McDonald v. Ward

• Decision Date: 09 January 1918
• Docket Number: 14321.
• Citation: 169 P. 851,99 Wash. 354
• Court: Washington Supreme Court
• Parties: McDONALD v. WARD.

169 P. 851

99 Wash. 354

McDONALD v. WARD.

No. 14321.

Supreme Court of Washington

January 9, 1918

Department 2. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by William McDonald against M. A. Ward. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. H Gordon, of Tacoma, for appellant.

Roberts Wilson & Skell and J. L. Runner, all of Seattle, for respondent.

CHADWICK J.

On May 4, 1903, respondent conveyed to appellant a certain legal subdivision of land in Benton county, Wash. The main line of the Northern Pacific Railway was constructed across the land at the time of the conveyance. The deed contains full covenants of warranty without exception or reservation. Respondent had been in possession of the land and had cultivated approximately all of it other than that actually occupied by the railway. Appellant entered into possession, and he, too, cultivated all of the land except that which is actually occupied by the roadbed, its banks and borrow pits. Appellant fixes the width of this strip in his pleadings as from 16 to 20 feet. Appellant remained in possession and cultivated the land for a period of 12 or 13 years, when he was ousted by the Northern Pacific Railway Company under its superior title to a strip of land 200 feet in width on either side of its main line. See Northern Pacific Railway Company v. McDonald, 91 Wash. 113, 157 P. 222.

Appellant then began this action upon the covenants of his deed. At the close of plaintiff's case the court granted a motion for judgment on account of the insufficiency of the evidence. We are not apprised as to the particular ground, but presume from the tenor of the briefs that it was the opinion of the trial judge that appellants could not recover for the loss of land included in the right of way of the railroad, the bounds of which were defined by publis statute (Act July 2, 1864, c. 217, 13 Stat. at Large, 367), and which was occupied in part at the time the conveyance was made, and for the further reason that the statute of limitations had run.

It is the contention of the respondent that the right of way of a railroad company is no more than an easement of such a public and notorious character that a party having knowledge of the existence of the roadbed and the operation of trains will be held to have contracted with reference to it and to its limits and bounds.

We held in Hoyt v. Rothe, 95 Wash. 369, 163 P. 925, that a public highway is impliedly exempted from covenants of seisin and warranty and against incumbrances. Although there is a division of authority upon this question, our holding is in line with the great weight of authority. Whether a railroad built and in operation across a piece of land at the time it is conveyed is notice to the grantee of the nature, and extent, of the right of way under which it is operated, thus impliedly binding him and preventing a recovery upon the covenants of a deed of general warranty, is the main question calling for discussion and decision.

The weight of authority is that a right of way of a railroad does not fall within the exception worked by the courts as to existing highways; that a grantee may maintain an action upon his covenants, although he had knowledge of the existence of the right of way at the time he took his deed. Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290; Wadham v. Swan, 109 Ill. 46; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731; Douglass v. Thomas, 103 Ind. 187, 2 N.E. 562; Quick v. Taylor, 113 Ind. 540, 16 N.E. 588; Barlow v. McKinley, 24 Iowa, 69; Flynn v. White Breast Coal Co., 72 Iowa, 738, 32 N.W. 471; Pilcher v. A., T., etc., Ry. Co., 38 Kan. 516, 16 P. 945, 5 Am. St. Rep. 770; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Williamson v. Hall, 62 Mo. 405; Whiteside v. Magruder, 75 Mo.App. 364; Huyck v. Andrews, 113 N.Y. 81, 20 N.E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432; Farrington v. Fourtelott (C. C.) 39 F. 738.

A lesser number of the courts have held to the contrary. Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 So. 381, 30 L. R. A. (N. S.) 833, Ann. Cas. 1912C, 647; Ex parte Alexander, 122 N.C. 727, 30 S.E. 336; Goodman v. Heilig, 157 N.C. 6, 72 S.E. 866, 36 L. R. A. (N. S.) 1004; Smith v. Hughes, 50 Wis. 620, 7 N.W. 653.

We shall not go into the reasoning of the courts, but content ourselves with holding to the weight of authority. This brings us to the question whether the action is barred by the statute of limitations. The solution of this problem compels an inquiry into the nature and extent of the covenant. If time is taken to look into the cases we have cited, it will be noticed that in almost all of them the right of way of a railway company is treated as an easement, and the courts discuss the question of the right to recover as a covenant against incumbrances, and this, too, whether the right of way has been acquired under eminent domain or by a deed of general warranty. A covenant against incumbrances operates upon existing things, and would be broken at the time it is made. It gives an immediate right of action and starts the statute running. But we think the facts take the case out of that rule. The theory upon which the cases proceed is that, notwithstanding the character of the title, whether taken under the sovereign power of the state or by deed, there is a reversion to private ownership in case the railway company should cease to use it for railway purposes.

But here the property occupied by the railway company, and to which it is entitled under the federal grant, was never the subject of private ownership. It was not taken by the railway company in the exercise of its public functions through the instrumentality of the sovereign power of the state, but was made the subject of an independent grant. In other words, the effect of the act of July 2, 1864, granting a right of way to the Northern Pacific Railway Company reserved in the government for the use of the Northern Pacific Railway Company a strip of land across the public domain...