*1 Argued February 27, September 24, 1952; affirmed modified argued rehearing rehearing March on affirmed November
BERNARDS et ux. v. LINK and HAYNES
Eugene Marsh, McMinnville, E. cause the respondents. the brief Marsh Marsh, On were & Dashney, of McMinnville. Justice, Chief
Before Rossman Hay, Brand, Justices. Warner, ROSSMAN, J. plaintiffs appeal from a the decree
This is in favor the defend- court entered the circuit which plain- prayed title of the in which that the a suit ants complaint parcel in land described the a tiffs approximately parcel, acres quieted. which The county. in Yamhill is situated extent, in assignment of error follows: The first holding Right-of- the that erred in “The Court conveyed simple Way title to the Carl- a fee Deed Company.” Railroad ton & Coast part exception the which is described the With subject property is right-of-way deed, the the in right-of-way deed is part in the The described farm. logging prior to 1941 but road, of a now section logging railroad. The roadbed of 1942 was begins plaintiffs’ farm crosses Carlton, road at Tillamook a distance about Gate, and runs to miles.
Although the answer denies averment alleges plaintiffs complaint are the the defendants tract, fee of the 200-acre owners property, plaintiffs own the entire concede right- exception area described with only of-way words, other the title to the deed. right-of-way deed is in issue. in the tract described right-of-way plaintiffs deed admit persons and delivered who executed parcel time of execution and at the 200-acre owned delivery. They validity of deed. also concede the granted They, the instrument however, claim that They convey also did the fee. an easement and *3 extinguished the easement was when claim that from a railroad to converted a road. was conveyed contend that deed to its defendants grantee, Company, Railroad the fee & Coast Carlton granted if an the latter easement, and also extinguished. not been has
August E. and Alice G. Freeman were 31, 1910, G. we men- the 200-acre tract which owners of Mary day they, together Upon with one tioned. and delivered to Carlton & Coast Geldard, executed Company, corporation, an instrument which Railroad Right-of-Way which, Deed and describ- entitled following subject employed lan- ing matter, its guage : “Being strip feet width, of land 60 feet in following line: described center side
on each ** “Beginning point aat “strip
The evidence indicates that the of land 60 feet long. in width” was about 2700feet apart description, The deed, from the follows:
“RIGHT OF WAY DEED Alice G. Freeman E. & G. Freeman et al. to
Carlton R. & Coast R. Co. day THIS DEED, Made on this the 31st August by A.D. 1910 and between Alice G. Free- Mary man and E. G. Freeman & Geldard, widow of and grantors, Wm. Geldard, hereinafter called the Company, Oregon Carlton & Coast Railroad corporation, grantee. hereinafter called the grantors WITNESSETH: That the said for and ($1.00) in consideration of the sum of One Dollar grantee, receipt received said whereof is hereby acknowledged, hereby grant, bargain, do convey sell and unto the said and unto its assigns, right way successors and for its use aas strip sixty (60) for a railroad, of land feet in width grantors over and across and out of the land of the County Oregon, in the of Yamhill and State of described follows, towit:
(Description) given, underground crossing To be one cattle at least high crossing 8' wide 6'6" one-surface 18' wide. Mary by joining And the said Geldard in this expressly hereby conveyed deed, releases the land any charge may from thereon which she have for any money payment by any grantee of Wm. Geldard, deceased, now and releases and relieves the hereby conveyed, any right land title to the from of reversion therein or held thereto, her and contingent on the breach of condition thereon imposed deed from said Wm. Geldard. following pieces,
Also the described towit:
(Description) strip substantially taken Said of land shall be surveyed along line now and staked as a line agents grantee and its a said for railroad agreed and it is land, said and across servants, over along strip a grantee said bnild said shall freight passenger service, on or railroad for day it and should October, before the first grant shall be- railroad, such this fail build so to strip so title said and the void, come null conveyed grantors and their said shall revert in interest. successors hereby the land AND HOLD HAVE TO TO conveyed grantee successors said and its unto the subject provision assigns to the forever, but out. reversion hereinabove set grantors hereby covenant to and do The said grantee strip land that the said the said with hereby conveyed incumbrance, is free from they the title thereto warrant and defend that unto said will assigns grantee, its successors and agrees grantee herein The that when aforesaid. operation keep it will build and railroad is said good along repair a and substantial fence each hereby conveyed. strin of land of the side grantors the said WHEREOF, IN WITNESS set their hands and seals.” hereunto delivery grantee, deed, & Carlton After Company, constructed the railroad and Railroad Coast began operations. prior 1, 1912, it Seem- to October ingly, time was deemed common carrier. at long nothing except was offered to the road Before logs Carlton, a little lumber. is one large operates. sawmill road, termini of the two point had a the road connection with at that Likewise, Railroad. other end Pacific Southern said, Tillamook where is near Gate as we have road, body just large timber. The facts there stands of the road. the construction account for mentioned bound itself There no contention operate common carrier. as a *5 By Company Railroad 1940 the Carlton & Coast financial difficulties, became involved in Janu- appointed ary it. a receiver was June 13,1940, the receiver sold its assets to the Reconstruction July agency Corporation. 28, 1942, Finance and delivered to the defendants a deed which executed * * *” ‘‘ right way conveyed certain to them that together items. with other
Immediately after defendants received their the way. They they improve proceeded the deed operate and own timberland near a mill Carlton improvements plac- The consisted Tillamook Grate. bridges decking stringers upon ing ten new trucks. accommodation of Fills were latter for the bridges. right way of the other The substituted for logging a road for trucks railroad converted into was gravel. by replacing and rails with roadbed of the ties places and at others turnouts the road was widened At 25,000,- defendants have hauled The were constructed. annually logs commencement of since the feet of contiguous operations timberland own their of timber. 150,000,000 feet which stands road They permit use the road. From the testi- others to following mony is taken: defendants the one of the your to have trucks Bernards wanted If Mr. “Q you produce up would haul it? pick tomorrow, some Yes.” “A granted argue the deed ease- plaintiffs
The grantors. Upon remained in the fee that the ment con- that the deed defendants insist hand, the other simple veyed submitted title. briefs fee many parties decisions. cite (1) from the deed was be observed It will conveyance (2) Way “Right Deed”; entitled (3) right way”; strip “for use as a made was conveyance (4) the $1.00; was the consideration subsequent subject revested a condition stipulated grantors in the event title in the all required grantees (5) were occurred; condition crossing; grantors a cattle for the use construct phrase description (6) “over included (7) grantors”; land of the and out of the across *6 “strip employed repeatedly the term phraseology required (8) to “build was land”; keep along good repair each and substantial fence in a strip”. side of suggested by the com- have been tests
Various
facilitating
a
whether
a determination
mentators for
grants an
easement
before us
deed like
one
example,
conveys
Eestatement
fee.
for
See,
Thompson
Property,
Property, §
Eeal
471, and
Law,
given
including
§§
462. We
459 to and
Ed.,
Perm.
suggested tests.
all of the
attention to
quiet
a
P
was
suit to
Pilz,
701,
v.
The only. granted an deed conclusion It said: “* * * to Peter deed from Schmeer John conveys Eudolph claimed, under which Schmeer, description an parcel easement. The is: ‘A * ** purposes. strip of land for road The said twenty conveyed feet so herein for a road as Language
above stated is to be inclosed,’ etc. import similar held Robinson v. Railroad Company, (10 522) 59 Vt Atl. to create an ease ment. In that case the estate was described ‘a strip and my of land four rods in across width, land, being occupied by the same land now the St. Company Albans and Richford Plank Road for ’ plank their use of a road, road. The words plank ‘for the use of a road’ seem to have been although decisive of the estate carved out, the deed purported grant. otherwise to be absolute See, City Minneapolis (Minn.) also, Sanborn v. parcel inSo, N. 126. this case, W. the words ‘a purposes’ road land for are indicative of an ease only, controlling ment the are as the measure of * * granted; estate will be observed that that It decision construed the substantially a set of effect of circumstances similar before us. In the to those now case at bar, dis- more similarities are indicative of an intention to convey grant an easement than to the fee. . In view of *7 unnecessary decision, we deem it to set forth herein many by parties. a review of the authorities cited We believe the Wason decision is determinative of the issues under consideration and hold that quoted, granted deed, we an easement. The grantors retained the fee. question remains as to whether the easement extiguished. plaintiffs’
has been The sole basis of the extinguishment claim of is abandonment. Their brief says : Company operated “The Railroad said railroad early receivership
until it went into in the 1940’s Company use of abandoned its Railroad when the right-of-way said farm easement over the 60-foot operation common car- and discontinued operated had for some 30 rier railroad which years.” possesses rights of an easement the owner
Since may, if ex chooses, he he tenement, in the servient thereby tinguish end the easement. them says: Property, § Real Powell on “* [*] * As the term suggests ‘abandonment’ manifesting of the easement owner means conduct longer. Ex- no an intent to exercise the easement rights tinguishment by abandonment is not bare * * # common. extinguishment by “Assuming then aban- recognized it becomes easements, donment necessary as to what evidence can be used to determine The ulti- to base the conclusion of abandonment. make mate fact to be established is the intention to expressions no further use of the easement. Verbal enough help intention alone but of this are not greatly might interpretation in the acts which equivocal. other varieties of cessation of otherwise be evidence Two require (a) consideration, (b) conduct inconsistent with an intention use; the easement further. use seems to be well settled that “It grant, a deed or otherwise created writ- proved ing, extinguished cannot be to have been by proof long no matter such nonuser, how * * * may have continued. nonuser type important most of evidence on the the “The question consists of action of abandonment inconsistent with his desire further easement owner equivocal easement. Conduct which is use the not suffice.” does in character
According Property, to Restatement the Law, § 504: may extinguished by
“An an in- easement relinquishment by tentional duct thereof indicated con- respecting thereby.” the use authorized (a), In Comment which follows the statement of principle it is said: ready ownership there an to take the
“That is resulting from an of an ease benefit abandonment probable explanation ment is the of the tolerance of the law toward the abandonment of such interests. many ownership In land in cases, of which the example, permitted, fee is an would an void in the if abandonment, ownership in a result thing, largely filling affected of which would be question probably produce of chance and would grave uncertainty of title. In such cases, abandon permitted permitted only if ment, at under all, prevail rules stricter than those which in the case * * #” of the abandonment of easements. (c) it is Comment said: relinquishment “An intentional of an easement respecting indicated conduct use authorized by it an abandonment constitutes of the easement. required The intention in the abandonment of an easement is the intention not to make the future the uses authorized it. The an benefit of ease- privilege subject ment lies in the of use of the land to it. There is no abandonment unless there is a giving up giving up of that use. The must be respecting evidenced conduct the use of such a give up indicate character an intention to present. use for future as well as for the when Conduct, of the inconsistent with the continuance give up. an use, indicates intention to required conduct for abandonment cannot consist expressions expressions of intention. of verbal are Such extinguish effective to when *9 requirements they comply a release of with expressions an operate of as such. Verbal however, for the relevant, are intention to abandon meaning giving are sus- purpose acts to of indicating in- being interpreted ceptible tention to of by up give an ease- the use authorized conclusively not of themselves which do but ment, them.” animated intention which demonstrate the (d) follows: 6 to Comment Illustration way logging right a railroad “A a of for has by possessed B. He Whiteacre, over takes owned log up another district, order to the rails in relatively replace intending in a short to them depressed he market conditions time. Because of replace period attempt for a rails makes no to always years though has the intention of ten he replace soon as are to them as market conditions satisfactory. years elapsed A After ten at- replace tempts rails. He is entitled to do so.” Property,
Thompson Ed., § 700, on Real Perm. says: * * ‘ i * conveyed a railroad com- Land was long way
pany right the land should a of so for way graded. purposes. The was railroad be used for original company the successor of Afterwards completed a route and refused to the road new conveyed. grantor it on land construct way occupied conveyed right for the of for land completion years of the road after the five put improvements route, and valuable new company. objection from the railroad it without way right that the was abandoned It held was grantor. The acts the rail- reverted to the company a clear intention to showed abandon road right way. way right A for a railroad midway through about between stations two land, granted by distant, was a deed which be used and three miles provided if ‘it should cease * * * operated as a railroad this shall release operative, right way granted
cease to be and the thereunder shall terminate.’ The consoli- company, a dated with between track of which ran referred stations different route, grantee’s and thereafter storing track was used right cars. held It was forfeited. was Evidence that a railroad taken up, the removed, rails and ties the fences taken away, bridge across a river torn down, all of abandonment, view with is sufficient show an abandonment of the way; in fee company acquired where a railroad but, title simple depot purposes, *10 to land for such land grantor not revert does abandonment of the use the the railroad’s depot pur- of the land for poses. railway company a street Where had the lay operated right some a track, double its road for years, and then abandoned one but track, years, it relaid it after ten was held that it had not right the to use both An lost tracks. easement by deed is not created defeated mere nonuser. There must be in addition other acts the owner conclusively unequi- the dominant estate of vocally manifesting present either a intent to re- linquish purpose the easement aor inconsistent * * * its further existence. has It been with held that the substitution of motor busses for electric is street cars right not abandonment of car the line’s way private property.” of over Although fragmentary, the evidence is somewhat it way right the of was does show ever idle. period idle at the all, If it was could not have been longer than few months. As soon a as the conveyed they proceeded defendants at the once was converting logging of work with their railroad into thoroughfare. logging It seems that a while that work logging operating upon progressing trucks was brought logs Accordingly, right way into of Carlton. finding complete' non- for can be no basis there user. it defendants renders clear that the evidence
The for use intend to resume do not contrary, logging operation railroad, but, logging operation their road. to continue the intend problem when reduced to its final us, before The granted by right- analysis, Did is this: the easement August of-way 31, 1910, deed of authorize sub- logging predecessor, road its stitution of the plaintiffs logging railroad. The do not claim that the subjected property any logging has their road addi- To the extent there tional servitude. subject, strip upon the it that the indicates
evidence subjected property in this involved suit is to sub- stantially amount of use which the same was made logging operation. railroad when logging logging and of
The trucks roads use of evolutionary development in the North- has been an industry. present generation logging has west’s industry pass through cycles succession seen that present depends materially upon one which into logging were When the forests near the saw- trucks. brought logs ox were to the mills teams. mills, *11 ax the as woodsman’s made forests recede the Then, waterways, many logging railroads mills from the equipment and other built. cables Powerful were logs brought to outer terminus of the railroad. the the they industry trucks, offered suitable the motor When They appear began in were the woods. flexible place. logs bring With the the desired the could operators building, found it road some extension expensive trucks run loaded to the mills or less logs upon dump log railroad cars than to reload the extremity the outer
at of the railroad and have the cars journey. complete development, With that logging began yield. supremacy Many railroad loggers logging more economical found it to build roads logging virtually railroads. than The latter has no except junk value when all the timber has been logging but a road can cut, accommodate the vehicles agriculture of farmers as in follows the' wake of the eventually may timber faller be available as a public highway. logging oper- trucks which Moreover, upon privately escape ate owned roads the taxes and regulations traffic exacted of vehicles run public place upon roads. In short, what has taken question counterparts. in has numerous Improvements trucks in and the demand inexorable logging operation lower cost of have made the road logging places. the successor railroad in divers are Easements, which one of numerous instru- day’s which the work done, mentalities is would progress facilitating thwart instead of it unless those who have easements can avail themselves newer improved methods in use of the easements. pertinent quoted
It of a to take note much Harvey v. Walters, observation which was made L L J, L C P P 28 T R, 8 C 346. We now quote it: appears any, “It to us that to hold that even enjoyment slightest, of an the ment variation ease-
n destroy virtually would would the easement away easements, all do with the effect of change place. natural some must causes take Thus flowing produce percolating or would water some height and tear and alter the wear width conduit; weather, so would alternations of heat lights, changes cold, &c. the case of ancient transparency glass, in the wear and tear of
593 growth produce frames, &c., would effects shrubs, vary enjoyment. which would the character of the footpath footsteps In the user would never accurately be on the same line confined the the opinion same width of road. are We question here, as in v. Hall and other cases, Swift is whether has there been substantial variance enjoyment in mode of or extent user or greater the easement so as throw a burden language the servient Richard Master tenement. In the of Sir Kindersley, adopted which was Rolls in the case of Heath v. Buck nall, there must be an additional or different servi change tude, and the must be material either in the quantum imposed.” nature or in the of the servitude From the earliest times the courts, in their con- granted struction instruments which easements, have give sought practical to discern and effect in a man- purposes grant, ner to the with the result that enjoyment in his of the easement has never been restricted to the exact condition which existed grant leading authority when made. The was Rep Luttrel’s Case, was decided in 1601. following, taken from that decision, refers at the beginning declaration filed in the case: plaintiff, “the on the 4th of March in the 40th
year seised fee of old and Elizabeth, two fulling-mills, ruinous whereof, time magna pars aquae cujusdam etc., a rivuli ran from place called Hod Weir to the said mills; keep for all said time there had been a bank the water within the current; and that afterwards plaintiff, pulled 41 Eliz., on the 8th October, fulling-mills, said down the and in June, Eliz., place fulling-mills of the said erected two mills grind corn, and said ran water to the said mills September following; until the 10th next and the day fregerunt same defendants et foderunt mills, bank, and diverted water from his etc. guilty, pleaded and was “The defendants *13 plaintiff against the had found on which them, brought judgment; a which the defendant Exchequer on Chamber, error in which writ of the assigned. principal of thése two was, that, were errors by breaking abating the and of the old building fulling-mills, by and of new mills of the destroyed plaintiff the nature, another the had any prescription prescribe and could not to have grants grist-mills: man if a me watercourse to ‘As my fulling-mills, as it to I cannot, a watercourse nec e contra.’ convert them to was-said, corn-mills, * * * argument, the altera- that “It was contended might fulling-mills be in- from to corn-mills tion might jurious grantor, corn- he have the to because proximity the of others himself, mills might injure principle denied, and the him; may preserve by rebuilding an easement that a man spot, manner, and in the same unless the same previous some had been caused the destruction by tempest lightning. or God, act prescription the did “But it was resolved appears by grist-mills, for it these new extend to register, Brev., Fitz. Nav. that if and also fulling-mill, any grist-mill, or uno molen- is demand a man general, shall be de mill, other writ any grist fulling. or addition of without dino, plaint agrees assize; so that the Ass. thing mill demanded, and to be is the substance fulling grist or is but show the addition quality the mill; therefore, if or nature prescribed plaintiff said had water- the course to generally (as might), he his mill well question would be without that he the case then might mill what nature into of mill he alter always prejudice pleased, provided no should by diverting stopping thereby the water or either arise, and it before; as was should be in- it grant that the to have watercourse was tended nobody building of mills, would before build a mill before he was sure to have then the to water, being
grant generally a watercourse may quality mill his he alter the at mill, pleasure as aforesaid. his by grant if a man either estovers, “So has
prescription, although his he alter the house, rooms and chambers of house, this as to make a parlour parlour hall hall, where was the or the where the qualities,
was, and like alteration of making and not of house itself, without new chimneys, by prejudice which no accrues to the the owner of the wood, it is not destruction of prescription, many prescriptions for then would destroyed; although chimney, he builds a new or makes a new addition to his old house, prescription, he shall not lose his but he cannot *14 employ spend any or part of his estovers on the newly added, same law of conduits and water- —the pipes and the like. So, if an has old window man to his hall and afterwards he converts the hall into parlour, yet use, or other it is not lawful neighbour stop prescribe for his to have the it, for he shall
light in such nart of his house. although plaintiff “And in this case the has question, prescribed made a forasmuch as he has not generally, forasmuch particularly fulling-mill, yet but his general as in the mill was the substance, only quality, and the addition demonstrates and the alteration was not the substance, but quality of the or name of the mill, and that any prejudice in the without watercourse to the owner for these thereof, reasons it was resolved prescription remained.” English restricting courts, The far from the hold ing expanded Case, in Luttrel’s it. A recent Attorney Reynolds The (1911) instance is General v. according 2 K B In that case, 888. to a headnote: “The destruction of an house, ancient to which rights turbary common of estovers and were necessarily operate
appurtenant, does not may rights. rights be abandonment of those enjoyed appurtenant to a new house erected provided that house, in continuance of the ancient no land. The greater imposed upon the burden is servient question house is or whether new ques- is not in continuance of the ancient house is fact. In order be a continuance of the tion of necessary ancient house it is not that the new house upon ancient built the foundations should be house.” quote from the decision itself:
We now * “ * # very language using the That is quite (4) true that Luttrel’s It is Luttrel’s Case. ought (5) said ‘it to be Court Case same old place, of the the old foundation which was necessarily I not think that but do house’; essentially No doubt it so. must interests of be means that it ought himself, the commoner in the less foundation the on the old because more try I do it; a case about but be to need there will intended to resolve think that the Court identity continuity unless there is be no there can figurative language that the nor I think site, do perdurable part being most soil about the the house can be identity import pressed that the identity part is an essential of the site expressed right might messuage. However, grant, assume think it is reasonable to I in the grant read in favour should be existing right appurtenant a house then aof *15 of the same. What house in continuance a new to may continuity question is matter; is another be to think it is limited I do not of fact. Contiguity good identity is no test site. doubt of daresay continuity, considerable and I building unless there would, in the new remoteness were destroy go modifying circumstances, far to continuity. conceded, as is as soon it But the the the falls establish, when house cases ancient may down it be re-erected and still be for this purpose right house, the same so that the is still appurtenant to I think it, it follows in reason that may necessarily it foundation, be re-erected, on the same place but somewhere in the same supply place Hatherley of the old house, Lord says, in continuance of the old house and the * * ”* right. exercise of the old quoted extensively foregoing We from the decisions they principles gov- because state the timetested Presumably grant ern the case at bar. all who ease- principles. ments are familiar with those It remains practical take notice application of their in present controversies like the one. Of course, give fundamental rule is meaning effect to the grant. ascertaining meaning, its as we have interpretation placed upon seen, reasonable is its terminology, always but reasonable men look back at what done before.
Although right way the owner of a over land right another is limited in his use of the to the terms grant, yet grantee may it is settled that improvements avail himself of modern which will en enjoy fully rights him able more which were granted. determining In other meaning words, grant, of the will inferred, the absence of express language contrary, to the that not restricted to methods use which were cur grant. rent at time We shall now take phase notice of a few of the decisions this controversy. , From Diller v. Louis, St. S. & P. R. Ill R., 373 quote: 136 NE we # * right way A reservation of a entitles adapt the one who has the it to the im provements age.” *16 598 Capaldi, IR 138 Atl 53 312, 38,
In v. 48 Matteodo ALR said: 550, court right pas “Eespondents having an unlimited of sage for fact of use of vehicles, did the mere way by an to burden on com automobile add
plainant’s L. Ch. the Hodgson, Atty premises? Gen. v. page B. R. is 426, 234, S. J. N. at C. referred. case which we been per held the use of a motor vehicle was case, upon carriages; granted right way for missible a of grant carriage, a and under such said the motorcar was a sound. This us be court. view seems to way, granted right he of one a vehicular Where is not restricted is as a of to such matter law vehicles grant. It in common as are use at the time transported horse matters be on not whether he by by by wagon, or motor oxcart, horse back, vehicle. The method propulsion person using way by not the test which determine placed an added burden has whether been the servient estate.” Super Strycker Richardson,
Prom v. 77 Pa Ct following: we take grant a for a lifetime, “This nor although years, and, all time; of. but for term way wagons,’ right a for "teams stated as to use the it is inconceivable development exist if, should cease to wagons transportation, teams and should
means although wholly supplanted another similar be provided, type course, vehicle, originally contemplated, be used as continued to wagon roadway. i. A has been defined as a e., usually moving drawn wheels vehicle "wagon’ generic is a term horses. The word species name of vehicle whatever includes other may they propelled An automobile is a vehicle called. generated by power itself, within used general convey passengers materials, or * * * wagon. particular No land sense is wagon carriage Although is mentioned. auto- been invented time the ease- mobiles had not at the yet language grant created, ment was is unrestricted, and can be held include *17 vehicle on then used.” wheels or thereafter Eq Diocese N Toman, Trenton v. 74 J 70 702, of says: Atl 606, ‘‘ brings ground upon This us third to the complainant namely, the rests its the bill, servitude extends to horsedrawn and vehicles, ‘carriage way’, parties the word as used the conveyance, to the does admit not of ‘automobile way.’ proposition To this I am unable to assent. ‘carriage way,’ ‘wagon carriage The words alley’ and or designating are the deed those the use alleyway may put. particular which the be No kind carriage wagon Although or is mentioned. auto- mobiles had not been invented at time the the ease- yet language grant was created, ment is and unrestricted, must be held to include on vehicle wheels then or to be which A thereafter used. ‘carriage’ is defined ‘that carries, & especially Eng. wheels; a vehicle.’ Am. 5 Ency. (2d Ed.) p. of Law 157.” v. From Swensen 306 Marino, 582, Mass 130 ALR quote: 763, 29 NE2d 15, we * “ * * Three of five ancient deeds men tioning teams and other We should be right way passing refer ‘with ways’ equivalent use or words. very hold slow to even ancient way, rights expressly restricted as to the (Clarkin type Duggan, of vehicle v. 292 263, Mass. 170), employed N.E. could 198 not be all at for the means of in common use a suc transportation ceeding generation.” App Supp2d Moore, 73, Dillon v. Div 833, NY grounds, pointed [reversed 561] on other 296 NY out: grant rights way “The did not limit wagons use thereof to horses which were conveyance grant at time the mode of the easement made. When automobiles wagons supplanted a mode trucks horses conveyance plaintiff, patrons her travel, of and tradesmen rights and the other holders of way, over auto- traveled with There no trucks. evidence that this mobiles and upon the increased the burden owner servient ’’ estate. v. Sheets, 1148, 234 Iowa 15 NW2d In McDonnell 156 ALR the contested was estab reading grant as follows: lished guarantee grantee, her as- “Grantors ingress agress signs, privilege of to the wagon, property, with team and rear of her such may grantors desig- from manner time to time their land.” nate over interpretation just announcing its of the words
quoted, said: the court *18 * “* * It our construction that the words wagon did not amount to restriction team type or traffic.” of vehicle on the that all of observed in the will be decisions from
It
just quoted
citing
courts,
the
without
we
Lut-
which
grants
the
of
construed
the easements in
Case,
trel’s
way
early English
substantially
in
the
as
same
They gave
grant
effect to
instrument as
the
the
ease.
way
used
and felt
easement to be
of an
terms
“wagon
“carriage”,
carriage”
and “team
such
wagon”
intended to
were not
restrict
the use of
way
kind
of that
when better
to vehicles
ones
the
They deemed that the
available.
words were
became
way
expressing
type
merely
the
the current
parties
in
the
had mind.
which
Electric
come now to Kansas
Power Co. v.
We
51 P2d
affirming said: the decision under review decree, v. Power “In the case of Anderson Knoxille & (2d) App. 205, W. L. Co. the Tenn. 64 S. abutting grantor plaintiff whose was an owner twenty way conveyed right had the street foot wide long company same is car ‘so as the used railway purposes, revert to the for grantor, otherwise to assigns.’ asked for an his or He heirs changed
injunction company, against which had ordinary operating line to a from trackless an street car loop trolley, being through a the land plaintiff on both owned land sides where way, loop five miles from part plaintiff com- Knoxville, the downtown plained possibly held: less right trolley one and wires instead of the two guy changes, and other and was wires regular ‘Changing from cars to “track- street trolleys” and construction concrete slab held not abandonment use thereof containing “railway purposes,” for reversion within deed clause.’
“Appellants # # [*] complain of the added noise, vibra- pedestrian automobile travel as tion, original burden which the defendants as additional agreed permit now, and should not never owners compelled abutting to endure when owners, contemplated when the deeds were not such was Eliminating the matter of additional executed. party wholly respon- is for which neither travel, noise and vibration found the additional sible, wholly such an element as should not the court taking prevent of a or forward hinder recognized by general step, pub- progressive so injurious in itself destructive.” lic, when analogous suffice as review of above will cases. give duty endeavor discern and effect our
It is grantors which the intention *20 August had 31, 1910, when thé deed of was executed discerning and delivered. In their intention, we must substantially language view the of the deed in the same way similar instruments have been viewed decided; courts since when Luttrel’s Case was paramount renders it evidence clear that the purpose parties grantee was to enable the bring way over the of Carlton, in described logs being produced the deed, the which were near pointed Tillamook Gate. In 1910, we have out, logging only logs railroads were the means transported long were distances. Horse-drawn ve years ago, two score of hicles, far outnumbered auto strange sight. mobiles, and motor trucks were a None capable carrying logs. “Eight way of them was way expressing for a railroad” was the current parties; grant way intention of the that is, to upon grantee bring logs which the could into Carlton. “right way logging To have said for road” would meaningless, have been for such roads did not exist. parties “Eight Way When the entitled the deed they Deed” in a indicated, measure, that it was the they in which were interested rather than the instrumentality operate upon way. which would Today they In 1910 Diesel motors were unknown. are frequently, found in the motive unit of rail but also in roads, motor trucks. Thus, the use of gap Diesel motors has narrowed the which differen tiates locomotives from trucks. meaning parties,
When we construe we place position must in endeavor to ourselves their effectively retreating that cannot be done without years. granting time about two score to the Company Carlton & Coast Eailroad facility transportation could construct a which it hauling logs, purpose do not we believe the chief grantor restrict intended to specific equipment type then use. which was grantor’s purpose, the railroad could Had that been the equipment develop kept its abreast of the not have place and also in locomotives ments that have taken *21 believing logging of no reason for cars. We know grantee grantor to the that intended to restrict the specific employed type in 1910. roadbed which was parties a in the deed condition sub The included extinguished sequent whereby would be the easement passenger equipped railroad, render both if a (O. freight R. 1, 1912 October was not built service, they 413), 112 P McDonald, 58 but & N. v. Or Co. type grantee to maintain that bind did not the deed bound think that thereafter. We service permitted grantee that but railroad, to construct keep long grantee, easement, to it used the developments accord and, of the times abreast ingly, more economical when it became conclude logging road, from a railroad to to convert liberty to do was at so. contested deed con- held circuit court The veyed it. believe construe We fee. do not so We grant an the terms easement, more than that it did no expressed above. of which we court the circuit with cause is remanded appropriate decree. to enter instructions Rehearing On argued appel- for Portland, Kemmer, T. Albert Griffith, N. Norman brief him on the was lants. With of Portland.
Willard L. Cushing, McMinnville, argued With, him brief on the Marsh respondents. Marsh, & Dashney, McMinnville.
Before Chief Justice, Latourette, Warner, Rossman, Lusk, Brand and Perry, Justices. rehearing.
Affirmed
ROSSMAN, J. Due to the two-fold reason in this issues are and that Powers v. Coos Bay appeal important Lumber Company, this decided day by us, was ap- pealed at about the same that our time decision in the instant case was announced, we granted plaintiffs- appellants’ petition for rehearing.
As the principal
for their
support
contention that
our previous decision
the brief
erred,
filed by plaintiffs-
Land &
appellants cites:
Tamalpais
Water Co. v. N. W.
R. Co., Robert
2d,
Cal App
917, 167
825;
P2d
Pacific
son v. Bertha Mineral Co., Va
cision, our attention to: 6 Mees. & W. v. Dowgiel 174, 370; Eng. Reprint Reid, v. Pa 115; Hodgkins Bianchini, 59 A2d Kain v. 80 NE2d Norfolk, 1949, Ch. 464; Mass v. Coulson, Newcomen R. 163; L. 5 Ch. Div. 133.
We careful attention given to the authorities and the case has mentioned, above entire once more G06 however, believe, consideration. We
received earnest' opinion previous free from error. that onr pronouncing neces- view, do discern we analyses sity setting the above forth herein authorities. former decision. to our
We adhere