Iverson v. Vint

• Decision Date: 28 July 1952
• Docket Number: No. 48085,48085
• Citation: 54 N.W.2d 494,243 Iowa 949
• Parties: IVERSON et al. v. VINT.
• Court: Iowa Supreme Court

Page 494

54 N.W.2d 494

243 Iowa 949

IVERSON et al. v. VINT.

No. 48085.

Supreme Court of Iowa.

July 28, 1952.

Diamond & Jory, of Sheldon, for appellant.

Corcoran & Kennedy, of Sibley, for appellees.

OLIVER, Justice.

Plaintiffs owned and occupied as their home a 4.95 acre tract, a short distance north of Rock Rapids. Defendant operated a feed mill upon an adjacent railroad right of way. He used molasses in the manufacture of certain stock foods. This was kept in a concrete pit. Some of it crystallized into a lumpy liquid and became unusable. Defendant caused this (he estimated 2000 gallons) to be dipped from the pit into a wagon and dumped into a ditch along the railroad right of way, about 85 yards from plaintiffs' dwelling house and well. There was evidence the ditch was four to eight feet wide and the deposit of molasses was one to three feet deep and one hundred to one hundred fifty feet long. Plaintiffs' petition alleged this created a nuisance, in that the molasses percolated into the subterranean waters beneath plaintiffs' premises, polluted and contaminated plaintiffs' well and rendered its waters unfit for use.

Trial to the court resulted in judgment for plaintiffs for $800. Upon the general question of liability for the pollution of percolating waters the court cited, 56 Am.Jur. 604, Waters, section 122; 67 C.J. 843, Waters, section 261; Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N.W. 925; annotations in 55 A.L.R. 1429 and 109 A.L.R. 406, and quoted from 55 A.L.R. 1429:

'It seems to be a well-established general rule, supported by the great weight of authority, and followed even in jurisdictions which adhere most strictly to the common-law rule of absolute ownership in percolating waters, or lack of ownership, that one who, by permitting the pollution of his soil or the water therein contained, contaminates the underground source supplying water to his neighbor's well or spring, permits an act for which he may be required to respond in damages; * * *.'

Among Iowa decisions cited are De Bok v. Doak, 188 Iowa 597, 176 N.W. 631, a diversion case, and Payne v. Town of Wayland, 131 Iowa 659, 109 N.W. 203, in which a cemetery which would pollute the water supply of neighbors was held to constitute a nuisance.

Upon appeal defendant contends the dumping of the spoiled molasses into the ditch was a lawful, reasonable and customary use of his plant and premises by a manufacturer of animal feeds and 'cannot constitute a nuisance as a matter of law.' The only error assigned is based upon the asserted overruling of that contention in defendant's motions for judgment. However, it appears no such contention was made in such motions. On that account a reversal could not be based thereon. Nor would defendant have been entitled to judgment on that ground.

Defendant's contention the dumping of the molasses was proper and hence could not constitute a nuisance was predicated upon his testimony:

'It is common practice with feed manufacturers, * * *, to dump it wherever they can. We dumped it where it was most convenient. Most manufacturers dump it on the premises if they are out where they have land where they can do it. I don't know of any other way we could dispose of it. To my mind there is nothing in this molasses that is intrinsically dangerous to human beings. * * * There was no other way at my command to dispose of this crystallized molasses. * * * I had no idea that the dumping of the molasses would contaminate a well 85 yards away. * * * It was not my thought or in my mind that anyone would be injured or inconvenienced by our dumping the molasses as we did. * * * it is common practice to dispose of it in the manner I did. * * * After it is dumped out on the ground I imagine it deteriorates like anything else, and possibly some it could be absorbed in the ground. * * * At the time * * * I think the city dump was * * * about 1 1/4 to 1 1/2 miles from our plant.'

Evidence of the custom or common usage of a business or occupation is generally admissible on the question of negligence although it is not a conclusive test. Wood v. Tri States Theater Corp., 237 Iowa 799, 807, 23 N.W.2d 843. However,...