Idaho Gold Dredging Corporation v. Boise Payette Lumber Company

• Decision Date: 06 March 1933
• Docket Number: 5748
• Citation: 52 Idaho 766,22 P.2d 147
• Parties: IDAHO GOLD DREDGING CORPORATION, a Corporation, Appellant, v. BOISE PAYETTE LUMBER COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

22 P.2d 147

52 Idaho 766

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

No. 5748

Supreme Court of Idaho

March 6, 1933

NUISANCE-MEASURE OF DAMAGES-WATER AND WATERCOURSES-POLLUTION-APPEAL AND ERROR-LIMITATION OF ACTIONS.

1. Rule that recovery for temporary injury only can be had where property is damaged by temporary nuisance should be applied only where abatement of cause of injury will abate injury itself.

2. Character of injury caused by nuisance, and not cause thereof, controls question whether recovery can be had for temporary injury only or for permanent injury.

3. Removal of cause on injury to gold dredge pond caused by oil and grease used to lubricate log chutes did not remove nuisance itself where all grease had been placed on watershed before suit, so as to preclude recovery for all damages measured by depreciation in value of property.

4. Evidence in action for damages to mining ground failed to sustain finding that nuisance of oil and grease used to lubricate log chutes and damaging gold dredge pond was abatable.

5. Parties to action are bound by theory on which they try it.

6. Lumber company sued for damages to mining ground from oil and grease nuisance could not contend nuisance was abatable where case was not tried on theory injury was temporary.

7. Evidence in action for damages to gold dredge pond from oil and grease nuisance failed to sustain finding that source of grease was readily discoverable when dredging commenced.

8. Lumber company sued for damages to mining ground from oil and grease nuisance held not prejudiced by dredging of gold dredge pond by plaintiff's predecessor after injury by grease, in view of instruction on damages.

9. That plaintiff's predecessor continued dredging operations after discovering oil on gold dredge pond did not relieve lumber company causing oil and grease nuisance from liability for damages to such mining ground.

10. On appeal from order granting new trial, appellant has burden to show ground upon which court put order does not support it, and, as to other grounds, presumption obtains that court's ruling was right until contrary is shown.

11. Three-year statute of limitations held not applicable to action for damages to mining ground from oil and grease nuisance (I. C. A., sec. 5-218, subds. 2, 3).

12. Four-year statute of limitations held applicable to action for damages to mining ground from oil and grease nuisance (I C. A., sec. 5-224).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Appeal from order granting new trial. Reversed and judgment reinstated.

Order reversed. Costs awarded to appellant. Petition for rehearing denied.

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

The theory on which the case was tried by the lower court and by both parties rested on the permanency of the injury and the respondent was not entitled to a new trial upon the theory of temporary injury adopted by the court in granting a new trial. (Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L. R. A., N. S., 968; 2 Cal Jur., par. 68, p. 237; Carlson v. Wells, (Mo.) 276 S.W. 26, 42 A. L. R. 1327; Applebaum v. Stanton, 47 Idaho 395, 276 P. 47; Grant v. St. James Min. Co Ltd., 33 Idaho 221, 191 P. 359.)

Permanent injury resulted as a consequence from the permanent nuisance created and maintained by the respondent on its own lands. Permanency in this case means indefinite duration of the nuisance and the injuries consequential thereto. (Hayes v. St. Louis & S. F. R. Co., 177 Mo.App. 201, 162 S.W. 266; Boise Valley Construction Co. v. Kroeger, supra; Deffenbaugh v. Washington Water Power Co., 24 Idaho 514, 135 P. 247; Coleman v. Bennett, 111 Tenn. 705, 69 S.W. 734; Peck v. City of Michigan City, 149 Ind. 670, 49 N.E. 800; Niagara Oil Co. v. Ogle, 177 Ind. 292, 98 N.E. 60, Ann. Cas. 1914D, 67, 42 L. R. A., N. S., 714; Troy v. Cheshire Ry. Co., 23 N.H. 83, 55 Am. Dec. 177; 4 Sutherland on Damages, 4th ed., par. 1046.)

The appellant was under no obligation as a condition precedent to its action to give notice of its injury to the respondent. ( La Veine v. Stack-Gibbs Lumber Co., 17 Idaho 51, 104 P. 666, 134 Am. St. 253; 46 C. J., p. 741; Bonner v. Welborn, 7 Ga. 296; Exley v. Southern Cotton Oil Co., 151 F. 101; Watson v. Colusa-Parrot Min. Co., 31 Mont. 513, 79 P. 14, 18.)

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

An order granting a new trial will not be reversed or disturbed if it can be justified on any of the grounds upon which the motion was made and unless it affirmatively appears the trial court clearly abused its discretion. (Turner v. First Nat. Bank of Bancroft, 42 Idaho 597, 602, 603, 248 P. 14; Tidd v. Northern P. R. Co., 46 Idaho 652, 656, 270 P. 138; Jones v. Campbell, 11 Idaho 752, 84 P. 510; Say v. Hodgin, 20 Idaho 64, 68, 116 P. 410, 411; 4 C. J., p. 1131.)

The law never proceeds upon the presumption that a nuisance, illegal conduct, wrongdoing, infliction or source of an injury will continue indefinitely or forever, nor upon the right to assume the indefinite or permanent maintenance, continuance or license of a wrong, negligence, nuisance or wrongful condition or conduct. (4 Sutherland on Damages, 3d ed., p. 3053, and cases cited; Uline v. New York C. etc. R. Co., 101 N.Y. 98, 4 N.E. 536, 53 Am. Rep. 123; City of Ardmore v. Orr, 35 Okla. 305, 129 P. 867; Southern Ry. Co. v. Cook, 117 Ga. 286, 43 S.E. 697.)

The burden of proving its damages, accrued or prospective, is upon the plaintiff, and where no proof is made of future or prospective damages, an instruction permitting loss to be based upon the assumption of future injury is erroneous. ( Gwin v. Gwin, 5 Idaho 271, 48 P. 295; New York, N.H. R. Co. v. Glessing, 67 F. 281.)

To be "permanent," in a legal sense, a structure must be such that its continuation is lawful and protected by law or public policy, so that it is legally nonabatable, because if not it is subject to be removed or abated by legal proceedings and, therefore, cannot be deemed permanent; and where a structure is legally abatable, or if the structure itself is protected by law but is defective, unskilfully or negligently maintained or operated, which wrongful maintenance or operation is not protected by law, the same in the eyes of the law is temporary, and successive actions must be brought for any damage or loss accruing before the commencement of the action. (Hollenbeck v. City of Marion, 116 Iowa 69, 89 N.W. 210; 4 Sutherland on Damages, 3d ed., p. 3053 (and cases cited from Tennessee, Minnesota, New Jersey, Wisconsin and Ohio).

MORGAN, J. Givens and Holden, JJ., and Rice and Babcock, D. JJ., concur.

OPINION

MORGAN, J.

April 13, 1928, appellant acquired, by purchase from Gold Dredging & Power Corporation, placer mining ground on Grimes Creek, in Boise county. This ground contained deposits of gold in the sand and gravel of the creek bottom, was valuable for these deposits alone and could be successfully mined only by use of a dredge which operated in and dipped the gold bearing sand and gravel from a dredge pond. Appurtenant to the mining ground was a water right to the waters of the creek to be used in mining.

Respondent owned timber growing on the watershed of Grimes Creek and its tributaries and in 1920 began cutting and removing it. These activities continued until 1926, when removal of the timber was completed and its operations ceased in that part of the country.

As a part of its equipment respondent caused log chutes to be constructed and used down the hillsides and along the gulches through the country where the timber grew. Over parts of the way there was so little grade it was economical to lubricate the chutes with grease and oil and thereby reduce the friction created in passing logs over them to landings adjacent to respondent's railroad, by means of which they were transported to its mills.

Much of the lubricant placed on the chutes dropped off and saturated the ground and soaked into trash and bark which accumulated in and near tributaries of Grimes Creek. It appears from the testimony of appellant's witnesses that such quantities of grease and oil, so placed on the watershed of Grimes Creek, found their way into the stream and into the dredge pond, both before and after the purchase of the ground by appellant, that in the operation of the dredge the gold, and mercury used in mining, were contaminated to such an extent that the gold would not amalgamate and a large part of it escaped over the riffles and was lost and the ground could not, because of the grease and oil, be mined at a profit; also that grease and oil were still present in the stream and on and in the trash, bark and earth at about the time of the trial in October, 1930, and that the value of the mining ground had been thereby totally destroyed.

Gold Dredging & Power Corporation assigned to appellant its cause of action arising out of the damage to the mining ground, and appellant, on June 25, 1929, filed a complaint against respondent to recover damages caused by the grease and oil. The third amended complaint, upon which the case was tried, contains two causes of action, one for damage occurring between June 25, 1925, and April 13, 1928, when the ground was owned by appellant's predecessor, the other for damage occurring subsequent to the purchase.

The case was tried and submitted to a jury upon the theory that the measure of damages was the difference between the value of the mining ground after the waters of Grimes Creek had become polluted with grease and oil, and its value as it would have been had such pollution not occurred.

In its instructions ...