Sterrett v. Northport Min. & Smelting Co.

• Decision Date: 02 October 1902
• Court: Washington Supreme Court
• Parties: STERRETT v. NORTHPORT MINING & SMELTING CO.

70 P. 266

30 Wash. 164

STERRETT v. NORTHPORT MINING & SMELTING CO.

Supreme Court of Washington

October 2, 1902

Appeal from superior court, Spokane county; Frank H. Rudkin, Judge.

Action by Henry W. Sterrett against the Northport Mining & Smelting Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Heyburn & Heyburn, for appellant.

Robertson Miller & Rosenhaupt, for respondent.

WHITE J.

This is an action brought to recover from the appellant damages in the sum of $30,000 for the total destruction of the respondent's property. Omitting formal allegations and the allegations as to the title of respondent to certain lands, which were admitted upon the trial, the complaint is as follows: 'That said land so described was near the towns of Rossland and Northport, where agricultural and orchard land is scarce, and the same was especially adapted for the growing of fruit trees and the raising of fruit thereon, including berries and vegetables, for all of which products there was at all times herein mentioned, and will continue to be, a ready market at high prices; and was also a good location, and well adapted for a dairy farm, poultry and live stock. That this plaintiff cleared a large tract of land, more than ten acres in extent, and prior to the 1st day of January, 1898, had planted a large number of fruit trees and the said trees on or about the 1st day of January, A. D 1899, were of the average age of five years, healthy and promising; and this plaintiff on the said last-mentioned date had also cleared more than three acres of land, and had the same planted in strawberries, which said berry beds were then and had theretofore been prolific in the production of strawberries; and on said date this plaintiff had upon said land 1,400 fruit trees, 900 of which were apple trees, besides cherry trees, plum trees, pear trees, prune trees, and peach trees, which composed the remainder of said orchard; and there was of said land then and there adapted for orchard and fruit purposes more than fifty acres, which said land was of great and increasing value; and said entire land of this plaintiff was covered with growing timber suitable for mining, building, and other purposes, of the value of two thousand dollars and more, so standing upon said described property. That the said defendant corporation at all the times herein mentioned was engaged and is now engaging in conducting a smelter in the northern part of said city of Northport, and about one mile from the above-described land, the property of plaintiff, at which smelter the defendant smelts the ores of the Le Roi mine, situated at the city of Rossland, British Columbia, together with other ores, and that all of the ores so smelted are composed of gold and silver combined with pyrites of iron and copper, all of said ores being known as base ores, and containing large quantities of arsenic and sulphur, and when smelted or roasted said ores, by reason of said sulphur and other substances therein contained, to this plaintiff unknown, give forth sulphurous and other noxious fumes deleterious to vegetable life, and unpleasant and deleterious to man and cattle; and the same in the vicinity of said smelter, and more especially upon the land and home of this plaintiff, was, and now is, a nuisance. That within the last two years the said defendant smelting company has caused to be piled at and alongside of said smelter and upon piles of faggots and wood large quantities or raw ore from said mine, which, when so piled upon said faggots and wood, the said defendant company has fired said wood thereunder, and that said wood ignites the sulphur in said base ores, and so the said piles continue to burn until most of the sulphur is consumed out of the said ores; and that the said defendant has during said years 1899 and 1900 caused to be roasted in said piles, known and called generally in mining 'stink piles,' large quantities of ore, to wit, about one million tons; and the said sulphur fumes and smoke, without in any way being confined or controlled, at all the times herein mentioned have been and are permitted by the said defendant to hover in the air at and near said smelter, and more particularly over and above the lands of this plaintiff, and to fall and be precipitated upon the lands, plants, and trees heretofore described, the property of the plaintiff; and by reason of the said fumes so released by the said defendant in the process of smelting its ores all the vitality in the soil and land of plaintiff has been destroyed, all of the fruit trees above named, mentioned, and described have been killed, and rendered unproductive of fruit; all of the growing timber upon said land has been destroyed, and the value of the said property as a home for the plaintiff has been destroyed; and neither plaintiff nor cattle can secure any substance out of the said land, the same being by the defendant entirely and totally destroyed, and rendered useless and of no value for bearing fruit, orchard, vegetable, or any other purpose for which the said land was specially adapted; and so the entire value of the said land has been totally destroyed by the defendant company, to the great damage of this plaintiff. That the value of said orchard at the time the same was so destroyed by this defendant was of the reasonable value of fifteen thousand dollars ($15,000), and the remaining part of said farm, including said growing timber, berry bushes, etc., was of the reasonable value of fifteen thousand dollars ($15,000). That the entire value of said farm for any and all purposes has been destroyed by the said defendant, so that the same is now totally worthless, and of no value whatever. That the said fumes have so precipitated themselves over and upon this land as to permanently destroy the same for the purposes for which it was used by this plaintiff, and for any and all other purposes whatsoever, to the damage of this plaintiff in the sum of thirty thousand dollars.' The appellant, for answer, alleged that the action was barred, because not commenced within two years after the cause of action accrued. Section 4805, Ballinger's Ann. Codes & St. The appellant further alleges that it had been engaged continuously in milling and roasting ores at its smelter since the 22d day of July, 1898. The other allegations of the complaint, as to the adaptability of the land for the purposes alleged, the clearing of the land, the fruit trees, etc., on the land, the smelting of ores being a nuisance, and the damages averred, were denied. The jury, by its verdict, assessed the damages of respondent at $5,000, and on this verdict judgment was entered.

The complaint in this action was filed on February 19, 1901. The trial of the cause was commenced on the 12th day of June, 1901, and the verdict of the jury, as disclosed in the record, was returned on the 14th of June, 1901. On the 17th day of June, 1901, certain exceptions to the instructions given and refused by the court were filed by the appellant. No other exceptions to the instructions given or refused, save as stated, were taken. The respondent claims that no exceptions were taken to the instructions given or refused in the manner provided by law, and that this court cannot now consider such exceptions. We agree with the contention of the respondent in this respect. This matter has been recently passed upon by us. State v. Vance (decided Aug. 26, 1902) 70 P. 34. We there announce the reasons for adhering to this rule. We shall not, therefore, consider the errors assigned relative to the giving and refusing to give certain instructions.

The appellant, at the close of the respondent's testimony moved the court to dismiss the action because not commenced within the time allowed by statute, and, on the refusal of the court to grant said motion, duly excepted. The appellant then moved the court for a nonsuit, for the reason that the appellant had failed to prove the allegations of the complaint. This motion was denied, and the appellant duly excepted. Under these exceptions two propositions are advanced and discussed by the appellant: (1) That the two-year statute of limitations had run when this action was commenced; (2) that the proof of damages was in less amount than that pleaded in the complaint; that the action was for the full value of the property; that the proof failed as to the total destruction of the property, and, under the allegations of the complaint, the respondent could not recover for partial destruction, and that any proof as to injury which did not result in total destruction should not have gone to the jury. The Code provides: 'No variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just.' Ballinger's Ann. Codes & St. § 4949. The appellant did not claim at the trial, and does not now claim, that it has been misled by the allegations of the complaint. It is axiomatic that the whole is greater than the parts; the whole includes the parts; and, under the allegation of total destruction, in view of section 4949, supra, a partial destruction might be shown. The respondent's farm was less than a mile in a direct line from the appellant's smelter. In the early spring of 1899 there were on the farm 1,344 fruit trees, consisting of apple, pear, prune, peach, plum, and apricot trees; the apple trees, 933 in number, being from three to four...