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ure be a repetition of facts appearing in our , in that court which rendered it plain that former decision.

whatever relief the lumber company was enOn January 20, 1913, the city council of titled to by virtue of our decision could not Blaine declared its intention to improve that be then effectually granted in the terms of an portion of E street lying within the harbor injunction as originally prayed for, since all area and the tidelands in the city and to i of the acts of the city which the lumber comassess the cost thereof against the property pany had sought to have enjoined had been benefited thereby, defining the proposed local fully performed by the city. These new facts improvement district, including the property necessary to be here noticed are the followto be assessed. This proposed district in- ing: Immediately on the judgment of the cluded certain portions of the harbor area, superior court being rendered in favor of the which the lumber company held under lease city, it entered into a contract for the confrom the state, and also certain tidelands

struction of the improvement at a cost of owned by the lumber company. On Febru- something less than $12,000, which was the ary 17, 1913, after due notice furnishing prop-I original estimated cost of the improvement, erty owners an opportunity to protest against

The improvement was completed according the making of the proposed improvement, I to the contract and as originally contemthe council duly passed Ordinance No. 428, plated by the resolution and ordinance profinally providing for the construction of the

viding therefor. Local improvement bonds improvement and for the creation of a local

against the district were by the city issued improvement district, including that portion

and delivered to the contractor in payment of the harbor area upon which the lumber

of the improvement. An assessment roll was company held a leasehold interest from the

made up in the usual manner, assessing the state, and also the lumber company's tide

cost of the improvement against the property lands, with other property to be charged by

| within the district, apportioning approxPmateassessment with the cost of the improve

ly $2,000 thereof against the harbor area, ment, and for the issuance of local improve

and $10,000 thereof against the tidelands, ment bonds against the special fund to be

within the district. The portion of the harcreated by such assessments to pay for the

bor area held under lease by the lumber improvement. On March 12, 1913, this ac

company was assessed $346.92. The tidetion was commenced by the lumber company

lands owned by the lumber company were asin the superior court for Whatcom county,

sessed $1,796.83. Due notice was given, as praying for an injunction restraining the city from proceeding with the proposed im

the law directs, of hearing before the council provement and assessments and for general

upon the question of the confirmation of this relief. The lumber company sued as a gen

| assessment roll, and, no objection being made eral taxpayer of the city, as the owner of

thereto by any one, the council by ordinance a leasehold interest in the harbor area to

duly confirmed the same. All of this ocbe assessed, and as the owner of certain

curred before the rendering of our former tideland blocks to be assessed. The lumber

decision holding that the lumber company company rested its right to an injunction was entitled to relief, and at a time when upon the theory that the harbor area was

there was no restraining order or injunction not subject to assessment to pay for local in force against the city from so proceeding. improvements and that the city could not After the rendering of our former decision, lawfully make provision for the payment of the city officials seeing that it was without the deficiency which would be caused by its authority to assess the harbor area, the inability to assess the harbor area, because council adopted a resolution canceling all of the fact that it was indebted far beyond assessments made upon the harbor area and the limit prescribed by the state Constitution. directed the city treasurer to cancel the Reference to our former decision will show same upon the assessment roll of the disthat this is in substance the ground upon trict. These new facts being brought to the which it was held that the lumber company attention of the superior court by affidavits was entitled to relief. It will also be no- filed in behalf of both the city and the lumticed that the only instruction to the su- ber company, as to which facts there seems perior court touching the nature of the re- to be no serious dispute, the question was lief it should grant the lumber company is presented to the superior court as to the contained in these concluding words of the nature of the judgment it should enter, to decision:

the end that the lumber company should "The judgment is reversed, and the cause re- have such relief as it was entitled to in the manded, with instructions to enjoin the improve-light of our former decision. The matter bement as proposed." North American Lumber Co. v. Blaine, 81 Wash. 13, 18, 142 Pac. 438,

ing thus presented to the superior court, it 439.

entered a judgment annulling each and all When the remittitur went down to the su

| of the assessments made upon the property perior court for entry of final judgment in within the district, adjudging and decreeing: accordance with our decision, both the city

"That each and every of the said assessments and the lumber company brought to the at

| is canceled and the defendants, and their suc

cessors in office and all persons acting or to tention of that court by affidavits facts oc act by, through, or under them, be and they are collecting the said assessments or any part, impeachable because of their being regularly thereof."

levied upon due notice and remaining un. Counsel for the city contends that the lum- challenged by the owners of the property so ber company is in no event entitled to any assessed. Indeed, such seems to be their greater relief, at this time, than the cancel- !

status as shown by the record. lation of the assessment upon the harbor

[2] The more serious question here presentarea and the prevention of the city's satisfy. Jed is: Has the lumber company the right to ing any deficiency caused by such cancella

now have canceled the assessment levied uption by making the same a charge upon its

on its tidelands? Now, we have seen that general fund, and that since all of the assess

all of these assessments against the lumler ments upon the harbor area have been volun

company's tidelands were also levied upon tarily canceled by the city, and the city a

due notice; that no objection was made disclaims all intention of satisfying the de

thereto by the lumber company or any one, ficiency so resulting, by causing the same to

nor was appeal to the courts taken therebe made a charge upon its general fund, it!

from; and that this was all done at a time becomes of no consequence whether the city

when there was no restraining order or inbe enjoined to this extent or not. Counsel

junction in force preventing the city from for the city also contends that the lumber |

so proceeding. Manifestly, the fact that the company is not entitled to any relief as against the assessment levied upon its tide

lumber company was then seeking an injunclands because of its failure to make any ob

tion by appeal to this court from the disjection thereto to the city council when the

missal of its case in the superior court, to assessment roll was before the city council ( prevent the city from so proceeding, did not upon due notice for confirmation, and also

Iso deprive the city of jurisdiction in the premcontends that in no event has the lumber

ises. The irregularity occurring in the incompany any right to have canceled the as

ception of the local improvement proceedings sessments made against the other tidelands by inclusion of the harbor area in the aswithin the district in which it has no inter- sessment district may have been sufficient to est. Counsel for the lumber company con

then entitle the lumber company, as a taxtends that it is entitled to relief to the full payer and also as the owner of property to extent granted by the final judgment of the be assessed, to have the court "enjoin the superior court from which this appeal is improvement as proposed,” as was held in taken. These contentions, we understand our former decision; but that did not defrom the record before us, were also made prive the city of jurisdiction to proceed with in the superior court.

the improvement and assessments in so far as Counsel for the lumber company invoke it was seeking to charge by assessment prop the general rule, as stated in the text of 22 erty which was assessable for local improve Cyc. 966, as follows:

ments. "The decree may afford complete relief as to [3-5] Now, plainly the tidelands owned by injuries that have been consummated since the private persons, as these lands are, are assuit was begun; for, even though no temporary

sessable as any other private property, to injunction was obtained, defendant acts at his peril in doing pendente lite the acts sought to pay the cost of local improvements, while, be enjoined.'

as held in our former decision, harbor area For present purposes we may assume that and leasehold interests therein are not asthe lumber company is entitled to have the sessable to pay the cost of local improveassessments upon the harbor area canceled, ments. Hence the city had jurisdiction of and also to have the city enjoined from the subject-matter of assessing such tidecharging its general fund with any portion of lands, while it did not have jurisdiction over the cost of the improvement, since the city is the subject-matter of assessing harbor areas not here insisting that it has the right to or leasehold interests therein. That the have such assessments enforced, or to so city's jurisdiction was complete as to the tide charge its general fund. But the question lands, so far as the assessment proceedings of the power of the court to now cancel and and notice of hearing before the council upenjoin the collection of the assessments which on the question of confirmation of the roll is have been regularly levied against the tide- concerned, seems plain from this record. Inlands upon due notice, and not appealed deed, that such notice was given as the law from to the courts, is quite another matter. directs is not here questioned. It is also

[1] In so far as the assessments levied up- plain that no objections to any of the assesson the tidelands other than those belonging ments were presented to the council, nor to the lumber company are concerned, we was any appeal taken to the courts from the do not see that it has any right whatever to confirmation of the roll. Why, then, is not question such assessments. It is true it orig- the confirmation of this assessment roll a inally brought proceedings looking to the en- final determination binding upon all owners joining of the construction of the improve- of tidelands, including the lumber company, ment; but it brought this action only in its so assessed? The reason that it is not bindown behalf, so manifestly it cannot complain ing upon the owners of leasehold interests of assessments upon lands in which it has in harbor area is because the city had no juin.

ing harbor areas or leasehold interests there, they were confirmed without objections, in

so far as lands other than harbor area are Section 23, page 455, Laws of 1911, of the concerned, it would follow that the lumber general local improvement law, under which company's tidelands are bearing no more the city proceeded, reads :

than their just proportion of the costs of the "Whenever any assessment roll for local im- improvement. Therefore it is difficult to conprovements shall have been confirmed by the ceive of any wrong resulting to the lumber council or other legislative body of such city or town as herein provided, the regularity, va

company, viewing it only as the owner of lidity and correctness of the proceedings relat- these tidelands. The same may be said of ing to such improvement, and to the assessment all other owners of lands within the district, therefor, including the action of the council other than the harbor area. It seems plain upon such assessment roll and the confirmation thereof, shall be conclusive in all things upon all that the rights of the number company as parties, and cannot in any manner be contested owner of the tidelands, which are assessable or questioned in any proceeding whatsoever for local improvements, must be viewed apart by any person not filing written objections to such roll in the manner and within the time pro

from its rights as a general taxpayer and as vided in this act, and not appealing from the owner of a leasehold interest in the harbor action of the council in confirming such assess- area. Its rights in the latter respect it is ment roll in the manner and within the time in

entitled to have protected by the final judgthis act provided. No proceeding of any kind shall be commenced or prosecuted for the pur

ment of the court, if such rights are not alpose of defeating or contesting any such assess ready sufficiently protected by the attitude ment, or the sale of any property to pay such voluntarily assumed by the city towards the assessment, or any certificate of delinquency issued therefor, or the foreclosure of any lien

assessments against the harbor area and the issued therefor: Provided, that this section shall protection of the city's general fund. But, not be construed as prohibiting the bringing of viewing the lumber company as the owner of injunction proceedings to prevent the sale of

the tidelands, its complaint here amounts to any real estate upon the grounds (1) that the property about to be sold does not appear upon no wor

no more than that the assessments are void the assessment roll, or (2) that said assessment because of irregularities occurring on the inhas been paid.'

ception of the proceedings taken by the city. This court has repeatedly held that such a This, however, we have seen does not go to determination by the city council, had upon the jurisdiction of the city over the subjectdue notice under previously existing statutes matter, and due notice having been given of similar to this, became final as to all owners hearing upon the confirmation of the assessof property so assessed, unless the assessment roll and the same having been conment was attempted to be levied under such firmed without objection, all prior irregularicircumstances that the city was exceeding its ties were thereby cured, and the assessment jurisdiction over the subject-matter. This became final against the lumber company as question is reviewed at some length in Ruck- to its tidelands, as well as against other owner Brothers v. Everett, 66 Wash. 366, 119ers of lands in the district other than the Pac. 807, 38 L. R. A. (N. S.) 582, where our harbor area. former decisions are noticed. The doctrine [6] Our attention is called to the act of the was adhered to in Grandin v. Tacoma, 151 Legislature found in Session Laws of 1915 at Pac. 254, involving an assessment under this page 363, providing that all leasehold rights statute. All of these assessments upon lands, and interests of private persons in or to harincluding those belonging to the lumber com- bor areas within the limits of an incorpopany, other than the harbor area, being made rated city or town are subject to assessment and confirmed upon due notice, no objection to pay the cost of local improvements. We thereto being made by any one, and no appeal do not regard this act as having any contaken to the courts therefrom, we are of the trolling force in this cause, in view of its opinion that such assessments became bind-enactment subsequent to the making of these ing and conclusive upon the lumber company assessments. We express no opinion at this as well as upon all other owners other than time touching the power of the city of Blaine those owning leasehold interests in the har- to charge by reassessment or supplemental bor area, and that in the light of facts occur-assessment any deficiency in the local imring since the original trial of this case in provement fund against leasehold interests in the superior court, our former decision the harbor area which may be benefited by should not now be construed as impairing this improvement. the validity of any of the assessments so The judgment of the superior court is remade and confirmed, other than those assess versed, in so far as it cancels and enjoins ments made against the harbor area, as to the collection of any of the assessments levwhich the city had no jurisdiction.

ied upon lands within the district, including It is worthy of note here that these assess the lands of the lumber company, other than ments were levied and apportioned against those assessments levied upon the harbor all of the lands within the district, including area. In all other respects the judgment is the harbor area, as if all the lands were as- affirmed. sessable for local improvements. Assuming that the assessments were equitably appor- MORRIS, C. J., and BAUSMAN, MAIN, tioned, as we must, in view of the fact that and HOLCOMB, JJ., concur.

business was more or less permanent, the award HARDIN et al. v. OLYMPIC PORTLAND of permanent damages to plaintiff's realty was CEMENT CO., Limited. (No. 12918.)

proper; as, if it was its intention to discontinue

the maintenance of the plant and show that (Supreme Court of Washington. Jan. 15, 1916.) | it was only temporary, it was a matter for proof 1. TRIAL 295 ACTION FOR DAMAGES-IN- by defendant. STRUCTION-PERMANENT DAMAGES.

[Ed. Note.--For other cases, see Nuisance, In an action for damages to plaintiff's trees, | Cent. Dig. 88 118-127; Dec. Dig. Om50.] crops, etc., and for permanent damages to his 6. JUDGMENT Om606 - SUCCESSIVE ACTIONSrealty, an instruction that, if the plaintiff's land

| BAR-PERMANENT INJURY. had been seriously and permanently damaged by Plaintiff, whose freehold was damaged by the operation of defendant's cement plant, the the operation of defendant's cement plant, inmeasure of damages to the land was the differ- tended to be permanent, was entitled to recover ence between its market value immediately be- | in one action permanent actual damages from fore it was damaged and its market value at the the operation of the plant, and was thereafter time of bringing the action, more than a year

estopped to claim in any form of action any later, could not have misled the jury into

other or additional permanent relief against its awarding double permanent damages, when tak

operation. en in connection with another instruction for

| [Ed. Note.-For other cases. see Judgment, defendant limiting the jury's consideration to

Cent. Dig. $ 1120; Dec. Dig. Om 606.] the damages to the trees, crops, etc., and another as to such items stating the measure of Department 2. Appeal from Superior damages as the difference between the market Court, Whatcom County: William H. Pemvalue of the crops at the time of the injury and their market value at the time the injury was

berton, Judge. received.

Action by Ed. E. Hardin, and Ed. E. Har[Ed. Note.--For other cases, see Trial, Cent. din, executor of the will and estate of VicDig. $8 703–717; Dec. Dig. Om 295.]

toria Hardin, deceased, against the Olympic 2. NUISANCE 3 - QUESTION FOR JURY | Portland Cement Company, Limited. Judg"NUISANCE PER SE.”

ment for plaintiffs, and defendant appeals. A "nuisance per se" is an act, thing, omission, or use of property which in and of itself is a

Affirmed. nuisance, and hence is not permissible or excus-1 Hadley, Hadley & Abbott. of Bellingham, able under any circumstances; but, since there must be some place where every lawful business

for appellant. Hurlbut & Neal, of Belling. may be lawfully located or carried on, a law ham, and Romaine & Abrams, of Bellingham, ful business is never a nuisance per se, but may for respondents. Ed. E. Hardin, in pro. per. become a nuisance by reason of extraneous circumstances, such as location in an inappropri

HOLCOMB, J. Respondents own 15 acres ate place, or conduct in an improper manner, in which case it is a nuisance in fact, and the'de of land near Bellingham, Wash., and the aptermination is a question of fact.

pellant owns a tract of land lying immediate[Ed. Note.--For other cases, see Nuisance, ly southerly of, and contiguous to, the lands Cent. Dig. $8 4, 5, 9-25; Dec. Dig. Om3. l of respondents. Prior to May 1. 1913. apFor other definitions, see Words and Phrases,

S, pellant constructed upon its land a large First and Second Series, Nuisance Per Se.)

plant for the manufacture of Portland ce3. NUISANCE 50 - PRIVATE INJURY-LIA

ment, and on or about that date began the BILITY.

One has no right to carry on a lawful busi manufacture of Portland cement in its plant, ness which injures another, except such injury and has from that time continued such manas the public must suffer in order to permit the lufacture to a greater or less degree carrying on of lawful business, without compensating such other for the damages actually l Respondents' complaint proceeds upon the sustained, and, where the injury and damage are theory that appellant owns in fee the site of established, the measure of damages should be the cement plant and large deposits of clay that most beneficial to the injured party, as he land limestone used in the manufacture of is entitled to have the benefit and enjoyment of his property intact.

cement sufficient to supply its plant and op[Ed. Note.--For other cases, see Nuisance, erate it at its full capacity for more than 50 Cent. Dig. $8 118-127; Dec. Dig. Om50.) years, and that the capacity of the plant at 4. JUDGMENTO606—MERGER AND BAR-SUC- present is about 1,600 barrels of cement per

CESSIVE ACTIONS -- TEMPORARY AND L'ERMA- day. It is alleged that appellant intends to NENT NUISANCE-FORM OF ACTION--EFFECT.

: continue to manufacture, handle, and dispose An action for temporary damages by reason of injury to and loss of crops, trees, etc., of cement at its plant as it now is. It is aland for permanent damages to the freehold, re-leged that in the process of the manufacture sulting from the operation of defendant's cement and in the handling and disposing of the plant, was brought on the theory that it was intended to cover every injury and the enforce

cement noxious fumes and gases and parment of every remedy which plaintiff had orticles of cement materials and cement were could have against the defendant, and the per- thrown out from the plant and carried by manent injury to the freehold, except a resort to the prevailing winds in, 'over, and upon reequity to enjoin the plant, and precluded any further legal or equitable relief for any future

spondents' premises, penetrating the dwelling damage to the freehold.

| house and rooms, and injuring and destroying [Ed. Note. For other cases, see Judgment, vegetation, and that respondents' premises Cent. Dig. § 1120; Dec. Dig. Cm 606.]

are no longer desirable, comfortable, or valu5. NUISANCE 50_PERMANENT NUISANCE able as residence property, that they have

In such action, where the pleadings admitted that it was the defendant's intention to con

- been greatly depreciated in value, and that tinue the operation of the cement plant. and by reason of the things alleged in the comwhere all the evidence tended to show that the plaint this depreciation is permanent.

Appellant by answer admits that it owns in , into awarding double damages by reason of fee the deposits of clay and limestone, and that instruction, in so far as this one conis taking and using in its cement plant raw tention is concerned, taking it in connection materials used in the manufacture of cement; with the other instructions given by the that it has deposits sufficient to supply ma-court, some of them at the request of appelterials for the operation of the plant at its lant. full capacity for more than 50 years; that it 2. A more serious difficulty is presented now manufactures about 800 barrels per day ; by appellant's clain that the eleventh inthat its present capacity is about 1,600 bar- struction of the court was erroneous, in that rels of cement per day; and that it intends so the facts specified by the court to the jury as to continue the manufacture of cement. It establishing the plant as a nuisance per se do denies the allegation that large bodies of ce-not in law constitute a permanent nuisance ment and the constituent elements thereof nor warrant the application of the measure were blown by the prevailing winds in, over, of damages allowed in the case of permanent and upon the premises of respondents, and nuisance. deposited thereon, denies the injury to the By the portions of that instruction which crops, shrubs, trees, fruits, and grasses of are complained of the jury was told that if: respondents, as alleged, and denies generally (a) The character of its construction and the allegations of damage in the complaint. equipment is modern; (b) the machinery and

[1] 1. Complaint is made of the tenth in appliances are so placed and adjusted as to struction given by the court to the jury as function properly and are properly and skill. follows:

fully operated; (c) under such conditions the "You are further instructed that, if you find prevention of injury and damage upon which from the evidence by a fair preponderance there

the instruction is predicated is not had; (d) of that the plaintiffs' land in the complaint de scribed has been materially damaged by the op- such fumes, etc., are carried upon respond. eration of its cement plant in the manner alleged ents' property by the prevailing winds, and in the complaint, and that such damage is per settle and interfere with the comfortable enmanent in character, then I instruct you that,

joyment of the property, or materially damin estimating the plaintiffs' damages to their said land, the measure of such damages is the age the same; and (e) in the careful and difference between the market value of the land skillful operation of the plant as so constructas it was immediately before it was so dam-led and at its presen

ed and at its present capacity, it will necesaged and the market value of the same in its damaged condition at the time of the bringing

sarily continue to throw off such gases, etc., of this action, to wit, August 6, 1914, as a re- and that the same will be carried over and sult of the operation of the defendant's cement upon and injure respondents' property--then,

as a matter of law, appellant's plant would Appellant contends that the giving of this be a nuisance per se, and that, as a matter of instruction was error, for the reason that law, any damages to respondents' land reit incorrectly states the measure of damages sulting in the depreciation of the value of in cases of permanent nuisance; that the the land would be permanent, and it would proper rule in case of permanent nuisance is be the duty of the jury to assess damages for the difference in market value before and such permanent depreciation of the value of immediately after the injury-citing Hunt v. the land not exceeding the amount sued for. Johnson (Tex, Civ. App.) 129 S. W. 879, and [2] "A nuisance per se is an act, thing, Missouri, K. & T. R. Co. v. Dennis (Tex. Civ. omission, or use of the property which in and App.) 84 S. W. 860. The theory on which of itself is a nuisance, and hence is not perthis contention is based is that the instruc- missible or excusable under any circumstanction resulted in permitting the jury to assess es." 21 Am. & Eng. Ency. Law (2d Ed.) 683. double damages. Respondents sued to re- The court in the instruction criticized may cover $175 as temporary damage by reason bave used the term "nuisance per se" inapproof the injury to and loss of crops, as well priately; for there is much apparent conflict as for the sum of $2,824.99 for permanent of authority on the question whether or not damages to their freehold. Respondents do a lawful business or erection can be a nuinot question the correctness of the rule con- sance per se, but the instruction is not vitiattended for by appellant, but insist that the ed by such definition. Since there must be instruction complained of is the equivalent some place where every lawful business may of an instruction numbered 6 by the court be lawfully located or carried on, the better which was given as requested by appellant, rule would seem to be that a lawful business which limited the consideration of the jury is never a nuisance per se, but may become of the question of damages to the fruits, a nuisance by reason of extraneous circumtrees, grass, shrubbery, etc., and instruction stances such as being located in an inapproNo. 7 given by the court as to such items of priate place, or conducted or kept in an imthe damage, stating the measure of damages proper manner. 21 Am. & Eng. Ency. Law to be the difference between the market val- | (2d Ed.) 684; Wood, Nuisances, 88 529, 530. ue of the crops at the time of receiving the In such case it is a nuisance in fact, and the injury and their market value in the injured determination is a question of fact. A smeltcondition at the time the injury was receiv- ing plant is not a nuisance per se, but may ed. We think there is no merit in the con- be located so as to be one in fact to other

plant."

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