68 Wash. 386 | Wash. | 1912
The plaintiffs brought this action for damages done to their land and crops by flooding, caused by the dam and log jams built by defendants, in the years 1907, 1908 and 1909. Damage for the year 1907 was eliminated at the trial, and no evidence was introduced as to that
Appellants’ first contention is that the court erred in overruling the demurrers to the complaint, it being contended that the cause of action arises when' and as soon as a party has a right to apply to the proper tribunal for relief, and that, under the facts in this case, the action was barred at the time of its commencement, viz., January 81, 1910. There is no contention, as we understand it, that the action was not brought within the statute if the statute does not begin to run until the damage was done. The appellants’ contention cannot be sustained, under the rule announced by this court in. Sterrett v. Northport Mining & Smelting Co., 80 Wash. 164, 70 Pac. 266, where it was held that the fact that a smelter would inevitably occasion the damage for which plaintiffs sued would not start the running of the statute of
It is contended that the court upon the motion of appellants should have required the respondents to elect upon which theory they would proceed; that is, to declare whether or not they were demanding permanent damages for injury to their land and also for loss of crops. The court decided that they were not compelled to elect at that time, but that they had a right to show any condition, and that the matter would be submitted by an instruction to the jury. In this we think the court did not err. It was the right of the respondents to try their action for any damages which the testimony would sustain, whether permanent, temporary, or both. All could be tried in one action. No special instruction was asked by the appellants on this subject. The instruction given by the court seems to us to very fairly and explicitly state the law.
Nor have we been able to find any prejudicial error in the admission or rejection of testimony. Under the pleadings and all the testimony, there can be no question of the right of the respondents to recover in this action. The only disputable question is the amount of the recovery. To us, in the light of the testimony, the verdict seems large, but this question was submitted to the jury under proper instructions. The court who submitted it and who tried the cause has refused to interfere with the conclusion of the jury in this re
Fullerton, Ellis, Mount, and Morris, JJ., concur.