Kellerhals v. Kallenberger, No. 50036

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD; All Justices concur, except OLIVER
• Citation: 251 Iowa 974,103 N.W.2d 691
• Parties: Frank KELLERHALS and Vera Kellerhals, Appellants, v. Lloyd KALLENBERGER and Don Kallenberger, Appellees.
• Docket Number: No. 50036
• Decision Date: 14 June 1960

Page 691

103 N.W.2d 691 251 Iowa 974 Frank KELLERHALS and Vera Kellerhals, Appellants,
v.
Lloyd KALLENBERGER and Don Kallenberger, Appellees. No. 50036. Supreme Court of Iowa. June 14, 1960.

[251 Iowa 975]

Page 692

Messer, Hamilton & Cahill, Iowa City, for appellants.

[251 Iowa 976] Walter F. Rismiller and Max Werling, Tipton, for appellees.

GARFIELD, Justice.

Plaintiffs, husband and wife, own and live in the dwelling on lots 10 and 11, block 46, in Tipton (1950 population 2,633). Defendants, father and son, conduct a grain business on lot 12, adjoining 10 and 11 on the north. Both properties face west on Cedar street. For about two years before trial of this action defendants permitted operators of portable, motorized, hammermill grinders to grind corn on their property for convenience of defendants' customers. Plaintiffs contended the noise and dust from the grinding constituted a nuisance which should be enjoined and they should have money damages therefor.

Following trial the district court found the operations complained of constituted a nuisance and enjoined them until defendants procure a proper permit from the city, evidently under ordinance 29, or the city removes its existing restrictions against engaging in any business or occupation dealing with the general public, without first securing a permit therefor, in the restricted residence district which includes block 46. Defendants were permanently enjoined from permitting such grinding activities within 100 feet of plaintiffs' residence, unless there be a building between said activities and the residence, and were permanently enjoined from permitting such grinding within 80 feet of plaintiffs' residence, notwithstanding the presence of such building, and on Sundays, holidays or before 8 a. m. or after 5 p. m. on any day. Plaintiffs were dissatisfied with the relief granted and have appealed.

I. Since defendants have not appealed from the decree they are not entitled to a more favorable decision here. Robbins v. Beatty, 246 Iowa 30, 93, 67 N.W.2d 12, 19, and citations; Brutsche v. Incorporated Town of Coon Rapids, 220 Iowa 1295, 1301, 264 N.W. 696, and citations. See also 5 C.J.S. Appeal and Error § 1498b, page 851.

II. Lots 10 and 11, owned by plaintiffs, have combined frontage of 100 feet on Cedar street and depth of 142 feet. Lot 12, owned by the older defendant, has the same dimensions [251 Iowa 977] as each of plaintiffs' lots--

Page 693

50 x 142 feet. Immediately north of lot 12, between it and an east and west street north of block 46, is an abandoned railroad right of way. The north side of plaintiffs' dwelling is 24 feet south of the line between lots 11 and 12. Width of the abandoned right of way is not shown.

Plaintiffs contend grinding activities anywhere on lot 12 or the abandoned right of way should be enjoined. Defendants say the effect of the decree is to enjoin such operations on lot 12 and plaintiffs' petition does not specifically pray for an injunction except as to defendants' 'said real estate.' To this plaintiffs reply that their prayer 'for general equitable relief' is sufficient basis for any relief to which the evidence shows them entitled.

We think plaintiffs should not be denied relief to which they are entitled under the allegations of their petition and the proof because of any claimed deficiency in the prayer of the petition. A prayer for general equitable relief is to be construed liberally. It will often justify granting relief in addition to that contained in the specific prayer provided it fairly conforms to the case made by the petition and the evidence. Henry Walker Park Ass'n v. Mathews, 249 Iowa 1246, 1257-1259, 91 N.W.2d 703, 711, and citations; 71 C.J.S. Pleading § 95, c, page 240.

The essence of plaintiffs' petition is that the grinding operations on ground adjoining theirs constitutes a nuisance for which they are entitled to an injunction and money damages. The evidence is that all such grinding has been done on lot 12. However, it is sufficient to support a finding it would constitute a nuisance if it were done on the abandoned railroad right of way, at least if within 150 feet of plaintiffs' north line--the north line of lot 11. There is some indication defendants intend to permit the objectionable conduct on the abandoned right of way just outside the distance from plaintiffs' residence prescribed by the decree. This would seem to be an evasion of the spirit of the decree.

Although the trial court doubtless disposed of the case as he believed to be fair we are inclined to the view that defendants should be permanently enjoined from permitting the grinding[251 Iowa 978] operations within 150 feet of the north line of lot 11. At least this will make for greater certainty and tend to reduce future controversy between these adjoining owners.

III. Notwithstanding defendants' failure to appeal perhaps we should refer to the evidence and applicable law we think warrants somewhat broader relief than that granted by the trial court.

The principal objection to these grinding operations is the noise they make. Plaintiffs describe it as a terrible roar, just awful, very irritating. The husband testifies that during the grinding it is necessary to yell to carry on a conversation in their home, they cannot hear television or radio unless it is turned up so loud it is just screaming, they cannot understand what is said over the telephone, the noise bothers their four children of school age in studying, he cannot read or do book work.

Plaintiffs also say the dust and dirt from the grinding is terrible, it is not possible to hang the laundry out on the line without getting it soiled, even though their windows and doors are closed the dust from the grinder gathers on the window sill.

Several neighbors fully corroborate plaintiffs. One lady who lives on the west side of Cedar street a half block southwest of plaintiffs describes the noise as awful annoying, interfering with television and radio,...