Great Northern Ry. Co. v. Washington Elec. Co.

• Decision Date: 07 January 1939
• Docket Number: 27027.
• Citation: 86 P.2d 208,197 Wash. 627
• Parties: GREAT NORTHERN RY. CO. v. WASHINGTON ELECTRIC CO. et al.
• Court: Washington Supreme Court

86 P.2d 208

197 Wash. 627

GREAT NORTHERN RY. CO. v. WASHINGTON ELECTRIC CO. et al.

No. 27027.

Supreme Court of Washington, En Banc.

January 7, 1939

Action by the Great Northern Railway Company against the Washington Electric Company, and another, to recover expense to which plaintiff had been put by erosion of river embankment. Judgment for plaintiff, and defendants appeal.

Modified and affirmed as modified.

BLAKE and MAIN, JJ., dissenting in part.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Todd Holman & Sprague and Clarence Innis, all of Seattle (Emory E Hess and Lowell P. Mickelwait, both of Seattle, and A. J. O'Connor, of Wenatchee, of counsel), for appellants.

Thomas Balmer, Edwin C. Matthias, and Anthony Kane, all of Seattle, for respondent.

ROBINSON Justice.

This case is presented to the court for review through the medium of one thousand four hundred and fifty pages of testimony and one hundred and seventy-nine exhibits, many of them documentary. Fortunately, the questions of fact have been disposed of by jury verdict, but, as to the questions of law which we are required to pass upon, the parties have submitted more than seven hundred and fifty pages of printed briefs, containing more than four hundred citations to decided cases, supplemented by references to some eighty textbooks and statutes. This statement is not made for the purpose of stressing the magnitude of the work involved, but, rather, as explanatory of the character of this opinion. Obviously, it cannot deal with all phases of the matter or adequately discuss more than one or two of the cases cited. We can undertake little more than to state the pivotal facts, the legal questions presented by the errors assigned, and, briefly, our conclusions.

In January, 1930, the Washington Electric Company received from the Federal Power Commission a license to construct a hydro-electric project in the Columbia river at Rock Island, about twelve miles downstream from Wenatchee, Washington. Here, the river is divided into two channels by an island, and it was proposed to dam each channel and thus create a reservoir which would raise the upstream water level for a distance of about twenty miles. The license was granted, and afterwards assigned to Puget Sound Power & Light Company. The license is a document of formidable length. Portions of it will be quoted later in the opinion.

At the point where the dam was to be built, the Great Northern Railway Company's railroad ran along the east bank of the Columbia. Some of its trackage above the dam would be overflowed, and its property rights otherwise disturbed, by the creation of the reservoir. It was necessary for the power company to adjust these matters by contract or to bring condemnation proceedings. Negotiations were had which ripened into an agreement on April 15, 1931, although it appears that the formal instrument was not delivered, and did not become effective, until June 13th. This contract is of such great pertinence to the questions involved in the appeal that it is unfortunate that it cannot be quoted in its entirety. It is of such length that this is impossible. We quote only those portions which tend to bring into sharp relief the principal question presented as to its construction, which is, whether or not it contemplated loss, damage, etc., to the railway company generally, that is, both above and below the dam, or only that which it might suffer above the dam. The introductory portion of the contract reads as follows:

'Agreement, Made this 15th day of April, 1931, by and between Great Northern Railway Company, a Minnesota corporation (hereinafter called the 'Railway Company'), and Washington Electric Company, a Maine corporation (hereinafter called the 'Electric Company').

'The Electric Company, pursuant to Federal Power Commission License for Project No. 943 issued to it on the 21st day of January, 1930, desires to construct, maintain and operate a dam and power house in and across the Columbia River at Rock Island in the State of Washington, for the purpose of generating hydro-electric power. Said dam will raise the water of the Columbia River and its tributary, the Wenatchee River, to an extent which will vary with the amount of water naturally flowing in said Columbia River and with the Electric Company's daily use of said water in the operation of said plant, and will inundate certain areas of the Railway Company's property along the river. The Electric Company desires to acquire the right so to inundate the Railway Company's property and to agree with the Railway Company upon the compensation to be made therefor.

'The extent that said dam will change the natural water level of the Columbia River and its tributary, the Wenatchee River, and will inundate the property of the Railway Company, as calculated by the Electric Company for various rates of river flow, is shown by the maps marked respectively Exhibits 'A', 'B' and 'C', and the longitudinal profiles marked respectively Exhibits 'D' and 'E', hereto attached and made a part hereof.

'In consideration of the premises and of the mutual dependent covenants herein contained, the parties agree: * * *'

Then follows 1. (a), (b), (c), (d), and (e), defining with particularity, the flowage easements granted. The contract continues:

'2. The foregoing flowage easement is granted subject to the right of the Railway Company, its successors and assigns, to use and improve said property for all other purposes.

'3. In consideration of the foregoing grant the Electric Company agrees:

'(a) To pay the Railway Company upon delivery of this contract the sum of Twenty-five Thousand Eight Hundred Eighty-five Dollars ($25,885), the agreed value of the right to inundate those portions of the Railway Company's right of way and land defined and shown in shaded white as Exhibits 'A', 'B' and 'C', hereto attached, considered separately from the improvements thereon;

'(b) To pay the Railway Company for all damages to its roadway, structures, facilities and improvements, occasioned by the construction, maintenance or operation of the Electric Company's dam or the works appurtenant or accessory thereto;

'(c) To pay the Railway Company for the cost and expense of all changes and additions to its roadway, structures, facilities and improvements at any time made for the purpose of enabling the same to withstand, avoid or reduce damage caused or proximately threatened by the construction, maintenance or operation of the Electric Company's dam or the works appurtenant or accessory thereto;

'(d) To reimburse, indemnity and save harmless the Railway Company of and from all liability to other parties (including its employes) which it may at any time or in any manner incur or suffer as a result of the construction, maintenance or operation of the Electric Company's dam or the works appurtenant or accessory thereto;

'(e) To pay the Railway Company for all other loss, cost, damage or expense of every kind and nature at any time or in any manner caused by the construction, maintenance or operation of the Electric Company's dam or the works appurtenant or accessory thereto.

' Without in any way limiting the generality of the foregoing obligation, the Electric Company, in consideration of the grant of said flowage easement, agrees also to bear all expense and to perform all obligations specifically assumed by it elsewhere in this contract.

'4. The Electric Company agrees to do the following work and assume the following obligations at its own sole cost and expense in order to protect the property of the Railway Company from the anticipated effects of the Electric Company's project; * * *' (Italics in the foregoing quotation and elsewhere in this opinion are supplied.)

This is followed by many pages of specifications concerning construction changes, principally, if not wholly, above the dam, to be made by the electric company for the benefit of the railway company or by the railway company itself at the electric company's expense.

It is further provided in Paragraph 6: 'The obligation of the Electric Company to reimburse the Railway Company for expense caused by the increased water levels and/or changed water conditions resulting from the Electric Company's project shall continue without limitation of time so long as said project shall exist, and shall apply to all structures, facilities and improvements of the Railway Company affected by said project, whether now built or hereafter constructed.'

The railway company is further insured permanent protection by the provisions of Paragraph 12: 'This agreement shall inure to and be binding upon the successors and assigns of the parties, and the grant of flowage rights hereby made by the Railway Company to the Electric Company is expressly conditioned upon the performance by the Electric Company, its successors and assigns, of all and singular the terms conditions, covenants and agreements herein set forth, to be by them kept and performed. Should the Electric Company, its successors or assigns, fail to make any payment, when due, which it is obligated to make by this agreement, or fail in any other respect to perform this agreement, and such default continue for six (6) months after notice in writing of intention to terminate this contract, given by the Railway Company to the Electric Company, the Railway Company may, at its election, by written notice to the Electric Company, terminate this contract and all rights and privileges herein granted, and may have, repossess and enjoy the premises upon which such flowage rights are granted as of its former estate, and all payments theretofore made by the Electric Company shall be retained by the Railway Company in...