Simmons v. Northern P. Ry. Co.

• Decision Date: 08 December 1915
• Docket Number: 12515.
• Citation: 88 Wash. 384,153 P. 321
• Court: Washington Supreme Court
• Parties: SIMMONS v. NORTHERN PAC. RY. CO.

153 P. 321

88 Wash. 384

SIMMONS v. NORTHERN PAC. RY. CO.

No. 12515.

Supreme Court of Washington

December 8, 1915

Department 2. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Action by Gordon L. Simmons against Jehiel Church and others. From judgment for plaintiff, the Northern Pacific Railway Company a corporation, defendant, appeals. Affirmed.

Geo. T. Reid, J. W. Quick, and L. B. Da Ponte, all of Tacoma, for appellant.

O. M Nelson, of Montesano, for respondent.

FULLERTON J.

In April 1914, the respondent, Gordon L. Simmons, began this action in the superior court of Chehalis county, to foreclose a mortgage upon certain real property situated therein executed to him by Jehiel Church and Lucy A. Church, his wife. He made parties defendant to the action, in addition to the mortgagors, one S. A. Richardson and his wife, Nannie L. Richardson, and the Northern Pacific Railway Company. The railway company alone appeared and defended the action. It set up: First, a right of way 100 feet in width across the presises between certain termini; and second, a right to take and remove gravel from another part thereof. In its decree of foreclosure the court exempted the right of way, but allowed a foreclosure against the asserted right to take and remove gravel. The railway company appeals.

The facts disclosed by the record are, in substance, these: On November 17, 1898, C. E. Burrows and A. P. Stockwell, then holding a contract of purchase of the mortgaged property, entered into an agreement with the Northern Pacific Railway Company, by the terms of which they granted to the railway company the right, privilege, and license to remove gravel from all that part of the premises described in the respondent's mortgage which lies southwesterly of the county road running through the same. The right was to continue until all of the gravel that could be conveniently taken from the area described was removed, and was granted in consideration of a spur track to be put in the premises, connecting with the railway company's main line for the exclusive use of the grantors in their logging operations. On March 27, 1899, the railway company deeded the premises to C. E. Burrows and A. P. Stockwell by warranty deed, reserving only the right of way 100 feet in width for its main track railroad, as the same then extended across the premises. The deed recited that it was made in consideration of $1,150, and that the railway company had contracted to sell and convey the property to the grantees free from incumbrance for that price. On June 7, 1900, C. E. Burrows and A. P. Stockwell, their wives joining in the instrument of conveyance, conveyed the property by warranty deed to Jehiel Church, for a consideration of $1,000; excepting therefrom the right of way of the railway company, and reciting that the----

'deed is subject to a contract to the Northern Pacific Railway Company dated the 17th day of November, 1898, which contract has this day been assigned to the grantee herein.'

On January 27, 1912, Jehiel Church and wife executed the mortgage which this action is brought to foreclose. The description of the mortgaged premises excepted the appellant's right of way, but made no mention of the contract referred to in the deed from Burrows and Stockwell to Church. It was shown that the railway company commenced to remove gravel from the premises shortly after the agreement of March 17, 1898, was entered into, and that it had removed gravel therefrom from...