Harms v. O'Connell Lumber Co., 25490.

• Decision Date: 04 May 1935
• Docket Number: 25490.
• Court: Washington Supreme Court
• Parties: HARMS v. O'CONNELL LUMBER CO. et al.

44 P.2d 785

181 Wash. 696

HARMS v. O'CONNELL LUMBER CO. et al.

No. 25490.

Supreme Court of Washington

May 4, 1935

Department 1.

Appeal from Superior Court, Lewis County; J. E. Stone, Judge.

Action by Mary C. Harms against the O'Connell Lumber Company and another. From a judgment for plaintiff, defendants appeal.

Reversed and remanded, with directions to dismiss the action.

Dysart & Ellsbury, of Centralia, and Ponder & Ponder, of Chehalis for appellants.

P. C Kibbe, of Tenino, and J. H. Jahnke, of Centralia, for respondent.

MAIN Justice.

This action was brought to quiet title to an 80-acre tract of land in Lewis county and the timber thereon. The cause was tried to the court without a jury, and resulted in findings of fact from which it was concluded that the plaintiff was entitled to prevail. From the judgment entered quieting the title to the land and the timber in the plaintiff, the defendants appeal.

The O'Connell Lumber Company and the Chehalis Mill Company are both corporations organized under the laws of this state. May 27, 1907, one J. A. Veness, being then the owner of a large tract of timber land in Lewis county, by contract, sold the 80 acres involved in this action to Theodore Harms. This contract was not signed by Mrs. Veness. In the contract there was this provision: 'Reserving also unto the said parties of the first part [Veness], their heirs, executors, administrators or assigns all timber now standing and growing or fallen on the above described lands also'; and there was a reservation of the right to construct tramroads and railroads over and across the lands described in the contract.

January 8, 1908, by what is designated a timber deed, J. A. Veness and Augusta Veness, his wife, and F. E. Veness conveyed to the O'Connell Lumber Company 'all our interest in the timber situated on the following described read estate situate in the County of Lewis and state of Washington to-wit [Then follows a large number of descriptions, one of which is the land in question.]' The deed also conveyed, in addition to the timber, the railroad rights of way which were reserved in the contract to Harms, and assigned to the lumber company all outstanding contracts for the sale of the lands mentioned in the deed and the balance of the purchase price due thereon.

October 28, 1908, J. A. Veness and wife, by deed, conveyed to Harms the land covered by the contract to him previously made. This deed contained this provision: 'Second, reserving also unto the said parties of the first part [Veness and wife], their heirs, executors, administrators or assigns, all timber now standing and growing or fallen on the above described lands'; and there was also a reservation of the right to construct and maintain tramroads or railroads over and across the land described. The respondent, Mary C. Harms, has succeeded to the rights of her husband and herself under the contract and deed referred to.

November 7, 1925, the O'Connell Lumber Company entered into a logging contract with the Chehalis Mill Company by which the latter was to log the lands therein specified or referred to, which included the timber on the Harms' 80. After this contract was entered into, the mill company erected a mill and started logging, projecting its logging railroad, being constructed from time to time, in the direction of the Harms' land.

April 9, 1929, Mrs. Harms sold to the mill company the timber on a 40-acre tract of land which she owned, and which tract of land cornered with the 80 involved in this action. The deed conveying this timber gave the right to the mill company to build and operate all necessary railroads and other conveniences for the cutting and removing of the timber. As to what took place between the representative of the mill company and Mrs. Harms at the time this purchase and deed were made, with reference to the then declared intention of the mill company, after logging the tract conveyed by that deed, to proceed to log the 80 which is involved in this action, the evidence is in direct dispute.

During the year 1930 the mill company built two spur tracks across the lands involved in this action, which connected with its logging road. In building these spur tracks it expended $2,000 or $2,500, the exact amount of which does not appear. Mrs. Harms owned other lands in the vicinity which were used for farm purposes, and 14 acres of the land in question were of this character. Mrs. Harms lived in close proximity to the 80 acres of land through which the spur tracks were constructed, and her son lived near by and...