Bowman v. Humphrey

• Decision Date: 30 September 1904
• Citation: 124 Iowa 744,100 N.W. 854
• Parties: BOWMAN v. HUMPHREY.
• Court: Iowa Supreme Court

124 Iowa 744

100 N.W. 854

BOWMAN

v.HUMPHREY.

Supreme Court of Iowa.

Sept. 30, 1904.

Appeal from District Court, Wayne County; H. M. Towner, Judge.

Action at law to recover damages occasioned, as alleged, by the maintenance of a nuisance. Trial to jury, and verdict and judgment for plaintiff. Defendant appeals. Reversed.Freeland & Evans and Miles & Steele, for appellant.

Livingston & Son, for appellee.

BISHOP, J.

The defendant owns and operates a creamery situated at the town of Humiston in Wayne county. The same is located near a waterway emptying into Chariton creek, which in turn flows through plaintiff's home farm. It is alleged that the washings and refuse from the creamery were discharged into the waterway, by reason of which the water was polluted and rendered unfit for use by the stock kept by plaintiff on his farm; that such of his stock as did drink of the water were made sick, and some died; that noxious vapors and gases arose from the refuse and polluted water, making plaintiff's home unpleasant, and further, that by reason of such facts the rental value of his farm was greatly diminished and destroyed.

1. On the trial the defendant sought to prove that the business in which he was engaged was one of great benefit and profit to the general public in and about Humiston. The court refused to permit such evidence to go to the jury, and thereof defendant complains. We think the ruling should be sustained. Without doubt, one who finds himself surrounded or in close proximity to factories, shops, etc., may be called upon to submit to some inconveniences arising therefrom, as from smoke, vapors, noises, and the like. This must be so, as otherwise but few industrial institutions could be established and operated, save in localities remote from human habitation and the places frequented by human beings. Many factories and shops, essential in a high degree to the convenience, well-being, and prosperity of the country, would be forced to close their doors, and abandon further attempt at operation. It is not the policy of the law to announce or give countenance to a rule the proximate result of which would be to thus block, if not to stop altogether, the wheels of progress. It is nevertheless true that one may not create a nuisance, and justify himself in a continuation thereof, on the ground that his establishment is the source of benefit and profit to the community; and, as applied to a water course, the true rule is that a nuisance is created when the use of the stream by the first user is unreasonable in character, and such as to produce a condition actually destructive of physical comfort or health, or a tangible, visible injury to property. Gould on Waters, § 206; Wood on Nuisances, § 640; Ferguson v. Firmenich Mfg. Co., 77 Iowa, 576, 42 N. W. 448, 14 Am. St. Rep. 319;Weston Paper Co. v. Pope (Ind. Sup.) 57 N. E. 719, 56 L. R. A. 899. Whether the use to which it is sought to devote a water course is reasonable or otherwise must be determined by the facts of the particular case. Miller v. Webster City, 94 Iowa, 162, 62 N. W. 648, cited and relied on by counsel for appellant, does not support their contention, nor does any other authority that has come to our notice. The Miller Case was brought in equity to enjoin the maintenance of a market place in Webster City, on the ground that by reason of the accumulation of foul and offensive matter on the market grounds a nuisance was created. The right to an injunction was denied, the court resting its holding upon the ground that the establishment of a market place was a public utility, and came...