Idaho Gold Dredging Corporation v. Boise Payette Lumber Company

• Decision Date: 21 September 1934
• Docket Number: 5706
• Parties: IDAHO GOLD DREDGING CORPORATION, a Corporation, Respondent, v. BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

37 P.2d 407

54 Idaho 765

IDAHO GOLD DREDGING CORPORATION, a Corporation, Respondent, v. BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant

No. 5706

Supreme Court of Idaho

September 21, 1934

ASSIGNMENTS OF CAUSE OF ACTION-WATER AND WATERCOURSES-POLLUTION-NEGLIGENCE-DAMAGE TO MINING GROUNDS-CONSEQUENTIAL DAMAGES-ACCRUAL OF CAUSE OF ACTION-TIME-PROXIMATE CAUSE-EFFECT OF INTERVENING ACTS-LIMITATION OF ACTIONS-AMENDMENT OF PLEADINGS-INTEREST ON JUDGMENT-STATUTORY RATE.

1. Cause of action for damages to mining ground from oil and grease nuisance held a thing in action arising out of alleged violation of right of property and assignable (I. C. A., sec 54-402).

2. Where damage has occurred while defendant's own wrongful act was in operation, he cannot set up as defense that there was a more immediate cause of loss if that cause was put into operation by his own wrongful act, and to entitle defendant to such exemption he must show, not only that same damage might have happened, but that it must have happened if his negligent act had not been committed.

3. In action against lumber company for damage to gold dredge pond from oil and grease nuisance, original contamination of waters held proximate cause of injury, although oil and grease would ordinarily have been carried away in stream without damage to property, but were trapped in pond causing damage by plaintiff's own mining operations.

4. Amended complaint, in action against lumber company for damages to gold dredging pond from oil and grease nuisance which merely alleged different mode in which oil and grease were brought to operations, and thereby contaminated mercury and gold, did not state new cause of action as regard running of statute of limitations.

5. Amended complaint, in action against lumber company for damages to gold dredge pond from oil and grease nuisance which alleged damage to undredged portions as well as to dredged portions of mining claim, stated new cause of action in respect to running of statute of limitations if original complaint failed to state facts showing undredged portions of claim were damaged.

6. Where original complaint, in action against lumber company for damage to gold dredge pond from oil and grease nuisance alleged that oil and grease had been so mixed with placer deposits that minerals could not be removed without loss, amended complaint which alleged total destruction of claim, both dredged and undredged portions did not state new cause of action in respect to running of statute of limitations, since same proof could be made under original complaint.

7. Amendment properly setting out cause of action defectively stated in pleading before amendment does not state new cause of action.

8. Failure of court, in action against lumber company for damage to gold dredge pond from oil and grease nuisance, to instruct jury as to amount of oil required in water as to constitute interference in dredging operations or that would constitute total destruction of property, held not error, since matter was question of fact.

9. Injury to gold dredge pond through oil and grease nuisance created by lumber company was not direct but consequential, and cause of action for such injury did not accrue until actual damage had occurred.

10. In action against lumber company for damage to gold dredge pond caused by oil and grease nuisance, instruction that cause of action accrued at time oil and grease came down stream to extent sufficient to interfere with mining operations held not prejudicial to lumber company, although it failed to state that cause of action did not accrue until actual damage had occurred.

11. In determining damages for injury to gold dredge pond from oil and grease nuisance created by lumber company, questioning of witnesses as to value of mining claims on day statute of limitations began to run, and then after dredging operations, held not prejudicial to lumber company, since sufficient evidence was otherwise introduced to enable jury to reach verdict by determining difference in value of claims before and after pollution of stream.

12. Where evidence was conflicting, and doubtless would have been weighed differently by different reasonable minds, but was sufficient to support verdict, and appellant had its day in court, and had trial according to usual procedure of courts of jurisdiction, appellant had not been denied equal protection of law, or deprived of its property without due process.

13. Where defendant against whom judgment had been entered, on motion for new trial, secured order setting aside judgment, and thereafter upon appeal such order was reversed and reinstatement of judgment ordered by appellate court, judgment was reinstated as of date on which original was entered, and reversal would have that effect without formal order of reinstatement.

14. Judgment can bear interest at such rate only as law provides.

15. Where statute was enacted after entry of judgment, reducing rate of interest upon judgments from seven per cent to six per cent, judgment bore interest at rate of seven per cent from entry until effective date of statute and six per cent thereafter, regardless of fact that original judgment on its face provided for interest at seven per cent (Laws 1933, chap. 197).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck and Hon. Charles E. Winstead, Judges.

Action for damages. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Judgment affirmed. Petition for rehearing denied.

Alfred A. Fraser and Richards & Haga, for Appellant.

An amendment which introduces a new or different cause of action and makes a new or different demand does not relate back to the beginning of the action, so as to stop the running of the statute of limitations, but it is the equivalent of a fresh suit on a new cause of action, and the statute continues to run until the amendment is filed, and this rule applies although the cause of action set forth in the original pleading and in the amendment arises out of the same transaction. (37 C. J. 1074, and cases cited in note 30; Lambert v. McKenzie, 135 Cal. 100, 67 P. 6; Whalen v. Gordon, 95 F. 305, 37 C. C. A. 70; Montgomery v. Shaver, 40 Ore. 244, 66 P. 923.)

The court, by instruction No. 7, permitted the jury to consider all damages accruing after June 25, 1925, but the new cause of action, for pollution of the stream and for damages to the undredged ground, set out in the third amended complaint, filed March 29, 1930, was effective only from the date of filing, and respondent was not entitled to recover damages accruing between June 25, 1925, and March 29, 1926. (Tennessee Coal, Iron & R. Co. v. Wilhite, 211 Ala. 195, 100 So. 135; Montgomery v. Shaver, 40 Ore. 244, 66 P. 923.)

If an act occur, whether it be breach of contract or tort, and whether wilful or negligent, by which one sustains an injury, however slight, for which the law gives a remedy, that act starts the statute. The fact that nominal damages only could be recovered is enough. The fact that the actual or substantial damages were not discovered or did not occur until later is of no consequence. The act itself, which is the ground of the action, cannot be legally separated from its consequence. (Aachen & Munich Fire Ins. Co. v. Morton, (C. C. A. 6th) 156 F. 654, 84 C. C. A. 366, 13 Ann. Cas. 692, 15 L. R. A., N. S., 156, and note.)

If pollution of the stream had, in and of itself, without the intervention of the dredging operations of respondent, caused permanent damage to respondent's land, the measure of such damages would have been the difference between the value of the land immediately before the pollution of the stream and the value immediately after such pollution, without any change in the condition of the land by the acts of plaintiff. (Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296; Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L. R. A., N. S., 968.)

A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. (22 R. C. L. 122-132; Chicago, St. P., M. & O. Ry. Co. v. Elliott, 55 F. 949, 5 C. C. A. 347, 20 L. R. A. 582; Cole v. German Sav. etc. Soc., 124 F. 113, 59 C. C. A. 593, 63 L. R. A. 416.)

The verdict of the jury is based on the first cause of action (the second having been withdrawn from the consideration of the jury by the court), and the first cause of action was assigned to respondent by the owner of the ground, after the injury is alleged to have been sustained. A cause of action arising out of trespass or tort does not survive and cannot be assigned under the laws of the state of Idaho. ( Kloepfer v. Forch, 32 Idaho 415, 184 P. 477; Forist v. Androscroggin River Imp. Co., 52 N.H. 477; Chicago & Alton Ry. Co. v. Maher, 91 Ill. 312.)

Appellant could not be charged with interest from February 24, 1931, to June 1, 1933, during which period there was no judgment whatsoever against appellant, but the order granting a new trial was then in full force and effect. (Aetna Life Ins. Co. v. Board of Commrs., 79 F. 575, 25 C. C. A. 94; Coast Lumber Co. v. Aetna Life Ins. Co., 32 Idaho 264, 125 P. 185.)

The new judgment could bear interest only at six per cent (6%) per annum. (Sess. Laws 1933, p. 390; Wyoming Nat. Bank v. Brown, 9 Wyo. 153, 61 P. 465; Morley v. Lake Shore & M. S. Ry. Co., 146 U.S. 162, 13 S.Ct. 54, 36 L.Ed. 925.)

Hawley & Worthwine and Luther W. Tennyson, for Respondent.

The respondent did not state a new cause of action in its third amended complaint, so as to permit the running of the statute of limitations to the date of its filing, March 29, 1930. ( Fowlis v. Heinecke, 87 Mont. 117, 287 P. 169; Groom v. Bangs, 153 Cal. 456, 96...