Simmons v. Northern Pacific Railway Co. , 88 Wash. 384 ( 1915 )

Fullerton, J.

In April, 1914, the respondent, Gordon L. Simmons, began this action in the superior court of Chehalis county to foreclose a mortgage upon certain real property situated therein, executed to him by Jehiel Church and Lucy A. Church, his wife. He made parties defendant to the action, in addition to the mortgagors, one S. A. Richardson and his wife, Nannie L. Richardson, and the Northern Pacific Railway Company. The railway company alone appeared and defended the action. It set up, first, a right of way one hundred feet in width across the premises between certain termini, and second, a right to take and remove gravel from another part thereof. In its decree of foreclosure, the court exempted the right of way, but allowed a foreclosure against the asserted right to take and remove gravel. The railway company appeals.

The facts disclosed by the record are, in substance, these: On November 17, 1898, C. E. Burrows and A. P. Stockwell, then holding a contract of purchase of the mortgaged property, entered into an agreement with the Northern Pacific Railway Company, by the terms of which they granted to the railway company the right, privilege and license to remove gravel from all that part of the premises described in the respondent’s mortgage which lies southwesterly of the county road running through the same. The right was to continue until all of the gravel that could be conveniently taken from the area described was removed, and was granted in consideration of a spur track to be put in the premises, connecting with the railway company’s main line for the exclusive use of the grantors in their logging operations.

On March 27, 1899, the railway company deeded the premises to C. E. Burrows and A. P. Stockwell by warranty deed, reserving only the right of way 100 feet in width for its main track railroad as the same then extended across the premises. The deed recited that it was made in consideration of $1,150, and that the railway company had contracted to sell and convey the property to the grantees free from encumbrance for that price.

On June 7, 1900, C. E. Burrows and A. P. Stockwell, their wives joining in the instrument of conveyance, conveyed the property by warranty deed to Jehiel Church, for the consideration of $1,000, excepting therefrom the right of way of the railway company, and reciting that the “deed is subject to a contract to the Northern Pacific Railway Company dated the 17th day of November, 1898, which contract has this day been assigned to the grantee herein.” On January 27, 1912, Jehiel Church and wife executed the mortgage which this action is brought to foreclose. The description of the mortgaged premises excepted the appellant’s right of way, but made no mention of the contract referred to in the deed from Burrows and Stockwell to Church.

It was shown that the railway company commenced to remove gravel from the premises shortly after the agreement of March 17, 1898, was entered into, and that it had removed gravel therefrom from time to time ever since, removing some twenty-seven thousand yards in the year 1913; and that it had constructed a spur track from its main line to the gravel pit shortly after the execution of the agreement, which track had remained therein ever since. The respondent testified that, at the time of the execution of the mortgage, he had no knowledge that the appellant was removing gravel from the premises or had a spur track thereon, nor any personal knowledge of the contract between Burrows and Stock-well and the appellant relating to the gravel.

The trial court rested his decision on the ground that the railway company, by its deed of March 27, 1899, reconveyed to Burrows and Stockwell, the grantors of Church, all interest it had acquired in the premises in virtue of the previous agreement between itself and the grantors in that agreement, and that in continuing to remove gravel therefrom it was either a wrongdoer or mere licensee; that the reservation in the deed from Burrows and Stockwell to Church did not revive or restore the railway company’s right to remove such gravel; that it was a stranger to that instrument, and that the covenants of the instrument ran between the parties only, and granted nothing to the railway company.

It has seemed to us that the reasoning of the trial judge is sound. Plainly, the deed from the railway company to Burrows and Stockwell cut off all rights it had acquired in or to the premises by reason of prior agreements or conveyances that were not specially excepted from its operation. Davis v. Bartz, 65 Wash. 895, 118 Pac. 884; Clifton v. Jackson Iron Co., 74 Mich. 188, 41 N. W. 891, 16 Am. St. 621. Thereafter, as the trial court concluded, it was without right in the premises, and its act in continuing to remove gravel thereafter therefrom was either wrongful or as a licensee. It makes no claim based on the statute of limitations, nor does it claim that the deed was executed by inadvertence or mistake capable of being corrected through the cognizance of equity. There is, therefore, no reason for supposing that the deed was not intended to define the existing rights of the parties in the premises.

This being true, the further conclusion of the court necessarily follows. The grantees in the deed, being vested thereby with the entire estate, could convey it in whole or in part to another, and if in such a conveyance any reservation was made in the property conveyed, the part, reserved remains in the grantors therein, and does not inure to the benefit of a stranger to the instrument.

The appellant argues further:

“If the foregoing question should be determined against our contention, the defendant is still entitled to recover its costs.

“The mortgage to the plaintiff did not except the 100-foot right of way of the defendant, and it was necessary for the defendant to defend by setting up its interest in the right of way, which it did in its answer.

“The reply filed by the plaintiff did not admit defendant’s ownership of the right of way, and the judgment as entered did not protect defendant’s right of way until plaintiff filed a subsequent order modifying the original judgment.”

But in causes of equitable cognizance, costs do not follow the prevailing party as matter of course. The party must make claim to costs and take the ruling of the trial court on his right to recover them, before error can be predicated on a failure to allow them in the appellate court. The record as presented to this court fails to show that costs were claimed by the appellant in the court below. This precludes a review of the question here.

The judgment is affirmed.

Morris, C. J., Main, and Ellis, JJ., concur.