Healy v. Everett & Cherry Valley Traction Co.

• Decision Date: 26 March 1914
• Citation: 78 Wash. 628,139 P. 609
• Court: Washington Supreme Court
• Parties: HEALY v. EVERETT & CHERRY VALLEY TRACTION CO.

139 P. 609

78 Wash. 628

HEALY v. EVERETT & CHERRY VALLEY TRACTION CO.

Supreme Court of Washington

March 26, 1914

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Bartholomew Healy against the Everett & Cherry Valley Traction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

F. V Brown and F. G. Dorety, both of Seattle, for appellant.

C. R Barney and Jas. A. Haight, both of Seattle, for respondent.

CROW C.J.

For some time prior to March 25, 1901, Bartholomew Healy, the plaintiff herein, was the owner of, and in the possession of 80 acres of land in the southeast quarter of section 31, in township 20, north of range 7 in King county. This tract was north of and near the Snoqualmie river, but another tract from 600 to 1,000 feet in width intervened between it and the river. Healy's 80-acre tract consisted of a steep hillside towards the north on which was a considerable amount of timber. To the south, and towards the river, about one-third of the tract consisted of bottom land, which, in times of high water, was overflowed by the river. A county road was located between the base of the hill and the lowlands. On March 25, 1901, the date above mentioned, Healy and wife, as parties of the first part, by their warranty deed, sold and conveyed the entire 80-acre tract to Albert Knack and Agnes Knack, his wife, subject to the following exception, which we quote from the deed: 'The parties of the first part hereby reserving, however, from this sale, all the merchantable timber suitable for lumber, piles, or shingles, now thereon, together with the right and privilege of going upon said land and cutting, manufacturing, or removing the same therefrom and of the right of way where and along whatever route may be necessary to remove the same. The acceptance of this deed and having the same recorded, being an agreement to said reservations and a confirmation of said privilege and right of way, irrevocable until the removal of said timber.'

The evidence before us indicates that the Knacks purchased and used the land for dairy purposes. On August 6, 1901, Alfred Knack and wife, by quitclaim deed, conveyed the 80-acre tract to one Edward C. Mony, who purchased it for, and later conveyed it to, the defendant Everett & Cherry Valley Traction Company, a corporation. In the fall of 1909, the defendant corporation commenced making surveys with the intention of constructing its railroad across the land immediately south of the county road. Later, and after the commencement of plaintiff's actions herein, the railroad company constructed its road; the grade of its track for the most of the distance through the land being practically on the same level as the grade of the county road. Plaintiff did not remove any of the timber which he had reserved in his deed at any time prior to the commencement of defendant's survey, although during the year 1907 prices were much higher, and the timber could have been handled more profitably than at any time before or since. Two actions were commenced by plaintiff, which have been consolidated. The first was commenced on May 7, 1910, to enjoin defendant from building its railroad, and thus interfering with plaintiff's right to cut, remove, and transport his timber to the river. Plaintiff alleged that a slough was on the bottom land immediately south of the county road, which slough extended to a small lake on the southwesterly portion of the land, from which another slough extended across the adjoining land to the river on the south; that these sloughs in times of high water were navigable for timber products; that they could be utilized for transporting logs to the river; and that the defendant, by filling them and by constructing its road, was seriously interfering with plaintiff's logging facilities, right of way, and operations. In the first action plaintiff's motion for a temporary restraining order was, upon hearing, denied; he having failed to allege that he then intended to cut and remove the timber. Later, and on June 15, 1910, he commenced another and independent action for an injunction. The only substantial difference in his second complaint being that he alleged he was then ready to move, and desired to move, the timber. The two actions were consolidated, but were not forced to trial by plaintiff until after the defendant had completed its railroad across the 80-acre tract.

The trial judge in substance found, in addition to the facts above stated, that about two-thirds of the 80-acre tract were located on a steep hillside sloping from north to south to the county road which crosses the tract from east to west that the south one-third was bottom land, on the east and west sides of which were small ponds; that between the ponds at the foot of the hill certain depressions or sloughs, more or less well defined, were located, with an outlet towards the southwest over the adjoining land, to the Snoqualmie river; that about 1897 much of the timber on the easterly and westerly sides fo the land had been logged off and removed into the river through the sloughs at the foot of the hill; that in 1909, after the defendant had purchased the land from the Knacks, it made surveys for the location and construction of its railroad; that without plaintiff's consent it removed and converted to its own use merchantable timber from the 80 acres to the amount of 100,000 feet board measure, of the reasonable value of $300; that plaintiff had notified defendant of his intention to cut the timber and remove it over and across the location selected by defendant for its railroad; that thereafter the defendant continued to construct the railroad, filling up and obstructing the depressions or sloughs, thereby obstructing the necessary, economical, and available route for removing plaintiff's timber through the sloughs to the Snoqualmie river; that the remaining merchantable timber upon the land amounts to 1,100,000 feet board measure; that its value has been impaired by the construction of defendant's track in the sum of $3,300; that plaintiff is entitled to a decree confirming his right and title to the timber, to the privileges and easements mentioned in the reservation of his deed, and to judgment for $3,600 for damages caused by defendant's acts; or that in the event the damages be not paid, the plaintiff is entitled to a mandatory injunction requiring the defendant to remove that portion of its embankment and railroad that obstructs and fills the...