Robinson v. Crescent City Mill & Transportation Co.

The Court. This is an action to recover damages •in the sum of two hundred dollars for trespasses alleged to have been committed by the defendant corporation in entering upon the plaintiff’s land, and cutting ditches and trenches thereon, and constructing and using a roadway across the same. The defendant answered by a general denial. Jacob Wenger was permitted to intervene; and in his complaint he set up a written instrument, executed in August, 1877, by the plaintiff as party of the first part, and by himself as party of the second part, which stated that the party of tl.e first part “ does hereby grant unto the said party of the second part the right of way, for logging purposes, over and through that certain tract of swamp and overflowed land [described in plaintiff’s complaint]; and the said party of the first part does hereby further agree not to grant unto any other person a privilege for logging purposes over and across said premises last mentioned.” He then goes on to allege that for twenty years he had been the owner of certain redwood, spruce, and fir timber situated east of and near the premises described in the complaint; that he had sold the said timber to the defendant corporation, and that he was to furnish a route of transportation for the logs to the waters of Lake Earl, on which defendant’s mill was situated; that a strip of seventy-five feet in width was as small a width for his right of way for logging purposes as would give him the proper enjoyment and use of such right of way across the premises described; that under and by virtue of the grant from plaintiff he entered into possession of a strip seventy-five feet in width, running through the said premises from the east to the west side thereof, and employed the defendant to build for him over the strip a logging-road; that the road had been built, and was [318]then used by him as a logging-road to transport his logs from the lands where they were cut to Lake Earl, whence they were transported to defendant’s mill; that the plaintiff’s possession had not been disturbed iü. any other way than by the building of the said road by intervener, and that by the building of the road no wrongs or injuries whatever had been inflicted on the plaintiff; that plaintiff had denied, and did then deny, that intervener had a right of way over the premises described, and had refused, on demand, to designate and select a right of way, and that intervener had selected, designated, and used the said right of way with due regard to the interests of both parties; that plaintiff claimed that he was entitled to the possession of the said strip of land adversely to the intervener, but that he was not entitled to such possession, and his said claim was without any right whatever. Wherefore intervener prayed that it be adjudged and determined by the court that his possession of the said strip of land was good and valid as against the plaintiff, and that the plaintiff be forever enjoined from disturbing such possession.