Baldwin v. Oskaloosa Gas-Light Co.

• Decision Date: 24 October 1881
• Citation: 57 Iowa 51,10 N.W. 317
• Parties: BALDWIN v. OSKALOOSA GAS-LIGHT CO.
• Court: Iowa Supreme Court

57 Iowa 51

10 N.W. 317

BALDWIN

v.OSKALOOSA GAS-LIGHT CO.

Supreme Court of Iowa.

Filed October 24, 1881.

Appeal from Keokuk district court.

Action to recover damages for a nuisance. The petition states the gasworks of defendant were erected in 1872, and that “defendant in manufacturing gas (ever since that time) causes and creates unwholesome, noisome, and offensive smells, which * * * are caused, created, and permitted by the defendant, to the great injury of the plaintiff, rendering her property uninhabitable and worthless.” In a second count it was stated that “the defendant manufactured gas in such a careless, negligent, and unskilful manner, in not keeping its machinery in proper repair, and in not using the latest and best improved machinery, and in using the poorest and most worthless substances for the manufacture of the same, and in using none of the machinery or appliances usually and commonly used to prevent the escape of noisome, unwholesome, and offensive smells, causes, creates, and permits” such “smells to escape in such quantities as to render plaintiff's homestead and property worthless.” The third count need not be set out, as no damages were found under it. In an amendment to the petition it was stated the nuisance referred to in the original petition has wholly destroyed the rents and profits of plaintiff's premises. The defendant denied the allegations of the petition and amendment, and pleaded the statute of limitations. Afterwards the plaintiff withdrew as much of the amendment to the petition as claimed damages because of a loss of rents and profits. Trial by jury. There was both a general and special verdict. On the latter the defendant moved for judgment, but was overruled and judgment entered on the general verdict for the plaintiff. The defendant appeals.C. P. Searle, John F. Lacey, and Lafferty & Johnson, for appellant.

Bolton & McCoy, for appellee.

SEEVERS, J.

1. The plaintiff is the owner of certain lots on which there is a dwelling-house, near the works of the defendant. It is regarded as being beyond controversy, from the evidence introduced, instructions, and special verdict, that the cause was tried in the court below on the theory-- First, that the nuisance was of a permanent character, and the property of the plaintiff rendered thereby “uninhabitable and worthless;” and, second, that the plaintiff was entitled to recover for the “depreciation of the rental” value of the property caused by the nuisance. The cause has been argued in this court on such theories, and we shall take the case as it has been put to us by counsel, without stopping to inquire why it was so tried below or argued here. Among the special interrogatories put to the jury is the following, which was answered by them as stated thereunder: “(8) Do you find from the evidence, under the instructions of the court, that the gas-works were so built as to be regarded as permanent, and was the erection and beginning of the use thereof a permanent injury to plaintiff's property? Answer. We, the jury, from the evidence and instructions of the court, regard the gas-works as permanent, but consider ourselves incompetent to decide whether or not their erection and use is a permanent injury to the plaintiff's property, as ways and means may possibly be devised to operate them in such a manner that they may cease to be regarded as a nuisance.”

If the...