Ryan v. City of Emmetsburg

• Citation: 293 N.W. 29,228 Iowa 678
• Decision Date: 18 June 1940
• Docket Number: 45278.
• Parties: RYAN v. CITY OF EMMETSBURG.
• Court: Iowa Supreme Court

293 N.W. 29

228 Iowa 678

RYAN v. CITY OF EMMETSBURG.

No. 45278.

Supreme Court of Iowa.

June 18, 1940

Appeal from District Court, Palo Alto County; G. W. Stillman, Judge.

Action at law for damages from alleged nuisance. Defendant appeals from adverse rulings on motions.

Affirmed.

E. F Nefstead and Edward D. Kelly, both of Emmetsburg, for appellant.

D. M Kelleher, of Fort Dodge, for appellee.

OLIVER, Justice.

This appeal challenges the correctness of certain rulings upon motions in an action at law. The petition alleged plaintiff owned a forty-acre tract adjacent to Emmetsburg, upon which were his dwelling house and other buildings, and which constituted his homestead; that the City of Emmetsburg had constructed upon abutting property and was maintaining and operating a sewage disposal plant from which emanated foul noxious and nauseous gases, vapors and odors, which spread over plaintiff's property, interfering with the peaceable, quiet and comfortable enjoyment of said premises, homestead and dwelling by plaintiff and his family and causing them to suffer nausea, discomfort and illness; that said conditions rendered the premises unfit for use as a dairy or dairy farm and interfered with its use as such and as a chicken ranch and for similar purposes; that said conditions have, are now and will in the future constitute a nuisance causing special injury to plaintiff and depreciation of his property.

" Plaintiff alleges that he has been damaged by reason of the premises, including damages for the permanent nuisance heretofore described and including past, present and future damages in the amount of $12,500.00 * * *."

Defendant first filed a motion to require plaintiff to make his petition more specific in two particulars. Both grounds of this motion were sustained following which plaintiff amended his petition.

Thereafter defendant attacked the petition as amended by motion to strike and for more specific statement. Two grounds of the motion to strike were addressed to the amendments and were based upon their failure to comply with the ruling of the court on the former motion to make more specific. These grounds of the motion were overruled and defendant assigns error to said ruling.

I.

In considering this assigned error it may be noted that plaintiff took no appeal from the ruling on the first motion to make more specific. Instead he attempted to comply with it. Therefore, the correctness of the ruling on the former motion is not before us and our inquiry will be limited to the question whether the trial court erred in refusing to strike plaintiff's amendment for failure to comply with said ruling. Hunn v. Ashton, 121 Iowa 265, 96 N.W. 745.

The first ground of the motion sustained had required plaintiff to state what " special injury" he claimed to have suffered as alleged. The amendment stated, in substance, that the special injury was that the nuisance caused discomfort to plaintiff and family and the deprivation of their comfortable enjoyment of the home and homestead and that because of the immediate proximity of the sewage disposal plant the conditions complained of were more offensive and caused plaintiff special and peculiar injury and damage not suffered by other more remote property owners or the public generally.

We think the amendment substantially complied with the order. It sufficiently explained that the expression " special injury" was used in said paragraph for the purpose of defining plaintiff's claimed injury as a private injury suffered specially by him as distinguished from others or the public in general.

The original petition alleged plaintiff had been damaged including damage for the permanent nuisance and including past, present and future damages. The second ground of the motion sustained had required plaintiff to " specifically state what sum he claims as damages for alleged ‘ past, present and future damages' and what sum he claims as damages for any other items, specifically specifying and detailing such other items of damages." It will be noted that plaintiff was not required to itemize his claim for past, present and future damages but only for other items. The effect of the ruling is not entirely clear. Whether there could be " other items" is questionable. Whether the claimed damage from permanent nuisance could have included anything in addition to past, present and future damages is...