Appeal from Salt Lake County, Third District As they all participated in the conspiracy, and the entryman Marks received and retained the consideration to which his agreement entitled him, plaintiff should not now be permitted to make any claim based upon his part in that conspiracy. In other words, this court should not assist the plaintiff, as the grantee of Marks, but should leave the parties just where they have placed themselves. In my judgment the decree refusing to adjudicate plaintiff to be the owner of the premises should be based upon that reason, and not upon the ground that the coal company was legally entitled or authorized to receive and hold the title to the premises in question. SAGERS et al. v. INTERNATIONAL SMELTING CO. et al. No. 3002. Decided September 29, 1917. (168 Pac. 105.) 1. WITNESSES-REFRESHING RECOLLECTION-DISCRETION. Whether a written memorandum may be referred to by a witness, for the purpose of reviving a present recollection, or as a record of a past recollection, is a matter largely within the discretion of the trial court. (Page 427.) RECOLLECTION-DISCRETION. 2. WITNESSES-REFRESHING RECOLLECTION. An instrument in writing becomes a record of a past recollection merely, when it fails to revive a present recollection of the facts to which it relates, and in such case the witness must be able to state positively that he knows it was made at a certain time, and that when made it was true. (Page 427.) 3. WITNESSES-REFRESHING The court did not abuse its discretion in permitting plaintiff, a farmer, while testifying as to the acreage and various kinds of crops grown on certain land for certain years, to refresh his present recollection by reference to a memorandum made by him, three years after the crop was grown, in part from his recollection and in part from accounts kept in a diary during the years the crops were grown, where the witness testified to a large majority of the items without referring to the instrument and stated that he believed he could testify to all, if given sufficient time, making it apparent that the instrument was of the kind used for reviving a present recollection rather than a record of a past recollection which must have been made at or about the time of the event to which it relates. (Page 431.) 4. NUISANCE-POISONOUS GAS-INJURY ΤΟ ANIMALS-EVIDENCE SUFFICIENCY. In an action for damages to live stock and crops Sagers v. International Smelting Co. et al., 50 Utah 423 alleged to have been caused by the operation by defendant of a smelter emitting poisonous gases, evidence held insufficient to show that the death or sickness of the animals was caused by the alleged operation. (Page 433.) 5. TRIAL-INSTRUCTIONS-APPLICABILITY TO EVIDENCE-DAMAGES. The court erred in refusing to withdraw from the jury consideration of damages on account of squash and truck garden damaged or destroyed, where there was no evidence of the cost of harvesting the (Page 434.) same. 6. TRIAL INSTRUCTIONS-APPLICABILITY TO EVIDENCE-DAMAGES. Where the net damage to the grapevines for the years alleged in plaintiff's complaint could not be ascertained from the evidence, the court erred in not withdrawing from the jury consideration of damages to the same. (Page 435.) Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge. Action by W. W. Sagers and another against the International Smelting Company and others. Judgment for plaintiffs. Defendant named appeals. MODIFIED and AFFIRMED CONDITIONALLY, without costs. E. A. Walton and Hancock & Barnes for respondents. THURMAN, J. This is an action to recover damages for injury to certain crops, live stock, and wire fences in Tooele County, during the years 1911 to 1915 inclusive. The injury is alleged to have been caused by the operation of defendant's smelter in the vicinity of plaintiffs' land, whereby smoke, fumes, and poisonous gases arising from the smelting of copper, iron, zinc, silver, arsenic, antimony, and other mineral ores were discharged into the air and carried out over and upon the plaintiffs' land, causing the injury complained of. 1 Edd v. Union Pac. Coal Co., 25 Utah, 293, 71 Pac. 215; Edgar v. Rio Grande Western Ry. Co., 32 Utah, 330, 90 Pac. 745, 11 L. R. A. (NS) 738, 125 Am. St. Rep. 867. Appeal from Salt Lake County, Third District Verdict was rendered for The case was tried to a jury. plaintiffs and judgment entered. Company appeals and assigns as error that certain evidence was inadmissible, and that the evidence in other respects was insufficient to justify the verdict. Plaintiff's crops were distributed over several parcels of land in township 3 south, of range 4 west of the Salt Lake Meridian. In presenting their evidence, plaintiffs sought to have their witnesses describe the acreage and kind of crops grown on each parcel of land, during each of the years in question consecutively, commencing with section 11, for the year 1911. During the examination of W. W. Sagers, one of the plaintiffs, as a witness, he testified from recollection to the various kinds of crops grown on section 11 for the year 1911 and the acreage of each crop. Before fully concluding his testimony on that point, however, he was asked by his counsel if he had kept a memorandum of the crops planted during that year. Replying in the affirmative, he was requested to refer to it and give the acreage. He stated that he had made the memorandum himself and knew it was correct. In crossexamination as to its competency to refresh his recollection, it developed that it was made within a year and a half next preceding the date of the trial and about three years after the crops were grown. Defendant objected to the witness referring to the instrument on the grounds that it was incompetent, irrelevant, and immaterial, and not proper to be used by the witness to refresh his recollection. On further examination of the witness as to the competency of the instrument the fact was elicited that the data for the memorandum were taken in part from the recollection of the witness and in part from accounts he had kept in a diary during the year the crops were grown. Defendant at this point interposed the further objection that the memorandum sought to be used was only a copy of accounts contained in another book. All of the objections were overruled. The witness, referring to the instrument, proceeded to detail the acreage and kind of crops grown on the parcel of land in question for the year 1911. His evidence was substantially the same as that given by him before refer Sagers v. International Smelting Co. et al., 50 Utah 423 ring to the memorandum. Just why the memorandum was called for and injected into the case by plaintiffs' counsel at that stage of the proceeding is not disclosed by the record. During the cross-examination of the witness as to the competency of the memorandum, he several times stated that he could give the items without referring to it if he was given time. The witness was permitted, over objections by defendant, to refer to the writing while testifying as to the acreage and crops on the same parcel of land during 1912; and while the record is not clear, it is fair to presume he used it also in connection with his testimony concerning crops on the same parcel of land in 1913 and 1914. As to crops in 1915, the record affirmatively shows the witness testified entirely from recollection. The same is also true of the years mentioned as to crops raised on section 14, the crops and acreage being about the same every year. As to the crops raised on section 13, witness was asked to state them without using the memorandum, and did consecutively for every year during the whole period of time. He did the same as to the remaining parcels of land upon which crops were grown. As to the wire fences alleged to have been injured and the horses and cattle that had died, the witness testified from recollection both as to numbers and value. At a later stage of the trial the same witness was asked in detail as to the acreage, kind, and quantity of crops raised on all the several parcels of land during each and every year from 1911 to 1915 inclusive. He answered the questions from memory and from memoranda made at the time the crops were harvested without objection, except as to the quantity of corn raised, in which case he was permitted to refer to the memorandum which had been objected to theretofore. It is proper to state once for all that this memorandum was seasonably objected to by defendant whenever it was referred to during the trial. The witness also testified from recollection as to the values of the various crops and the difference in quantities raised before and after the smelter went into operation. Later in the trial he testified fully from recollection as to the quantity of corn raised in each and every year. The crops to which the testimony related Appeal from Salt Lake County, Third District were wheat, oats, lucerne, corn, potatoes, squash, garden truck, and fruit. The witness had been one of the owners of these lands for a great many years, during which time he had annually raised the same kinds of crops as those concerning which he testified at the trial. We have endeavored, without undue prolixity, to give sufficient of the details connected with the use of the memorandum in question to show the circumstances and conditions under which the witness was permitted to refer to it while giving his testimony. 1 Whether or not written memoranda may be referred to by a witness for the purpose of reviving a present recollection or as a record of a past recollection is a matter largely in the discretion of the trial court; and that discretion will of necessity be governed and controlled by the nature and circumstances of each particular case in a large degree, rather than by attempting to apply a fixed and definite rule to all cases that may arise. In the present case respondents and appellant radically differ as to which class the memorandum in question belongs-whether it is to be treated as a record of a past recollection or an instrument that may be referred to to revive a present recollection. There is a marked line of distinction between the two, well defined and recognized, especially by modern authorities. Appellant contends that the memorandum in this case is a record of a past recollection merely, while respondents contend it belongs to the other class. The distinction given by the authorities and the difference of opinion between the opposing parties become of vital importance in determining the issues raised by this. assignment of error. The rules applicable to the two classes of memoranda will determine the class to which the one in this case belongs. As we understand the authorities an instrument in writing becomes a record of a past recollection merely, when it fails to revive a present recollection of the facts to which it relates; but in such a case the witness must be able to state positively that he knows it was made at a certain time and also knows that when made it was true. It must also 2 |