Downing v. City of Oskaloosa

• Decision Date: 15 October 1892
• Citation: 53 N.W. 256,86 Iowa 352
• Parties: LYDIA C. DOWNING, Appellant, v. CITY OF OSKALOOSA, Appellee
• Court: Iowa Supreme Court

53 N.W. 256

86 Iowa 352

LYDIA C. DOWNING, Appellant, v. CITY OF OSKALOOSA, Appellee

Supreme Court of Iowa, Des Moines

October 15, 1892

Appeal from Mahaska District Court.--HON. D. RYAN, Judge.

THIS is an action at law to recover damages for a nuisance, and asking for its abatement. There was a verdict and judgment for the plaintiff. Upon the rendition of the verdict, the plaintiff moved the court to enter an order enjoining or abating the nuisance. This motion was overruled, to which ruling the plaintiff excepted, and appeals. Judgment was entered upon the verdict.

Affirmed.

Seevers & Seevers, for appellant.

John O Malcom and G. B. McFall, for appellee.

OPINION

KINNE J.

But one question is presented by this record, viz: In an action at law, where the plaintiff claims damages for a nuisance, and also asks that the nuisance be enjoined or abated, and where the case is tried and damages are recovered upon the theory that the nuisance is permanent in character, is the plaintiff, as a matter of right, entitled to an injunction or order for abatement? Our statute provides: "Whatever is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought thereon by any person injured thereby, in which action the nuisance may be enjoined or abated, and damages also recovered therefor." Code, section 3331.

It is insisted by the appellant that the word "may," used in the statute, is to be construed to mean "shall" or "must;" that the power therein given is mandatory, and is not simply permissive or discretionary. If this contention is correct, then it is clear that the court below should have entered the order abating the nuisance. The rule of construction is well stated in 14 Amer. & Eng. Encyclopaedia of Law, 979, thus: "The word 'may' in a statute is sometimes used in a mandatory, and sometimes in a directory and permissive, sense. It has always been construed to mean 'must' or 'shall,' whenever it can be seen that the legislative intent was to impose a duty, and not simply a privilege or discretionary power, and where the public is interested, and the public or third person have a claim de jure to have the power exercised. But it is only where it is necessary to give effect to the clear policy and intention of the legislature that it can be construed in a mandatory sense, and, where there is nothing in the connection of the language or in the sense and policy of the provision to require an unusual interpretation, its use is merely permissive and discretionary." Black's Law Dictionary, title, "May." It is said by a learned writer that "the rule that 'may' is to be interpreted as 'shall' or 'must' is not by any means uniform; its application depends on what appears to be the true intent of the statute." Sedgwick on Statutory and Constitutional Law, p. 438. In some cases, where it was desired to make the abatement of certain kinds of nuisances obligatory on the court, the the word "shall" instead of "may" has been used in our statutes. Code, sections 1523-1543; Acts of Twenty-first General Assembly, ch. 66, section 5. We must interpret the meaning of the word in view of the policy and intent of the legislature, and of the right of the plaintiff to have the power thus given exercised. To our minds there is nothing in the statute itself, or in the circumstances surrounding its enactment, which requires that this word should be construed to impose an absolute duty on the court, irrespective of circumstances, to enter an order of abatement on the finding that a nuisance exists. Such a construction of the statute would require the court in a law action to exercise a power which even courts of equity will, under some circumstances, refuse. The most that can be claimed for this legislation is that it was the intent of the lawmaking power to invest courts of law with the same powers as to abating nuisances as were possessed by courts of equity.

It is claimed by the appellee that this court has recognized two classes of nuisances--that is, those where the injury is permanent, and in which damages are recoverable in a single action, and those which are continuing, wherein successive actions may be maintained for each fresh injury--and that the statute as to granting an order for abatement applies only to the latter class of cases. The question of original and continuing injuries, as applied to nuisances, will be found discussed in the following cases: Powers v. Council Bluffs, 45 Iowa 652; Stodghill v. C., B. & Q. R'y Co., 53 Iowa 341; Van Orsdal v. B., C. R. & N. R'y Co., 56 Iowa 470; Bizer v. Power Co., 70 Iowa 145, 30 N.W. 172; Shively v. C. R., I. F. & N.W. R'y Co., 74 Iowa 169, 37 N.W. 133; Hunt v. Iowa Central R'y Co., ante, 15. In Miller v. K. & Des M. R'y Co., 63 Iowa 680, which was an action for damages for a nuisance, and "for a decree enjoining the defendants to cause to be erected a sufficient number of dams across said ditch to protect said realty from being flooded with water coming out of said ditch when there is, or may be, a heavy rise in said river," this court held that damages might be recovered and the nuisance enjoined in the same action, but did not decide as to whether it was obligatory on the court in such cases to grant a restraining order or to abate the nuisance. In Platt v. C., B. & Q. R'y Co., 74 Iowa 127, 37 N.W. 107, the action of the lower court in abating a nuisance where damages were also claimed was approved. In neither of these cases was it determined that the nuisance was of a permanent character. The question, then, which is presented in this case, appears never to have been passed upon by this court.

This question is one on which the authorities are not entirely harmonious. A leading author holds that, if a statute provides for a recovery of damages, and that the nuisance may be enjoined or abated, the allowance of the abatement or injunction does not follow, as a matter of course, but lies in the sound discretion of the court. 1 High on Injunctions [3 Ed.], section 749. In Kothenberthal v. City of Salem Co., 13 Ore. 604, 11 P. 287, it was held by a divided court that the verdict of a jury finding a nuisance did not have the effect to make it absolutely incumbent on the court to issue a warrant of abatement; that it was a matter within its discretion. And, in Bemis v. Clark, 28 Mass. 452, 11 Pick. 452, under a statute providing that, where a judgment is rendered for the plaintiff in an action on the case for a nuisance, the court "may, on motion of ...