Friedman v. Forest City

• Decision Date: 10 February 1948
• Docket Number: 47014.
• Citation: 30 N.W.2d 752,239 Iowa 112
• Parties: FRIEDMAN v. FOREST CITY.
• Court: Iowa Supreme Court

30 N.W.2d 752

239 Iowa 112

FRIEDMAN v. FOREST CITY.

No. 47014.

Supreme Court of Iowa

February 10, 1948

[Copyrighted Material Omitted]

Loth & Melton, of Fort Dodge, for appellant.

R C. Brown, City Atty., of Forest City, and Jno. A. Senneff, of Mason City, and H. R. Duncan, of Des Moines, for appellee.

OLIVER Justice.

Some language in plaintiff's brief relative to the trial judge and his conduct is improper. The record in this case shows the charges are not well founded. But complaints of the manner in which a judge conducts any trial should always be couched in respectful language.

Since 1930 plaintiff and her husband have occupied a dwelling in Forest City purchased and owned by her. Most of the property in the immediate vicinity is industrial. In 1939 Forest City constructed and has since operated a municipal electric plant in the block across the street from plaintiff's home. Alleging the vibration and noise from the Diesel engines in this plant damaged her home and interfered with its comfortable enjoyment plaintiff brought this suit against the city in 1943. It was tried to a jury as an action for damages and resulted in verdict and judgment for defendant and this appeal.

The action was started in equity. Plaintiff's First Substituted Petition, alleges in part that the large high speed Diesel engines which generate the electricity make great noise and set up strong vibration which shakes the ground and plaintiff's home, distorting and cracking it and impairing its comfortable use; that the physical injury to the building is progressive and constantly increasing; that these conditions are permanent in that they will continue as long as defendant is permitted to use the Diesel engines and that defendant will not discontinue such use unless compelled to do so by the court; that the damage sustained to this time is $4000, that unless the nuisance is abated by the court it will be permanent and the damage, past, present and future will be $8000. The prayer is for an injunction abating the nuisance and $4000 damages to the time of abatement, or if abatement is refused, $8000 for past, present and future damages.

In compliance with an order of court requiring her to separate her petition into divisions or counts plaintiff filed her Second Substituted Petition in Equity. Division I alleges that although there was no necessity therefor, the city determined to and in 1939 did construct under the Simmer Law, Code 1946 § 397.9 et seq., and operate a municipally owned electric plant; that said plant includes three Diesel engines which operate at high speed, with great noise and set up a strong vibration which shakes the ground and plaintiff's home, distorting, damaging and cracking it, which injury is progressive and increasing, and impairing its comfortable enjoyment; that in 1941 plaintiff demanded that the city terminate the nuisance and the city advised plaintiff's attorney the elimination of the difficulty would cost a substantial sum and that no one locally knew what should be done, later, that its engineering firm was preparing to make recommendations and still later, that materials could not be procured and nothing would be done.

Par. 16 alleges 'the nuisance can and should be abated, and plaintiff desires such abatement; but that such abatement may entail the temporary or even permanent cessation of the use of the engines now in the plant.'

Division I prays such order of injunction and abatement as will end the nuisance, judgment for damages to the time of abatement for $4000 and for other and further equitable relief. Division II adopts the averments of Division I except Par. 16, alleges that if the nuisance be deemed, held or made permanent, it diminishes the value of her property $8000 for which judgment is prayed 'in the event plaintiff shall be compelled to accept relief without abatement.'

Upon motion of defendant, plaintiff was required to elect between Division I which sought injunction and damages to the time the nuisance should be terminated, and Division II which sought permanent damages. Plaintiff elected to stand on Division II. Later, upon motion of defendant the court ordered the cause transferred from equity to the law side of the calendar. Defendant's answer, filed thereafter, admits the structure complained of is permanent in nature, denies it damages plaintiff's property, avers the engines are devoted to public use and asks that if it be found plaintiff's property has been damaged, the matter be treated as permanent and original damages and the entire amount be determined for all time.

The jury was instructed that if plaintiff had proved the existence of a nuisance it should assume the nuisance was permanent, and allow plaintiff for all past, present and future damage proven.

I. Although plaintiff pleaded and elected to try her case upon the theory of permanent nuisance she now contends she could not properly claim permanent damages from the nuisance pleaded by her. She states Ryan v. Emmetsburg, 232 Iowa 600, 4 N.W.2d 435, and Wesley v. Waterloo, 232 Iowa 1299, 8 N.W.2d 430, 'hold this nuisance is temporary.' In the cited cases the invasions were by gases and odors from plants installed for the purpose of disposing of sewage in a sanitary manner and without objectionable odors and which do so when functioning properly. The nuisances were readily abatable and it was the duty of the cities to abate them. There was no physical damage to the property. As stated in Vogt v. Grinnell, 123 Iowa 332, 334, 98 N.W. 782, 783, 'The nuisance consists not in the construction of the sewers in an illegal manner, nor where the city had no right to place them, but in pouring the filth from them into the stream, instead of (first) * * * rendering the sewage innocuous. * * * A nuisance cannot be permanent which can be abated without unreasonable expense by the party creating it.'

Although other courts are divided upon the proposition our decisions have uniformly held invasions by odors, etc. from municipal sewage disposal to be temporary in nature and abatable.

The petition in the case at bar alleges progressive and constantly increasing physical injury to plaintiff's home as well as interference with its comfortable use, by noise and vibration from the normal operation of Diesel engines in the municipal electric plant. The alleged wrong is in the type of plant, mainly in that it is powered by high-speed instead of low-speed Diesel engines. There is no charge of improper operation. Presumably the lawful structure, its operation by the city as a public utility and the alleged invasion will continue indefinitely. Usually the operation of such a plant will not be enjoined. Under the circumstances plaintiff could properly claim permanent damages.

II. Plaintiff assigns as error the order requiring her to separate her petition into divisions. That is not of sufficient importance in this case to require its consideration. Error is also predicated upon the order transferring the cause to the law side of the calendar. That order was technically correct because it was made after plaintiff had elected to proceed upon Division II of her petition which was merely an action for damages.

Plaintiff's principal complaint is based upon the preliminary order which required her to elect between past and present damages plus injunction as pleaded in Division I and past, present and future damages sought in Division II. We have held this form of pleading proper even though the counts were technically inconsistent. Mortenson v. Hawkeye Casualty Company, 234 Iowa 430, 12 N.W.2d 823, and citations; In re Flaugher's Estate, 232 Iowa 520, 5 N.W.2d 821. They were not fatally repugnant in this case. None of these decisions was a nuisance case. However, there are like holdings by other courts in nuisance cases. Green v. Arnold, 25 Tenn.App. 67, 150 S.W.2d 1075; Oklahoma City v. Page, 153 Okl. 285, 6 P.2d 1033; Follett v. Brooklyn El. R. Co., 91 Hun 296, 36 N.Y.S. 200. We conclude the order requiring election before trial was erroneous.

III. However, defendant contends the orders requiring election and transferring to the law side of the calendar were not prejudicial because the suit was merely an action for damages properly triable at law only.

Under our practice an action to enjoin a nuisance and to recover damages therefor may be brought either in equity or at law. Section 657.1, Code of 1946; R.C.P. 320; Pisny v. C. & N. W. Ry. Co., 207 Iowa 515, 221 N.W. 205; Miller v. Kookuk & Des Moines R. Co., 63 Iowa 680, 16 N.W. 567; Gribben v. Hanson, 69 Iowa 255, 28 N.W. 584. A plaintiff may choose either forum and secure the same relief. However, equity is not the proper forum for an action for damages alone. Nor should a plaintiff be permitted to deprive the opposing party of the right to jury trial, by instituting in equity an action for damages coupled with a claim for injunction which is merely colorable.

Prosser on Torts (1941) page 549, refers to the confusion surrounding the word nuisance as an impenetrable jungle and we have frequently mentioned apparent conflicts in the language of some of our decisions. Restatement of Torts, Volume IV, page 216, points out that the term nuisance is used in several senses, (1) as denoting human activity or a physical condition of land that is harmful or annoying (2) as denoting the harm caused thereby, and (3) as denoting both the fact situation and the legal liability arising therefrom. Hence that work uses the word nuisance as little as possible.

Section 930, Restatement of Torts, Volume IV, page 665, states in part:

'Damages for Future Invasions

'Where by the maintenance of a structure on his own land or by acts and operations thereon, a person causes continuing or...