Tacoma Mill Co. v. Northern P. Ry. Co.

• Decision Date: 11 January 1916
• Docket Number: 12533.
• Citation: 154 P. 173,89 Wash. 187
• Court: Washington Supreme Court
• Parties: TACOMA MILL CO. v. NORTHERN PAC. RY. CO.

154 P. 173

89 Wash. 187

TACOMA MILL CO. v. NORTHERN PAC. RY. CO.

No. 12533.

Supreme Court of Washington, En Banc.

January 11, 1916

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by the Tacoma Mill Company against the Northern Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Morris C.J., and Chadwick, J., dissenting.

Hughes, McMicken, Dovell & Ramsey, of Seattle, for appellant.

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

HOLCOMB J.

Negotiations initiated September 2, 1887, by respondent's predecessor Northern Pacific Railroad Company, and carried on between it and appellant, resulted in an agreement and deed to the railroad company for a right of way through appellant's premises. The original agreement was drawn up in writing and, passing from hand to hand and from party to party, was mislaid and lost a number of times before it was fully executed by the signatures of both original parties. Subsequent negotiations were had from time to time, during many years, to restore the original agreement, which finally culminated in an agreement which was formally made and executed in writing by the present railway company respondent and appellant, in the following terms:

'R. W. No. 33.

'This indenture made this 24th day of January, A. D 1906, by and between the Tacoma Mill Company, a corporation duly incorporated under the laws of the state of California, and doing business at Tacoma, in the state of Washington, the party of the first part, and the Northern Pacific Railway Company, a corporation incorporated under the laws of the state of Wisconsin, the party of the second part, witnesseth as follows:

'Whereas, in the month of May, A. D. 1888, the said party of the first part made an agreement with the Northern Pacific Railroad Company, then duly incorporated and organized as a railroad corporation, under an act of Congress of the United States approved July 2, A. D. 1864, which said agreement was never executed, and was in words and figures following, to wit:

"This agreement made and entered into this ___ day of May, A. D. 1888, by and between the Tacoma Mill Company, a corporation duly incorporated under the laws of the state of California, the party of the first part, and the Northern Pacific Railroad Company, a corporation duly incorporated by act of Congress approved July 2, A. D. 1864, witnesseth:

"Whereas, the said parties to this agreement heretofore, to wit, on April 20, 1888, by their respective attorneys thereunto duly authorized, executed a certain memorandum of agreement relative to a right of way to be granted through the mill property of the said party of the first part in the city of Tacoma, Pierce county, Washington Territory, for what is known as the Bay Side extension of said company's railroad along the water front of Commencement Bay, and which said agreement provided for the execution of and delivery of a deed by said party of the first part conveying to said party of the second part the said right of way, for the consideration and upon the conditions and with the reservations therein and hereinafter set forth, and which said agreement also provided that a contract should be entered into by and between said parties in proper form setting forth the contents of said memorandum, and the conditions upon which said right of way was granted, and all the agreements, covenants, and stipulations of the parties relating thereto;

"And whereas, the said party of the first part has this day duly executed said conveyance of said right of way to be delivered to said party of the second part upon its execution of this agreement, which said right of way is located upon a strip of land twenty (20) feet in width (being ten [10] feet in width on each side of the center of said proposed line of railroad as surveyed and laid out, and hereafter to be constructed) across the lands in section twenty-nine (29), township twenty-one (21) north, of range three (3) east, W. M., owned by the Tacoma Mill Company, the center line of said strip of land beginning one hundred (100) feet east and sixty-nine and thirty-one one-hundredths (69.31) feet north from where the center line of Second street, in Tacoma, W. T., intersects the western boundary of section twenty-nine (29), township twenty-one (21) north, of range three (3) east, W. M., running thence south 76~25' east, two hundred and six-tenths feet; thence on a 7~ curve to the right two hundred and twenty-six and two-tenths feet; thence sough 60~35' east two hundred and eighty feet; thence on a 12~30' curve to the right one hundred and sixty feet; thence south 40~35' east, one hundred feet; thence on a 12~30' curve to the left to a point one thousand two hundred and fifteen feet east of the western boundary of section twenty-nine (29) aforesaid, assuming said western boundary of section twenty-nine a meridian of reference in the foregoing description; and it is to be held by said second party as in said conveyance is set forth:

"Now, therefore, in consideration of the premises, and to carry out said memorandum agreement the parties hereto agree as follows:

"First. The said Northern Pacific Railroad Company shall inclose their track and roadway to be laid and located upon said right of way with a good house or tunnel, constructed of iron or other fireproof material, and shall occupy in construction as little room as possible; the said tunnel shall begin near the eastern boundary of said mill company's property, not exceeding twenty feet west of gate leading to log pond, and to continue on through the property with said house or tunnel as the said mill company may direct; said tunnel shall not exceed nineteen feet in the clear above the rails, and is to be kept and maintained in good and safe condition by said railroad company and at its expense, and said track and roadway across said Mill property must be established at such a grade so that said tunnel, when constructed, will clear the chutes and other connections with said mill as the same shall be altered to provide for said construction, and will not interfere with the operation of said mill.

"Second. The railroad company shall repair or replace, as the case may be, all chutes and roadways leading to and from the mill, machine shops, messhouse, and other buildings on said mill company's property, wherever the same are in any way impaired or torn away in course of construction of said railroad, and shall put said chutes and roadways in as good working order or condition as they were before said interference with the same before construction, or shall bear the expense of so doing; the planer mill to be added to where any portion is removed or taken away in construction, and the planers moved and put in as good working order as they were before removal, at the expense of said railroad company.

"Third. The line of said railroad is to pass within eight (8) feet of the gate leading to log pond, and said railroad company is to construct a span sufficiently long so as not to interfere with the booming privileges or the sluicing of logs through said gate into the log pond, but said span not to exceed fifty (50) feet in length; thence in a westerly direction, the said line passing the mill and machine shop with as little damage thereto as possible; after passing said machine shop line of railroad to be as near the bank as possible.

"Fourth. The said Northern Pacific Railroad Company shall remove so much of the western end of the two railroad tracks and trestle on which same are laid lying east and adjoining the mill property as is situate upon lots 1 and 2 of the water front lots of the Northern Pacific Railroad Company hereinafter mentioned; the space so vacated, to wit, the western end of what is known and designated as lots numbered one (1) and two (2) on the map called the map of the water front lots of the Northern Pacific Railroad Company, which said map is to be found in the office of the assistant general manager of the said railroad company at Tacoma, Washington Territory, and a blueprint copy of which was furnished on or about April 20, 1888, to said mill company to identify said lots, the said lots being at the western extremity of the property of the Tacoma Dock and Warehouse Company on said water front. And said railroad company shall in due form execute and deliver a lease of said lots to said mill company, to have and to hold the same for its sole use as a dumping or booming ground for its logs, free of any rental charge, and to be used and occupied for such purpose by said mill company as long as the said railroad company shall use the property granted by said mill company as a right of way for railroad or other purposes, and the delivery of said lease shall be concurrent in point of time with the delivery of said deed.

"Fifth. It is also agreed that the wagon road now leading from the Mill property in a westerly direction across the property of the Tacoma Land Company, and connecting with Second street, in the town of Old Tacoma, shall remain and be kept open in its present location, and to the extent of its present width (thirty feet), until such time as such other wagon road or street shall be opened up through said property leading from the mill property and connecting with Second street, as shall equally as well, or better, accommodate and suit the convenience of said mill company in reaching points west of their Mill property in Old Tacoma, by wagon road, and that the railroad company shall put in and maintain a good and sufficient crossing for said road.

"Sixth. The said Northern Pacific Railroad Company shall also put in and maintain in said tunnel as many doors, openings, or gangways leading to and from the mill,

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