Murphy v. Calispel Duck Club, 23106.
| Decision Date | 09 July 1931 |
| Docket Number | 23106. |
| Citation | 300 P. 1060,163 Wash. 366 |
| Parties | MURPHY et ux. v. CALISPEL DUCK CLUB. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Pend Oreille County; Mitchell Gilliam Judge.
Action by William Murphy and wife against the Calispel Duck Club. From a judgment for plaintiffs, defendant appeals.
Affirmed.
Danson Lowe & Danson, of Spokane, and E. L. Sheldon, of Newport, for appellant.
R. L Edmiston, of Spokane, for respondents.
This action was brought to recover for loss of hay crops for three years alleged to have been sustained by the flooding of one hundred and twenty acres of plaintiffs' land in Pend Oreille county by waters from defendant's dam. The trial of the cause to a jury resulted in verdict for $400 in favor of the plaintiffs. From judgment entered on the verdict the defendant appealed.
Conceding arguendo, the land of respondents was overflowed as alleged and hay crops were damaged, appellant contends that it acquired by prescription the right to overflow the respondents' land.
There is substantial evidence that the respondents sustained damages by the flooding of their land, as they alleged, and that the amount of the verdict is not in excess of the damages suffered.
While the dam was erected in 1911, the overflowing of the land of respondents resulting in loss of crops did not commence until 1926, when the height of the dam was increased forty inches. Therefore, the right of action accrued in 1926. The land was also flooded and crops destroyed in 1927, 1928, and 1929, which are the three years for which respondents seek recovery. When the flooding, of which respondents complain, began was a question of fact for the jury. Their verdict, under proper instructions (appellant does not question the correctness of the instructions), forecloses any question as to the date of the beginning of the flowing of respondents' land. Clearly, then, appellant's claim of a prescriptive right to flow water from its dam on to the land of respondents cannot prevail, a right which one of appellant's trustees testified was never claimed by appellant.
'We think that, both on reason and authority, the period of a prescriptive right to an easement to use or damage the lands of another can only begin to run from the time when the person suffering the damage first had a cause of action arising from the adverse use.
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Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cnty.
...when the PUD first began violating the terms of its express easement, in other words: when it began causing damage above 2035.5 feet. ¶ 96 Murphy answers the same question answered in St. Martin , concerning when the prescriptive period begins to run. Like this case, Murphy also involved a ......
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Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cnty.
...when the PUD first began violating the terms of its express easement, in other words: when it began causing damage above 2035.5 feet. ¶99 Murphy answers the same question answered in St. Martin , concerning when the prescriptive period begins to run. Like this case, Murphy also involved a d......
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