Ami Co. v. Tide Water Lumber Co.

• Decision Date: 08 December 1908
• Citation: 51 Wash. 171,98 P. 380
• Parties: AMI CO. v. TIDE WATER LUMBER CO.
• Court: Washington Supreme Court

98 P. 380

51 Wash. 171

AMI CO. v. TIDE WATER LUMBER CO.

Supreme Court of Washington

December 8, 1908

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by the Ami Company against the Tide Water Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed and remanded, with instructions for the entry of a supplemental order.

G. C Israel and W. P. Reynolds, for appellant.

Herbert S. Griggs and Ellis, Fletcher & Evans, for respondent.

HADLEY C.J.

With the exception of the amount of damages, the questions involved in this case are the same as those involved in cause No. 7,485, Edward Judson et al. v. Tide Water Lumber Company (just decided by this court) 98 P. 377. The lands of the respondent in this action lie fronting the Puyallup river upon the easterly or right bank thereof, and are immediately above the Judson lands involved in the case mentioned. They also lie directly opposite the land of the Tide Water Lumber Company, located as described in the former case. The Ami Company, the respondent in this action, charges damages to its land from the same acts of the Tide Water Lumber Company which it is claimed damaged the Judson land. The court, after a trial, made findings essentially like those in the Judson Case, and awarded damages in the sum of $950, together with a similar decree defining the channel of the river and requiring the removal of the obstructions.

The appellant claims on this appeal that no actual loss to respondent's land was shown, but that it appeared that there was really a net gain, and therefore no damages should have been awarded. Mr. Nicholson, a civil engineer, testified that on September 8, 1903, which was after the obstructions were placed in the river, the loss to the tract now owned by respondent was 3.75 acres. That was, however, before the respondent became the owner of the tract, which occurred in 1904. He also testified that in December, 1905, the loss was 3.81 acres. This was the first survey shown by his testimony after respondent became the owner, and showed an increase in the loss since the former survey of .6 of an acre. The next survey was in April, 1906, and showed a total loss of 3.94 acres, being an increase in loss since the last survey of .13 of an acre. Up to this point, it will be observed that the amount of loss after respondent became owner must have been about .19 of an acre as nearly as the witness could place it. Subsequent surveys, however, showed some gain, and in November, 1907 just prior to the trial, the total loss to the whole tract was shown to be 3.05 acres, which was a gain of .89 of an acres since the survey in April, 1906. It is therefore argued that there was no loss after respondent became the owner, for which ap...