City of Ottumwa v. Chinn

• Decision Date: 08 October 1888
• Citation: 39 N.W. 670,75 Iowa 405
• Parties: THE CITY OF OTTUMWA v. CHINN et al
• Court: Iowa Supreme Court

39 N.W. 670

75 Iowa 405

THE CITY OF OTTUMWA v. CHINN et al

Supreme Court of Iowa, Des Moines

October 8, 1888

Decided October, 1888

Appeal from Wapello District Court.--HON. DELL STUART, Judge.

ACTION in equity to restrain the maintenance and for the abatement of an alleged nuisance. A demurrer to the petition of plaintiff was sustained. Plaintiff electing to stand upon its petition, judgment was entered in favor of defendants. The plaintiff appeals.

AFFIRMED.

W. W Epps, for appellant.

E. L Burton, for appellees.

OPINION

ROBINSON, J.

The petition alleges that plaintiff is a city of the second class, duly organized under the laws of Iowa; that Fred Chinn is the owner of a certain tract of land situated within the limits of plaintiff, and of a slaughter-house thereon; that George Hammer and others are the lessees of said premises; that cattle, sheep and hogs are kept on said premises, and slaughtered there; that excrement, offal and filth are retained and allowed to decay in and around said slaughter-house, and the fat of slaughtered animals is rendered, and work usually done at such places is carried on, in said house; that by reason of the facts aforesaid the said premises occasion and give rise to noxious exhalations and offensive odors, greatly corrupting the air in the vicinity, and cause annoyances dangerous and injurious to the health, comfort and property of the citizens residing in the vicinity; that said excrement, offal and filth are washed, by the natural flow of a stream of water upon which the slaughter-house is situated, into the Des Moines river, immediately above the head-race and source of the water supply of the Iowa water-works, which furnish the general water supply to the city of Ottumwa and its citizens; that in consequence the water is "contaminated with animal matter and poisonous refuse, which endanger the health and lives of the citizens who are compelled to use the water from said water-works,--said poison producing fever and other diseases, whereby said premises are a nuisance." The plaintiff asks that the premises, and the business of slaughtering thereon, be declared a nuisance; that defendants be enjoined from using the premises for the business of slaughtering, and the accumulation of filth; and that the nuisance be abated. The demurrer was upon the following grounds: "(1) Plaintiff does not aver any injury, special to itself, which would justify a court of equity in granting the relief prayed for. (2) There is no special injury or damage averred, and no damage except that which is common to the public. (3) Damage or injury to the public cannot be prosecuted in a civil action in the name of the city."

It may be conceded, as claimed by appellant, that the petition shows the maintenance of a nuisance within the definition given by section 3331 of the Code. But that section only authorizes an action to restrain and abate such nuisance to be brought "by any person injured thereby." As a general rule, a public nuisance gives no right of action to a private person, unless he suffer a special injury, distinct from that of the general public. Ingram v. Chicago, D. & M. Ry. Co., 38 Iowa 669, and cases therein cited; Park v. C. & S.W. Ry. Co., 43 Iowa 636; Mayor v Canal Co., 12 Peters 99. It is insisted by appellant that section 456 of the Code confers the right to maintain this action. That section gives to cities and towns organized under the general law of...