action was commenced; (2) that the proof of damages was in less amount than that pleaded in the complaint; that the action was for the full value of the property; that the proof failed as to the total destruction of the property, and, under the allegations of the complaint, the respondent could not recover for partial destruction, and that any proof as to injury which did not result in total destruction should not have gone to the jury. The Code provides: "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 in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just." Ballinger's Ann. Codes & St. § 4949. The appellant did not claim at the trial, and does not now claim, that it has been misled by the allegations of the complaint. It is axiomatic that the whole is greater than the parts; the whole includes the parts; and, under the allegation of total destruction, in view of section 4949, supra, a partial destruction might be shown. The respondent's farm was less than a mile in a direct line from the appellant's smelter. In the early spring of 1899 there were on the farm 1,344 fruit trees, consisting of apple, pear, prune, peach, plum, and apricot trees; the apple trees, 933 in number, being from three to four years old. This orchard occupied about 14 acres, thoroughly cleared. From this orchard a ditch for irrigation purposes extended to Deep creek, about a mile, with an ample flow of water. This ditch cost in the neighborhood of $1,500. The trees were making a thrifty growth in the fall of 1898. In the spring of 1900, when the trees were in bloom, after the fumes from the smelter hung for several hours in the atmosphere, the blooms seemed to be blighted, and nothing in the way of fruit formed. Some effect from the fumes on the leaves of the trees could also be seen. They had a brown, cooked appearance. The alfalfa had a bleached appearance. Some such effect was observed in 1899, but not so much. The worst damage seems to have been done in 1900. No fruit was gathered from the orchard in 1900. The berry crop was also greatly damaged in that year. Where there should have been 500 crates, there were only 120 crates. Berries were worth from $3.60 to $1.20 per crate. There was evidence tending to show that the orchard, small fruit, herbage, and forest trees were destroyed or injured by the fumes from the ore piles and smelter, and that this destruction was general in 1900. The testimony showed that the fruit trees in the orchard were worth $5 per tree before they were destroyed; that the orchard, before its destruction, would pay interest on an investment of $1,000 per acre; that the tract

of land mentioned in the complaint consisted of 160 acres, and that there were forest trees on the land outside of the orchard, and they were affected and injured by the fumes. The fumes also affected vegetation such as alfalfa and grass. The respondent testified that, in his judgment, the property was totally destroyed. He further testified, in effect, that he did not become convinced in his mind that the fumes destroyed the crops and trees, etc., and ruined the place, until in July or August, 1899. There was some testimony as to the value of the forest trees that were injured. There was testimony that the appellant commenced roasting ores and sending forth the destructive fumes in the spring of 1898. There was testimony by witnesses other than the respondent as to the damages, the amount thereof, and that the material damage became noticeable in the fall of 1899. There was evidence to go to the jury of at least the partial destruction of the fruit trees, berries, and forest trees and vegetation in 1899 and 1900, and that it was in those years the damage became appreciable. Estimates of this damage were also testified to. The following is part of the examination of a witness for the respondent, who testified as an expert: "Q. Suppose, for instance, on a cloudy day, there should be a cloud immediately above the smelter, what would occur, if anything, when the smoke approached that cloud? A. The smoke would be observed to a large extent about the cloud. Q. And if rain fell from that cloud in the vicinity, what effect, if any, would that rain have upon the vegetation? A. It would have a blighting effect, and wilt the leaves,-burn the leaves. Q. Do you know of any instance in any standard authority with reference to how quickly such blight would occur? A. Yes, sir. Q. State to the jury. A. Peters gives an instance where a cloud absorbed the smoke from a number of roast heaps, and the rain falling from this cloud eight miles distant from the roast heaps withered a corn field in less than an hour and a half,-completely destroyed a young, growing corn field.

Q. Now, Mr. Snyder, suppose that a smelter that releases in the atmosphere approximately seventy tons of sulphur per day [there was evidence showing that that was the amount released by this smelter when in operation] in the form of sulphurous acid is in constant operation for two years or more: that an orchard about one mile from the smelter, and in the direction of the prevailing winds, is scorched in the spring, so that the blooms drop from the trees, and thereafter the leaves are scorched so that they drop off, and new growth occurs, and there is no fruit grown in the orchard; that it is well irrigated and well cultivated the second year, and in the springtime the same effects are visible, only more so; the leaves are scorched in the entire orchard so that they are browned, and the orchard looks like it is dead, and it produces no fruit that year; and the smelter is continued in operation,-state to the jury

what you would say would be the cause of that effect on that orchard, being only one smelter in the neighborhood." This question was objected to, and the court ruled that the witness could answer whether or not the fumes from the smelter would produce these results. The witness answered, "Yes, sir; they would produce those results." The question was then asked the witness: "What would be the effect if that amount of sulphur were released in the atmosphere for more than two years immediately prior, say, to this suit, upon the health of this orchard?" The witness answered: "You might say it would destroy the health of the orchard. While it might come in leaf again, the leaves would be destroyed before long by the fumes,-from the effect of the fumes. Question. Would such trees recover or not? Answer. If the cause was kept up, they would eventually die." There was testimony tending to prove all the facts suggested in the hypothetical question referred to as being existing facts. We do not think, therefore, that the court erred in denying the motion for a nonsuit.

It is claimed by the appellant that it erected its plant and operated it by authority of law. There is no allegation in the complaint that the fumes escaped through careless management, or by reason of negligent construction. The results are necessary results arising from the character of the ore smelted and the manner of operating the smelter. The smelter is not operated in any manner different from that in which smelters are usually operated. The business carried on is a lawful business. The fumes are poisonous and destructive. No way to overcome the difficulties has ever been found. It was, therefore, a foregone conclusion, when the smelter was erected and began operations, that the vegetation that happened to grow where the fumes and smoke should be precipitated would be subject to death. The smelter was erected before, and began its operations on, July 22, 1898. From these premises the appellant contends that the cause of action accrued July 22, 1898, and, as the complaint was not filed until February 19, 1901, the two-year statute had then run. It is elementary that the statute of limitations begins to run against a cause of action from the time it accrues and becomes due and payable; or, as otherwise expressed, the cause of action or suit arises, according to the universal rule in courts of both law and equity, when and as soon as the party has a right to apply to the proper tribunal for relief. Ganser v. Ganser (Minn.) 86 N. W. 18, 85 Am. St. Rep. 461. The appellant cites us to the case of Rowlstone v. Railroad Co. (Ky.) 54 S. W. 2. In that case the petition stated that the company did, without right, occupy Washington street, in the city of Covington. The answer controverted this statement, alleging that it occupied Washington street by right and by authority of law. There is no allegation that the noises,

jars, steam, smoke, cinders, blowing of whistles, and gases were unnecessary or unusual in the careful and prudent operation of the trains over the tracks on Washington street. The court of appeals of Kentucky says: "We are of opinion, from the proof in the bill of exceptions, that appellees proved an undoubted right to use Washington street for railroad tracks, and to operate their trains thereon, and also proved that such use had been for more than five years before the institution of this action. If, therefore, the action be for such damage as will necessarily result from the prudent operation of the road (that is, from noises, smoke, cinders, and such like incidents of the necessary and prudent and careful operation of the trains), the cause of action is barred by the statutory limitation of five years pleaded and proven." Railroad Co. v. Orr (Ky.) 15 S. W. 8: Stickley v. Railway Co. (Ky.) 20 S. W. 261; Onions v. Railway Co. (Ky.) 53 S. W. 8. Quoting further from said decision, the court says: "We are of the opinion that the rule announced in the Orr Case is the law. That rule, as we understand it, is: The statute of five years' limitation will bar any claim for damages resulting from the necessary and prudent operation of a railroad, along or over a street. But for any damage in operating the trains that by proper precaution could be prevented the company would be liable, and for this damage a cause of action does not accrue until the wrong is done, and limitation runs only from that time. * If the action had been for negligent or improper use of appellees' cars and trains on Washington street, an entirely different case would be presented. * ** It is for the use of Washington street without right or authority,-wrongful use; a trespass on the street, and consequent injury to appellant. To constitute an action for negligence or improper use, there must have been an averment in the petition that these noises, jars, smoke, cinders, etc., complained of, were unusual and unnecessary in the careful and prudent operation of the road, or that by prudent operation of the road such might have been prevented. There appears no such allegation." In Railroad Co. v. Orr, supra, the court says: "A railroad must be regarded as a permanent structure, and, when its construction in the streets of a town or city is authorized by legislative and municipal authority, it cannot be said to be a nuisance, when operated in a careful and proper manner. All damages that would naturally result from the operation of the road can be ascertained and determined when the road is being constructed, or, rather, when it is operated, so as to show the damages that will necessarily result from its prudent management. * They all may be recovered in a single action, and therefore the statute of limitations begins to run from the time the ac

tion could have been first instituted. *

In ordinary actions for trespass to real estate the recovery is for the injury accruing up to the inception of the action; but, where a railway is constructed in a street, the injury, if any, to the adjacent property, is permanent in its character, and continuing as long as the road is operated, and the cause of action for the damages resulting from its prudent operation arises as soon as the cars begin to run, and in the estimate is included the future operation of the road; for, if otherwise, there would be a cause of action for every time the cars passed the dwelling of the owner." In the case of Parker v. City of Atchison (Kan. Sup.) 48 Pac. 631, the court says: "Power is also given to the city to alter and change the channel of streams and water courses. Gen. St. 1889, par. 555. In doing so, however, reasonable care should be exercised to avoid unnecessary injury to private property. It appears, therefore, that the improvement was authorized, and cannot be said to be illegal. The fact that there is statutory authority for the same does not exempt the city from liability for injury to private property. In making the improvements, it is not required to provide for extraordinary floods and storms, but must exercise reasonable care to guard against such conditions as are ordinarily incident to the creek. It would seem from the testimony that the mere improvement of the alley could not have operated as a very serious injury to the property of the plaintiffs in error; but, assuming that it was injured to some extent, they were too late in claiming a recovery. As the improvement is permanent in its character, but one action could be maintained, in which all damages, present or prospective, would be recoverable. The action accrued in 1884, when the structure was completed, and under the third subdivision of section 18 of the Civil Code it was barred at the end of two years." The appellant contends that the principle announced in these decisions is applicable in the case at bar. We think not. From the very moment the cars began to be operated the damage existed and was apparent, and the present and prospective amount thereof could be ascertained by proper proof. In announcing the rule as laid down in the Orr Case, the Kentucky court of appeals said, “A cause of action does not accrue until the

wrong is done." Supposing, in the case under consideration, the wind had not carried the fumes over the respondent's land until six months after the smelter commenced operations, could it be said that there was any wrong done to the respondent during the six months? The evidence tends to show that the damage actually done was not apparent or material until in the month of July or August, 1899. Not until that time was the wrong done to the respondent for

which a right of action for damages accrued. An action to recover damages for an injury cannot be sustained until the injury actually occurs, although it may be apparent that injury will inevitably result. A cause of action to prevent the injury by injunctive relief might exist, but a cause of action to recover damages commences to run from the time the damages occur by the injury or destruction of property claimed to have been damaged. It is lawful to operate a smelter. No one has a right, however, to pursue a lawful business, if thereby he injures his neighbor, without compensating such for the damages actually sustained. This action may be sustained also on the grounds of a continuing nuisance. Doran v. City of Seattle, 24 Wash. 182, 64 Pac. 230, 54 L. R. A. 532, 85 Am. St. Rep. 948.

The judgment of the court below is therefore affirmed.

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

(30 Wash. 51)

In re FEAS' ESTATE. (Supreme Court of Washington. Sept. 20, 1902.) SELECTION-STATUTES-ABAN

HOMESTEAD

-

DONMENT-DECLARATION-COMMUNITY
ESTATE.

1. Where a surviving husband was in occupancy of land as a home with his minor children, it was a sufficient claim of a homestead, under 2 Hill's Code, § 481, providing that a selection may be made at any time; and his filing a declaration of homestead, as provided by the homestead act of 1895, before it took effect, became positive and confirmatory evidence of such fact, though no law then required him to make and file such declaration.

2.2 Ballinger's Ann. Codes & St. § 5244, subd. 1, provides that a declaration of homestead must contain a statement showing that the person making it is the head of a family, or, when the declaration is made by the wife, showing that her husband has not made such declaration, and that she makes it for their joint benefit. By section 5246, if a selection has been made by a married person from community property, the land on the death of either spouse vests in the survivor. Held, that a surviving husband may claim a homestead in the community interest of a deceased wife.

3.2 Ballinger's Ann. Codes & St. § 6215, provides that, if the value of the estate of an intestate leaving a widow and minor children does not exceed $1,000, the court shall assign for support of the widow and minors the whole estate, after payment of funeral expenses. Section 6219 enacts that when one dies leaving a widow or minor children, they shall be entitled to the possession of the homestead, and if the head of the family has neglected to acquire a homestead, the widow or children may do so. Section 6220 provides that on the appointment of an executor or administrator on the death of a husband the court shall set apart all exempt property. Held, that a contention that under the statutes, in probate proceedings, a homestead cannot be set apart to a surviving husband out of the community estate, was of no merit, since the statutes were enacted in 1854, prior to the community

1. See Homestead, vol. 25, Cent. Dig. §§ 57, 58, 80.

laws, and are to be construed in harmony therewith.

4. Where at the time a father selected a homestead from the community interest of his deceased wife there were minor children, that the children are no longer minors is of no avail to support an order for sale of the land on probate of the wife's estate.

5.2 Ballinger's Ann. Codes & St. § 5220, provides that a homestead can be abandoned only by a declaration of abandonment, or a grant thereof by the husband and wife if the claimant is married, and by the claimant if unmarried. Held that, where a homestead had been claimed by a father of minor children from the community interest of his deceased wife, his subsequent conveyance of the homestead to the children was not an abandonment of the homestead, and the children and their grantees took free from claims against the community estate.

Appeal from superior court, King county; Geo. Meade Emory, Judge.

In the matter of the estate of Hattie Feas, deceased. From an order overruling objections to a sale of real estate to pay debts, etc., the objector appeals. Reversed.

Root, Palmer & Brown, for appellant. S. S. Carlisle and Remsberg & Simmonds, for respondents.

Feas

HADLEY, J. In this cause the administrator filed a petition asking an order for the sale of real estate to pay debts and expenses of administration. Objections to the making of such order as to 150 acres of the land described in the petition were interposed. The particular land involved under the objections is described as 150 acres of the N. E. 4 of section 29, township 24 N., range 2 E., situate in Kitsap county, Wash. The grounds of objection to the order of sale, substantially stated, are as follows, viz.: That Hattie Feas died in August, 1892; that said property was acquired from the United States by Abraham S. while he was the husband of the deceased, Hattie Feas, and was until the time of the death of said Abraham S. Feas, which occurred March 21, 1899, in his actual possession as a homestead for himself and minor children, and that the same has at all times been exempt from all debts and liabilities of said estate; that said Abraham S. Feas, in March, 1895, after the death of his said wife, and while residing upon said land with his minor children, filed with the auditor of Kitsap county a declaration of homestead upon the land; that prior to his death the said Abraham S. Feas executed and delivered to his children. being seven in number, deeds of conveyance to all of the quarter section above named; that the objector, Carrie M. Feas, is a daughter of said deceased, Hattie Feas, and Abraham S. Feas, and has never parted with her interest in said estate; that she is also the successor in interest to all of the other children and heirs at law of the said Hattie and Abraham S. Feas, excepting William W. Feas, he being the owner of a certain 10-acre tract in said quarter section,

the remaining children and heirs having conveyed to the objector by good and sufficient deed all their interest in said property. The objector asks that said land shall not be sold, and that the court shall make an order finding that at all times after the acquirement of the land by Abraham S. Feas it was the homestead for himself and minor chil dren, and was never subject to any indebtedness of the deceased. The objections were overruled by the court, and the land was ordered sold. From such order the objector has appealed.

The court found that the land did not exceed in value the sum of $1,000 at the time of the death of said Hattie Feas, and that said Abraham S. Feas continuously resided upon the land, and made it his home, from 1883 until his death, in 1899, and had at all times living with him minor children of himself and said Hattie Feas. This property was the community property of Abraham S. Feas and his wife. It was occupied as a homestead at the time of the wife's death. The community estate passed into administration after the death of the wife, and it is under that administration that this order of sale was made. It is urged by respondent that the declaration of homestead filed by the surviving husband in March, 1895, was of no effect, because the law of 1895 providing for filing such declaration was not yet in force. Prior to the law of 1895 there was no provision for such formal declaration, and it was held in Philbrick v. Andrews, 8 Wash. 7, 35 Pac. 358, that mere occupancy of property as a home under the law then existing amounted to a selection of a homestead. To the same effect is Asher v. Sekofsky, 10 Wash. 379, 38 Pac. 1133. Under the above decisions mere occupancy of land as a home, and any assertion of claim to it as a homestead, before sale, was sufficient. In Wiss v. Stewart, 16 Wash. 376, 47 Pac. 736, it was contended that the law of 1895, which provides the manner of selecting a homestead, repealed section 481, 2 Hill's Code, which simply provides that a selection may be made at any time before sale. The court held against the contention, and said: "The latter act in no way affects the provision in relation to the time of making the selection, but simply undertakes to direct the manner of such selection, and the provision that such homestead may be selected at any time before sale is still in effect." Thus, under the law existing in March, 1895, the surviving husband, being in occupancy of the land as a home with his minor children, thereby asserted claim to it as a homestead, and the written declaration which he filed became positive and confirmatory evidence of such fact, although no law then required him to make and file such formal declaration. If, then, the surviving husband could claim a homestead, it was sufficiently done.

It is urged that a surviving husband can