Bushnell v. Robeson
| Decision Date | 14 December 1883 |
| Citation | 17 N.W. 888,62 Iowa 540 |
| Parties | BUSHNELL ET AL. v. ROBESON & CO. ET AL |
| Court | Iowa Supreme Court |
Appeal from Scott Circuit Court.
THE petition states that the defendants are the owners of a slaughter-house, which is situated near the limits of the city of Davenport, and near one of the suburbs thereof, in which the plaintiffs reside. "That at said slaughter-house large numbers of cattle, sheep and hogs are confined in small enclosures or pens, where they are fed and watered, and the excrement, decayed food, slop and other filth, retained and allowed to decay; that said cattle, sheep and hogs are at said place killed and slaughtered and dressed and prepared for market, and the excrement and useless parts of said cattle, sheep and hogs are retained and allowed to decay on said premises, and the tallow, lard, fat, etc., from said animals is melted down and separated from other matter at said premises, and other work and labor, such as is usually carried on and conducted at such places and in that business, is there carried on and conducted." That there is no adequate drainage on said premises, and, "by reason of the aforesaid matters, said slaughter-house, yards and pens cause and occasion noxious exhalations and offensive smells, greatly corrupting and infecting the air in said vicinity and neighborhood, and other annoyances dangerous and injurious to the health, comfort and property of plaintiffs and others residing in said vicinity, and offensive to the senses, and an obstruction to the free use of said property so that the same essentially interferes with the comfortable enjoyment of life and property in said neighborhood, and is a nuisance."
The relief asked is that "said slaughter-house, yards, pens etc., be declared and decreed to be a nuisance, and that said defendants and their agents, employes, and any and all persons acting or claiming under them, may be forever enjoined and restrained from further carrying on or conducting said business at said place, and that a writ of injunction may be issued."
Certain paragraphs of the petition were stricken out on motion, and the answer generally and specially denied most of the material allegations of the petition. The court found for the plaintiffs, and entered a decree enjoining the defendants from continuing said business on the premises in "any such way or manner as to cause a repetition or continuance of the nuisance." Both parties appeal, but the plaintiffs did not do so until after the defendants had appealed.
MODIFIED AND AFFIRMED.
Davison & Lane, for appellants.
Bills & Block, for appellees.
I.
We have examined the evidence, and have reached the conclusion that the allegations of the petition are sustained by a preponderance of the evidence. The plaintiffs introduced thirty witnesses, and the defendants forty-three. The evidence is lengthy. It is fully set forth in the abstract--about one hundred and fifty-five pages being required for that purpose. It is obvious that we cannot and should not occupy the space in the reports which would be required to comment largely on this evidence. It is directed to the single point whether the stench from the slaughter-house and pens is injurious to health, and interferes with the comfortable enjoyment of life and property. Code, § 3331.
The evidence on the part of the plaintiffs is affirmative in character, while that introduced by defendants is necessarily negative.
But the evidence introduced by the plaintiffs is sustained by some of the witnesses introduced by the defendants. Some of the witnesses of the latter, while admitting that there were smells emanating from the slaughter-house, say that they suffered no inconvenience therefrom, and others say there were offensive odors at times, and that they would not like to live within the range thereof if they existed all the time.
We cannot disregard or fail to give due weight to the plaintiffs' witnesses, who testify affirmatively that there are odors emanating from the defendants' premises, which are injurious to health, and render the comfortable enjoyment of property impossible.
It appears from the evidence that cattle, sheep and hogs are slaughtered on the premises, and the refuse thereof, consisting of the heads, feet and entrails, are usually boiled in a kettle and fed to the hogs. The entrails of lambs have been so fed without being cooked. Tainted meat and tallow also have been rendered or cooked on said premises on at least two occasions.
From some of these sources, and from the pens, we are forced to the conclusion that there emanate odors and smells which are injurious to health and the comfortable enjoyment of property.
We are not prepared to say that the premises are not kept as clean as the business carried on will permit. Nevertheless, we think such business, while necessary and essential, when carried on at the place it is, must be regarded as a nuisance.
Slaughter-houses in a city or public place, or near a highway, or where numerous persons reside, are prima facie nuisances. Wood's Law of Nuisances, § 504, 505; Catlin v. Valentine, 9 Paige Ch. 575; The State v. Kaster, 35 Iowa 221.
The defendants' slaughter-house is about seven hundred feet north of the limits of the city of Davenport. But west of the house is Grant's addition, about five hundred feet distant.
Between the defendants' premises and said addition there is a public highway, known as the Dubuque road, which connects with or is an extension of Brady street in said city.
Robinson & Ballew's addition is north of the slaughter-house, and about seven hundred feet distant. South avenue is a public highway, and is the southern boundary of said addition.
Defendant's premises about on Farnam street on the east, which is about eight hundred feet from the slaughter-house. The city engineer testifies that "the character of the neighborhood where defendants' slaughter-house is is for residences." Grant's addition is laid off in lots and blocks, and there are fifteen or more residences thereon, some of which are directly across the Dubuque road from the premises of the defendants, and others immediately across said road, but on an angle therefrom.
Robinson & Ballew's addition was, as we believe, originally laid off into ten-acre lots, but a portion of it has been subdivided into smaller tracts. It is occupied as residences, and some, at least, of the residents are engaged in gardening. Across Farnum street, directly east and northeast of the defendants' premises, are two residences.
From this brief and possibly imperfect statement, it will be seen that the slaughter-house is practically surrounded by residences that are, at most, not more than five hundred to one thousand feet distant. We feel constrained to say that, situated as the slaughter-house and pens are, and the business there conducted, they are and must, under the evidence, be regarded as a nuisance.
II. But counsel for the defendants insist that, as there are four or more plaintiffs, the injury suffered by them must be separate and distinct from that suffered by the public, and if this does not appear the plaintiff; are not entitled to the relief asked. A nuisance may be both public and private. Park v. The C. & S.W. R. R. Co., 43 Iowa 636. That is to say, a nuisance may affect the public, and yet an individual may be injuriously affected in such capacity as to be distinguished from the public at large. When this is the case, he is entitled to relief. Now, in the case at bar, the plaintiffs, because of the location of their residences, as we find, have suffered damages as distinguished from the public at large. This is apparent from the evidence; for, conceding the nuisance to be public, the plaintiffs have suffered private damages, because several of the defendants' witnesses testified that they did not suffer any damage, although they reside in the neighborhood. Nor were the plaintiffs at all times inconvenienced thereby, but only at times, or possibly when the wind was from certain directions. At times one person suffered and at other times others. This being so, the whole public or neighborhood were not equally affected, and some persons seem to have suffered no inconvenience whatever.
We think the objection to plaintiffs' recovery under consideration is not well founded. Although the plaintiffs separately own the property on which they reside, we are of the opinion that they can unite in asking the relief sought. Robinson v. Baugh, 31 Mich. 290; Brandirff v. Harrison Co., 50 Iowa 164; Robbins v. S. C. Turnpike Co., 34 Ind. 461; Trustees v. Cowen, 4 Paige Ch. 510; High on Injunctions, 1st edition, § 748.
III. Counsel for the appellants insist that plaintiffs have a plain, speedy and adequate remedy at law, and therefore are not entitled to relief in equity; because it is provided by statute that an action at law may be brought by any one who is injured by a nuisance, and in which action the nuisance may be enjoined or abated. Code, § 3331.
This question was somewhat considered, but not determined, in Daniels et al. v. Keokuk Water Works, 61 Iowa 549 16...
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