and which said agreement provided for the execution of and delivery of a deed by said party of the first part conveying to said party of the second part the said right of way, for the consideration and upon the conditions and with the reservations therein and hereinafter set forth, and which said agreement also provided that a contract should be entered into by and between said parties in proper form setting forth the contents of said memorandum, and the conditions upon which said right of way was granted, and all the agreements, covenants, and stipulations of the parties relating thereto; "And whereas, the said party of the first part has this day duly executed said conveyance of said right of way to be delivered to said party of the second part upon its execution of this agreement, which said right of way is located upon a strip of land twenty (20) feet in width (being ten [10] feet in width on each side of the center of said proposed line of railroad as surveyed and laid out, and hereafter to be constructed) across the lands in section twentynine (29), township twenty-one (21) north, of range three (3) east, W. M., owned by the Tacoma Mill Company, the center line of said strip of land beginning one hundred (100) feet east and sixty-nine and thirty-one one-hundredths (69.31) feet north from where the center line of Second street, in Tacoma, W. T., intersects the western boundary of section twenty-nine (29), township twenty-one (21) north, of range three (3) east, W. M., running thence south 76° 25′ east, two hundred and six-tenths feet; thence on a 7° curve to the right two hundred and twentysix and two-tenths feet; thence south 60° 35′ east, two hundred and eighty feet; thence on a 12° 30′ curve to the right one hundred and sixty feet; thence south 40° 35' east, one hundred feet; thence on a 12° 30′ curve to the left to a point one thousand two hundred and fifteen feet east of the western boundary of section twenty-nine (29) aforesaid, assuming said western boundary of section twenty-nine a meridian of reference in the foregoing description; and it is to be held by said second party as in said conveyance is set forth: "Now, therefore, in consideration of the premises, and to carry out said memorandum agreement the parties hereto agree as follows: "First. The said Northern Pacific Railroad Company shall inclose their track and roadway to be laid and located upon said right of way with a good house or tunnel, constructed of iron or other fireproof material, and shall occupy in construction as little room as possible; the said tunnel shall begin near the eastern boundary of said mill company's property, not exceeding twenty feet west of gate leading to log pond, and to continue on through the property with said house or tunnel as the said mill company may direct; said tunnel shall not exceed nineteen feet in the clear above the rails, and is to be kept and maintained in good and safe condition by said railroad company and at its expense, and said track and roadway across said Mill property must be established at such a grade so that said tunnel, when constructed, will clear the chutes and other connections with said mill as the same shall be altered to provide for said construction, and will not interfere with the operation of said mill. "Second. The railroad company shall repair or replace, as the case may be, all chutes and roadways leading to and from the mill, machine shops, messhouse, and other buildings on said mill company's property, wherever the same are in any way impaired or torn away in course of construction of said railroad, and shall put said chutes and roadways in as good working order or condition as they were before said interference with the same before construction, or shall bear the expense of so doing; the planer mill to be added to where any portion is removed or taken away in construction, and the planers moved and put in as good working order as they were before removal, at the expense of said railroad company. "Third. The line of said railroad is to pass within eight (8) feet of the gate leading to log pond, and said railroad company is to construct a span sufficiently long so as not to interfere with the booming privileges or the sluicing of logs through said gate into the log pond, but said span not to exceed fifty (50) feet in length; thence in a westerly direction, the said line passing the mill and machine shop with as little damage thereto as possible; after passing said machine shop line of railroad to be as near the bank as possible. "Fourth. The said Northern Pacific Railroad Company shall remove so much of the western end of the two railroad tracks and trestle on which same are laid lying east and adjoining the mill property as is situate upon lots 1 and 2 of the water front lots of the Northern Pacific Railroad Company hereinafter mentioned; the space so vacated, to wit, the western end of what is known and designated as lots numbered one (1) and two (2) on the map called the map of the water front lots of the Northern Pacific Railroad Company, which said map is to be found in the office of the assistant general manager of the said railroad company at Tacoma, Washington Territory, and a blueprint copy of which was furnished on or about April 20, 1888, to said mill company to identify said lots, the said lots being at the western extremity of the property of the Tacoma Dock and Warehouse Company on said water front. And said railroad com-any shall in due form execute and deliver a lease of said lots to said mill company, to have and to hold the same for its sole use as a dumping or booming ground for its logs, free of any rental charge, and to be used and occupied for such purpose by said mill company as long as the said railroad company shall use the property granted by said mill company as a right of way for railroad or other purposes, and the delivery of said lease shall be concurrent in point of time with the delivery of said deed. "Fifth. It is also agreed that the wagon road now leading from the Mill property in a westerly direction across the property of the Tacoma Land Company, and connecting with Second street, in the town of Old Tacoma, shall remain and be kept open in its present location, and to the extent of its present width (thirty feet), until such time as such other wagon road or street shall be opened up through said property leading from the mill property and connecting with Second street, as shall equally as well, or better, accommodate and suit the convenience of said mill company in reaching points west of their Mill property in Old Tacoma, by wagon road, and that the railroad company shall put in and maintain a good and sufficient crossing for said road. "Sixth. The said Northern Pacific Railroad Company shall also put in and maintain in said tunnel as many doors, openings, or gangways leading to and from the mill, machine shop, and other buildings as may be necessary in adapting to the successful operation of said mill and its business the obstruction caused thereto by the construction of said tunnel. The said Northern Pacific Railroad Company shall also put in and maintain a side track or spur for the sole use and benefit of the mill company in shipping or receiving lumber or goods, said spur to leave the main track at a point beginning opposite to the western end of the machine shop, and extending northwardly and westwardly, in a parallel direction with said main track, over the western portion of said mill company's property to a point on the western line of the mill company's property a distance of five hundred feet. The said railroad company also shall do all switching of cars necessary in the use of said railroad in the carriage or moving of said mill company's lumber or goods to and from said mill, free of any charge to the said mill com pany so long as the line of said railroad over, and through said mill property shall be used and operated by said railroad company, and while the said right of way is used by it for a railroad or other purposes; said switching to be done promptly, as the business of said mill company shall require: Provided, however, that in all cases of switching referred to it is to be understood that the switching to be done free is for business that has reached the city of Tacoma by the Northern Pacific Railroad and for business originating at the mill company's mill to be shipped out by way of the Northern Pacific Railroad. "Seventh. All foundations to mill or shops disturbed by said railroad company in the construction of said road shall be renewed or thoroughly repaired; the removal or altering of chutes made necessary in the construction of said line to be made so as not to interfere with the operation of the mill; that is to say, the change to be made either when the mill is idle, or so made as to change one chute at a time, so as not to in any way delay the work of the mill by making said change; feet; thence south sixty degrees (60°) fortyall buildings damaged or removed by the railroad company to be fully repaired or moved at the expense of the said railroad company; that the mill company shall have the right at all times to cross the track and roadway either over or under the track of said railroad with any water, sewerage, or steam pipes, and that the work of crossing the property and making the changes, building tunnel, etc., by the railroad company shall be completed within sixty (60) days after the commencement of the work. "Eighth. And the said railroad company hereby agrees to well, truly, and faithfully keep and perform each and all of the agreements, stipulations, and conditions by it to be kept and performed as herein stated, and that this contract and the deed to be executed and delivered by said Tacoma Mill Company in pursuance thereof shall be considered and taken as one transaction, and that said railroad company accepts said grant of said right of way upon the conditions and with the reservations herein set forth. "Ninth. Two blue maps, one being a plat showing the location of the Northern Pacific Railroad Bay Side extension through the Tacoma Mill Company's property, and the other being a map of the water front lots, showing proposed railroad tracks of the Northern Pacific Railroad Company at Tacoma, and showing the location of said lots one (1) and two (2) herein set apart for the use of the Tacoma Mill Company for dumping and booming purposes, and which were furnished by said railroad company to said mill company on or about April 20, 1888, are hereby referred to as illustrating the situation of the premises in question, and by such reference are made a part hereof.' "And whereas, said Northern Pacific Railway Company, said party of the second part, is the successor in interest of said Northern Pacific Railroad Company, and has acquired its property, including the right of way referred to in said agreement of May, 1888, and has agreed to fulfill the terms and conditions thereof, and has ratified the said agreement: "Now, therefore, the said Tacoma Mill Company, party of the first part, for and in consideration of one dollar, and other good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby grant to the said Northern Pacific Railway Company, said party of the second part, the right of way for railroad or other similar purposes, over certain real property owned in fee by said party of the first part, situate in Pierce county, state of Washington, and particularly described as follows: "A strip of land twenty (20) feet in width through section twenty-nine (29), township twenty-one (21) north, range three (3) east, of the Willamette meridian, being ten (10), feet on each side of the center line of said railway, as now constructed and operated, and described as follows: Beginning at a point marked by a monument, eighty-four and seventy-six hundredths (84.76) feet north, and one hundred (100) feet east of the intersection of center line of North Thirtieth (30) street, in the city of Tacoma, Washington, and the western boundary line of section twenty-nine (29), township twenty-one (21) north, range three (3) east of the Willamette meridian; thence on a curve to the left of five hundred seventy-three and sixty-nine hundredths (573.69) feet radius a distance of one hundred thirty-two (132) feet, said curve being tangent at its point of beginning to a line bearing south sixty-three degrees (63) twentysix minutes (26') east; thence south seventysix degrees (76°) forty minutes (40′) east a distance of one hundred thirty-three and ninetenths (133.9) feet; thence on a curve to the right of eight hundred nineteen and two hundredths (819.02) feet radius a distance of two hundred twenty-seven and four-tenths (227.4) five minutes (45') east a distance of two hundred seventy-six and five-tenths (276.5) feet; thence on a curve to the right of four hundred fifty-nine and twenty-eight hundredths (459.28) feet radius a distance of one hundred fiftythree and six-tenths (153.6) feet; thence south forty-one degrees (41°) thirty-three minutes (33') east a distance of one hundred twentyfour and one-tenth (124.1) feet; thence on a curve to the left of four hundred fifty and eighty-nine hundredths (450.89) feet radius a distance of two hundred forty-five and sixtenths (245.6) feet to a point marked by a monument, which monument is located three hundred and fifty-three and four one-hundredths (353.04) feet north of the south boundary line of section twenty-nine (29), township twenty-one (21) north, range three (3) east, Willamette meridian, when measured at right angles thereto from a point located in said south boundary line one thousand two hundred and fifteen (1,215.0) feet east from the southwest corner of said section twenty-nine (29) when measured along the south boundary line of said section-assuming said western boundary of said section twentynine (29) as a meridian of reference in the foregoing description. "To have and to hold the said described property to the said party of the second part as long as the said party of the second part, its successors and assigns, shall use the same as a right of way for railroad or other similar purposes. "This deed is made upon the express condition and upon the understanding of both parties hereto that the property herein conveyed shall be used by the said party of the second part, its successors and assigns, for the uses and purposes above stated, and shall be null and void, and the land herein conveyed shall revert to the said party of the first part, its successors and assigns, if the said party of the second part, its successors or assigns, shall transfer, lease, sell, or convey the said right of way, or any part thereof hereby granted, for any other purpose excepting as above stated, to any other party, without the written consent of the president of the said Tacoma Mill Company. "The party of the second part accepts the deed, and hereby covenants and agrees that it will pay promptly when they may fall due all taxes and assessments against the said right of way premises herein before conveyed, and every part of the same, as long as said party of the second part shall occupy said premises as a right of way for railroad or other purposes. "The covenants and conditions herein and in said agreement shall be binding and inure to the benefit of the successors or assigns of each party hereto, and each and all of the covenants in said agreement shall be deemed as covenants running with the land hereby conveyed, and shall be binding and obligatory upon the respec tive successors and assigns of each of the par- and purposes. The two instruments must ties hereto. therefore perforce be considered in pari ma"In witness whereof the parties hereto have caused these presents to be executed in their teria. Broadly and briefly stated, the issue corporate names, by their duly authorized of- between the parties is whether the easement ficers, and their corporate seals to be hereto af- granted and conveyed by the mill company is fixed, this 24th day of January, 1906. Tacoma an absolute and unqualified grant of the deMill Company, by H. C. Chesebrough, Its President. [Seal.] Attest: Jno. W. Classen, scribed right of way for any and all railway Secretary. Northern Pacific Railway Company, and other similar purposes within the railby Howard Elliott, Its President. [Seal.] At-way company's public and corporate powers, test: R. H. Relf, Assistant Secretary." On the same date as the original agreement, May 26, 1888, a deed of the right of way granted to respondent was executed, but not delivered by appellant, the material part of which is as follows: or whether it contemplated merely a limited and qualified easement of the right of way for the uses and purposes of the so-called "Bay Side extension" of the railway company, to be used for a freight and industrial track only. "In consideration of the execution this day by The pleadings are voluminous, and cannot the party of the second part of a certain col- be extensively set out without making this lateral agreement of even date herewith, made and entered into with said party of the first part opinion much too long. The complaint prorelative to the right of way hereinafter granted, ceeds upon the theory that it was represented and defining the rights and obligations of each by respondent's predecessor and understood of the parties to said agreement respecting said and agreed upon by and between the parright of way, and stating the conditions and reservations upon and with which the said right ties that the Bay Side extension of the railof way is granted, the said party of the first way was to be constructed along the water part has bargained, sold, conveyed, and con- front of Commencement Bay, in the city firmed, and by these presents does bargain, sell, of Tacoma, over and across appellant's propconvey, and confirm, to the said party of the second part, its successors and assigns, the fol- erty, solely for the accommodation of the lowing described tract of land, as a right of property owners and industries then or thereway for the construction, operation, and main- after to be located along the water front, tenance on, across, over and through the same by the Northern Pacific Railroad Company, of and that the engines and cars of the railway a standard gauge track railroad to be used and would only pass over the road as often as operated as the Bay Side extension of said com- necessary to get freight and do switching for pany's railroad along the water front of Com- such property owners and industries; that mencement Bay, in the city of Tacoma, Pierce County, Washington Territory, situated and now the railway company has extended its more particularly described as follows, to wit: line from the former terminus of the Bay [Then follows description by metes and Side extension as then constructed, and bounds.]" The original agreement made on May 26, 1888, as was said, was mislaid a number of times before signing by both parties, and it required about 18 years to bring about a formal restoration of the original agreement from the office copies of the parties at the time and the execution of the formal writing of January 24, 1906, by both parties, expressing, as might be supposed, the meeting of their minds. The history of the transaction, as shown by the record, discloses that very eminent and able counsel, among whom were the late H. G. Struve, Mr. Ashton, and the present senior member of the appellant's firm of counsel, acted in the matter for appellant. Mr. McNaught and Mr. Mitchell, former counsel for respondent's predecessor, and Mr. Grosscup, former counsel for respondent, all had much to do with the preparation of the writings, and carefully examined and considered them before their final approval and execution. Notwithstanding all this, it is now contended by appellant that the writings are open to construction and subject to evidence as to the intention of the parties to the agreement. maintained and operated for a period of over 20 years a number of miles to Tenino on its old main line; that the railway company intends and threatens to operate all its trains between Tacoma and Portland and intervening points and all points in southwestern Washington, save and except such freight and passenger trains as it may be necessary to run over the heretofore existing main line to take care of local business between Tacoma and the point of intersection with the new line; that it is its further intention to contract for its own profit with the Oregon-Washington Railroad & Navigation Company and the Great Northern Railway Company, heretofore using the existing main line between Tacoma and Portland, by which the last-named companies will operate their trains from Tacoma to Portland through the premises of appellant over the new line; that appellant will be irreparably injured by such intended and threatened additional uses and burdens, for which it cannot be adequately compensated in damages; for which appellant prays injunctive and other equitable relief. The respondent traverses the appellant's allegations as to the representations, under[1] It will be observed that the written standing, and agreement alleged to have agreement refers to the right of way deed been made by and between the parties, othgiven by appellant to respondent, and the er than as shown and fully expressed in deed also refers to the written agreement the written agreement and right of way deed of the parties in recital of its consideration set up by appellant, and admits that it has 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 122-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 Tacoma. 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 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 industries situated along the water front of Commencement Bay between the main terminus of the original railroad and the Tacoma smelter. It has in the meantime constructed a double-track branch line from its main line at Tenino in Thurston county to the east shore of Puget Sound, and thence 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 be- [ lieved 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 |