Reichenbach v. Washington Short Line Ry. Co.

• Decision Date: 26 December 1894
• Citation: 10 Wash. 357,38 P. 1126
• Parties: REICHENBACH ET AL. v. WASHINGTON SHORT-LINE RY. CO.
• Court: Washington Supreme Court

38 P. 1126

10 Wash. 357

REICHENBACH ET AL. v. WASHINGTON SHORT-LINE RY. CO.

Supreme Court of Washington

December 26, 1894

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by Charles Reichenbach and another against the Washington Short-Line Railway Company. From a judgment dismissing the complaint, plaintiffs appeal. Reversed.

Doolittle & Fogg and Frank D. Nash, for appellants.

Ashton & Chapman, for respondent.

STILES J.

The complaint showed that on the 12th day of May, 1887, the appellants and Thomas L. and Cora E. Nixon, as owners of certain lots in Wallace's addition to Tacoma, executed and delivered to Allen C. Mason a deed for a right of way over said lots for a railroad. The deed was set out by way of exhibit to the complaint, and recites the purpose of Mason to build a railroad, the consideration of one dollar, and the benefit to accrue to the grantors from the construction of the railroad. The granting clause gives to the grantee, his heirs or assigns, "the right and privilege of surveying and laying out, by his or their agents and engineers through, over, across, and along the land hereinbefore described, the route and site of said railroad"; and grants, bargains, sells, and conveys unto the said party of the second part, and to his heirs and assigns, a right of way for said railroad, twelve feet in width, to be located, by him or them, through, over, across, and along said land. The remaining portions of the conveyance read as follows "To have and to hold the same to the said party of the second part, and to his heirs and assigns, so long as the same shall be used for the operation of a railroad: provided nevertheless, and these presents are upon the express conditions: First, that the said party of the second part, his heirs or assigns, shall construct and complete said railroad on or before the first day of January eighteen hundred and eighty-eight; second, that the party of the second part, his heirs or assigns, shall not fence said right of way; third, that the granting of said right of way shall not in any manner prejudice the right of the parties of the first part, heirs or assigns, to cross and recross the same, and, should said right of way be located on the shore line, it shall not prejudice any right which parties of the first part, their heirs or assigns, would otherwise have had by reason of said land fronting tide water." The complaint shows the conveyance of this right of way by Mason to the respondent, and the failure of each to construct the railroad on or before January 1, 1888; and after alleging that January 13, 1888, the Nixons conveyed their interest in the said lots to appellants, who are now the owners of the same, it demands the cancellation of the right of way deeds and the possession of the lands. There was a demurrer to this complaint (1) for a defect of parties, to wit, the Nixons for that the alleged breach of the condition, if any, inured only to all of the grantors named in the deed, and could not be taken advantage of by part of them; (2) that there was not a statement of facts sufficient to constitute a cause of action. There were other specific points stated in the demurrer, and an allegation of estoppel by conduct, but the case as presented here is covered by the two assignments noted. It seems to us that the theory of appellants as to the nature of this action is correct, viz. that it is brought under Code, Civ. Proc. § 529, and not under section 544. As the former section existed in the Code of 1881 (section 536), it may be doubtful whether the whole of the relief herein demanded could have been had, but as it was amended in 18...