constructed and intends to use for its general railroad purposes the extension of its "Bay Side extension" to Tenino; that it has agreed with the Oregon-Washington Railroad & Navigation Company to allow it the joint use of the track for a valuable consideration; that it has granted the Great Northern Railway Company 5 years within which to determine whether it will desire the use of the track over which to run its trains between Tacoma and Portland under a joint operation contract, but that that line has so far declined such offer, and signified no intention to enter into such an arrangement, it denies the allegations of the complaint as to irreparable injuries and damages and possible future injuries, hazards and damages. Respondent further affirmatively alleges that it is the grantee and successor in interest of the Northern Pacific Railroad Company and of all its property, franchises, and rights, including the right of way in controversy; that the track constructed and operated upon that right of way was in no sense a spur track or siding; that the growth of the population served by respondent's railway system, and of its business as a common public carrier, has made it necessary for it to increase its carrying capacity and facilities and to use the right of way in question for main line purposes; that it is so authorized and empowered by the instrument of conveyance from appellant dated January 24, 1906, and that such use is in no way inconsistent with the terms of that instrument or in violation thereof. It further alleges in its answer that the growth of population, business, and traffic created an existing public necessity that the respondent construct, maintain, and operate what it calls its "Point Defiance grade line" from Tacoma to Tenino, for the purpose of eliminating grades and curves in its old main line, and to use as a part of the “Point Defiance grade line" the right of way over and across appellant's property as conveyed to respondent; that it has constructed the "Point Defiance grade line" at a cost of many million dollars; and that the public interests and necessities require its operation. There are further affirmative allegations in the answer not now necessary to notice; all of which were put in issue by the reply. Testimony was introduced by each party supporting its allegations, over the objection of the opposite party.

northerly along the shore to Point Defiance, and thence has constructed a double-track tunnel 4,500 feet in length through Point Defiance to the northwesterly shore of Commencement Bay, whence it parallels the Bay Side extension to a point immediately northwest of the premises of plaintiff, where the new line intersects the Bay Side extension. This line is known as the respondent's Point Defiance line, and it proposes to use the right of way through the premises of plaintiff as a part of its Point Defiance line to reach its station in the city of Tacoma, and likewise it proposes to use the Point Defiance line as its main line from Tacoma to Portland and to southwestern Washington, and to operate thereon its freight and passenger trains, with the exception of some local trains between the same points of intersection on the old line, and to permit the operation over the new line of freight and passenger trains of the Oregon-Washington Railroad & Navigation Company, and possibly in the future the Great Northern Railway Company. The evidence discloses that the right of way through plaintiff's premises is 20 feet wide, and is built along the shore beneath the bluff on which plaintiff's mill is situated, and that the right of way is covered by a fireproof structure or tunnel which at places is only 17 feet high, and at no place exceeds 19 feet in height. In this tunnel are four 121⁄2-degree curves. A switch track is constructed within this tunnel, beginning near the center, and extending to the northwestern margin of appellant's premises, as provided in the contract, for appellant's use. A grade crossing through the tunnel is maintained near the northwestern end of appellant's premises, connecting its offices, wharves and lumber yards with the city by way of Old Town and another grade crossing through the tunnel near the southerly end of appellant's premises connecting with the streets extending toward Pacific avenue, in Ta

coma. These crossings are used by appellant for the purpose of marketing its lumber and slabs in the local market, and the crossings are at right angles to the city thoroughfares with which they connect, and persons and teams approaching the crossings are unable to see approaching trains. When the mill is in operation teams are required to use these crossings, going or coming, every five or six minutes during the day, and in hauling heavy loads teams are likely to become stalled on account of the grade at the crossings. There is evidence also that,

as proposed, there will be considerable noise and vibration in appellant's offices during, the passage of heavy trains; that it will be difficult to market the lower grade of its lumber in the local market by reason of the difficulty of access to its plant; that it will therefore be difficult to compete with other mills in the prosecution of its lumber busi

ness. There is also evidence that it is believed the mill property will be subjected to a greatly increased fire hazard.

[2] At the outset it is conceded by appellant that, if the intention of the parties may be clearly and certainly determined from the language they employ, recourse will not be had to extrinsic evidence for the purpose of ascertaining their intention. It is contended that an examination of the instrument discloses that it is not, as the trial court assumed, a mere deed granting a right of way for railroad purposes, a unilateral contract, but a mutual agreement formally executed by both parties; that the intention of the parties is not, therefore, to be determined solely by consideration of the words of grant, and in the construction of such a contract courts must be governed by certain fundamental rules of construction.

[3] It is, as contended by appellant, undeniably true that a fundamental rule of construction is that a written contract shall be read as a whole, that all its provisions are to be considered, and that the general design must not be frustrated by allowing too much force to single words and clauses. "The elementary canon of interpretation is, not that particular words may be isolatedly considered, but that the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties and the intention which they have manifested in forming them." O'Brien v. Miller, 168 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 469.

On the other hand:

"The controlling canon for the interpretation of deeds, if unambiguous, is to ascertain the intention of the grantor from the words employed." Bernero v. McFarland Real Estate Co., 134 Mo. App. 290, 114 S. W. 531.

[4-6] The written instrument of January 24, 1906, is both a deed of conveyance of the right of way described therein and a contract containing conditions to be performed by the parties thereto. This contract reached back and incorporated and interpreted the original agreement and deed between appellant and respondent's predecessor of May, 1888. The present contract provides for the execution of certain conditions to be performed by the parties, viz.: (1) For the respondent to make and deliver a lease of certain water lots owned by it to the appellant; (2) for the appellant to grant the right of way through its mill property as expressed in the agreement "for what is known as the Bay Side extension of said company's railroad along the water front of Commencement Bay." These provisions were performed, and by the eighth paragraph of the agreement the agreement and the right of way deed are to be "considered and taken as one transaction." The grant of the right of way is as follows:

But appellant insists that the description by metes and bounds following this paragraph does not measure the grant, but simply defines the area of land over which the easement granted is to be exercised; that, if the granting clause read "does hereby grant the [said] right of way for railroad or other similar purposes," it would not be contended that the right of way grant was other than for the Bay Side extension.

Viewing the contract as a whole, it itself discloses that a large manufacturing plant belonging to appellant then existed, and was to be maintained upon the same premises, and that appellant would be adequately compensated for the grant of the proposed right of way by the new facilities to be given; that this property was to be protected by covering the right of way with a fireproof tunnel which should not exceed 19 feet in clear above the rail; that all roadways leading to and from the premises should be restored by the railroad company and all changes in the buildings made at its expense; that additional facilities should be afforded for the storage of plaintiff's logs; that doors, openings, and gangways should be put in and maintained in the tunnel for the convenience of appellant's business; that a side track should be built in this tunnel for the sole use and benefit of appellant in shipping and receiving lumber or goods; that the railroad company should do all switching of cars for appellant in its business free of charge, and that such switching should be done promptly as the business of appellant should require; that the right of way should be but 20 feet | in width.

It is insisted that the proposed use of the right of way by respondent will greatly diminish or wholly destroy some of the privileges thus reserved to the appellant by the terms of the agreement; that if, in addition to the uses of the original track as a freight or industrial track, it may lawfully use the same for the number of trains now proposed to operate over its line, then it may hereafter lawfully make such increased use as the exigencies of the future shall demand, and that it is certainly probable that the future demands upon its main line adjusted at this point to one track will require the practically continuous use thereof. But the same thing may be said if it were construed to be the original intention of the parties that nothing but freight cars or switch engines should be moved over the original Bay Side extension, as it was called. It is evident that the Bay Side extension was not a mere side track or industrial spur, but was a sort of branch railroad, extending from the terminus of respondent's predecessor, and as long thereafter used by respondent in the city of Tacoma, to a smelter in the city of Tacoma near Point Defiance. There were a number of industries situated along that track to which side tracks or spurs were

constructed and maintained for the purpose of handling freight. It is very obvious that the growth of a very large city might have compelled the location of a vast number of industries along this water front and along this Bay Side extension, to move the freight to and from which would require almost or entirely the continuous use of the track; that freight cars and engines might have to move upon it very frequently. Such being the case, it seems plain that the parties originally contemplated that such might be done. There is nothing in the original or the present contract between the parties whereby the respondent or its predecessor was bound not to extend the Bay Side extension to any other point, should it find it necessary, and there is nothing in either of the instruments prohibiting respondent or its predecessor from running any more than a certain number or kind of trains upon that track. The fact that the railroad track is designated and described in the agreement as the Bay Side extension does not operate to limit the nature of the use of the railroad in any way. The track was at that time known and designated as the Bay Side extension. It appears that there was a plan on foot, at the time the original negotiations were entered into between appellant and the railroad company, on the part of one Allen C. Mason, to construct an independent railroad, to be called the Washington Short Line Railroad, from the terminus of the Bay Side extension at or near appellant's property to the then proposed site of the Tacoma smelter. It was desired by the railroad company to construct and operate such railroad itself, and steps were taken to acquire all the rights of Mr. Mason for the purpose of extending the Bay Side extension to the proposed site of the Tacoma smelter. This shows to a slight extent at least that the railroad was not considered merely a side track or industrial spur, but was in a certain sense a railroad, and, as such, was contemplated and designed to be a part of the railroad company's system and an extension thereof, although it was not then contemplated to be a main line railroad or any part thereof. The ultimate public and industrial demands and increased traffic, no matter to how large extent, must have been contemplated by the parties as part of the maintenance and operation of the road. Appellant further urges, however, that it is our duty, in defining the relative rights of the parties, to ascertain their intent, and, when found, to give effect to that intent, and that the language employed is to be construed in the light of the facts and circumstances existing at the time of its execution and the objects and purposes the parties had in view, citing a number of authorities.

142 Pac. 15, wherein this court, per Chadwick, J., observed:

"The duty of courts, when construing questioned contracts, to search out the intention of arises out of an ambiguity or omission that dethe parties, is well established, but that duty mands the reception of testimony to illustrate their intent, or to harmonize apparent conflicts. There is a presumption of finality which attends all written contracts, and courts will not deliberately raise doubts or conjure ambiguities for the mere pleasure of construing them. Fairbanks Steam Shovel Co. v. Holt & Jeffery, 79 Nor will the fact that a party has made a hard Wash. 361, 140 Pac. 394 [L. R. A. 1915B, 477]. or improvident bargain warrant the court in binding the other party to terms raised by conThese propositions struction or implication. are admitted as elementary by appellant; but it is said that the whole contract, when construed in the light of the facts and circumstances existing at the time the contract was made and the general object and purpose of the parties, demands a ruling that respondent was bound to keep appellant's mill in operation. * There is nothing, unless we go outside of the written contract, to bring the parties within the rule announced in Excelsior Wrapper Co. v. Messinger, 116 Wis. 549, 93 N. W. 459, where the court found the contract to biguous, and applied the rule as it relates to an for a certain amount of stock, which must have established business having a certain demand been known to the opposite party who was held to have contracted with reference thereto. * * We have discussed this phase of the case enough to demonstrate that to receive testimony or to imply terms would but lead to confusion, whereas courts invite testimony to clear up ambiguous contracts and to make that certain which is uncertain. Although questioned by counsel, we think the case of Hamlyn & Co. v. Wood & Co., 2 Q. B. Div. (1891) 488, is in point. We agree with the observation by Lord Esher, M. R., that authorities are of little use in cases of this character; for, at best, they merely show that, in a particular case, an implication was or was not made."

*

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In Hamlyn & Co. v. Wood & Co., 2 Q. B. Div. (1891) 488, cited by Chadwick, J., it was observed by the opinion writer that:

"When parties have put into writing the terms upon which they agree, more especially in the case of mercantile contracts, it is a dangerous thing lightly to imply what they have not expressed. Here it is clear that there is no breach of the contract as expressed upon the face of the written document.

"It is a well-settled principle of law that all prior negotiations of the parties are merged into a contract in writing when one is entered into covering the subject-matter of such negotiations, and we are not aware of any rule which will authorize oral proof as to representations made before the execution of such contract to be introduced in evidence for the purpose of contract, without an allegation in the pleadings tradicting or enlarging the scope of such conthat such contract was, in fact, signed by the party making such allegations by mistake or fraud, or without full knowledge of the conditions thereof. As we have seen, such allegations were entirely wanting in the case at bar, and we think all representations or negotiations prior to the execution of said contract were, under the circumstances of this case, entirely immaterial,, if the contract in question was unambiguous. Staver & Walker v. Rogers, 3 Wash. 603, 28 Pac. 906.