Pioneer Sand & Gravel Co. v. Seattle Const. & Dry Dock Co.

• Decision Date: 20 June 1918
• Docket Number: 14574.
• Citation: Pioneer Sand & Gravel Co. v. Seattle Const. & Dry Dock Co., 102 Wash. 608, 173 P. 508 (Wash. 1918)
• Court: Washington Supreme Court
• Parties: PIONEER SAND & GRAVEL CO. v. SEATTLE CONSTRUCTION & DRY DOCK CO.

173 P. 508

102 Wash. 608

PIONEER SAND & GRAVEL CO. v. SEATTLE CONSTRUCTION & DRY DOCK CO.

No. 14574.

Supreme Court of Washington

June 20, 1918

Department 1.

Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Suit by the Pioneer Sand & Gravel Company against the Seattle Construction & Dry Dock Company. From a decree for complainant, respondent appeals. Affirmed.

Bogle, Graves, Merritt & Bogle, of Seattle, for appellant.

W. H White, Chas. E. Patterson, and Tom S. Patterson, all of Seattle, for respondent.

TOLMAN J.

This action is brought by the respondent, the owner of certain tidelands, to enjoin the appellant, the owner of adjoining tidelands, from improving such adjoining lands by piling and planking the same, and to require the appellant to remove certain piling, buildings, and structures already placed thereon by the appellant. The respondent's action is based upon its contention that it is the owner of an easement on the strip of appellant's tidelands, 33 feet in width adjoining the south line of respondent's lands, and extending easterly from the inner harbor line approximately 260 feet. Prior to March 25, 1890, an attempt was made to lay out and plat an addition to the city of Seattle known as Dearborn's Second addition, which plat designated a strip of said tidelands as Charles street, which so-called street extended westerly from Commercial street, now First avenue south, to the deep water of Elliott Bay, the center line thereof being approximately coincident with the north line of the strip 33 feet wide owned by the appellant, and upon which respondent claims an easement by virtue of the agreement hereinafter set forth. On February 11, 1895, the plat of the Seattle tidelands, including the lands involved in this action, made by the tideland appraisers of King county, was filed in the office of the auditor of King county, and on the 15th day of March, 1895, the official plat of said tidelands was filed in the office of the board of state land commissioners at Olympia. The respondent's claim is based upon a written agreement entered into on March 13, 1895, and recorded in the office of the county auditor of King county, Wash., on May 29, 1895. At the time said agreement was made neither of the parties thereto had any title to the lands involved, except that they were in possession, had made valuable improvements, and claimed to have and had a preference right of purchase, as given by the statute. The contract referred to, upon which respondent bases its rights, is as follows:

'This contract, made and entered into this 13th day of March, A. D. 1895, by and between the Seattle Dry Dock & Ship Building Company, a corporation organized and existing under and by virtue of the laws of the state of Washington, having its principal place of business at Seattle, the party of the first part, and the Allen & Nelson Land Company, a copartnership doing business in Seattle, King county Washington, the party of the second part, witnesseth: That whereas, there was laid out upon the tidelands in the city of Seattle a certain so-called addition to said city, designated as Dearborn's Second addition, upon which there was laid out and platted a certain street called Charles street, which was produced westward to the deep water of Elliott Bay, which said Charles street has not been platted or recognized as a street upon the map recently filed of said tidelands by the Tide Land Appraisers of King county, Washington; and whereas, a portion of the lands included within said Charles street, as platted upon the said Dearborn's Second addition, has been improved and used as a private way by the parties hereto, said portion so improved being bounded and described as follows, to wit: Commencing at a point 50 feet west of a point 1,495 feet south of the intersection of the center lines of Commercial and Jackson streets in said city of Seattle, running thence west 668.918 feet, thence south 66 feet, thence east 668.918 feet, thence north 66 feet to the place of beginning; and by the improvement of said last-described tract and of the tidelands to the north and south of the same said parties have the preference right to purchase from the state of Washington all of said lands above described; and whereas, it is deemed for the best interests of both the parties hereto that said lands above described shall be purchased and a portion thereof occupied by the parties hereto in the proportions and upon the terms, conditions and agreements hereinafter contained: Now, therefore, It is hereby agreed:

'(1) That said party of the first part shall make application for, and in case said application is allowed will purchase from the state of Washington the following described portion of the lands hereinbefore described, to wit: Commencing at a point 468.918 feet west of a point, 1,528 feet south of the intersection of the center lines of Commercial and Jackson streets in the city of Seattle, running thence west 250 feet, thence south 33 feet, thence east 250 feet, thence north 33 feet to the place of beginning.

'(2) Said party of the second part shall make application for and in case said application is allowed will purchase from the state of Washington the following described portion of the lands hereinbefore described, to wit: Commencing at a point 50 feet west of a point 1,495 feet south of the intersection of the center lines of Commercial and Jackson streets in the city of Seattle, running thence west 668.918 feet, thence south 33 feet, thence east 430 feet, thence south 33 feet, thence east 238.918 feet, thence north 66 feet to the place of beginning.

'(3) It is agreed by and between the parties hereto that there shall be constructed upon the following portion of the lands hereinbefore described, to wit: Commencing at a point 50 feet west of a point 1,516 feet south of the intersection of the center lines of Commercial and Jackson streets in the city of Seattle, thence west 668.918 feet, thence south 24 feet, thence east 668.918 feet, thence north 24 feet to the place of beginning, a roadway, said roadway so constructed to be a good, sufficient and substantial roadway, suitable for driving, draying and trucking and ordinary wagon traffic; all of said roadway to the west of the center line of Railroad avenue in the city of Seattle to be constructed as hereinbefore set forth by and at the expense of the party of the first part, and all of said roadway to the east of the center line of Railroad avenue in the city of Seattle to be constructed as hereinbefore set forth by and at the expense of the party of the second part; the parties hereto each to maintain the portion constructed by it or them as a good, sufficient and substantial roadway, suitable for driving, draying and trucking and ordinary wagon traffic, until Alaska street and Railroad avenue, on the official map of the Tideland Appraisers of King county, Washington, shall be so opened and improved as to permit both of the parties hereto to obtain ready access to all lands they may purchase from the state of Washington contiguous to and abutting upon said roadway, or until some other street or streets to the north and eastward shall be opened, permitting said parties such access to said lands, and each of the parties hereto shall maintain and keep in repair the portion of said roadway hereinbefore agreed upon to be constructed by it or them, and both of the parties hereto shall have the right at all times until access to their lands be obtained in the manner hereinbefore set forth, to occupy and use the whole of said roadway for the purposes aforesaid, to wit, for draying, driving, trucking and ordinary wagon traffic.

'(4) It is expressly understood and agreed by and between the parties hereto that neither party shall be responsible to the other for damages resulting from any accident occurring to any third party or parties upon the respective portions of the roadway constructed and maintained by it or them.

'(5) Said party of the first part hereby assigns, transfers and sets over to said parties of the second part all its right, title, interest, and its preference right of purchase from the state of Washington of the following described lands, to wit: Commencing at a point 50 feet west of a point 1,495 feet south of the intersection of the center lines of Commercial and Jackson streets in the city of Seattle, thence west to the inner line of the harbor rim, as shown upon the official map of the Tideland Appraisers of King county, Washington, thence south along said inner line of the Harbor rim 17~ 14' west 34.55 feet, thence east to the center line of Railroad avenue, thence south on the center line of Railroad avenue 33 feet, thence east 328.918 feet, thence north 66 feet to the place of beginning; and said parties of the second part hereby assign and set over to said party of the first part all their right, title, interest and preference right to purchase the following described lands, to wit: Commencing at a point on the center line of Railroad avenue 378.918 feet west of a point 1,528 feet south of the intersection of the center lines of Commercial and Jackson streets in the city of Seattle, running thence west to the inner line of the harbor rim as shown on the official map of the Tideland Appraisers of King county, Washington, thence south along said harbor rim 17~14'15"' west 34.55 feet, thence east to the center line of Railroad avenue, thence north to the place of beginning.

'(6) It is further understood and agreed that in case the state shall permit such purchase said party of the first part will purchase from the state of Washington the following described lands to wit: Commencing at a point 718.918 feet west of a point 1,528 feet south of the intersection

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