57 Wash. 407 | Wash. | 1910
This is an action to recover possession of, and quiet title to, a strip of land claimed by the appellant, and occupied by the respondent Wisconsin Logging & Timber Company as a logging railroad under a contract of purchase from the respondent Benson Logging & Lumbering Company. Ordway and Wideler procured the right of way, and, through different conveyances, the property came into the ownership and possession of the respondents in this case.
There are two tracts of land over which this logging road runs. One Swenson was the owner of one tract, and the contract was made with him in 1895 by the Benson Logging & Lumbering Company, wherein it agreed to, and did, give to said Swenson the sum of $500 in consideration of a right to lay a portion of the track in question. Afterwards, desiring to extend its main line across the Swenson premises in another place, another agreement was entered into for certain considerations therein stated. The second cause of action involves the land owned in 1883 by Robert McAdam and wife. On the 26th day of February, 1883, McAdam and wife executed a written instrument, which was not acknowledged, providing for the granting of a right of way to Ordway and Wideler. This instrument was assigned to the Columbia River & Grays Harbor Railroad Company by Ordway and Wideler, and that company at great expense built a private logging road on the premises described in the instrument, and for several years continued to operate the road for its own benefit. In March 1889, Robert McAdam died testate, devising the premises described in the second cause of action to his son, Fred McAdam, who is the plaintiff herein. Upon trial of the case the action was dismissed, and plaintiff appealed.
The legal questions involved in this case, both as to the consideration and the doctrine of equitable estoppel, were con
It would seem, at first thought, that the removal of rails from a right of way and the keeping of them off of the right of way for ten years might indicate an abandonment. But an abandonment is as much a matter of intention as of time. Nor will mere nonuser defeat the right to occupy a right of way for purposes expressed in a grant, when no time has been stipulated for the use; and the record shows that, in the written agreement between McAdam and his wife and the respondents’ predecessors, there was no provision for the restoration of the land to the McAdams when the grantees should fail to use the land for a right of way. But in addition to this, the record shows plainly to our mind that there was no intention to abandon this railroad or right of way, but that the rails were moved for temporary use in another place, the company having timber near Cathlamet that it seemed more advisable to log at that time than the timber
It also appears that there was no objection on the part of the appellant, Fred McAdam; that he knew of the return of the rails and of their being placed in their original position, and while he denies the statement made by one of the respondents that he helped to lay the rails, he does say, in another portion of his testimony, that he had a contract for hauling these rails at fifty cents a ton. The testimony on the part of the respondents shows, and we are impressed with its truthfulness, that he not only knew of the resumption of operations on the railroad, but was consulted in regard to where certain gates should be placed, and where cattle guards should be placed, the original agreement having made
Under all the circumstances of the case, we think that the record fails to show an abandonment on the part of the respondents by nonuser or otherwise, and that appellant cannot therefore invoke the statute of limitations against them.
The judgment will be affirmed.
Rudkin, C. J., Parker, Mount, and Crow, JJ., concur.