. Thus, the new bridge was 18 feet, 4 inches wider than the original one.

The total cost of the constructing so much of the approaches as crossed respondent's right of way at that point was $14,078.87. In its first cause of action appellant demaned that respondent be required to pay one-third of that amount, or $4,692.96, claiming that the contract so obligated it. Respondent admitted its liability to the extent only of $3,145.63, on the theory that it was bound merely to pay its proportionate part of the cost of reconstructing a bridge having a width of 39 feet, 8 inches, rather than a bridge 58 feet wide. The trial court adopted respondent's theory, but at the same time held that it should also be required to pay an additional $215.63, representing respondent's proportionate share of the cost of certain concrete work on the new bridge and of a temporary trestle made necessary by the reconstruction. Judgment was therefore entered upon the first cause of action in the sum of $3,361.26. Respondent assigns no error upon the additional allowance over and above the amount previously conceded by it.

The sole question involved in this cause of action is whether respondent should have been required to pay on the basis of a structure 58 feet in width, or on the basis of one 39 feet, 8 inches wide. In other words, the question to be decided by the court was whether or not the building of the new and wider bridge, together with its approaches, came within the meaning of the term 'reconstructing,' as used in the contract between the parties. Counsel for appellant in his opening statement expressed the issue thus: 'So the question as to the first cause of action is whether or not the contract covered reconstruction of the bridge at its original width or at any width it might have been reconstructed to.' (Italics ours.)

Respondent's counsel acquiesced in that statement of the issue.

Neither side offered any evidence of any technical or peculiar meaning to be given to the word 'reconstructing,' as used in the written agreement. The word must therefore be given its usual and ordinary meaning.

In Funk & Wagnall's New Standard Dictionary (1929), the word 'reconstruct' is defined as meaning 'To construct again; to rebuild, either in fact or idea.' Webster's New International Dictionary (2d 1940) defines it thus: 'To construct again; to rebuild; to remodel; to form again or anew, as in the imagination; as, to reconstruct a church, a regiment, or a past epoch.'

And in 53 C.J. 595, the same meanings are given, supplemented by the further statement that the word means 'to restore again as an entity the thing which was lost or destroyed.'

In Fuchs v. City of Cedar Rapids, 158 Iowa 392, 139 N.W. 903, 904, 44 L.R.A., N.S., 590, appears the following statement: 'Reconstruction presupposes the nonexistence of the thing to be reconstructed, as an entity; that the thing, Before existing, has lost its entity; and 'reconstruction' is defined as follows:...