City of Hawarden v. Betz

• Decision Date: 27 October 1917
• Docket Number: 31319
• Citation: 164 N.W. 775,182 Iowa 808
• Parties: CITY OF HAWARDEN, Appellee, v. R. E. BETZ et al., Appellants
• Court: Iowa Supreme Court

164 N.W. 775

182 Iowa 808

CITY OF HAWARDEN, Appellee, v. R. E. BETZ et al., Appellants

No. 31319

Supreme Court of Iowa, Des Moines

October 27, 1917

REHEARING DENIED FEBRUARY 8, 1918.

Appeal from Sioux District Court.--WM. HUTCHINSON. Judge.

SUIT in equity to enjoin a nuisance in the operation of a sand pit within the corporate limits of the plaintiff town. There was a decree for the plaintiff, and the defendant appeals.--Modified and affirmed, and remanded.

Modified and affirmed and cause remanded.

Jepson & Stecker, Snell & Randall, and Van Oosterhout & Kolyn, for appellants.

C. E Gantt, for appellee.

EVANS J. GAYNOR, C. J., LADD and SALINGER, JJ., concur.

OPINION

EVANS, J.

I.

The charge of the petition is twofold. The first charges the maintenance of a nuisance in the operation of the pit; the second charges the breach of an ordinance in the operation of such pit. The petition prays, not only that the nuisance be enjoined, but that the violation of such ordinance be also enjoined. Relief was granted to the plaintiff on both grounds, in accord with the prayer of its petition. The defendant is operating a sand pit within the corporate limits of the plaintiff city. The defendant's tract comprises about 10 acres, being a long strip about 200 feet wide. It was purchased by the defendant for the purpose of operating a sand pit therein, and was improved accordingly, at an expense of $ 8,000 or $ 9,000. The immediate locality is not thickly populated. Two railroad right of ways are close at hand, and beyond them are a few residences. Along the west line of defendant's strip for its full length runs a street, or highway. The top soil is a black loam for a depth of 3 or 4 feet. Below that is a bed of sand and gravel. The surface of the ground is practically level. The general water level in this locality is 16 feet below the surface. The defendant has already removed a large amount of sand, and has excavated to a depth in some places of 18 feet, and in other places of 16 feet. More or less water necessarily stands wherever the excavation has reached the depth of 16 feet. The excavation as now made extends to within a few feet of the highway. The testimony fairly shows that a pit excavated to that depth in that soil will cave at the sides indefinitely, and to a distance of 20, 30 or more feet. We think the testimony fairly shows that the natural and probable result of the excavation as made will be to injure the adjacent highway. The sand being removed and shipped away, there can be no filling of the excavation without prohibitive expense. The water level being exposed, and pools of water being thereby formed, there is no method by which the same can be drained, except by continual pumping. It is manifest, therefore, that the pit as operated resulted in more or less stagnant water, and that it...