Sterrett v. Northport Mining & Smelting Co.

Citations

• 30 Wash. 164
• 70 P. 266
• 1902 Wash. LEXIS 665

Syllabus

<p>TRIAL-EXCEPTIONS TO INSTRUCTIONS-TIMELINESS.</p> <p>Exceptions to the giving and the refusing of instructions wnl not be considered on appeal, where they were not taken until after verdict.</p> <p>PLEADING — VARIANCE — ACTION FOB TOTAL DESTRUCTION OF PROPERTY-PROOF OF PARTIAL DESTRUCTION.</p> <p>Under Bal. Code, § 4949, which provides that no variance shall be deemed material, unless it shall have actually misled the adverse party, the fact that plaintiff proved only a partial destruction of his property by reason of the fumes arising from defendant’s smelter, while his complaint asked damages for the total destruction of his property, would be but an immaterial variance.</p> <p>INJURIES CAUSED BY SMELTER FUMES-SUFFICIENCY OF EVIDENCE.</p> <p>In an action to recover damages for the destruction of plaintiff’s farm for agricultural and fruit raising purposes, the denial of a nonsuit was proper, where the evidence showed that the smelter was located a mile away from plaintiff’s land about the middle of the year 1898; that the fruit trees on plaintiff’s land were having a thrifty growth in the fall of the year 1898; that in the spring of 1900, after the fumes from the smelter hung for several hours in the atmosphere, the blooms on the trees became blighted and nothing in the way of fruit formed; that the leaves had a brown, cooked appearance and the alfalfa appeared bleached; that no fruit was gathered from the orchard in 1900, and the strawberry crop was greatly damaged in that year; that some such effect was noticed during the year 1899, but not so much; that, as shown by expert testimony, the presence of sulphuric acid released in the atmosphere by the roasting of ores would produce such effects, and, if continued, would ultimately kill the vegetation in the vicinity.</p> <p>SAME — LIMITATIONS.</p> <p>The fact that a smelter would inevitably occasion the damage for which plaintiff sues would not start the running of the statute of limitations from the first operat