ment. He may not act in an indiscreet manner, exposing himself to unnecessary and imminent peril, and justify himself upon the promise to repair. While we have held in some cases that the servant was not called upon to shut down a mill while arranging machinery, thereby causing a great loss of time to his master, that holding was in cases where the peril under the mode adopted was not imminent. But, yielding our heartiest support to the doctrine that the zeal of the servant exercised in the master's interest should not be counted against him in case of miscarriage of calculation, yet the zeal must be bounded by ordinary prudence and circumspection. In this case the appellant testifies that the clearing of the chute in the manner in which he was compelled to clear it was a dangerous operation at the best; that defendant was negligent by reason of the construction of the machine, which required it to be cleared in such a manner; that it required the utmost care and caution to perform the work; that it was much worse without a light, and that he told the foreman that it was too big a risk to work in a place like that without a light; that it was seven o'clock on the 5th day of February, and that it was "awful dark"; that they did not begin to see daylight in the mill at that time of the year until eight o'clock, and that the lamp in front did not furnish any light at the back part of the edger, being shut off by the frame; that it was so dark that he could not see the revolving shaft; that by reason of the darkness he got too near the shaft, and that that was the cause of the accident. We think, under the circumstances as stated by the appellant, that it was his plain duty to have stopped the running of the edger before attempting to clear out the chute in the dark, and that when it appears by a man's own statement that he attempted in the dark ness, in a cramped place, such as this was described to be, to work around and with revolving saws and shafts, there cannot be any difference of opinion in the minds of reasonable men as to whether or not he was guilty of contributory negligence. The negligence was so palpable that we think the court was justified in sustaining the motion for nonsuit. Affirmed. [No. 4505. Decided April 10, 1903.] SULTAN WATER AND POWER COMPANY, Respondent, v. APPEAL REVIEW NECESSITY OF MOTION FOR NEW TRIAL. A motion for a new trial for alleged error of the court in refusing to allow the introduction of certain evidence is unnecessary as a preliminary to the review of such error on appeal. EMINENT AGES. DOMAIN APPROPRIATION OF LAND MEASURE OF DAM In condemnation proceedings to appropriate a right of way for ditch and flume purposes through defendant's land, the measure of defendant's damages would be the value of the land taken, together with the decrease in value of the balance of defendant's lands lying in one continuous tract adjacent to that taken, but not the injury to other tracts which merely have a common corner and are not otherwise part of a continuous tract. SAME RESULTING INJURY TO RIGHT OF NAVIGATION. Where lands are appropriated for the purpose of constructing a dam across a navigable stream with one end resting on the lands sought to be appropriated, damages by reason of the obstruction of navigation would not be an element for consideration in the condemnation proceedings, but it would be necessary to litigate such damages in another action brought for the specific purpose. Apr. 1903.] Opinion of the Court.-MOUNT, J. SAME PUBLIC USE EVIDENCE. Where the court has already adjudged that the appropriation of land for the construction of a dam across a stream was for a public use, it was not error for it to exclude evidence to the effect that the appropriator had stated the water was to be used as a fish pond. Appeal from Superior Court, Snohomish County.Hon. JOHN C. DENNEY, Judge. Reversed. Brownell & Coleman, for appellant. A. R. Titlow and Bell & Austin, for respondent. The opinion of the court was delivered by MOUNT, J.-Respondent brought this action to condemn a right of way 100 feet wide for a ditch and flume across lots 8 and 14 in section 19, township 28 N., range 8 E., W. M., in Snohomish county, Wash., and for the erection of a dam across the Sultan river at a point on lot 8. The appellant is the owner of lots 1, 7, 8, and 14, and the east half of the southeast quarter of section 19, which is one body of land on the east bank of the Sultan river. It also owns large tracts of lands to the north and east of section 19. These lands are valuable for the timber standing thereon. The Sultan river is navigable for floating logs, shingle bolts, and wood down stream. The dam which respondent proposes to construct across the river is to be 50 feet wide at the base, 10 feet wide at the top, and 25 feet high. Respondent proposes to take out of the river at the dam 60 cubic feet of water per second of time. Upon the service and filing of the petition for condemnation the parties appeared, a hearing was had, and the court adjudged that the contemplated use of the premises sought to be appropriated was really a public use, and that the land and water claimed were required and neces Opinion of the Court.-Mount, J. [31 Wash. sary for such use, and ordered a jury to assess the amount of damages to appellant. At the trial the jury awarded the appellant the sum of $55, which amount is conceded to be sufficient for the land actually taken and for the damages to the land described in the petition. The errors alleged go to the refusal of the court to allow certain evidence offered by appellant. Respondent moves to dismiss this appeal because no motion for a new trial was made by appellant. On questions of this character no motion for a new trial is necessary. Carter v. Seattle, 21 Wash. 585 (59 Pac. 500); Bal. Code, $ 5056. The motion to dismiss is therefore denied. The court at the trial limited the inquiry as to the damages to the lands actually taken and to the remainder of the lands described in the petition, which were lots 8 and 14 in section 19. The appellant offered to show that it was the owner of other lands adjacent to the tract described in the petition, and which will be damaged by increased expense in logging the timber therefrom by reason of the ditch and flume, and also by reason of the obstruction in the river. Five sections of these lands lie to the northwest of section 19, on the opposite shore of the river from the lands sought to be condemned. These sections are not adjoining, except that they corner together. They do not comprise a continuous tract, but lots 1 and 7 and the east half of the southeast quarter of section 19 are in one body with lots 8 and 14, described in the petition, and constitute an entire tract. We think the court erred in not permitting evidence by appellant to show what damage the construction of the ditch and flume would cause to the lands owned by appellant in one body in section 19. Section 16, art. 1, of the Constitution, pro Opinion of the Court.-MOUNT, J. Apr. 1903.] vides: "No private property shall be taken or damaged for public or private use without just compensation having been first made." This court has held that the measure of damages in such cases is the value of the land taken, together with damages to the land not taken. Seattle & M. Ry. Co. v. Roeder, 30 Wash. 244 (70 Pac. 498). Where damages are allowed for part of a tract of land not taken, it sometimes becomes difficult to determine what is to be regarded as an entire tract. "In general, it is so much as belongs to the same proprietor as that taken, and as continuous with it, and used together for a common purpose." 2 Lewis, Eminent Domain (2d ed.), § 475. The lands in section 19 belonging to appellant are one continuous tract. Lots 8 and 14 are fractional parts of the section designated as lots. Respondent could not limit the damages by describing in his petition only a part of the tract of land. If the ditch and flume make logging operations on this piece of land more difficult or expensive, and thereby render the land with the timber on it less valuable, this may be shown to increase the damages. In regard to the other sections of land, the court, we think, properly rejected evidence as to damages thereto, because they are not adjacent to section 19, and are contiguous only by reason of the fact that section 17 has a common corner with section 19. Other sections likewise corner with each other at a common point. These lands are on the opposite side of the river from the lands through which the ditch and flume run, and are from one to five miles distant from the proposed improvement. If they shall be damaged at all, it is by reason of the dam across the Sultan river, which may become an obstruction to the logs floated down, and not by reason of the right of way condemned across other lands of appellant, or of any im 36-31 WASH. |