Kriener v. Turkey Valley Community School Dist.

Decision Date14 November 1973
Docket NumberNo. 54862,54862
Citation212 N.W.2d 526
PartiesLuke KRIENER and Leona Kriener, Appellants, v. TURKEY VALLEY COMMUNITY SCHOOL DISTRICT, Appellee.
CourtIowa Supreme Court

C. J. Anderson, Cresco and Strand & Anderson, Decorah, for appellants.

Miller, Pearson & Gloe, Decorah, for appellee.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, REES and REYNOLDSON, JJ.

RAWLINGS, Justice.

By action in equity plaintiffs, as owners-occupants of a dairy farm, seek injunctive relief and damages by reason of a nuisance allegedly created by construction and maintenance of defendant school district's sewage lagoon.

Trial to the court resulted in an adjudication adverse to plaintiffs and they appeal. We affirm in part, reverse in part.

An derstanding of the problems instantly presented necessitates a prefatory portrayal of the asserted events upon which this cause of action is predicated.

In 1953 plaintiffs Luke and Leona Kriener purchased a 120 acre Winneshiek County farm located near Jackson Junction.

The Krieners promptly started dairy farming. At the same time they embarked on a herd, milk facility and home improvement project. By 1964 the herd had been increased from four or five cows and probably the same number of heifer calves to about 50 grade cattle, some pure bred, an equal number of 'springing heifers', and an unknown number of calves.

Also, by 1964 Krieners had caused to be constructed on the farm a modern milk house and milking parlor, cement stave silo, new granary, a concrete covered livestock courtyard and walkway. Within the same period a modern home was built.

As a result of these improvements the Krieners, in August of 1959, moved directly from a 'Grade B' classification to an improved 'Grade A' milk production program.

By 1967 plaintiffs had added a cattle loafing or free-stall barn, and new Harvestore silo.

In 1963 defendant school district started using a new high school located near Jackson Junction. The sewage disposal system, utilized in connection therewith, consists of a stabilization pond or lagoon located about 40 feet east of the Kriener property. This farm is intersected by Highway 24, with a 9--10 acre pasture tract being situated on the same side of the road as the lagoon. Prior to 1964 plaintiffs' cattle were customarily pastured in this area.

A small creek runs in a westerly direction near the pipe outlet of the school sewage lagoon. Effluent from this stabilization pond runs into the creek, thence across Krieners' farm. Their home and appurtenant structures, Supra, are about one-half mile from the lagoon. The aforesaid creek is, at one point 200 feet from plaintiffs' dairy building site and home area.

Plaintiffs contend that after defendant commenced using the sewage lagoon in 1963, offensive and sickening odors emanting from the lagoon and effluent therefrom in the nearby creek were noticeably present on the Kriener farm. At times these odors permeated their home and milking facilities.

Commencing in 1964 and continuing into 1966 most of plaintiffs' 35--40 calves died shortly after birth. The Krieners also then encountered a herd mastitis problem. In an attempt to correct the situation plaintiffs tried numerous veterinarians, various treatments, called in sanitation inspectors, and changed equipment, feeds and medicines, all to no avail. Krieners were consequently twice dropped from the 'Grade A' program and suffered a loss in milk production. They were resultantly forced to sell about 52 dairy cattle on the slaughter market and replace them with presumably healthy milk producing stock.

During the same year Krieners started using some drugs produced by Impro Products. Representatives of that firm visited plaintiffs' farm and in 1966, on their recommendation, use of the aforesaid pasture tract was totally discontinued because the above mentioned creek bed was there accessible to the cows. All livestock was thereafter pastured in another area fenced off from the creek. No herd mastitis problem was subsequently encountered.

Also in August 1966, defendant school district, through its superintendent and board, was given oral notification by Mr. Kriener regarding the alleged lagoon related nuisance.

By their petition plaintiffs seek damages and injunctive relief because of alleged nuisance created by defendant school district in the maintenance and operation of a sewage lagoon which was caused injurious polution of (1) air, and (2) creek water.

Defendant school district categorically denies any plaintiff asserted nuisance has resulted from creation and usage of the sewage lagoon.

These matters and attendant conflicting testimony, introduced by both parties hereto, will be later considered as it relates to issues instantly presented.

In support of a reversal plaintiffs here assert trial court erroneously found and held they had not established by the requisite degree of proof (1) existence of a nuisance, (2) entitlement to damages and (3) right to injunctive relief.

I. At the threshold it will be noted plaintiffs' petition invokes jurisdiction in equity though compensatory relief is in part sought. The propriety thereof is neither here disputed nor could it be effectively challenged.

As stated in Grandon v. Ellingson, 259 Iowa 514, 518, 144 N.W.2d 898, 901 (1966):

'It is conceded the allegations of plaintiff's petition called for equitable jurisdiction. '* * * once equity has obtained jurisdiction of a controversy it will determine all questions material or necessary to accomplish full and complete justice between the parties, even though in doing so it may be required to pass upon some matters ordinarily cognizable at law.' (Authority cited).'

See also Rule 320, Iowa R. Civ.P.; Travelers Indemnity Co. v. Cormaney, 258 Iowa 237, 242, 138 N.W.2d 50 (1965); Newton v. Grundy Center, 246 Iowa 916, 922, 70 N.W.2d 162 (1955); McClintock on Equity, § 52, at 121 (2d ed. 1948); R. Sorenson, 'The Law of Nuisance in Iowa', 12 Drake L.Rev. 107, 113--116 (1963); 27 Am.Jur.2d, Equity, §§ 108--110; 30 C.J.S. Equity §§ 67--72.

II. Since this case stands in equity our review is de novo. We accordingly give weight to trial court's findings are not bound by them. See Iowa R.Civ.P. 334, 344(f)(7).

III. Plaintiffs unquestionably acquired and located on their farm prior to construction of the school and its service related lagoon. This factor weighs heavily in favor of the Krieners. See Patz v. Farmegg Products, Inc., 196 N.W.2d 557, 561 (1972); Bates v. Quality Ready-Mix Co., 261 Iowa 696, 704, 154 N.W.2d 852 (1967).

In other words, what is commonly known as 'coming to the nuisance' concept is not instantly involved. See generally East St. Johns Shingle Co. v. City of Portland, 195 Or. 505, 246 P.2d 554, 556--563 (1952); 58 Am.Jur.2d, Nuisances, § 216; Annot., 42 A.L.R.3d 344.

It is also of no consequence that plaintiffs voiced no objection to construction of the school and sewage lagoon. See Amdor v. Cooney, 241 Iowa 777, 785, 43 N.W.2d 136 (1950); Andrews v. Western Asphalt Pav. Corp., 193 Iowa 1047, 1050--1052, 188 N.W. 900 (1922).

IV. Neither is existence of a nuisance affected by lawfulness of an offending establishment or absence of intention to injure. See Patz v. Farmegg Products, Inc., Supra. See also 66 C.J.S. Nuisances § 9.

In the same vein it is generally understood a school board is not immune from an action for injuctive relief and damages brought by a party injured in person or property as the result of a school related nuisance. See Wayman v. Board of Education, 5 Ohio St.2d 248, 215 N.E.2d 394, 396--397 (1966); 58 Am.Jur.2d, Nuisances, § 55; 43 C.J.S. Injunctions § 31.

V. On the other hand, as stated in 58 Am.Jur.2d, Nuisances, § 214:

'Nuisance claims of private owners must at times yield to public interest and convenience, and under the pressure of public necessity what would otherwise constitute a nuisance may be inflicted upon certain members of the community, subject to the limitation that if the creation or maintenance of the nuisance amounts to a taking of private property compensation therefor must be made. When the public welfare requires it a nuisance may, for special purposes, be permitted, and, as has been seen, public convenience or necessity may be taken into consideration in some cases in determining whether or not to grant equitable relief.'

VI. Pertinent at this point are these observations in Bates v. Quality Ready-Mix Co., 261 Iowa at 702--705, 154 N.W.2d at 857:

'Section 657.1 (Iowa Code) provides: 'Whatever is * * * offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.'

'Code section 657.2 states: 'The following are nuisances: 1. * * * Using any building or other place for the exercise of any trade, * * * which, by occasioning noxious exhalations, offensive smells, or other annoyances, becomes injurious and dangerous to the health, comfort, or property of individuals * * *.'

'* * *

'The above statutory enumerations do not modify the common-law application to nuisances. The term 'private nuisance' refers to an actionable interference with a person's interest in the private use and enjoyment of his land. (Authorities cited).

'One must use his own property so that his neighbor's comfortable and reasonable use and enjoyment of his estate will not be unreasonably interfered with or disturbed. (Authorities cited).

'Noises may be of such a character and intensity as to so unreasonably interfere with the comfort and enjoyment of private property as to constitute a nuisance, and, in such cases, injury to health of the complaining party need not be shown. (Authorities cited).

'A fair test of whether the operation of a lawful trade or industry constitutes a nuisance has been said to be the...

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