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

in.

Section 23, page 455, Laws of 1911, of the general local improvement law, under which the city proceeded, reads:

"Whenever any assessment roll for local improvements shall have been confirmed by the council or other legislative body of such city or town as herein provided, the regularity, validity and correctness of the proceedings relating to such improvement, and to the assessment therefor, including the action of the council upon such assessment roll and the confirmation thereof, shall be conclusive in all things upon all parties, and cannot in any manner be contested or questioned in any proceeding whatsoever by any person not filing written objections to such roll in the manner and within the time provided in this act, and not appealing from the action of the council in confirming such assessment roll in the manner and within the time in this act provided. No proceeding of any kind shall be commenced or prosecuted for the purpose of defeating or contesting any such assessment, or the sale of any property to pay such assessment. or any certificate of delinquency issued therefor, or the foreclosure of any lien issued therefor: Provided, that this section shall not be construed as prohibiting the bringing of injunction proceedings to prevent the sale of any real estate upon the grounds (1) that the property about to be sold does not appear upon the assessment roll, or (2) that said assessment has been paid."

so far as lands other than harbor area are concerned, it would follow that the lumber company's tidelands are bearing no more than their just proportion of the costs of the improvement. Therefore it is difficult to conceive of any wrong resulting to the lumber Company, viewing it only as the owner of these tidelands. The same may be said of all other owners of lands within the district, other than the harbor area. It seems plain that the rights of the lumber company as owner of the tidelands, which are assessable for local improvements, must be viewed apart from its rights as a general taxpayer and as owner of a leasehold interest in the harbor area. Its rights in the latter respect it is entitled to have protected by the final judgment of the court, if such rights are not already sufficiently protected by the attitude voluntarily assumed by the city towards the assessments against the harbor area and the protection of the city's general fund. But, viewing the lumber company as the owner of the tidelands, its complaint here amounts to no more than that the assessments are void because of irregularities occurring on the inception of the proceedings taken by the city. This, however, we have seen does not go to the jurisdiction of the city over the subjectmatter, and due notice having been given of hearing upon the confirmation of the assess

firmed without objection, all prior irregularities were thereby cured, and the assessment became final against the lumber company as to its tidelands, as well as against other owners of lands in the district other than the harbor area.

This court has repeatedly held that such a determination by the city council, had upon due notice under previously existing statutes similar to this, became final as to all owners of property so assessed, unless the assessment roll and the same having been conment was attempted to be levied under such circumstances that the city was exceeding its jurisdiction over the subject-matter. This question is reviewed at some length in Rucker Brothers v. Everett, 66 Wash. 366, 119 Pac. 807, 38 L. R. A. (N. S.) 582, where our 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. 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 those owning leasehold interests in the harbor area, and that in the light of facts occurring since the original trial of this case in the superior court, our former decision should not now be construed as impairing the validity of any of the assessments so made and confirmed, other than those assessments made against the harbor area, as to which the city had no jurisdiction.

We

time touching the power of the city of Blaine to charge by reassessment or supplemental assessment any deficiency in the local improvement fund against leasehold interests in the harbor area which may be benefited by this improvement.

The judgment of the superior court is reversed, in so far as it cancels and enjoins the collection of any of the assessments levied upon lands within the district, including the lands of the lumber company, other than those assessments levied upon the harbor In all other respects the judgment is

affirmed.

It is worthy of note here that these assessments were levied and apportioned against all of the lands within the district, including area. the harbor area, as if all the lands were assessable 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.

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HARDIN et al. v. OLYMPIC PORTLAND
CEMENT CO., Limited. (No. 12918.)
(Supreme Court of Washington. Jan. 15, 1916.)
1. TRIAL 295-ACTION FOR DAMAGES-IN-
STRUCTION-PERMANENT DAMAGES.

In an action for damages to plaintiff's trees,
crops, etc., and for permanent damages to his
realty, an instruction that, if the plaintiff's land
had been seriously and permanently damaged by
the operation of defendant's cement plant, the
measure of damages to the land was the differ-
ence between its market value immediately be-
fore it was damaged and its market value at the
time of bringing the action, more than a year
later, could not have misled the jury into
awarding double permanent damages, when tak-
en in connection with another instruction for
defendant limiting the jury's consideration to
the damages to the trees, crops, etc., and an-
other as to such items stating the measure of
damages as the difference between the market
value of the crops at the time of the injury and
their market value at the time the injury was
received.

[Ed. Note.-For other cases, see Trial, Cent.
Dig. $$ 703-717; Dec. Dig. 295.]

2. NUISANCE 3 QUESTION FOR JURY-
"NUISANCE PER SE.' 99

A "nuisance per se" is an act, thing, omission,
or use of property which in and of itself is a
nuisance, and hence is not permissible or excus-
able under any circumstances; but, since there
must be some place where every lawful business
may be lawfully located or carried on, a law-
ful business is never a nuisance per se, but may
become a nuisance by reason of extraneous cir-
cumstances, such as location in an inappropri-
ate place, or conduct in an improper manner, in
which case it is a nuisance in fact, and the 'de
termination is a question of fact.

[Ed. Note. For other cases, see Nuisance,
Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. 3.

For other definitions, see Words and Phrases,
First and Second Series, Nuisance Per Se.]
3. NUISANCE 50 PRIVATE INJURY-LIA-
BILITY.

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One has no right to carry on a lawful business which injures another, except such injury as the public must suffer in order to permit the carrying on of lawful business, without compensating such other for the damages actually sustained, and, where the injury and damage are established, the measure of damages should be that most beneficial to the injured party, as he is entitled to have the benefit and enjoyment of his property intact.

business was more or less permanent, the award of permanent damages to plaintiff's realty was proper; as, if it was its intention to discontinue the maintenance of the plant and show that it was only temporary, it was a matter for proof by defendant.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 118-127; Dec. Dig. 50.] 6. JUDGMENT 606- SUCCESSIVE ACTIONS— BAR-PERMANENT INJURY.

Plaintiff, whose freehold was damaged by the operation of defendant's cement plant, intended to be permanent, was entitled to recover in one action permanent actual damages from the operation of the plant, and was thereafter estopped to claim in any form of action any other or additional permanent relief against its operation.

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Department 2.

Appeal from Superior Court, Whatcom County; William H. Pemberton, Judge.

Action by Ed. E. Hardin, and Ed. E. Hardin, executor of the will and estate of Victoria Hardin, deceased, against the Olympic Portland Cement Company, Limited. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hadley, Hadley & Abbott, of Bellingham, for appellant. Hurlbut & Neal, of Bellingham, and Romaine & Abrams, of Bellingham, for respondents. Ed. E. Hardin, in pro. per.

HOLCOMB, J. Respondents own 15 acres of land near Bellingham, Wash., and the appellant owns a tract of land lying immediately southerly of, and contiguous to, the lands of respondents. Prior to May 1, 1913, appellant constructed upon its land a large plant for the manufacture of Portland cement, and on or about that date began the manufacture of Portland cement in its plant, and has from that time continued such manufacture to a greater or less degree.

Respondents' complaint proceeds upon the theory that appellant owns in fee the site of the cement plant and large deposits of clay and limestone used in the manufacture of 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. §§ 118-127; Dec. Dig. 50.] years, and that the capacity of the plant at 4. JUDGMENT 606-MERGER AND BAR-Suc- present is about 1,600 barrels of cement per CESSIVE ACTIONS-TEMPORARY AND PERMA- 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 enforcement of every remedy which plaintiff had or could have against the defendant, and the permanent injury to the freehold, except a resort to equity to enjoin the plant, and precluded any further legal or equitable relief for any future damage to the freehold.

[Ed. Note. For other cases, see Judgment,
Cent. Dig. § 1120; Dec. Dig. 606.]
5. NUISANCE 50 PERMANENT NUISANCE.

In such action, where the pleadings admit-
ted that it was the defendant's intention to con-
tinue the operation of the cement plant, and
where all the evidence tended to show that the

cement noxious fumes and gases and particles of cement materials and cement were thrown out from the plant and carried by the prevailing winds in, over, and upon respondents' premises, penetrating the dwelling house and rooms, and injuring and destroying vegetation, and that respondents' premises are no longer desirable, comfortable, or valuable as residence property, that they have been greatly depreciated in value, and that by reason of the things alleged in the complaint this depreciation is permanent.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

into awarding double damages by reason of that instruction, in so far as this one contention is concerned, taking it in connection with the other instructions given by the court, some of them at the request of appellant.

2. A more serious difficulty is presented by appellant's claim that the eleventh in

Appellant by answer admits that it owns in fee the deposits of clay and limestone, and is taking and using in its cement plant raw materials used in the manufacture of cement; that it has deposits sufficient to supply materials for the operation of the plant at its full capacity for more than 50 years; that it now manufactures about 800 barrels per day; that 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 deposited thereon, denies the injury to the crops, shrubs, trees, fruits, and grasses of respondents, as alleged, and denies generally the allegations of damage in the complaint.

[1] 1. Complaint is made of the tenth instruction given by the court to the jury as follows:

nuisance.

By the portions of that instruction which are complained of the jury was told that if: (a) The character of its construction and equipment is modern; (b) the machinery and appliances are so placed and adjusted as to function properly and are properly and skill. 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 thereof that the plaintiffs' land in the complaint de- the instruction is predicated is not had; (d) scribed has been materially damaged by the op- such fumes, etc., are carried upon responderation 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, in estimating the plaintiffs' damages to their joyment of the property, or materially damsaid 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-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 of this action, to wit, August 6, 1914, as a result of the operation of the defendant's cement plant."

Appellant contends that the giving of this instruction was error, for the reason that it incorrectly states the measure of damages in cases of permanent nuisance; that the proper rule in case of permanent nuisance is the difference in market value before and immediately after the injury-citing Hunt v. Johnson (Tex. Civ. App.) 129 S. W. 879, and Missouri, K. & T. R. Co. v. Dennis (Tex. Civ. App.) 84 S. W. 860. The theory on which this contention is based is that the instruction resulted in permitting the jury to assess double damages. Respondents sued to recover $175 as temporary damage by reason of the injury to and loss of crops, as well as for the sum of $2,824.99 for permanent damages to their freehold. Respondents do not question the correctness of the rule contended for by appellant, but insist that the instruction complained of is the equivalent of an instruction numbered 6 by the court which was given as requested by appellant, which limited the consideration of the jury of the question of damages to the fruits, trees, grass, shrubbery, etc., and instruction No. 7 given by the court as to such items of the damage, stating the measure of damages to be the difference between the market value of the crops at the time of receiving the injury and their market value in the injured condition at the time the injury was received. We think there is no merit in the con

sarily continue to throw off such gases, etc., and that the same will be carried over and upon and injure respondents' property-then, as a matter of law, appellant's plant would be a nuisance per se, and that, as a matter of law, any damages to respondents' land resulting in the depreciation of the value of the land would be permanent, and it would be the duty of the jury to assess damages for such permanent depreciation of the value of the land not exceeding the amount sued for.

[2] "A nuisance per se is an act, thing, omission, or use of the property which in and of itself is a nuisance, and hence is not permissible or excusable under any circumstances." 21 Am. & Eng. Ency. Law (2d Ed.) 683.

The court in the instruction criticized may have used the term "nuisance per se" inappropriately; for there is much apparent conflict of authority on the question whether or not a lawful business or erection can be a nuisance per se, but the instruction is not vitiated by such definition. Since there must be some place where every lawful business may be lawfully located or carried on, the better rule would seem to be that a lawful business is never a nuisance per se, but may become a nuisance by reason of extraneous circum-· stances such as being located in an inappropriate place, or conducted or kept in an improper manner. 21 Am. & Eng. Ency. Law (2d Ed.) 684; Wood, Nuisances, §§ 529, 530. In such case it is a nuisance in fact, and the determination is a question of fact. A smelting plant is not a nuisance per se, but may be located so as to be one in fact to other

ing & Smelting Co., 30 Wash. 164, 70 Pac., thorize the granting of the writ of injunction 266. to restrain the carrying on of a business lawful in itself must be a strong and imperious one."

[3] No one has a right, however, to pursue a lawful business, if thereby he injures his neighbor (except such injuries as the public must suffer in common in order to permit lawful enterprises to operate) without compensating such for the damages actually sustained. Sterrett v. Northport, etc., Co., supra. In such case, when the injury and damage are established, the measure thereof should be that most beneficial to the injured party, as he is entitled to have the benefit and enjoyment of his property intact. 28 Am. & Eng. Ency. Law (2d Ed.) 543; Park v. Northport Smelting & Refining Co., 47 Wash. 92 Pac. 442.

It would seem, therefore, that the respondents had recourse to that remedy which was least onerous and harsh upon appellant, and that the complaint of the respondents was based upon the theory that they intended to cover every injury and every remedy which they had or could have against appellant for the maintenance and operation of the cement plant and the permanent injury to their freehold, except the stopping of its maintenance and operation. Of course, there may be tem597,porary injuries and damage, such as injuries to crops and the like, arising in the future, but the framing of respondents' action precludes any further legal or equitable relief for any injury or damage in the future to respondents' real estate and the enjoyment thereof by the lawful operation of appellant's plant.

[4] Appellant contends, however, that respondents could not recover permanent damages unless a nuisance constituted a nuisance per se, and that it was upon that theory that they presented the case and upon which the court submitted it to the jury, and, further, as we understand, that unless a nuisance were a nuisance per se, it would not constitute a permanent nuisance, and that the jury were not entitled to award damages on the theory of a permanent nuisance. Respondents, on the contrary, contend that the question of whether it is a nuisance per se is not determinative of the question of whether permanent damages may ensue from its maintenance and operation, and further maintain that, unless permitted to sue once for all for damages to the freehold, they would be denied a legal remedy, and would be obliged to resort to equity for an injunction closing the industry; that it is the policy of this state and of the law not to enjoin the operation of an industry unless the necessity be great and redress at the hands of the court and jury would be inadequate citing Woodard v. West Side Mill Co., 43 Wash. 308, 86 Pac. 579, 29 Cyc. 1226-1228.

In Richards' Appeal, 57 Pa. 105, 98 Am. Dec. 202, it was said:

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*The chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing, and leaving the party to his redress at the hands of a court and jury. If in conscience the former should

appear, he will refuse to enjoin."

In Owen v. Phillips, 73 Ind. 284, it was said:

[5] Appellant says, however, that a nuisance which may be discontinued is not a It was admitted by the permanent one. pleadings that it was the intention of the appellant to continue the operation of this plant, but appellant claims that this admission was not intended to admit that appellant would continue the operation of its plant indefinitely, and that the admission was made prior to the recovery of a verdict for respondents, or, in other words, prior to a judicial determination against its defense. This means, of course, that it having been judicially determined that the appellant is conducting in a proper manner a lawful business in a place that renders it a nuisance in fact to a neighbor, appellant may disconBut all the evidence tinue it hereafter. tends to show that its business is more or less permanent; that it has a substantial plant erected, a large amount of money invested, and a large amount of materials suitable for its manufacture at hand. If it were

its intention to discontinue the maintenance of the plant and show that it was of a temporary character, then it was the subject of proof. Remsberg v. Iola Portland Cement Co., 73 Kan. 66, 84 Pac. 548.

During the progress of the trial objection was made to certain testimony offered by respondent, and thereupon inquiry was made "It is important to keep in mind the fact that by counsel for appellant of counsel for rethe business of milling does not belong to that spondents as to the theory upon which reclass which constitute nuisances per sc. It is also important to sharply mark the distinction spondents were proceeding. Respondents' between suits for injunction and actions for attorney thereupon stated to the court and damages. In the latter class the remedy is an counsel that respondents were proceeding on ordinary one; in the former the extraordinary powers of the court are invoked. It is not every the theory that they had suffered temporary injury which will support an action for damages and permanent damage and were seeking to that will entitle the complainant to relief by in- recover for the damage they had suffered by junction. A lawful business may be so conducted as to become a nuisance, but, in order reason of the alleged nuisance, including to warrant interference by injunction, the injury both temporary and permanent damages, must be a material and essential one. Damag- and, if they recovered permanent damages, es may be paid by the author of the nuisance and the business not be stopped, but, if injunc tion issues, then the right to conduct the business is at an end. The necessity which will au

such damages as they would suffer in the future would be included therein; that the temporary damages were confined to the

damage to crops for two years such as had been sustained up to the time of the filing of the complaint, and the balance of the claim proceeded from a permanent injury to the freehold. Appellant's counsel thereupon stated that appellant withdrew its objection under the statement of counsel.

It is difficult to see why counsel for appellant now insist that the respondents were not proceeding upon the theory that they were recovering upon one cause of action for the temporary damages for injuries to and destruction of crops for the preceding two years, and upon the other cause of action for the permanent injuries to the freehold, which would include all damages of every possible nature to the freehold, for injury, deterioration, and depreciation thereof, which had been suffered by reason of the alleged nuisance up to the time of the commencement of the suit. The case of Cleveland, C., C. & St. L. R. Co. v. King, 23 Ind. App. 573, 55 N. E. 875, is cited and quoted as follows: "During the progress of the trial objections were made to certain testimony offered by the appellee. 'After said objection was made by the defendant, the court thereupon requested plaintiff to state the theory of her complaint, whether she was seeking to recover for a permanent injury to property or for a continuous wrong. Plaintiff's attorney thereupon stated to the court and counsel for defendant that the theory of the complaint was for permanent damages to plaintiff's property. The court there upon announced that it would be so considered and treated, and he would so instruct the jury. Defendant's counsel thereupon stated that they were satisfied if that was the theory of plaintiff's case and would not object to the testimony. To the theory thus announced appellee must be held. Louisville, etc., R. Co. v. Renicker, 8 Ind. App. 404, 35 N. E. 1047; Cleveland, etc., R. Co. v. Dugan, 18 Ind. App. 435, 48 N. E. 238, and authorities there cited. It follows that the question presented is: Does the evidence show a permanent nuisance? Where the injury is of a permanent character, that is, one that cannot be discontinued, there is a permaDent injury. If the evidence fails to show a permanent injury, the theory of the complaint is not supported, and the verdict must be contrary to law. Louisville, etc., R. Co. v. Renicker, supra: Equitable Ins. Co. v. Stout, 135 Ind. 444, 33 N. E. 623. The pond in question was not constructed by appellant. The evidence does not show that the pond itself constituted a nuisance. The injury was caused by throwing filth into the water. The question is not here presented whether upon proper complaint appellee could recover damages for injuries during the existence of the nuisance and up to the time of the commencement of the action, but whether she can recover upon proof of temporary injury. A nuisance which may be discontinued is not a permanent one."

The circumstances shown in that case are not such as those shown here. In that case it was said that the evidence of injury was that the injury was caused by throwing filth into the water of a pond; that the question was not there presented whether upon proper proof appellee could recover damages for injuries during the existence of a nuisance and up to the time of the commencement of the action, but whether she could recover

permanent damage upon proof of temporary injury. A nuisance which may be discontinued is not a permanent one. It is obvious in the present case that the proofs proceeded upon the exact theory which the court in that case stated it did not, and it was eviIdent in that case that the nuisance was one which might easily be discontinued at any time, and was therefore not a permanent one.

In the instant case we think it was incumbent upon the appellant to show, if it desired, that it was its intention to discontinue the nuisance complained of, in case it should be determined a nuisance, and that, if it did not so show, it must be assumed to be a permanent nuisance as to the respondents.

[6] But it must also be held and determined that respondents are now estopped to claim in any form of action any other or additional permanent relief against the operation of appellant's plant. Respondents were entitled to recover permanent actual damages occasioned by the creation and operation of a permanent, existing nuisance in one action. All questions of damages are settled. We do not consider, therefore, that the instruction numbered 11 given by the court was prejudicial, but think that it properly defined the respective rights of respondents and appellant, and submitted the same to the jury for consideration as to the facts.

There was evidence tending to support the recovery of a very substantial sum on the theory of permanent injury to the freehold and permanent depreciation of its value, and the verdict of the jury is supported by such evidence.

Judgment affirmed.

BAUSMAN, PARKER, and MAIN, JJ., concur.

PAUL v. CITY OF VANCOUVER.
(No. 12941.)

(Supreme Court of Washington. Jan. 15, 1916.) 1. ASSIGNMENTS 48- EQUITABLE ASSIGN

MENT.

Though a city was not, under a supplemental contract for the completion of a street improvement, which required the contractor to pay the debts of his predecessor, entitled to pay the claims itself, yet the city, by paying valid claims, became the owner thereof by equitable assignment.

[Ed. Note.-For other cases, see Assignments, Cent. Dig. § 133; Dec. Dig. 48.] 2. ASSIGNMENTS 100-EFFECT-CLAIMS. Where plaintiff, contracted to complete a public improvement and agreed to pay claims against his predecessor which were proven in a given manner, such claims were not negotiable, and the city, which, by paying the claims, became an equitable assignee, could not cut off any, defenses which plaintiff may have made against the claim.

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 177, 180; Dec. Dig. 100.]

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