which he may propose to the bill or statement. Either party may then serve upon the other a written notice that he will apply to the judge of the court before whom the cause is pending or was tried, at a time and place specified, the time to be not less than three nor more than ten days after service of the notice, to settle and certify the bill or statement. If the judge is absent at the time named in the notice, or fixed by adjournment, a new notice may be served. If no amendment shall be served within the time aforesaid, the proposed bill or statement shall be deemed agreed to, and shall be certified by the judge at the instance of either party, without notice to any other party, on proof being filed of its service, and that no amendments have been proposed; and, if amendments be proposed and accepted, the bill or statement as so amended shall likewise be certified on proof being filed of its service and the service and acceptance of the amendments. Ballinger's Ann. Codes & St. § 5058. And it is further provided in section 5062, Id., that: "A proposed bill of exceptions or statement of facts must be filed and served either before or within thirty days after the time begins to run within which an appeal may be taken from the final judgment in the cause, or (as the case may be) from an order with a view to an appeal from which the bill or statement is proposed: Provided, that the time herein prescribed may be enlarged either before or after its expiration, once or more, but not for more than sixty days additional in all, by stipulation of the parties, or for good cause shown, and on such terms as may be just, by an order of the court or judge wherein or before whom the cause is pending or was tried, made on notice to the adverse party. The proposed statement of facts in this cause was certified by the judge before whom the action was tried without notice to the plaintiff or her attorneys, for the reason, as stated in the certificate, that no amendments had been proposed thereto. It will be remembered that the appellants did not undertake to file their proposed statement of facts, or to obtain an order of the court enlarging the time within which to file and serve the same, until 60 days after the entry of the judgment from which the appeal is taken. And it is contended, on the part of the respondent, that said section 5062 of the Code aforesaid, properly interpreted, requires the application for an extension of time therein mentioned to be made within the 30 days next succeeding the date of the entry of the judgment. But we do not think that section is susceptible of such construction, and this court has uniformly held that such application may be made to the court after the expiration of 30 days from and after the entry of judgment.

*

The application, however, must be made within the 30 days' limit, or within the suc

ceeding 60 days; for even a settled and certified statement of facts, if filed more than 90 days after entry of final judgment, will be of no avail to the appellant, and will, on motion of the respondent, be disregarded by the supreme court, or stricken from the files. Loos v. Rondema, 10 Wash. 164, 38 Pac. 1012. And, it would seem necessarily to follow that, if a statement may not be filed after the expiration of the 90 days following the judgment, an application to extend the time within which to file it may not be made after the lapse of said time. We have stated that the motion to extend the time within which to file their statement was not filed by appellants in the superior court until August 28, 1900. This appears from the indorsement or file marks of the clerk upon the motion as presented in the record, although appellants seem to claim that the motion was really filed on the 28th day of July. Assuming the clerk's record to be correct, it will readily be seen that the motion and application under consideration was not filed within the proper time. Until the motion was filed, there was evidently no application at all before the court for an extension of time.

The mere service of the motion on counsel for respondent brought nothing before the court for its consideration; and even the filing of the motion after 90 days from May 29th conferred no authority upon the court to grant it. Under the statute, it seems clear that an application for an extension of time within which to file a bill of exceptions or statement of facts must not only be filed, but acted on by the court, within the 60 days next following the 30 days after the right to appeal accrues. Certainly, the superior court has no power, after the expiration of the time limited by statute for the filing of a statement of facts, to order the filing of such statement as of a previous date, in a case like this, where the application for further time was not considered by the court during the time prescribed by law for such filing.

It seems to be claimed, however, on the part of the appellants, that, inasmuch as the statement of facts was actually filed or deposited with the clerk within 90 days after the entry of the judgment appealed from, the appellants are entitled to all the benefits accruing from a timely filing of a statement. But we are unable to assent to that proposition. After the expiration of the original 30 days provided by the statute, a statements of facts can be filed only by permission of the court, and hence the filing of the statement by the appellants, without leave or order of the court, was not authorized by law, and neither created nor preserved any rights in their favor. Such filing was a mere nullity, and was properly so considered by the respondent. In this connection it may be stated that it is not even claimed that the statement of facts was filed or

served under the order of the court of September 24, 1900.

For the foregoing reasons, the motion to disregard the statement of facts in this cause must be granted, and, as there is now nothing before this court for determination, the judgment must be affirmed; and it is so ordered.

(30 Wash. 74)

BROWDER et al. v. PHINNEY. (Supreme Court of Washington. Sept. 23, 1902.) ACTIONS-FORM-DAMAGES-EQUITABLE RELIEF-LEASE-ACKNOWLEDGMENT

PARTIAL PERFORMANCE.

1. Where, under an unacknowledged lease for three years, the lessee took possession of the premises, and paid rent for two months, which was accepted by the lessor, even if such lease were illegal because not acknowledged, such part performance would render the lessor liable for damages for its violation by ejecting the lessee.

2. Where the lessor in an unacknowledged lease for three years, which has been partially performed by the lessee taking possession of the premises and paying rent for a portion of the term, ejects such tenant, the superior court has jurisdiction of an action by the lessee to recover damages for the violation of the lease, whether the lease is valid or invalid, and the action legal or equitable, under the statute providing that there shall be in the state but one form of action for the enforcement or protection of private rights and the redress of private wrongs; and it is error to dismiss such action for damages on the ground that relief could only be granted in equity.

Appeal from superior court, King county; W. R. Bell, Judge.

Action by John Browder and another against Nellie Phinney, individually and as executrix of the will of Guy C. Phinney, deceased. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

S. S. Langland and W. T. Scott, for appellants. Piles, Donworth & Howe, for respondent.

DUNBAR, J. This is an action for damages for wrongful and forcible eviction from leased premises. Plaintiffs obtained from the defendant, on the 31st day of August, 1899, a contract or lease of two storerooms in Seattle, described, for a term of three years, with stipulated rent, which contract or lease was signed by defendant, Nellie Phinney, through her agent, Daniel Jones, and delivered to plaintiffs. Plaintiffs alleged that they were put in possession of said premises by defendant on October 1, 1899; that they paid rent therefor for the months of October and November of said year to said defendant, and said rent was accepted by said defendant; in short, that they were incommoded during the me of their lease by the improvements which were made upon the premises for the lessor, and were finally, on the 12th day of January, 1900, forcibly evicted from the premises by defendant. At the opening of the trial, defendant's counsel objected to the in

troduction of any testimony under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action, which motion was denied. At the close of plaintiffs' testimony defendant moved for a nonsuit on the ground that the instrument sued on was invalid, and that the plaintiffs had not shown any facts to take it out of the statute of frauds, and for the further reason that authority in the agent to execute the lease was not shown. This motion was denied by the court. Counsel for defendant then moved the court to instruct the jury to return a verdict for defendant on the ground that a court of law has no power to entertain this suit. This motion was granted, and the case dismissed, the court taking the view that the lease was invalid in law because it was not acknowledged, and that the facts showing part performance of the contract could be enforced in equity, but could not be shown in an action at law. We think the court erred in dismissing the action. Whether or not the contract or lease was originally illegal, it is not necessary for the purpose of this discussion to determine. But, if illegal, a part performance of the contract, either by the plaintiffs taking possession of the premises under the lease or by the payment and acceptance of rent under the terms of the lease, would render the lessor liable for damages for its violation by him; and the court, in holding that part performance could not be shown in an action for damages, lost sight of the rule of concurrent jurisdiction with which courts are clothed, especially under the reformed procedure. Our statute provides that there shall be in this state but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be called a "civil action"; and this statute evidently means something. It was not intended by this enactment of the lawmaking power to leave in force or to perpetuate the old distinctions which existed at the common law between legal actions and equitable procedures, so far as the manner of bringing the actions is concerned. It was plainly the intention thereby to abolish such distinctions, and to substitute for all other forms of complaint a statement of facts; for it provides that the complaint shall contain a plain and concise statement of facts constituting the cause of action, and this plain and concise statement of facts must necessarily be the same (if it is a concise statement of facts) whether the relief or remedy sought by the action be equitable or legal in its nature. In this case, if the plaintiffs had demanded specific performance, the statement of facts on which the demand would have been based would have been identically the same statement as that upon which the demand made was based. It is not in accordance with the spirit of the Code to turn a litigant out of court, and subject him to the costs and delays of bringing another action before the same tribunal on the same pleadings. If

there could be any doubt as to the meaning of the statute in this respect, it is set at rest by the further provision that the defendant may set forth by answer as many defenses and counterclaims as he has, whether they be such as have heretofore been denominated legal or equitable, or both; for it cannot be presumed that the legislature intended to make provision for the determination in one action of legal and equitable rights alleged in an answer, and to preclude the determination in the same action of legal and equitable rights alleged in the complaint. It may not have been the intention of the legislature to abolish all the distinctions which have so long existed between legal and equitable proceedings and the rules governing them. That question it is not necessary to discuss here. But it was the evident intention to provide for the trial and determination of all rights, whether denominated legal or equitable, in one action, and to relieve from the necessity of a multiplicity of suits to determine controversies between litigants. The superior court is a court of general jurisdiction. It has the power to try either legal or equitable proceedings, having concurrent jurisdiction in both. It is not a law court, nor an equity court, nor a probate court, but it is all the time the superior court of general jurisdiction, empowered to try all these differently termed causes under the title of a civil action; and when it has once acquired jurisdiction of that civil action it may proceed in an orderly way to determine equitable, legal, or probate controversies. This view is well expressed in the case of In re Murphy's Estate (Filley v. Murphy) 70 Pac. 107, decided by this court September 16, 1902, where it is said: "It is assigned as error that the court overruled the appellant's demurrer to the petition for citation. This assignment is based upon the the ory that the petition showed upon its face that the title and right of possession to certain property were involved, and that the court sitting in a probate proceeding could not hear it. If the demurrer had been interposed to the petition before the issuance of the citation, the question would then have been presented whether, under the facts stated, relief by way of citation could be had; but, in any event, we think the court might have proceeded to settle issues under the petition for trial. In this state we have no probate court, properly speaking, as distinguished from the court that entertains jurisdiction of other matters. The court of general jurisdiction also hears and determines probate matters. Matters pertaining to probate are referred to what is called 'probate' procedure, as distinguished from what is denominated 'civil' or 'criminal' procedure. But when the court, sitting in a probate proceeding, discovers in a petition the statement of facts which forms the basis of a controversy, we see no reason why it may not settle the issues thereunder when an appearance has been made thereto, and then proceed to try it in a proper man

The court may

ner, as any other civil cause. require the proceeding to be separately docketed, if, when the issues are formed, it appears to be such as should be thus docketed. Whether a citation should have issued on the strength of this petition or not, it is nevertheless true that appellant responded to the cita. tion, and appeared generally by demurrer to the petition, and asked its dismissal simply on the ground that the court could not hear it as a probate proceeding. We think it was not necessary to sustain the demurrer and dismiss the proceeding on that ground. But under our liberal practice as to the form of actions the petition could be treated as in the nature of a complaint. The issues could be framed thereunder, and the cause tried without requiring another statement of the same facts under some other form or name. If it developed that it was not properly a probate proceeding, it would not be treated as such. We think the court did not err in overruling the demurrer and in refusing to dismiss the petition." The same reasoning applies here. When the court, which has jurisdiction over both equitable and law proceedings, discovered in the complaint the statement of facts which formed the basis of the controversy between the litigants, he should have proceeded to settle the issues, and not have dismissed the plaintiffs out of court and imposed upon them the delays, costs, and annoyance of bringing another suit, which would necessarily have been based upon the same statement of facts; for at all times, if the plaintiffs had a cause of action at all, it was based upon the contract or lease, coupled with the part performance alleged.

The principle evidently sought by the legislature to be ingrafted upon our procedure is intelligently stated by Mr. Pomeroy in his work on Equity Jurisprudence (2d Ed.) § 183, where it is said: "The fundamental principle of this reformed system is that all distinctions between legal and equitable actions are abolished. The one 'civil action' is the single judicial means of enforcing all rights in a court clothed with both jurisdictions of law and of equity in combination, and in this civil action legal and equitable primary rights, causes of action, and defenses may be united, and legal and equitable remedies may be obtained. In applying this principle, the following results have been well established: Whenever a plaintiff is clothed with primary rights, both legal and equitable, growing out of the same transaction or condition of facts which thus constituted a cause of action, and is en. titled thereon to an equitable remedy, and also to a further legal remedy based upon the supposition that the equitable relief is granted, and he sets forth all these facts in his petition, and demands a judgment awarding both species of relief, the action will be sustained. The court will, in its judgment, formally grant both the equitable and the legal relief." And again, in section 87: "Wherever the reformed procedure has been administered according to

its plain intent, the necessity of this double judicial proceeding has been obviated. Indeed, if the true spirit of the new procedure is accepted by the courts, such a separation of equitable and legal rights and remedies and their prosecution in distinct actions will not, perhaps, be allowed. The plaintiff brings

one civil action, in which he alleges all the facts showing himself entitled to both the equitable and the legal reliefs needed to complete his legal right, and asks and obtains a double judgment, granting, first, the proper equitable remedy, and, secondly, the legal remedy, by which his juridical position with respect to the subject-matter is finally perfected." There was sufficient testimony in the case for the consideration of the court or jury on the question of agency and of part performance. We do not, however, agree with the contention of the appellants that they are entitled to judgment because the sufficiency of the evidence was challenged by the respondent. Nor do we think this court has ever held such a doctrine. It has been the universal practice, which, so far as we know, has gone unchallenged, that, where a motion of this kind has been overruled, the defendant either stood upon the motion or proceeded with the introduction of his testimony.

The judgment will be reversed, with instructions to the lower court to try the cause and determine the issues.

REAVIS, C. J., and ANDERS, MOUNT, FULLERTON, HADLEY, and WHITE, JJ.,

concur.

(30 Wash. 164)

and destructive to vegetation, and there is no known method of preventing such effect. During the summer of 1899 plaintiff's orchard and Crops were first injured by such fumes, and in 1900 were practically destroyed thereby. By Ballinger's Ann. Codes & St. § 4805, an action to recover for such damage must be brought within two years after the cause of action accrues. Action was commenced in February, 1901. Held, that the cause of action did not accrue until damage actually occurred, and the action was not barred.

5. Where plaintiff's orchard and crops are injured during successive years by the poisonous fumes from a smelter, he may recover for damages accruing within two years of the time the action is brought, on the ground of a continuing nuisance.

Appeal from superior court, Spokane county; Frank H. Rudkin, Judge.

Action by Henry W. Sterrett against the Northport Mining & Smelting Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Heyburn & Heyburn, for appellant. Robertson, Miller & Rosenhaupt, for respondent.

WHITE, J. This is an action brought to recover from the appellant damages in the sum of $30,000 for the total destruction of the respondent's property. Omitting formal allegations and the allegations as to the title of respondent to certain lands, which were admitted upon the trial, the complaint is as follows: "That said land so described was near the towns of Rossland and Northport, where agricultural and orchard land is scarce, and the same was especially adapted for the growing of fruit trees and the raising of fruit thereon, including berries and vegetables, for all of which products there was at all times here

SMELTING CO.

1. Under a statute providing that exceptions to a charge may be taken by a party stating to the court after the jury has retired, and, if practicable, before verdict is returned, that he excepts to the same, specifying the parts excepted, exceptions to a charge first taken by filing them three days after the verdict was returned cannot be considered on appeal.

2. Under Ballinger's Ann. Codes & St. 4949, providing that no variance between the allegation in a pleading and the proof shall be deemed material unless it shall have actually misled the adverse party to his prejudice, plaintiff, having alleged the total destruction of his orchard and crops by the poisonous fumes from defendant's smelter, may recover for a partial destruction thereof.

3. Evidence in an action to recover for the destruction of an orchard and other crops by destructive fumes discharged from a smelter examined, and held to warrant denying a motion for nonsuit.

4. A smelter was lawfully erected and in operation within a mile of plaintiff's orchard and farm in 1898, and operated in the usual manner. The fumes were necessarily poisonous,

4. See Limitation of Actions, vol. 33, Cent. Dig.

303.

ready market at high prices; and was also a good location and well adapted for a dairy farm, poultry, and live stock. That this plaintiff cleared a large tract of land. more than ten acres in extent, and prior to the 1st day of January, 1898, had planted a large number of fruit trees, and the said trees on or about the 1st day of January, A. D. 1899, were of the average age of five years, healthy and promising; and this plaintiff on the said last-mentioned date had also cleared more than three acres of land, and had the same planted in strawberries, which said berry beds were then and had theretofore been prolific in the production of strawberries; and on said date this plaintiff had upon said land 1,400 fruit trees, 900 of which were apple trees, besides cherry trees, plum trees, pear trees, prune trees, and peach trees, which composed the remainder of said orchard; and there was of said land then and there adapted for orchard and fruit purposes more than fifty acres, which said land was of great and increasing value; and said entire land of this plaintiff was covered with growing timber suitable for mining, building, and other purposes, of the value of two thousand dollars and more, so

standing upon said described property. That the said defendant corporation at all the times herein mentioned was engaged and is now engaging in conducting a smelter in the northern part of said city of Northport, and about one mile from the above-described land, the property of plaintiff, at which smelter the defendant smelts the ores of the Le Roi mine, situated at the city of Rossland, British Columbia, together with other ores, and that all of the ores so smelted are composed of gold and silver combined with pyrites of iron and copper, all of said ores being known as base ores, and containing large quantities of arsenic and sulphur, and when smelted or roasted said ores, by reason of said sulphur and other substances therein contained, to this plaintiff unknown, give forth sulphurous and other noxious fumes deleterious to vegetable life, and unpleasant and deleterious to man and cattle; and the same in the vicinity of said smelter, and more especially upon the land and home of this plaintiff, was, and now is, a nuisance. That within the last two years the said defendant smelting company has caused to be piled at and alongside of said smelter and upon piles of faggots and wood large quantities of raw ore from said mine, which, when so piled upon said faggots and wood, the said defendant company has fired said wood thereunder, and that said wood ignites the sulphur in said base ores, and so the said piles continue to burn until most of the sulphur is consumed out of the said ores; and that the said defendant has during said years 1899 and 1900 caused to be roasted in said piles, known and called generally in mining 'stink piles,' large quantities of ore, to wit, about one million tons; and the said sulphur fumes and smoke, without in any way being confined or controlled, at all the times herein mentioned have been and are permitted by the said defendant to hover in the air at and near said smelter, and more particularly over and above the lands of this plaintiff, and to fall and be precipitated upon the lands, plants, and trees heretofore described, the property of the plaintiff; and by reason of the said fumes so released by the said defendant in the process of smelting its ores all the vitality in the soil and land of plaintiff has been destroyed, all of the fruit trees above named, mentioned, and described have been killed, and rendered unproductive of fruit; all of the growing timber upon said land has been destroyed, and the value of the said property as a home for the plaintiff has been destroyed; and neither plaintiff nor cattle can secure any substance out of the said land, the same being by the defendant entirely and totally destroyed, and rendered useless and of no value for bearing fruit, orchard, vegetable, or any other purpose for which the said land was specially adapted; and so the entire value of the said land has been totally destroyed by the defendant company, to the great damage of this plaintiff. That the value of said

orchard at the time the same was so destroyed by this defendant was of the reasonable value of fifteen thousand dollars ($15,000), and the remaining part of said farm, including said growing timber, berry bushes, etc., was of the reasonable value of fifteen thousand dollars ($15,000). That the entire value of said farm for any and all purposes has been destroyed by the said defendant, so that the same is now totally worthless, and of no value whatever. That the said fumes have so precipitated themselves over and upon this land as to permanently destroy the same for the purposes for which it was used by this plaintiff, and for any and all other purposes whatsoever, to the damage of this plaintiff in the sum of thirty thousand dollars." The appellant, for answer, alleged that the action was barred, because not commenced within two years after the cause of action accrued. Section 4805, Ballinger's Ann. Codes & St. The appellant further alleged that it had been engaged continuously in milling and roasting ores at its smelter since the 22d day of July, 1898. The other allegations of the complaint, as to the adaptability of the land for the purposes alleged, the clearing of the land, the fruit trees, etc., on the land, the smelting of ores being a nuisance, and the damages averred, were denied. The jury, by its verdict, assessed the damages of respondent at $5,000, and on this verdict Judgment was entered.

The complaint in this action was filed on February 19, 1901. The trial of the cause was commenced on the 12th day of June, 1901, and the verdict of the jury, as disclosed in the record, was returned on the 14th of June, 1901. On the 17th day of June, 1901, certain exceptions to the instructions given and refused by the court were filed by the appellant. No other exceptions to the instructions given or refused, save as stated, were taken. The respondent claims that no exceptions were taken to the instructions given or refused in the manner provided by law, and that this court cannot now consider such exceptions. We agree with the contention of the respondent in this respect. This matter has been recently passed upon by us. State v. Vance (decided Aug. 26, 1902) 70 Pac. 34. We there announce the reasons for adhering to this rule. We shall not, therefore, consider the errors assigned relative to the giving and refusing to give certain instructions.

The appellant, at the close of the respondent's testimony, moved the court to dismiss the action because not commenced within the time allowed by statute, and, on the refusal of the court to grant sald motion, duly excepted. The appellant then moved the court for a nonsuit, for the reason that the appellant had failed to prove the allegations of the complaint. This motion was denied, and the appellant duly excepted. Under these exceptions two propositions are advanced and dis cussed by the appellant: (1) That the twoyear statute of limitations had run when this