24 Wash. 366 | Wash. | 1901
The opinion of the court was delivered by
In July, 1870, Angelica Gill received a final certificate of entry for certain lands in Cowlitz county, and on December 7th following she executed and delivered to the Northern Pacific Railroad Company her deed for a right of way for the construction of railroad and telegraph lines of two hundred feet of land on each side of the railroad as located and to be located across her premises. The deed contained the usual covenants of warranty, and was duly placed of record. The railroad company, in the latter part of the year 1871, located its line of road across the premises, and constructed and completed its road in 1872, and the railroad and its successor, the Northern Pacific Railway Company, respondent, have ever since continued to operate its railroad through said premises. On the 22d of March, 1873, Angelica Gill conveyed by deed of warranty the same premises to one Pumphrey, who, upon the delivery of the deed, entered into actual and open possession of the premises conveyed to him, and during such time continued in possession, cleared the land, and reduced it to a state of cultivation for farming purposes, and, upon entering into possession of the land, fenced and closed the same up to within twenty-five feet of the track of the railroad line, and his possession was peaceable and undisturbed for more than ten years. In May, 1890, Pumphrey executed a mortgage to the Lombard Investment Company, covenanting that he had a valid title in fee simple to the premises so mortgaged. The Lombard Investment Company as
Appellant relies for title upon adverse possession. Counsel maintain that when the period of limitation has run a new title is created, and under such title the owner may maintain an action of ejectment to quiet title under general allegations of ownership. A number of authorities are cited to sustain the principle, including Raymond v.
It is true that the right of way of a railroad company for the operation of a line of railroad and telegraph lines has some of the attributes of ownership of the fee. The possession of the right of way when required for some of the uses of the company must be practically exclusive for those uses. But the right of way of the railway company here is designated in the act of congress of July 2, 1864, incorporating the Korthern Pacific Railroad Company, as a right of way. The deed from Gill to the railroad company is designated a right of way. The grant in the deed was evidently of an easement. The dominant estate for such uses as were not inconsistent with the uses of the right of way and the fee still remained in the grantor. Washburn, Easements (4th ed.), *p. 291.
It seems to be the general rule that a right of way lying in grant is not lost by non-user. Pope v. O’Hara, 48
Relative to the right of the railroad company to the entire width of four hundred feet for right of way, a full discussion is found in Northern Pacific R. R. Co. v. Smith, 171 U. S. 260 (18 Sup. Ct. 794), and also New Mexico v. United States Trust Co., 172 U. S. 171 (19 Sup. Ct. 128).
In East Tennessee, V. & G. Ry. Co. v. Telford’s Exrs., 89 Tenn. 293 (14 S. W. 776), it was observed:
“The use by Telford of the condemned land alongside of the railway company for agricultural purposes, so long as the same was not required for a purpose of convenience or necessity by the railway company, was a use entirely consistent with his right as the owner of the fee, and was not incompatible with the easement granted the railway. It was a use not made under notice to the owners of the easement, that its purpose was adverse to the easement, and it was not therefore adverse. The railway company had the right to terminate such use whenever they desired to put the land to'a use incident to the operation of their railway. ...”
In Union Pacific Ry. Co. v. Kindred, 43 Kan. 134 (23 Pac. 112), it was held that the occupation, cultivation and inclosure, by abutting land owners, of the right of way granted by congress could not he considered as hostile or adverse, and must he regarded as permissive only. We observe no distinction between the right of way granted by congress and the right of way granted by the appellant in this regard. The uses for the right of way in
Arriving at this conclusion it is not necessary to discuss some other important objections argued by counsel for respondents.
The judgment-is affirmed.
Dunbar, Fullerton and Anders, JJ., concur.