Higgins v. Decorah Produce Co., 41313.

• Citation: 242 N.W. 109,214 Iowa 276
• Decision Date: 05 April 1932
• Docket Number: No. 41313.,41313.
• Parties: HIGGINS v. DECORAH PRODUCE CO. ET AL.
• Court: United States State Supreme Court of Iowa

214 Iowa 276

242 N.W. 109

HIGGINS

v.DECORAH PRODUCE CO. ET AL.

No. 41313.

Supreme Court of Iowa.

April 5, 1932.

Appeal from District Court, Winneshiek County; W. L. Eichendorf, Judge.

Action in equity to enjoin an alleged nuisance. Judgment dismissing the plaintiff's petition and for costs. The plaintiff appeals.

Modified and affirmed.E. R. Acres and C. N. Houck, both of Decorah, for appellant.

Frank Sayre, of Decorah, for appellees Decorah Produce Co. and H. H. Woldum.

J. G. Gamble and A. B. Howland, both of Des Moines, for appellees Chicago, R. I. & P. Ry. Co. and Burlington, C. R. & N. Ry. Co.

STEVENS, J.

The Decorah Produce Company owns and operates a poultry and produce plant on the north side of Water street in Decorah, Iowa. The buildings of the company are located on property of the Chicago, Rock Island & Pacific Railway Company, Water street, over which state highway No. 9 passes, lies east and west. South of this street there is a residential section of the city. The space on the north side of Water street between it and South street, the first street north, is occupied by the main tracks, switches, roundhouse and depot of the Chicago, Rock Island & Pacific Railway Company and the main track of the Chicago, Milwaukee & St. Paul Railway Company. The depot of the Rock Island Railroad Company lies two and one-half blocks west, and a little over one-half block north of the produce plant. Immediately south of the produce plant there is a row of residences fronting on Water street. In the immediate vicinity of the Produce Company's plant and on the same side of Water street are coalyards, a creamery, icehouse, and other buildings. A short distance northeast of the produce plant is the Rock Island roundhouse, and slightly over two blocks north are the stockyards of the railroad company. Night trains are run by the Chicago, Rock Island & Pacific Railway Company over its tracks in the vicinity. Extending east and west across the north one-half of the several blocks between Water and South streets is what is denominated in the evidence as a dry run. There are other buildings of a commercial or industrial character in the vicinity of the produce plant. The industrial district referred to comprises substantially five city blocks. The produce plant fronting on Water street lies approximately in the center east and west of this district. Appellant's property is situated on the south side of the street a short distance east of the produce plant and fronts on Water street. The distance from the southwesterly corner of the main building to the northeast corner of appellant's house is 140 feet, and to the northeast corner of the McAndrews house 197 feet. The residence owned by appellant is occupied by tenants.

It will thus be observed that Water street separates a distinctly commercial and industrial district on the north from a residential district on the south. The produce plant now owned and operated by appellee was established in 1910, at which time the killing of poultry was begun. The building then used was 24 x80 feet; one story with basement. This plant was entirely destroyed by fire in 1912. A new building was erected and in 1929 as an addition 56x75 feet with basement. The building contains from 75 to 100 windows, all of which are kept open during the warm season. It appears to be equipped with modern equipment and improvements, and to be operated in reasonably sanitary manner. It represents an investment of from $65,000 to $75,000. Poultry is brought to the plant by farmers or gathered in trucks from a territory within a radius of fifty miles of Decorah. The poultry is brought to the plant in trucks, the birds removed, weighed, and immediately placed in feeding batteries. The feeding batteries are constructed of steel wire and are 5x4x5 feet, each containing four wire floors. Attached to the feeding batteries on the outside of the cage are troughs in which the feed is placed for the poultry. The feed consists of oatmeal mixed with water and buttermilk in clean tanks. Beneath the wire floors in each of the feeding batteries are pans into which the offal is deposited. There are a large number of feeding batteries and many thousand birds are brought to and slaughtered in the plant annually. The poultry is conveyed in groups of five to the basement where they are killed. There are scalding vats in the killing room in which the birds are immersed preparatory to picking the feathers. When the feathers have been removed, the birds are dipped in a vessel containing hot tallow and paraffin for the purpose of removing the pin and other small feathers and dirt from the pores. The floors in the feeding batteries are cleaned daily and disinfected, and the offal collected therefrom is hauled away from the plant in an open conveyance. In 1929, about 900,000 pounds of poultry, 24,000 cases of eggs, 8 carloads of feathers, and other produce were shipped from the plant. In the operation of the plant, the blood is carried through a funnel into a vessel, preserved, placed in a barrel, and hauled away from the plant. The floors of the killing room are cleaned and scraped daily. Much poultry arrives at the plant during the night; mostly before midnight.

The testimony is somewhat conflicting, but numerous witnesses residing in the immediate vicinity of the plant, or familiar with the situation in the vicinity of appellant's property testified that there are foul and offensive odors from the plant which interfere with the comfort of those residing in the community, and that the crowing of roosters and cackling of hens disturb their rest at night and prevent sleeping. The offensive odors alleged to come from the plant are, according to this testimony, more offensive in the warm weather and when the wind is blowing from the northeast. During the colder season, when the windows of the plant are closed, the peace and comfort of the neighborhood is little disturbed.

There was testimony on the part of some of the witnesses tending to show that the odors were both offensive and nauseating; particularly such was the testimony of appellant's tenants. Other residents of the immediate vicinity of appellant's property gave similar, though considerably modified, accounts of the annoyance and discomfort produced by the plant. The testimony introduced on behalf of appellee tended to minimize the extent of the odors and noises arising from the plant, but admitted that the interior of the plant is not entirely free from odors. Some of the witnesses were, no doubt, less sensitive to the crowing of the cocks and the cackling of the hens and were not disturbed thereby. It appears that one or more of the residents of the vicinity keep chickens in their backyards. The testimony of medical experts and others tended rather strongly to negative the claim of appellant that foul and decaying matter is left upon the premises, and that the plant is not kept as clean and sanitary as it should be. The building abuts directly upon Water street, which, as stated, is used as a part of state highway No. 9.

It appears that the offal is kept in and hauled from the plant in an open vehicle, and that the odor therefrom at times is very offensive. The paraffin when removed from the dead fowl is replaced in the vat from which it was taken and again heated and used. One or more of the witnesses for appellee testified that much of the odor from the plant comes from these two sources.

The property of appellant, which is a modern dwelling house, has been owned by him for many years. There is a conflict in the testimony as to the extent of the stench or odor that comes from dry run and the other plants located and operated in the vicinity.

[1][2][3] A poultry and produce plant such as we have described is not a nuisance per se. If, however, it is so located, maintained, and operated as to emit noxious odors or give off noises so as essentially to interfere with the comfortable enjoyment of the property of others, it may constitute a nuisance. A perfectly lawful business, operated under some circumstances and in some locations, may so interfere with the comfortable use and enjoyment of private property as to constitute a private nuisance, and, when this occurs, it is subject to abatement as such. McGill v. Pintsch Co., 140 Iowa, 429, 118 N. W. 786, 20 L. R. A. (N. S.) 466;Bushnell v. Robeson, 62 Iowa, 540, 17 N. W. 888;Bowman v. Humphrey, 132 Iowa, 234, 109 N. W. 714, 6 L. R. A. (N. S.) 1111, 11 Ann. Cas. 131;Daniels v. Keokuk Water Wks., 61 Iowa, 549, 16 N. W. 705;Smith v. City of Jefferson, 161 Iowa, 245, 142 N. W. 220, 45 L. R. A. (N. S.) 792, Ann. Cas. 1916A, 97;Mitchell v. Flynn Dairy Co., 172 Iowa, 582, 151 N. W. 434, 154 N. W. 878. This is the general rule and is well supported by the weight of authority. Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S. W. 1087;Kinsman v. Gas Co., 53 Utah, 10, 177 P. 418;Winbigler v. Clift, 102 Kan. 858, 172 P. 537;Saier v. Joy, 198 Mich. 295, 164 N. W. 507, L. R. A. 1918A, 825;Brede v. Minn. Crushed Stone Co., 143 Minn. 374, 173 N. W. 805, 6 A. L. R. 1092;Pearson & Son v. Bonnie, 209 Ky. 307, 272 S. W. 375, 43 A. L. R. 1166;Wood v. City of Chickasha, 125 Okl. 212, 257 P. 286;Lead v. Inch, 116 Minn. 467, 134 N. W. 218, 39 L. R. A. (N. S.) 234, Ann. Cas. 1913B, 891.

[4] Every property owner or person has a right to have the air diffused over his premises in its natural state and without being unduly impregnated with foreign substances, such as smoke, soot, noisome fumes, and other offensive matters, but air in congested centers of population is seldom absolutely pure and cannot reasonably be expected to be. McGill v. Pintsch, supra. In every city, smoke, soot, and more or less offensive odors and noises calculated to disturb and interfere with the comfort of residents are present and cannot be avoided. The air in such circumstances is more or less necessarily impregnated with foreign substances....