78 Wash. 628 | Wash. | 1914
For some time prior to March 25, 1901, Bartholomew Healy, the plaintiff herein, was the owner of, and in the possession of, eighty acres of land, in the south
“The parties of the first part hereby reserving, however,, from this sale, all the merchantable timber suitable for lumber, piles or shingles, now thereon, together with the right, and privilege of going upon said land and cutting, manufacturing or removing the same therefrom and of the right, of way where and along whatever route may be necessary to remove the same. The acceptance of this deed and having the same recorded, being an agreement to said reservations and a confirmation of said privilege and right of way, irrevocable until the removal of said timber.”
The evidence before us indicates that the Knacks purchased and used the land for dairy purposes. On August 6, 1901, Alfred Knack and wife, by quitclaim deed, conveyed the eighty-acre tract to one Edward C. Mony, who purchased it for, and later conveyed it to, the defendant, Everett & Cherry Valley Traction Company, a corporation.
In the fall of 1909, the defendant corporation commenced making surveys with the intention of constructing its railroad across the land immediately south of the county road. Later, and after the commencement of plaintiff’s actions herein, the railroad company constructed its road, the grade of its track for the most of the distance through the land.
Two actions were commenced by plaintiff, which have been consolidated. The first was commenced on May 7, 1910, to enjoin defendant from building its railroad, and thus interfering with plaintiff’s right to cut, remove, and transport his timber to the river. Plaintiff alleged that a slough was on the bottom land immediately south of the county road, which slough extended to a small lake on the southwesterly portion of the land, from which another slough extended across the adjoining land to the river on the south; that these sloughs, in times of high water, were ■ navigable for timber products; that they could be utilized for transporting logs to the river, and that the defendant, by filling them and by constructing its road, was seriously interfering with plaintiff’s logging facilities, right of way, and operations. In the first action, plaintiff’s motion for a temporary restraining order was, upon hearing, denied, he having failed to allege that he then intended to cut and remove the timber. Later, and on June 15, 1910, he commenced another and independent action for an injunction; the only substantial difference in his second complaint being that he alleged he was then ready to move, and desired to move, the timber. The two actions were consolidated, but were not forced to trial by plaintiff until after the defendant had completed its railroad across the eighty-acre tract.
The trial judge in substance found, in addition to the facts above stated, that about two-thirds of the eighty-acre tract were located on a steep hillside, sloping from north to south to the county road, which crosses the tract from east to west; that the south one-third was bottom land, on the east and west sides of which were small ponds; that between
Upon these findings, a decree was entered whereby it was adjudged that defendant should, within twenty days, pay to plaintiff the sum of $3,600. It was further adjudged that, in the event of defendant’s failure to make such payment, it
Numerous assignments have been made and many interesting questions have been discussed. The record and briefs are voluminous; so much so that a concise statement of their contents cannot be made in an opinion of ordinary length. Appellant contends that the respondent’s right to remove the timber expired long prior to the commencement of this action; that many years have elapsed since the date of the deed from Healy and wife to the Knacks; that the exception in the deed only reserved the right to remove the timber within a reasonable time; that such reasonable time has long since expired; that the title to the timber had reverted to the owner of the land; and that appellant’s title thereto should be quieted in this action as against respondent, in accordance with the allegations and prayer of appellant’s answer.
Respondent insists that he is entitled to remove the timber at any time in the future, when he may see fit to do so. The principal contention on this issue, seems to be predicated upon the proper construction or meaning of the word “irrevocable” in the clause above quoted. Appellant argues that the word “irrevocable” pertains only to the right of way, while respondent contends that it pertains to the reservation of the timber. On this proposition, we think the respondent’s contention must be sustained. In Skamania Boom Co. v. Youmans, 64 Wash. 94, 116 Pac. 645, a similar question was presented. The deed there involved reserved to the grantor, his heirs and assigns, “all the timber on the above described premises, and the right to enter into and and upon the same for the purpose of removing said timber, and the construction and maintenance of a logging road thereon forever.” Construing this deed, we said:
*633 “The appellants first contend that the word ‘forever’ in the reservation clause in the first deed refers only to the construction and maintenance of the logging road, and that the respondent had only a reasonable time in which to remove the timber; whilst the respondent insists that the word ‘forever’ has reference to both the right to remove the timber and to construct and maintain a logging road. The appellants argue that the punctuation in the reservation clause compels a construction in their favor. The original deed is not before us, but assuming that the certified copy carries the punctuation of the original deed, we do not think that the reservation clause is susceptible of the construction contended for by the appellants. It is elementary that a deed, like any other written instrument, will be read as an entirety for the purpose of determining its true meaning. . . . The reservation of the right to construct and maintain a logging road was no doubt for the purpose of giving a practical value to the right to enter upon the land for the purpose of removing the timber. The real value and essence of the reservation was the timber, with the right forever to remove it by means of a logging road.”
The word “irrevocable” in the deed before us should be construed as the word “forever” was construed in the case cited.
The controlling question before us is the proper construction to be placed upon the clause of the Healy deed used in reference to the right of way reserved by respondent, reading as follows: “the right of way where and along whatever route may be necessary to remove the same.” A deed is to be construed so as to give force, effect, and meaning to every portion of the instrument, and carry out the real intention of the parties. If a deed admits of more than one construction, it must be construed most strictly against the grantor, and most favorably to the grantee. It is evident that Healy and wife conveyed something of value; that they intended to convey the land and its beneficial use to.their grantees, subject only to the exception that title to the timber was to be reserved, with a reasonable and convenient right of way over which to remove it, and that the rights thus reserved were to continue in force until the timber should be actually removed.
On consideration of all the evidence, we are constrained to hold that, in their natural state, the so-called sloughs with which it is alleged the appellant has interfered; are not navigable for timber products. There are no streams of water upon the land. The only water which at any time comes into the sloughs is surface water, which escapes from the banks of the river during freshets. In making the statement that there are no streams upon the land, we are not unmindful of casual references in the record to a small rivulet which appears to come down the hillside in rainy seasons. There is no evidence that water ever comes from this supposed stream into the sloughs in sufficient quantities to make them navigable for timber products. The evidence shows that another railroad company has constructed its track and right of way across the land which lies south of the tract here involved, and near the river, although there is a trestle upon its right
The finding that 100,000 feet of respondent’s timber of the value of $3 per thousand was removed by the appellant or its employees, is sustained by the evidence, although appellant insists that such removal was the act of an independent contractor. We conclude from the evidence that this timber was removed and used by appellant’s agents in the construction of its road. This being true, the respondent is entitled to re
The judgment is reversed, and the cause is remanded with instructions to enter a judgment in favor of the respondent for $300, the value of timber removed by the appellant or its employees, with interest thereon from the date of the commencement of the second action. Appellant will recover its costs in this court. Respondent will recover his costs in the trial court.