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constructed and intends to use for its gén- | northerly along the shore to Point Defiance, eral railroad purposes the extension of its and thence has constructed a double-track "Bay Side extension" to Tenino; that it tunnel 4,500 feet in length through Point De.. has agreed with the Oregon-Washington fiance to the northwesterly shore of ComRailroad & Navigation Company to allow it mencement Bay, whence it parallels the Bay the joint use of the track for a valuable con- Side extension to a point immediately northsideration; that it has granted the Great west of the premises of plaintiff, where the Northern Railway Company 5 years within new line intersects the Bay Side extension. which to determine whether it will desire This line is known as the respondent's Point the use of the track over which to run its Defiance line, and it proposes to use the trains between Tacoma and Portland under right of way through the premises of plaina joint operation contract, but that that line tiff as a part of its Point Defiance line to has so far declined such offer, and signified reach its station in the city of Tacoma, and no intention to enter into such an arrange- likewise it proposes to use the Point Defiance ment, it denies the allegations of the com-line as its main line from Tacoma to Portplaint as to irreparable injuries and dam- land and to southwestern Washington, and ages and possible future injuries, hazards to operate thereon its freight and passenger and damages. Respondent further affirma- trains, with the exception of some local tively alleges that it is the grantee and suc- trains between the same points of interseccessor in interest of the Northern Pacific tion on the old line, and to permit the operaRailroad Company and of all its property, tion over the new line of freight and pasfranchises, and rights, including the right senger trains of the Oregon-Washington of way in controversy; that the track con- Railroad & Navigation Company, and posstructed and operated upon that right of sibly in the future the Great Northern Railway was in no sense a spur track or siding; way Company. The evidence discloses that that the growth of the population served by the right of way through plaintiff's premrespondent's railway system, and of its busi- ises is 20 feet wide, and is built along the ness as a common public carrier, bas made shore beneath the bluff on which plaintiff's it necessary for it to increase its carrying mill is situated, and that the right of way capacity and facilities and to use the right is covered by a fireproof structure or tunnel of way in question for main line purposes; which at places is only 17 feet high, and at that it is so authorized and empowered by the no place exceeds 19 feet in height. In this instrument of conveyance from appellant tunnel are four 1242-degree curves. A dated January 24, 1906, and that such use switch track is constructed within this tunis in no way inconsistent with the terms of nel, beginning near the center, and extendthat instrument or in violation thereof. It ing to the northwestern margin of appelfurther alleges in its answer that the growth lant's premises, as provided in the contract, of population, business, and traffic created an for appellant's use. A grade crossing existing public necessity that the respond- through the tunnel is maintained near the ent construct, maintain, and operate what it northwestern end of appellant's premises, calls its “Point Defiance grade line" from connecting its offices, wharves and lumber
pa to Tenino, for the purpose of elim- yards with the city by way of Old Town inating grades and curves in its old main and another grade crossing through the line, and to use as a part of the “Point De- tunnel near the southerly end of appellant's fiance grade line” the right of way over and premises connecting with the streets exacross appellant's property as conveyed to tending toward Pacific avenue, in Tarespondent; that it has constructed the coma. These crossings are used by appel"Point Defiance grade line" at a cost of lant for the purpose of marketing its lumber many million dollars; and that the public and slabs in the local market, and the crossinterests and necessities require its opera- ings are at right angles to the city thoroughtion. There are further affirmative allega- fares with which they connect, and persons tions in the answer not now necessary to and teams approaching the crossings are notice; all of which were put in issue by unable to see approaching trains. When the the reply. Testimony was introduced by mill is in operation teams are required to each party supporting its allegations, over use these crossings, going or coming, every the objection of the opposite party.
five or six minutes during the day, and in Ever since the execution of the contract hauling heavy loads teams are likely to beon January 24, 1906, the respondent has come stalled on account of the grade at maintained and operated the Bay Side ex- the crossings. There is evidence also that, tension through the tunnel across appellant's if respondent is permitted to use this track premises as a freight track, to serve the as proposed, there will be considerable noise industries situated along the water front of and vibration in appellant's offices during Commencement Bay between the main ter- the passage of heavy trains; that it will be minus of the original railroad and the Ta- difficult to market the lower grade of its coma smelter. It has in the meantime con- lumber in the local market by reason of the structed a double-track branch line from its difficulty of access to its plant; that it will main line at Tenino in Thurston county to therefore be difficult to compete with other the east shore of Puget Sound, and thence | mills in the prosecution of its lumber business. There is also evidence that it is be- But appellant insists that the description lieved the mill property will be subjected to by metes and bounds following this paraa greatly increased fire hazard.
graph does not measure the grant, but sim At the outset it is conceded by appel- ply defines the area of land over which the lant that, if the intention of the parties may easement granted is to be exercised; that, be clearly and certainly determined from if the granting clause read "does hereby the language they employ, recourse will not grant the (said] right of way for railroad or be had to extrinsic evidence for the purpose other similar purposes," it would not be conof ascertaining their intention. It is con- tended that the right of way grant was other tended that an examination of the instru- than for the Bay Side extension. ment discloses that it is not, as the trial Viewing the contract as a whole, it itself court assumed, a mere deed granting a right discloses that a large manufacturing plant of way for railroad purposes, a unilateral belonging to appellant then existed, and was contract, but a mutual agreement formally to be maintained upon the same premises, executed by both parties; that the intention and that appellant would be adequately comof the parties is not, therefore, to be de- pensated for the grant of the proposed right termined solely by consideration of the of way by the new facilities to be given; words of grant, and in the construction of that this property was to be protected by such a contract courts must be governed by covering the right of way with a fireproof certain fundamental rules of construction. tunnel which should not exceed 19 feet in
 It is, as contended by appellant, unde- clear above the rail; that all roadways lead.niably true that a fundamental rule of ing to and from the premises should be reconstruction is that a written contract shall stored by the railroad company and all be read as a whole, that all its provisions changes in the buildings made at its expense; are to be considered, and that the general that additional facilities should be afforded design must not be frustrated by allowing for the storage of plaintiff's logs; that doors, too much force to single words and clauses. openings, and gangways should be put in and
"The elementary canon of interpretation is, maintained in the tunnel for the convenience not that particular words may be isolatedly con- 1 of appellant's business; that a side track sidered, but that the whole contract must be brought into view and interpreted with reference
should be built in this tunnel for the sole to the nature of the obligations between the use and benefit of appellant in shipping and parties and the intention which they have mani
receiving lumber or goods; that the railroad fested in forming them." O'Brien v. Miller, 168 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 469.
company should do all switching of cars for
appellant in its business free of charge, and On the other hand:
that such switching should be done promptly "The controlling canon for the interpretation | as the business of appellant should require; of deeds, if unambiguous, is to ascertain the intention of the grantor from the words employed." |
that the right of way should be but 20 feet Bernero v. McFarland Real Estate Co., 134 Mo. in width. App. 290, 114 S. W. 531. .
It is insisted that the proposed use of the [4-6] The written instrument of January right of way by respondent will greatly di24, 1906, is both a deed of conveyance of the minish or wholly destroy some of the privright of way described therein and a con- ileges thus reserved to the appellant by the tract containing conditions to be performed terms of the agreement; that if, in addition by the parties thereto. This contract reach- to the uses of the original track as a freight ed back and incorporated and interpreted or industrial track, it may lawfully use the the original agreement and deed between ap- | same for the number of trains now proposed pellant and respondent's predecessor of May, to operate over its line, then it may here1888. The present contract provides for the after lawfully make such increased use as execution of certain conditions to be per- the exigencies of the future shall demand, formed by the parties, viz.: (1) For the re- and that it is certainly probable that the spondent to make and deliver a lease of cer- future demands upon its main line adjusttain water lots owned by it to the appellant; ed at this point to one track will require the (2) for the appellant to grant the right of practically continuous use thereof. But the way through its mill property as expressed same thing may be said if it were construed in the agreement "for what is known as the to be the original intention of the parties Bay Side extension of said company's rail- that nothing but freight cars or switch enroad along the water front of Commence- gines should be moved over the original Bay ment Bay.” These provisions were perform-Side extension, as it was called. It is evied, and by the eighth paragraph of the agree dent that the Bay Side extension was not ment the agreement and the right of way a mere side track or industrial spur, but was deed are to be "considered and taken as one a sort of branch railroad, extending from the transaction.” The grant of the right of way terminus of respondent's predecessor, and is as follows:
as long thereafter used by respondent in the "Now, therefore, the said Tacoma Mill Com-city of Tacoma, to a smelter in the city of pany * * * does hereby grant to the said Tacoma near Point Defiance. There were a Northern Pacific Railway Company * * the right of way for railway or other similar
number of industries situated along that constructed and maintained for the purpose | 142 Pac. 15, wherein this court, per Chadof handling freight. It is very obvious that wick, J., observed: the growth of a very large city might have “The duty of courts, when construing quescompelled the location of a vast number of tioned contracts, to search out the intention of industries along this water front and along
the parties, is well established, but that duty
arises out of an ambiguity or omission that dethis Bay Side extension, to move the freight mands the reception of testimony to illustrate to and from which would require almost or their intent, or to harmonize apparent conflicts. entirely the continuous use of the track;
There is a presumption of finality which attends
all written contracts, and courts will not delibthat freight cars and engines might have to
erately raise doubts or conjure ambiguities for move upon it very frequently. Such being the mere pleasure of construing them. Fairthe case, it seems plain that the parties orig- banks Steam Shovel Co. v. Holt & Jeffery, 79
| Wash. 361. 140 Pac. 394 IL R. A. 1915B. 4771. inally contemplated that such might be done.
Nor will the fact that a party has made a hard There is nothing in the original or the pres or improvident bargain warrant the court in ant contract between the parties whereby the binding the other party to terms raised by conrespondent or its predecessor was bound not
struction or implication. These propositions
are admitted as elementary by appellant; but to extend the Bay Side extension to any
it is said that the whole contract, when conother point, should it find it necessary, and strued in the light of the facts and circumstancthere is nothing in either of the instruments es existing at the time the contract was made prohibiting respondent or its predecessor
and the general object and purpose of the par
ties, demands a ruling that respondent was from running any more than a certain num
bound to keep appellant's mill in operation. ber or kind of trains upon that track. The . There is nothing, unless we go outside fact that the railroad track is designated
of the written contract, to bring the parties and described in the agreement as the Bay Co. v. Messinger, 116 Wis. 549, 93 N. W. 459,
within the rule announced in Excelsior Wrapper Side extension does not operate to limit the where the court 'found the contract to be amnature of the use of the railroad in any way. biguous, and applied the rule as it relates to an
established business having a certain demand The track was at that time known and desig
for a certain amount of stock, which must have nated as the Bay Side extension. It appears | been known to the opposite party who was held that there was a plan on foot, at the time to have contracted with reference thereto. the original negotiations were entered into
* * * We have discussed this phase of the
case enough to demonstrate that to receive testibetween appellant and the railroad company, Imony or to imply terms would but lead to conon the part of one Allen C. Mason, to con- fusion, whereas courts invite testimony to clear struct an independent railroad, to be called up, ambiguous contracts and to make that certhe Washington Short Line Railroad, from
tain which is uncertain. Although questioned Line Ranroad, Irom by counsel, we think the case of Hamlyn & Co. the terminus of the Bay Side extension at v. Wood & Co., 2 Q. B. Div. (1891) 488, is or near appellant's property to the then in point. We agree with the observation by proposed site of the Tacoma smelter. It was
Lord Esher, M. R., that authorities are of little
use in cases of this character; for, at best, desired by the railroad company to construct they merely show that, in a particular case, an and operate such railroad itself, and steps implication was or was not made." were taken to acquire all the rights of Mr. In Hamlyn & Co. v. Wood & Co., 2 Q. B. Mason for the purpose of extending the Bay | Div. (1891) 488, cited by Chadwick, J., it was Side extension to the proposed site of the observed by the opinion writer that: Tacoma smelter. This shows to a slight ex. “When parties have put into writing the terms tent at least that the railroad was not con- upon which they agree, more especially in the sidered merely a side track or industrial
case of mercantile contracts, it is a dangerous
thing lightly to imply what they have not exspur, but was in a certain sense a railroad, pressed. Here it is clear that there is no breach and, as such, was contemplated and design l of the contract as expressed upon the face of ed to be a part of the railroad company's / the be a part of the railroad company's the written document."
"It is a well-settled principle of law that system and an extension thereof, although all prior negotiations of the parties are merged it was not then contemplated to be a main into a contract in writing when one is entered line railroad or any part thereof. The ul- into covering the subject-matter of such negotimate public and industrial demands and
tiations, and we are not aware of any rule which
will authorize oral proof as to representations increased traffic, no matter to how large ex made before the execution of such contract to tent, must have been contemplated by the be introduced in evidence for the purpose of conparties as part of the maintenance and op- trad
tradicting or enlarging the scope of such con
tract, without an allegation in the pleadings eration of the road. Appellant further urges, that 'such contract was, in fact, signed by the however, that it is our duty, in defining the party making such allegations by mistake or relative rights of the parties. to ascertain fraud, or without full knowledge of the conditheir intent, and, when found, to give effect
tions thereof. As we have seen, such allegations
were entirely wanting in the case at bar, and ed is to be construed in the light of the facts or to the execution of said contract were, under and circumstances existing at the time of its
Det the circumstances of this case, entirely immate
rial, if the contract in question was unambiguexecution and the objects and purposes the ous." Staver & Walker v. Rogers, 3 Wash. 603, parties had in view, citing a number of 28 Pac. 906. authorities,
So in the case at bar. Appellant did not The same contention was made in the case plead any mistake or fraud. There was no of Kanaskat Lumber & Shingle Company v. fiduciary relation between the parties. They resented by extremely competent counsel. , result from the increased use of the defendThey proceeded with the utmost care and ant's railroad, it was held that the grant of deliberation.
| a right of way to a railroad company "for all Without reviewing all the cases cited by uses and purposes or in any way connected appellant upon this phase of the case, it with the construction, preservation, occupawill be found that in nearly all of them ap- tion, and enjoyment of said railroad” is pears some fact or circumstance tending broad enough to embrace all uses for railroad to show fraud or mistake aside from the purposes, however much increased, and that mere reliance upon the representations of it will be conclusively presumed that all damthe other party to the contract as to its ages to the land outside of the right of way, contents.
past, present, and future, were included in "A deed which is upon its face an absolute the consideration paid for such grant. Chigrant is not subject to have reservations or limi-cago, R. I. & P. R. Co. v. Smith, 111 Ill. 363. tations engrafted thereon by parol or extrinsic This case was reaffirmed by the Supreme evidence of intentions, understandings, or agreements contradictory to or at variance with its
Court of Illinois in Kotz v. Illinois Cent. R. clear language." 17 Cyc. 620.
Co., 188 111. 578, 59 N. E. 240. "In order to let in evidence of a collateral | Certain property owners executed a deed agreement between the parties, such agreem
to a railroad company, granting the right of must be consistent with the terms of the writing: and the evidence must not tend to vary way for a branch road across their property. or contradict the terms of the written instru The Supreme Court of Minnesota in that case ment or to defeat its operation.” 17 Cyc. 714. | (Liedel v. Northern Pacific R. Co., 89 Minn,
See, also, Hubenthal v. Spokane & Inland 284, 94 N. W. 877) held that the road conEmpire R. Co., 43 Wash, 677, 86 Pac. 935; structed pursuant to the contract was not a Hathaway v. Yakima Water Co., 14 Wash. private line for the benefit of the property 469, 44 Pac. 896, 53 Am. St. Rep. 874; Smith owners only, but was a public line, a part of Land & Gravel Co. v. Corbin, 81 Wash. 494, the company's railroad system, and subject 142 Pac. 1163.
to general state laws governing railroads. In The conveyance in question conveys by ab- that case it was said: solute grant the right of way for railroad "Considering the contract in all its bearings, and other similar purposes to the respond
we are satisfied that it is not susceptible of the
interpretation put upon it by respondent. The ent. There are no reservations or limitations
grant is absolute of a strip of land through the ingrafted upon it limiting or qualifying the property described to be used for a right of way grant for railroad and other similar purposes. for the railroad track. In consideration of this
grant the railroad company agreed to construct Had appellant desired to limit its use as a
a track over the right of way and to transfer or right of way by providing that it should be
switch cars from it and its main railroad to and used only for freight purposes, or only as an from any private tracks connecting therewith industrial spur, or that only a certain num
at no greater than the usual charges for such
services. The effect of these provisions was to ber of trains, engines, or cars should be mov
make this branch road a part of the main sysed thereon during the day or during certain tem, and, in connection therewith, to subject it hours, or that, in case of being used for ad to the regulations of the state Railroad and ditional purposes other than the uses and
e uses and Warehouse Commission. This branch is in no
sense a private track, but is a complete and effipurposes immediately contemplated, appel
cient part of appellant's railway system. It lant should be compensated by the payment may be used for the benefit of the public as well of further damages than the consideration as the private property referred to, and the comexpressed in the contract, all those things
pany may establish a station or freighthouses
and condemn property for its uses in connection could easily have been included in the con- therewith to the same extent that it may for the tract, and, not having been included, it is benefit of any other part of the road. "This inreasonable to infer that they were not in- ference is not modified by the language pointed
a out by respondent, viz., that the track is for the tended to be required. The legal effect of
accommodation and use of the parties to the the grant to the railroad company of a right deed. That clause neither adds to nor takes of way to be used for railroad and other away from the effect of the contract. If it be similar purposes is that the land thus taken
stricken out, it would follow that the track be
came a part of the main system, and for that and paid for for public use may be used for
reason must be operated for the accommodation a public use by those corporations which act of the company; but it must be operated for as agents and trustees for the public, that the benefit of the grantors also, without regard such corporations have a right to make all to
to that clause, for the reason that it is required
to be connected with their private side tracks, the use of the land which the necessities and and that cars be delivered at reasonable rates. convenience of the public may require, and Neither does the other provision add to or take that the landowner receives in damages a away anything from the effect of the contract,
1.viz., that the rights of the company shall cease compensation which in theory of law is all
and determine at any time when the strip of the indemnity for all such uses. Brainard v. land ceases to be occupied for such railroad Clapp, 10 Cush. (Mass.) 6, 57 Am. Dec. 74, track. In the absence of such an agreement, it Western Union Tel. Co. v. Polhemus. 178 Fed. does not follow that the railway company, of its
own volition, might arbitrarily abandon the 904, 102 C. C. A. 105, 29 L. R. A. (N. S.) 465.
• ^.) 400. track, and leave the grantors without railroad The purpose of the taking must fix the right. facilities. In this respect the company is also Newton v. Perry, 163 Mass. 319, 39 N. E. under the dominion of the laws of the state." 1032.
In Abraham v. Oregon & C. R. Co., decided 60 Pac. 899, 64 L. R. A. 391, 82 Am. St. Rep. thereafter reasonably produce.' *** Here 779, Bean, J., writing the opinion, said:
the strip of land is, by the terms of the con
tract, to be conveyed for the purpose of a rail"We come, then, directly to a consideration of
road right of way and for the purpose of conthe question as to whether parol evidence is ad
structing and operating thereon a double-track missible to show that the words 'legitimate rail
electric railway." road purposes' were used in the deed in a particular sense. It is an elementary rule of law
It is not contended by appellant in this that parol evidence cannot be admitted to con- case that the proposed additional use by retradict or vary a written instrument, and it is
spondent of the right of way in question is equally well settled that parol evidence may not be given to show that common words, the mean- | not a legitimate railroad purpose. We can ing of which is plain, and which do not appear see nothing ambiguous in the contract that from the context to have been used in a peculiar
subjects it to extrinsic construction. We are sense, were, in fact, so used. * * * 1 Greenleaf, Evidence (15th Ed.) 8 295. And Lord Chief
this sous And Lord Chief impelled to the conclusion that the judgment Justice Tindall says: The general rule I take of the lower court was right. to be that, where the words of any written in 'Affirmed. strument are free from ambiguity in themselves, and where external circumstances do not create FULLERTON, ELLIS, MOUNT, MAIN, any doubt or difficulty as to the proper applica
and PARKER, JJ., concur. tion of those words to claimants under the in- | strument, or the subject-matter to which the instrument relates, such instrument is always to MORRIS, C. J. I cannot concur in the mabe construed according to the strict, plain, com: Ljority opinion. Time and pressing engagemon meaning of the words themselves, and that in such case evidence dehors the instrument, for ments prevent my writing a formal dissent. the purpose of explaining it according to the sur- I wish, however, to express in a casual way mised or alleged intention of the parties to the the reasons for my views instrument, is utterly inadmissible. If it were otherwise, no lawyer would be safe in advising |
The majority opinion is based upon the upon the construction of a written instrument, | fundamental error that the contract of Jannor any party in taking under it; for the ablestuary, 1906, is an unlimited grant of a right advice might be controlled, and the clearest title of way for general railroad purposes. The undermined, if at some future period parol evidence of the particular meaning which the party
first rule of interpretation as applied to affixed to his words, or of his secret intention in grants is that the contract must be viewed making the instrument, or of the objects be
with reference to its subject-matter, its oblimeant to take benefit under it, might be set up
gations, and the manifest purpose and intento contradict or vary the plain language of the instrument itself.' * * * 'Ambiguous words tion of the parties. The majority opinion or phrases may be reasonably construed to effect concedes this rule, then departs from it, holdthe intention of the parties, but the province of
ing that the granting words in the so-called construction, except when technical terms are employed, can never extend beyond the language
deed of January, 1906, are broad enough to employed, the subject-matter, and the surround- entitle the railway company to use the right ing circumstances. It is therefore not competent of way for general main line purposes, igfor either of the parties to a contract, where its language is plain and unambiguous, to prove by
noring in so holding, not only the basic rule parol evidence how it was understood, or the of interpretation, but the manifest intention meaning of the words used. * * * Applying of the parties as expressed in the instrument this rule to the case in hand, it is clear that the litself.
that the itself. It is as clear as language can make
It is as clear as language can plaintiff cannot show by parol testimony that the deed from himself and Willis to the railroad | it, when the agreements of January, 1906, and company was not intended to, and did not, con- May, 1888, are read together, as they should vey to such company the right to use the proper be, that the parties were dealing with only ty for all legitimate railroad purposes."
one contemplated use a right of way for the In St. Louis & R. Elect. R. Co. v. Van
so-called Bay Side extension. All parties Hoorebeke, 191 Ill. 633, 61 N. E. 326, the knew and contracted with knowledge of the court said:
fact that this extension was a freight sery"If the appellees desired to reserve the right lice track for the accommodation of industries to build crossings across the right of way, and across the road-bed of the appellant, they should along the
ud along the water front. Now, after so using have embodied such a provision in the contract. this right of way all these years (a use con* * * Where a railroad company obtains a firming the limited character of the granted right of way by purchase from the landowner, right as contemplated by the parties), the having power under the Constitution and law to do so, all the incidents attach to such right as are railway company constructs a new main line acquired by eminent domain when the right of intersecting this extension right of way at the way is obtained by condemnation, it being con
northwest boundary of appellant's property, ceded or established that such company can lawfully exercise the power of eminent domain. In
and has since such construction used this other words, a railroad company acquires the right of way, not only for the purposes of its same rights and privileges under a private grant Bay Side extension, but also for trackage for as to the construction and operation of its road, as under a right of way acquired by condemna
the freight and passenger service of the tion, where it has the power, under the law, to Northern Pacific Railway Company, the Ore. receive by grant and to acquire by condemnation. gon-Washington Railroad & Navigation ComHad this right of way been lawfully acquired
| pany, and the Great Northern Railway Comby condemnation, appellees would have received compensation for the value of the strip of land. pany in connection with the new main line and also an assessment of all damages to the to the south, known as the Point Defiance residue of their tract to result from the con- line. It is frankly conceded by the railway struction and operation of the road. "The rule is that the appraisement of damages in a case
company that such a use was never dreamed of condemnation embraces all past, present, and of at the time the r.
of at the time the right of way was granted,