Hardin v. Olympic Portland Cement Co.

Citations

• 89 Wash. 320
• 154 P. 450

Syllabus

<p>Appeal — Review—Harmless Error — Instructions. Error cannot be predicated upon the giving of an instruction upon the measure of damages when it could not have misled the jury when taken in connection with other instructions, some of them given at the request of the appellant.</p> <p>Nuisances — Permanent Nuisance — Definition — Lawful Business — Nuisance Per Se — Instructions—Damages. An instruction correctly defining what would amount to a permanent nuisance to adjoining property through the operation of a lawful business upon defendant’s property, and permitting recovery therefor as a matter of law, is not necessarily erroneous in inappropriately defining the same as a nuisance per se when a lawful nuisance is never a nuisance per se; since the operation of a lawful business may become a nuisance in fact, the determination of which is a question of fact, and the defendant could not operate its business in the manner so properly defined in the instruction without compensating the adjoining owner for the damages actually suffered.</p> <p>Same — Measure of Damages. In such a case, when the injury and damage are established, the measure thereof should be that most beneficial to the injured party entitled to enjoy his property intact.</p> <p>Same — Permanent Nuisance — Private Injury — Relief—Damages —Right to Permanent Damages. An adjoining landowner may sue once for all to recover temporary damages for past injuries to his crops and fruit trees, and for permanent damages to his freehold, suffered through the lawful operation of defendant’s cement plant, which threw off fumes and gases and cast particles upon plaintiffs’ premises, upon the theory that the same was a permanent nuisance even if it were not a nuisance per se, where the defendant intended to maintain the same and could not avoid the injury; since plaintiff in such case has recourse to relief in damages as less onerous and harsh than equitable relief by injunction.</p> <p>•Same — Permanent Damages — Sco