Harley v. Merrill Brick Co.

• Decision Date: 28 May 1891
• Citation: 48 N.W. 1000,83 Iowa 73
• Parties: HARLEY v. MERRILL BRICK CO.
• Court: Iowa Supreme Court

83 Iowa 73

48 N.W. 1000

HARLEY

v.MERRILL BRICK CO.

Supreme Court of Iowa.

May 28, 1891.

Appeal from district court, Polk county; CHARLES A. BISHOP, Judge.

Action to recover damages alleged to have been caused by defendant in operating machinery and kilns for the purpose of manufacturing brick, and for the abatement of the same as a nuisance. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals.Chamberlin & Stewart, for appellant.

Gatch, Connor & Weaver, for appellee.

ROBINSON, J.

During the year 1888 the plaintiff owned, and with her family occupied, as a place of residence, a house and lot on East Fourth street, in Des Moines. The premises so occupied were about 180 feet from the brow of a bluff which sloped abruptly westward. At the foot of the bluff defendant, in the year named, constructed works for the manufacture of brick. They included a smoke-stack, the top of which was 19 feet lower than the bluff, and brick-kilns. The distance from the house of plaintiff to the smoke-stack is 330 feet, and from the house to the nearest part of the brick-kilns it is 290 feet. After the works were completed defendant commenced to make and burn brick. Plaintiff claims that, in operating the works and burning the brick, defendant used soft coal, and that large, dense clouds of black smoke and soot and gases were emitted from the smoke-stack and kilns, which were blown over and upon her premises, and into her house and other buildings; that in consequence the premises were rendered uncomfortable, unhealthy, and unfit for habitation; that the house and its contents were damaged, and the vegetation injured, and some of it destroyed. Plaintiff demands judgment for $1,000, and asks that the buildings, premises, and business of defendant be declared a public nuisance, and abated.

1. The court charged the jury as follows: “(1) The burden is upon the plaintiff in this case to establish, by a fair preponderance of the evidence in the case, each and every of the allegations of her petition, other than such thereof as are expressly admitted in the answer. * * * (2) You are instructed that, in order that the plaintiff may recover in this action, she must have established, by a fair preponderance of the evidence which has been submitted to you-- First, that she owned and occupied, as alleged, the premises described in her petition; * * * second, that the operation of the defendant's works constituted a nuisance; third, that she has suffered damages thereby in the respects alleged in her petition.”

Objection is made to the portions of the charge quoted, on the ground that, under the rule they announced, the jury could not have found for plaintiff, unless she had proved “each and every of the allegations of her petition.” Since she averred several distinct elements of damage it is clear that she would have been entitled to recover had she established but a part of them. It is no doubt true that the court designed to instruct the jury that plaintiff could recover only as to the causes of action which she had proven, and that the burden of proof was upon her, but we think the jury might have been misled by the language used. The second paragraph of the charge was of a nature to induce the jury to adopt a wrong construction. Taking the two paragraphs together, the jury might well have concluded that plaintiff could not recover unless she had proven all the claims made in her petition.

2. Appellant complains of the last part of the second paragraph of the charge, which is as follows: “* * * You are further instructed that, to entitle her to recover therefor, it must appear that the damage suffered by plaintiff is of a character different from that suffered by the public at large it being a rule of law by which you will be governed that a private citizen cannot maintain an action as for the abatement of a nuisance, or to recover damages on account of a nuisance, unless such private citizen be damaged in a manner separate and distinct from the damage which is sustained by the public at large; that is, such private citizen must have suffered some injury to his person or personal rights, or to his individual property, in which injury the general public did not share or did not suffer from.” It is not strictly true that a person damaged by a nuisance cannot recover if his damages be of the same character as those sustained by the public. If the health or property of a person be injured from such a cause, he may recover, although the health and property of the general public affected by the nuisance be affected in the same manner. The character of the injury would be the same in each case, but the damages sustained by each individual would be distinct from that suffered by the public, and a recovery therefor would be permitted. It was said in Park v. Railway Co., 43 Iowa, 638, that a nuisance may partake of a double character, and be both public and private, and that actions can be maintained in such cases by individuals, although many other persons sustain like injuries from the same nuisance. Section 3331 of the Code authorizes a recovery by any person injured by a nuisance. See, also, Ewell v. Greenwood, 26 Iowa, 380; 1 Hill, Torts, 555. Although it was probably not the intention of the district court to announce a different rule, we think the language used in the part of the paragraph quoted may have been misleading.

3. It appears that certain tile-works are located about 600 feet from the dwelling of plaintiff, and that a railway is operated in the vicinity of the tile-works and the works of defendant; also that large quantities of soft coal are burned in Des Moines. The evidence tends to show that smoke from the tile-works, from the railway locomotives, and perhaps from the city at large, contributes to the injuries of which plaintiff complains. On that showing the court charged the jury as follows: “(4) Upon the question of nuisance, you are instructed that, to constitute the operation of defendant's works a nuisance, it must appear that the smoke, soot, and gas given off or emitted therefrom are such, as by themselves, considered alone, constitute...