Bowman v. Humphrey
| Decision Date | 15 November 1906 |
| Citation | 109 N.W. 714,132 Iowa 234 |
| Parties | J. W. BOWMAN, Appellee, v. J. L. HUMPHREY, JR., Appellant |
| Court | Iowa Supreme Court |
Appeal from Wayne District Court.-- HON. H. M. TOWNER, Judge.
ACTION at law to recover damages for an alleged nuisance. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Miller & Steele and Freeland & Carter, for appellant.
Livingston & Son, for appellee.
Defendant owns and operates a creamery in Wayne county, Iowa and this action is based upon the claim that he, by his employes and servants, casts the filthy refuse matter from said creamery into a running stream which passes from his premises to those of the plaintiff, and thereby has so befouled and corrupted the waters as to poison the same and cause noxious and offensive odors to arise therefrom to the injury of plaintiff and his family. Defendant answers alleging that he has conducted his creamery according to the most modern and best approved methods, and kept the same in a cleanly condition. He further alleges that the real source of the corruption of the water is the act of the neighboring town of Humeston, and of a certain railway company, both being farther up the stream, and both it is alleged draining unclean substances therein. He also charges that plaintiff himself deposited dead animals and other unclean substances on his land in such manner as to cause or contribute to the fouling of the stream. Upon trial to a jury, there was a verdict and judgment for plaintiff for $ 100 and defendant appeals. The case has been once before in this court (see 124 Iowa 744) when a new trial was ordered. On the second trial, the district court instructed the jury that if plaintiff, by his own wrongful acts in leaving the carcasses from dead animals where they would drain into the stream contributed "in any material degree" to the corruption of the water then he could not recover damages.
I. The defendant makes the point that if plaintiff contributed in any degree whatever to the injury of which he complains, he is not entitled to recover, and therefore the instruction that to defeat such recovery on this ground his own act must have contributed to the injury "in a material degree" was erroneous. If the doctrine of contributory negligence is applicable to this class of cases, it will have to be conceded that, under the rule recognized by this court in Root v. Railroad Co., 122 Iowa 469, the instruction cannot be sustained. It must be noted, however, that, in legal effect, the petition charges the defendant with creating and maintaining a nuisance, and the question now presented is whether, upon trial of a claim of this kind, the defendant may invoke the rule of law upon which the appellant herein relies. This question has been directly or indirectly involved in several cases which have been before this court, and the decisions have not been in all respects harmonious. See Randolf v. Bloomfield, 77 Iowa 50, 41 N.W. 562; Correll v. Cedar Rapids, 110 Iowa 333, 81 N.W. 724; Ferguson v. Firmenich, 77 Iowa 576, 42 N.W. 448. In view of this situation we have, with considerable thoroughness, re-examined the available authorities, and reach the conclusion that the doctrine of contributory negligence has no proper application to an action to recover damages for a nuisance. Nuisance is a condition, and not an act or failure to act on part of the person responsible for the condition. If the wrongful condition exists, and the person charged therewith is responsible for its existence, he is liable for the resulting damages to others, though he may have used the highest possible degree of care to prevent or minimize the deleterious effects. Nor is it any answer to say that a creamery, or tannery, or industrial plant of any kind is a perfectly legitimate enterprise, or one of great and general convenience and benefit, for if it be of such a nature, or be so conducted, that it substantially pollutes or destroys the usefulness and value of the water to the proprietors of the lower lands, it is a nuisance for which action will lie, though the utmost care has been taken to avoid all just cause of complaint. Sutherland's damages (4th Ed.) section 1035; Pach v. Geoffroy, 67 Hun 401 (22 N.Y.S. 275); Aldrich v. Howard, 8 R.I. 246; Pennoyer v. Allen, 56 Wis. 502 (14 N.W. 609, 43 Am. Rep. 728); Laflin v. Tearney, 131 Ill. 322 (23 N.E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34); Ducktown, etc., Co. v. Barnes (Tenn.) 60 S.W. 593; Bohan v. Gas Light Co., 122 N.Y. 18 (25 N.E. 246, 9 L.R.A. 711); Dygert v. Schenck, 23 Wend. 446 (35 Am. Dec. 575); Jutte v. Hughes, 67 N.Y. 267; Hauck v. Tidewater Co., 153 Pa. 366 (26 A. 644, 20 L. R. A. 642, 34 Am. St. Rep. 710); Susquehanna F. Co. v. Malone, 73 Md. 268 (20 A. 900, 9 L. R. A. 737; 25 Am. St. Rep. 595); Stokes v. Railroad Co. (Pa.) 63 A. 1028. True, a nuisance may arise, or be created either by a positive wrongful act, or by the neglect of some duty of prevention. The negligence, if any, may usually be proved, not as being itself essential to the right of recovery, but for the purpose of fixing the responsibility for the existence of the condition which constitutes the cause of complaint. So, too, the defendant may prove if he can that the plaintiff, by his own negligence, or by his own willful wrong, brought about in whole or in part the injury for which he seeks damages, but this is not because of the application of the doctrine of contributory negligence, but because it is always competent for a defendant to show that the act or wrong with which he is charged is in fact properly chargeable to plaintiff himself or to another for whose conduct he is not responsible. In other words, a plaintiff in such an action is subject to the general rule that no person is entitled to recover from another, for damages which have been occasioned by his own act or his own neglect. But where the right to recover damages does not depend upon the establishment of negligence in the defendant, the plaintiff's negligence will not defeat his recovery if defendant's wrong has operated to increase or aggravate his damages. Stated otherwise, and as applied to this case, if the defendant created a nuisance upon plaintiff's premises by fouling the waters of the stream, the fact that plaintiff had also, by his own separate and independent act, cast foul or unwholesome material into the same stream during the same period would not defeat his right of recovery for so much of the resulting damage as was fairly attributable to the defendant's wrong. Gould v. McKenna, 86 Pa. 297 (27 Am. Rep. 705); Underwood v. Waldron, 33 Mich. 232; Robinson v. Baugh, 31 Mich. 290; Railroad Co. v. Smith, 64 F. 679 (12 C. C. A. 384, 27 L.R.A. 131); Thomas v. Kenyon, 1 Daly 132; New Albany v. Slider, 21 Ind.App. 392 (52 N.E. 626;) Railroad Co. v. Hamilton, 100 Ala. 252 (14 So. 167, 46 Am. St. Rep. 48); Satterfield v. Rowan, 83 Ga. 187 (9 S.E. 677); Smithwick v. Hall, 59 Conn. 261 (21 A. 924, 12 L. R. A. 279, 21 Am. St. Rep. 104); Dodd. v. Holme, 1 Ad. & El. 493; Randolf v. Bloomfield, 77 Iowa 50, 41 N.W. 562; Correll v. Cedar Rapids, 110 Iowa 333, 81 N.W. 724.
That the doctrine of contributory negligence does not apply where nuisance is charged is illustrated in cases where the complainant has purchased property or perhaps, has established his residence in the immediate vicinity of an already existing nuisance. This, it is generally held, he has a right to do, and his imprudence or negligence in thus moving into the sphere of the injurious effects of the nuisance will not serve to avoid his claim for damages. People v. Lead Works, 82 Mich. 471 (46 N.W. 735, 9 L. R. A. 722); Bushnell v. Robeson, 62 Iowa 540, 17 N.W. 888; 21 A. M. & Eng. Enc. Law (2d Ed.) 691. Even where negligence is alleged in an action for damages on account of nuisance, it is not necessary to prove it. Stokes v. Railroad Co., 214 Pa. 415 (63 A. 1028). Indeed, even where negligence of the defendant is charged as the basis of plaintiff's claim, contributory negligence is not predicable of an act or omission of the plaintiff the only effect of which is to increase or aggravate the injury arising from the defendant's negligence. In other words, if wholly independent of plaintiff's act or omission, the effect of defendant's act or omission is to injure the plaintiff, the latter may recover for such injury. It may, sometimes, be difficult to separate and apportion the damages chargeable to the defendant, but that difficulty goes simply to the amount and not to the right of recovery. As said by the court in Railroad Co. v. Smith, 64 F. 679 (12 C. C. A. 384, 27 L. R. A. 131), "in such cases each party is chargeable with the consequences of his own conduct. See, also, Gould v. McKenna, 86 Pa. 297 (86 Am. Rep. 705); Smithwick v. Hall, 59 Conn. 261 (21 A. 924, 12 L. R. A. 279, 21 Am. St. Rep. 104).
A careful reading of the instruction given by the trial court in this case seems to indicate an intention to direct the jury with reference to plaintiff's "contributory wrong" as distinguished from "contributory negligence," and, for this distinction, there is to be found apparent support in Ferguson v. Firmenich supra, decided by this court. In that case, under circumstances very similar to those in the case at bar, it was shown that the defendant polluted the stream by the discharge of refuse matter from its glucose works, and there was also evidence tending to show that plaintiff, owning the land below those works, also maintained a slaughter house from which other offensive material drained into the same stream. In the course of the opinion, it is said: ...
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