State v. Superior Court of Lewis County

• Decision Date: 22 November 1916
• Docket Number: 13638.
• Court: Washington Supreme Court
• Parties: STATE ex rel. TWISS v. SUPERIOR COURT OF LEWIS COUNTY et al.

161 P. 68

93 Wash. 429

STATE ex rel. TWISS v. SUPERIOR COURT OF LEWIS COUNTY et al.

No. 13638.

Supreme Court of Washington

November 22, 1916

Department 1. Original certiorari proceedings by the State of Washington, on the relation of G. L. Twiss, against the Superior Court of Lewis County and others. Order affirmed.

C. A Studebaker, of Chehalis, for relator.

Forney & Ponder, of Chehalis, for respondents.

ELLIS J.

Certiorari to review an order of the superior court of Lewis county dissolving a temporary restraining order. From the return it appears that relator is, and at all times material to this inquiry was, the owner of the south half of the southwest quarter and the southwest quarter of the southeast quarter of section 26, township 13 north, range 1 east W. M. in Lewis county. In the spring of 1914 relator and the Washington Electric Railway Company, a public service corporation organized under the laws of this state, entered into a verbal agreement whereby that company was to be permitted to construct its grade and tracks and to operate its trains across relator's lands upon a right of way 35 feet wide extending along the north line of the westerly 80 acres above described and 70 feet wide extending diagonally in a southeasterly direction through the easterly 40 acres above described. It was admitted in argument that the 35-foot right of way across the first-mentioned tract was to be donated free of cost to the electric company, and that the 70-foot right of way across the easterly 40 acres was to be paid for at a price to be agreed upon between the parties. The agreement was conditioned upon the construction of the road so as to be ready for the regular operation of trains within 16 months. In June, 1914, the electric company entered upon the lands with relator's permission, and thereafter with relator's knowledge, consent, and acquiescence constructed the grade for its road on the north 35 feet of the 80-acre tract and across the easterly 40, and fenced and ditched the right of way throughout its extent across both tracts. Three written agreements were prepared at different times, two by the electric company and one by relator, but each side rejected each agreement as prepared by the other claiming that it did not conform to the oral agreement. It is claimed that in the construction of its grade the electric company deviated from the right of way as proposed and agreed upon at a point near where it passed from the 80-acre tract onto the easterly 40, but it is admitted that this deviation was slight, being possibly about 40 feet. It appears that some objection was then made by relator, but whether after the grade was completed or before does not appear. No proceeding of any kind has ever been brought to forfeit the easement for the right of way because of the failure of the company to construct the road within the time agreed upon. After the grade was completed the electric company ceased work upon its line and nothing further was done until the spring of 1916, when it conveyed its line to respondent Chehalis, Cowlitz & Cascade Railway, which it seems to be assumed is also a public service corporation. In June, 1916, respondent began leveling the grade across relator's land for the imposition of ties and rails. In August, 1916, relator brought an action to enjoin respondent from proceeding with the work and claiming $200 damages for the work already done. A temporary restraining order was issued. Respondent moved to dissolve this restraining order, and upon a hearing the trial...