holding that a deed purporting to convey a strip of land for use as a railroad right-of-way conveyed an easement, not a fee
How later courts described this case
- holding that a deed purporting to convey a strip of land for use as a railroad right-of-way conveyed an easement, not a fee
- holding that a commercial logging road was within the scope of a commercial logging railroad easement
- considering the use of an easement by a lumber company that was originally conveyed to a railroad to be within the scope of the original easement
- holders of an express right-of-way were entitled to improve the right-of-way to accommodate a change in use from a railroad to logging road
Written by the judges who cited it.
The opinion
On Rehearing
Albert T. Kemmer, of Portland, argued for appellants. With him on the brief was Norman N. Griffith, of Portland.
*605 Willard L. Cushing, of McMinnville, argued for respondents. With, him on the brief was Marsh, Marsh & Dashney, of McMinnville.
Before Latourette, Chief Justice, and Warner, Rossman, Lusk, Brand and Perry, Justices.
Affirmed on rehearing.
ROSSMAN, J.
Due to the two-fold reason that the issues in this appeal are important and that Powers v. Coos Bay Lumber Company, this day decided by us, was appealed at about the same time that our decision in the instant case was announced, we granted the plaintiffs-appellants’ petition for a rehearing.
As the principal support for their contention that our previous decision erred, the brief filed by plaintiffs-appellants cites: Tamalpais Land & Water Co. v. N. W. Pacific R. Co., 73 Cal App 2d, 917, 167 P2d 825 ; Robertson v. Bertha Mineral Co., 128 Va 93, 104 SE 832 ; Potomac Edison Co. v. Routzahn, 192 Md 449, 65 A2d 580 ; Mammoth Cave Natl. P. Assn. v. State Highway Commission, 261 Ky 769, 88 SW2d 931 ; Norton v. Duluth Transfer R., 129 Minn 126, 151 NW 907 ; Home Real Estate Co. v. Los Angeles Pacific Co., 163 Cal 710, 126 P 972 .
The defendants-respondents, in support of our decision, has called our attention to: Dand v. Kingscote, 6 Mees. & W. 174, 151 Eng. Reprint 370; Dowgiel v. Reid, 359 Pa 448, 59 A2d 115 ; Hodgkins v. Bianchini, 323 Mass 169, 80 NE2d 464 ; Kain v. Norfolk, 1949, Ch. 163; Newcomen v. Coulson, L. R. 5 Ch. Div. 133.
We have given careful attention to the authorities above mentioned, and the entire case has once more *606 received earnest' consideration. We believe, however, that onr previous opinion is free from error. In pronouncing that view, we do not discern any necessity for setting forth herein analyses of the above authorities.
We adhere to our former decision.