Appeal from Superior Court, Pierce County.
Court: Judgment reversed and cause remanded with directions.
Counsel: Doolittle & Fogg and Frank D. Nash, for appellants.
As to words necessary to create a grant upon condition,
counsel cite Gray v. Blanchard, 8 Pick. 291; Rawson v.
Inhabitants of School District, 7 Allen, 128.
Breach of condition subsequent gives a right of action in
ejectment. Hammond v. Railroad Co., 15 S. C. 10; Taylor v.
Sutton, 60 Am. Dec. 682; Blanchard v. Detroit, etc., R. R.
Co., 31 Mich. 50.
Ashton & Chapman, for respondent.
Judge(s): STILES, J. DUNBAR, C. J., and HOYT and SCOTT, JJ.,
Opinion By: STILES
The opinion of the court was delivered by
STILES, J.--The complaint showed that on the 12th day of
May, 1887, the appellants and Thomas L. and Cora E. Nixon,
as owners of certain lots in Wallace's Addition to Tacoma,
executed and delivered to Allen C. Mason a deed for a right
of way over said lots for a railroad. The deed was set out
by way of exhibit to the complaint, and recites the purpose
of Mason to build a railroad, the consideration of one
dollar, and the benefit to accrue to the grantors from the
construction of the railroad. The granting clause gives to
the grantee, his heirs or assigns, "the right and privilege
of surveying and laying out, by his or their agents and
engineers, through, over, across and along the land
hereinbefore described the route and site of said railroad,"
and grants, bargains, sells and conveys unto the said party
of the second part and to his heirs and assigns, a right of
way for said railroad, twelve feet in width, to be located
by him or them, through, over, across and along said land.
The remaining portions of the conveyance read as follows:
"To have and to hold the same to the said party of the
second part, and to his heirs and assigns, so long as the
same shall be used for the operation of a railroad.
"Provided, nevertheless, and these presents are upon the
The complaint shows the conveyance of this right of way by
Mason to the respondent, and the failure of each to
construct the railroad on or before January 1, 1888; and
after alleging that January 13, 1888, the Nixons conveyed
their interest in the said lots to appellants, who are now
the owners of the same, it demands the cancellation of the
right of way deeds, and the possession of the lands.
"First. That the said party of the second part, his heirs
or assigns, shall construct and complete said railroad on or
before the first day of January, eighteen hundred and
"Second. That the party of the second part, his heirs or
assigns, shall not fence said right of way.
"Third. That the granting of said right of way shall not
in any manner prejudice the right of the parties of the
first part, heirs or assigns, to cross and re-cross the
same, and should said right of way be located on the shore
line, it shall not prejudice any right which parties of the
first part, their heirs or assigns would otherwise have had
by reason of said land fronting tide water."
There was a demurrer to this complaint:
1. For a defect of parties, to wit, the Nixons, for that
the alleged breach of the conditions, if any, inured only to
all of the grantors named in the deed, and could not be
taken advantage of by part of them.
There were other specific points stated in the demurrer,
and an allegation of estoppel, by conduct; but the case as
presented here is covered by the two assignments noted.
2. That there was not a statement of facts sufficient to
constitute a cause of action.
It seems to us that the theory of appellants as to the
nature of this action is correct, viz., that it is brought
under Code Proc., § 529, and not under § 544. As the former
section existed in the Code of 1881 (§ 536), it may be
doubtful whether the whole of the relief herein demanded
could have been had, but as it was amended in 1890, it seems
to cover the whole ground. Under the common law, if the
estate were a grant in fee, two actions would have been
necessary, one to remove the cloud and another to recover
the possession. Section 544, now as formerly, when it was a
part of § 551 (Code of 1881), provides for many cases, one
of which would be the removal of a cloud upon title, at the
suit of one in possession, or by one out of possession when
no one is in possession. Smith v. Wingard, 3 Wash. Terr. 291
(13 P. 717), was a case of one in possession suing under ch.
46 of the Code of 1881, when ch. 47 provided the proper
remedy. Spithill v. Jones, 3 Wash. 290 (28 P. 531), is in
line with Smith v. Wingard. The complaint alleges that the
defendant is in possession, and the ultimate object is to
recover that possession. Under the statute there may be some
difficulty in trying a case in which both legal and
equitable principles are necessarily involved, to a jury;
but that is a matter yet to be reached.
Before determining the question of parties it is
necessary, we think, to ascertain what the deed conveyed,
and whether the building of the proposed railroad was a
covenant or a condition subsequent. The respondent treats
the deed as a conveyance in fee, and maintains that the
agreement to build the railroad was a covenant merely. We do
not agree with this position on either point. The conveyance
is one of a mere right of way habendum to the grantee "so
long as the same shall be used for the operation of a
railroad." The right-of-way must not be fenced, and the
grantors must not be interfered with in their right to cross
and re-cross at will. These provisions are inconsistent with
the idea of an intention to grant a fee, and show the grant
of an easement only for a particular purpose and while it
may be used for that purpose.
A number of cases are cited to the point that none but the
grantors or their heirs can maintain an action of this kind
to declare a forfeiture for breach of a condition, the right
to take advantage of such a breach being neither assignable
nor severable. But we find upon examination that this rule
applies only to estates in fee. Nicoll v. N. Y. & Erie R. R.
Co., 12 N.Y. 121; Cook v. Wardens, etc., 5 Hun 293; Cole v.
Irvine, 6 Hill 634; Schulenberg v. Harriman, 21 Wall. 44, 22
L. Ed. 551; Ruch v. Rock Island, 97 U.S. 693, 24 L. Ed.
In the case of an easement the rule must be different, as
the title is never divested, and the owner of the land,
whoever he may be, can take advantage of an abandonment.
Washburn, Easements and Servitudes (4th ed.), p. 292.
The case before us, on the complaint, is like that of
Louisville, etc., R. R. Co. v. Covington, 2 Bush 526.
The respondent argues the case in its brief as though
there were facts which would estop the appellants from
maintaining the action because they had waived the breach
and permitted the building of the railroad after the time
fixed in the deed for its completion. But there are no such
facts in the record.
Judgment reversed and cause remanded with directions to
overrule the demurrer.
DUNBAR, C. J., and HOYT and SCOTT, JJ., concur.