Hollenbeck v. City of Marion

• Decision Date: 12 February 1902
• Citation: 89 N.W. 210,116 Iowa 69
• Parties: LAURA M. HOLLENBECK, Appellee, v. THE CITY OF MARION, Appellant
• Court: Iowa Supreme Court

89 N.W. 210

116 Iowa 69

LAURA M. HOLLENBECK, Appellee, v. THE CITY OF MARION, Appellant

Supreme Court of Iowa, Des Moines

February 12, 1902

Appeal from Cedar Rapids Superior Court.--HON. T. M. GIBERSON Judge.

ACTION at law to recover damages to plaintiff's farm, due, as is alleged, to defendant's emptying its sewage into a running stream which passes through the land. There was a trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

Reversed.

C. J Haas and D. E. Voris for appellant.

Rickel Crocker & Tourtellot for appellee.

OPINION

DEEMER, J.

Plaintiff and her husband are the owners of 94.67 acres of land in Linn county, through which passes a stream known as "Indian Creek." In 1893 defendant established a sewerage system, and emptied the sewage gathered thereby into said creek. It is claimed that this made a nuisance of the stream, to plaintiff's damage, and she asks judgment for the decrease of the rental value of the farm, due to the presence of this nuisance. When on the witness stand, plaintiff's husband was asked as to the condition of the creek both before and after the establishment of the sewer outlet. He stated, in response, that before, "it was nice, good water. " He was then asked to describe the condition of the creek after the sewer was connected with it, and he said, "Well, it is filthy, and foul, and nasty, and sticky." Being asked to describe the sediment, he said, "Well, it is all slimy, and nasty, and sticky." This was all over defendant's objections; and after the evidence was all received, defendant moved to strike it, because not responsive, and evidently the conclusion and opinion of the witness. We do not reverse because the answer was not responsive, if that answer is competent and relevant, had it been given in response to a proper question. Of course, a nonexpert witness must, as a rule, state facts, and not conclusions; but the dividing line between a fact and an opinion is often indistinct and difficult to explain. The condition of the water before and after the alleged nuisance was created was a material inquiry, and this condition cannot always be presented to a jury through a description of the thing inquired about. Yahn v. City of Ottumwa, 60 Iowa 429, 15 N.W. 257. Moreover, it ofttimes happens that facts are collective, and are the result of observation and knowledge. In such a case the result is a fact, and not an opinion. That water is sticky, nasty, and filthy is a fact; but, if an opinion, it is clearly admissible under well-settled rules. State v. Rainsbarger, 71 Iowa 746; Pence v. Railway Co., 79 Iowa 389; Winter v. Railway Co., 74 Iowa 448. But, conceding there was error, the error was without prejudice; for the witness narrated as fully as possible the facts from which the conclusion was drawn, in other parts of his evidence.

Certain doctors, who showed themselves competent to speak, were allowed, over defendant's objection, to testify to the probable effect upon milk cows of drinking the water after its contamination by the sewage, as to the presence of disease germs in the water, etc. This testimony is said to be too remote and speculative, for the reason, as we understand it, that, as plaintiff did not show that her cattle drank of the water and were poisoned, there was no method by which to tell whether or not disease germs were present, and, if present, whether or not in such quantities as to produce disease or death. Surely it will not be claimed in such a case as this that plaintiff must lead her cattle to drink of the water, and see whether or not it injuriously affected them, before she may bring her suit for damages. The probable effect of the discharge of the sewage into the creek was a proper matter of inquiry, and it could only be established by those having special knowledge of the subject. It was shown that these doctors had some of the qualifications needed to enable them to speak, and the weight of their evidence was for the jury. None of the cases relied on by appellant seem to be in point. Without exception they relate to personal injury cases, wherein experts were allowed to testify as to contingent and speculative consequences which might result from an injury. In this case, the damage claimed was depreciation in the rental value of the land and the matters inquired about were properly received in evidence as affecting that value. Shively v. Railway Co., 74 Iowa 169.

Certain of the hypothetical questions propounded are said to have no foundation in the facts disclosed. In this we do not agree with counsel. They had sufficient basis to justify the court in overruling objections thereto. These experts were permitted to testify regarding the presence of germs and bacteria in water polluted by sewage, how far these germs could be carried, and the dangers resulting therefrom. All this was a proper matter of inquiry.

II. In all there were in the Hollenbeck farm about 190 acres of land. The petition only asked for damages to 94 acres thereof. It is shown that the entire premises were used as one farm, however; and it is insisted that the court erred in its rulings on evidence, and in its instructions, in not requiring plaintiff to include damages to the farm as a whole. The only shadow of merit in this contention lies in the fact that on parts of the farm not included in the 94 acres there were springs and wells of pure water for stock and domestic purposes. Generally the complaint in such cases is that plaintiff is seeking to include too large a tract, instead of too little. There may be cases, although we are not able at present to state one, where a plaintiff should not be permitted to segregate his farm for the purpose of claiming damage to a part thereof. But this is not one of them. The evidence here shows that the 94 acres of pasture were separated by a highway from the residence and tilled portion of the land; that the 94 acres through which the creek ran were devoted to pasturage purposes, and to that alone, and that it was a mile or more away from the dwelling house and other improvements; and that plaintiff was compelled to drive her stock a considerable distance, or to erect new fences, reservoirs, and pipe lines, in order that they might have pure water. However, we do not think defendant is in a position to complain because plaintiff asked damage to a small tract of land. All the matters to which it refers in argument could be shown in order to determine the damage done that particular tract. If wells or springs of pure water were close at hand, doubtless this fact could be shown as affecting the question of depreciation in the rental value. Plaintiff evidently concluded that nothing but the pasture was damaged. If that was her conclusion, defendant is not in position to claim that the remainder of the farm was also damaged. If the remainder was so situated as to mitigate the damage to that chosen, this fact could be shown on cross-examination of plaintiff's witnesses or by independent substantive proof. Moreover, the court in the eighth instruction presented this feature of the case. That instruction reads as follows: "If you find from the evidence that from June 1, 1893, to June 1, 1898, there was sufficient water on the premises to supply all the stock that could reasonably be pastured on the premises in controversy during the pasturing season without any additional expense to the plaintiff, then your verdict will be for the defendant."

A witness who showed himself qualified was asked as to the rental value of the whole tract before the sewer connection was made. To this defendant objected. The objection was overruled and the witness answered that the rental value was from $ 3 to $ 3.50 per acre. This was all that was asked regarding the entire tract; and, if we should conclude that the ruling was erroneous, the error was without prejudice. Had he given the value after the sewer system was established, we might then have something to indicate prejudice; but nothing of the kind was shown. It will be noted that counsel are hardly consistent in their claims. They say in one place that the whole farm only should have been considered, and in another that the court was in error in allowing evidence as to the rental value of the whole tract. We think we have sufficiently disposed of their contention. Waltemeyer v. Railway Co., 71 Iowa 626.

Further, it is claimed plaintiff could have protected herself from damage by rearranging her farm and fences, or by digging wells, or piping pure water onto the pasture land; that in no event could plaintiff recover more than was necessary to make these improvements; and that the measure of recovery should be the amount necessary to be expended to save plaintiff from loss, and not the rental value of the land. It is doubtless true that one must protect himself from the injurious consequences of the wrongful act of another, where he can do so by ordinary care and effort and at moderate expense. In this case plaintiff had the undoubted right to use the stream flowing through his land and defendant was responsible for polluting the waters thereof. Ordinarily the measure of damages for such pollution is the depreciation in the rental value of the land. See cases hitherto cited. Of course, if plaintiff could by moderate expense have saved herself from the consequences of the wrong, it was her duty to do so. But she was not required to make an entire change in her methods of farming, nor to go to any great expense for the purpose of avoiding the consequences of defendant's wrong. If by a small amount of piping, or otherwise, plaintiff could have saved herself from the consequences of the wrong, perhaps the expense of making the improvement would be the extent of her loss. ...