Boyd v. City of Oskaloosa

• Court: Iowa Supreme Court
• Writing for the Court: LADD
• Citation: Boyd v. City of Oskaloosa, 179 Iowa 387, 161 N.W. 491 (Iowa 1917)
• Decision Date: 19 February 1917
• Docket Number: No. 31005.,31005.
• Parties: BOYD v. CITY OF OSKALOOSA.

179 Iowa 387

161 N.W. 491

BOYD

v.CITY OF OSKALOOSA.

No. 31005.

Supreme Court of Iowa.

Feb. 19, 1917.

Appeal from District Court, Mahaska County; John P. Talbott, Judge.

Action for damages consequent on an alleged nuisance resulted in a judgment against defendant, from which it appeals. Affirmed.McCoy & McCoy, of Oskaloosa, for appellant.

Davis & Orvis, of Oskaloosa, for appellee.

LADD, J.

A creek with source about a mile beyond where the effluent from the septic tank of the defendant emptied into it had its course through plaintiff's land about a mile farther on. The evidence was such that the jury might have found that the waters of the creek were polluted by the flow from the septic tank to such an extent that, upon reaching plaintiff's farm, they were discolored, contained a slimy sediment, were obnoxious to taste, and threw off a disagreeable odor, described by plaintiff as an awful stinking smell. He testified that he could smell it all over the farm, especially at the house when the wind blew from the east or southeast. His son described it as a stinking or sickening odor, and he also testified that the smell at the house on the premises about 40 rods from the creek was so offensive when the wind came from the east or southeast that they had to close the doors and windows. Evidence adduced tended to show the difference between the rentable value of the farm, consisting of 70 acres, as it was between July 1, 1913, and December 7, 1914, and the rentable value thereof as it would have been without the alleged nuisance. There was no evidence tending to prove any injury, physical or otherwise, save that in consequence of the offensive odor, and there was no evidence as to how frequently the wind blew from the east or southeast. As bearing on the measure of damages the court in the ninth instruction told the jury that:

If “said nuisance caused a depreciation in the rental value of plaintiff's property, and that such depreciation was in consequence of such nuisance, then plaintiff would be entitled to recover the loss by reason of such depreciation of rental value in such reasonable sum as may be shown by the evidence for the period of time between July 1, 1913, and December 7, 1914, that you may find from the evidence that defendant maintained such nuisance upon plaintiff's premises. And in like manner if you find from a preponderance of the evidence that the plaintiff and his family in their home and house suffered inconvenience and discomfort, as shown to have been suffered during the time between July 1, 1913, and December 7, 1914, bearing in mind that the intent of the law is to compensate plaintiff for the injury he has suffered to his use and occupancy and enjoyment of his property, if any is shown, and no more, but in no event in a sum greater than is claimed in his petition.”

In the thirteenth paragraph of the charge the court instructed that the measure of his recovery will be the difference, if any is shown, between the fair and reasonable value of the use of his premises as they would have been without the alleged nuisance and the fair and reasonable value of the use of said premises with the existence of said nuisance, and--

“in arriving at the amount you should take into account and consider the rental value of the plaintiff's premises without the alleged nuisance, as shown by the evidence, and the rental value of said premises with the alleged nuisance, as shown by the evidence, the discomfort and annoyance and deprivation of the comfortable enjoyment of the premises suffered by plaintiff and his family, if any is shown, and as shown by the evidence, by reason of the nuisance and offensive smells from the creek, occasioned by defendant's polluting its waters, if shown, and as shown, by the evidence, and allow him such sum as damages as you may find from all the evidence will fully and fairly compensate him for any and all injury to his use, occupancy, and comfortable enjoyment of his premises which is shown by the evidence to have resulted from defendant's having polluted the waters of the creek, if you find from the evidence under the court's instructions that defendant did so pollute the waters of said creek.”

The jury returned a verdict for $375, and answered the following special interrogatory by inserting the same amount as answer thereto:

“How much, if anything, do you allow plaintiff and include in your general verdict for inconvenience and discomfort to plaintiff and his family in their home?”

[1] I. Appellant's counsel, assuming that two elements of damages were included in these instructions: (1) Depreciation of rental value, and (2) inconvenience and discomfort of plaintiff and family in the enjoyment of their home--argues that the jury found against plaintiff on the first of these, and, as to the last, that inconvenience and discomfort were without injurious consequences, such as sickness and the like, or loss of use of or injury to property, are not enough to warrant the allowance of damages in a substantial amount. That the last proposition is utterly untenable sufficiently appears from the previous decisions of this court. Though injurious consequences, such as sickness and injury to property, may be shown proof of inconvenience and discomfort from noisome odors and offensive smells, occasioned by the maintenance of a nuisance, are alone sufficient basis for the allowance of damages. Van Fessen v. Clark, 113 Iowa, 86, 84 N. W. 989, 52 L. R. A. 279;Holbrook v. Griffis, 127 Iowa, 505, 103 N. W. 479; cases collected in 29 Cyc. 1272.

In Wood on Nuisances, § 886, the author says that:

“In the cause of an action for an injury to the comfortable enjoyment of property by a person in possession, no precise rule for ascertaining the damage can be given, as, in the very nature of things, the subject-matter affected is not susceptible of exact measurement; therefore the jury are left to say what, in their judgment, the plaintiff ought to have in money, and what the defendant ought to pay, in view of the discomfort or annoyance to which the plaintiff and his family have been subjected by the nuisance; and whether the verdict is large or small, if, in view of the evidence, it has any reasonable foundation, it will not be disturbed because it is too small on the one hand, or too large on the other.”

This is the rule quite generally sanctioned by the authorities. Perry v. Howe Creamery Co., 125 Iowa, 415, 101 N. W. 150, seems to be relied on. That was an action to enjoin a nuisance, and it was held that on evidence merely that members of plaintiff's family were nauseated at times the allowance of nominal damages only would not be denounced as erroneous. This was not tantamount to saying that had actual damages been allowed this court would have interfered.

[2] II. The plaintiff occupied his farm, consisting of 70 acres, as a home for himself and family. It was not for rent, and therefore loss of rental was not experienced and might not accurately measure the damages he had suffered. But evidence of diminution of rental value is admissible...