Larsen v. McDonald, 266

• Decision Date: 14 November 1973
• Docket Number: No. 266,266
• Citation: 212 N.W.2d 505
• Parties: Norman LARSEN et al., Appellees, v. Lena McDONALD, and Thomas McDonald, Appellants.
• Court: Iowa Supreme Court

Page 505

212 N.W.2d 505

Norman LARSEN et al., Appellees, v. Lena McDONALD, and Thomas McDonald, Appellants.

No. 266.

Supreme Court of Iowa.

Nov. 14, 1973.

Lee H. Gaudineer, Jr., Des Moines, for appellants.

George A. LaMarca, Des Moines, for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

Defendants appeal trial court's decree enjoining their keeping of dogs as a private nuisance. We affirm.

Three questions are presented: (1) was the defens of res judicata established? (2) was a private nuisance proven? and (3) was the injunction too broad?

I. Res judicata. This is an action in which six neighbor couples have sued defendants Lena McDonald and Thomas McDonald, wife and husband, alleging their keeping of dogs is a private nuisance and asking injunctive relief. Defendants moved to their present residence in July 1952. At that time the property was outside the Des Moines city limits. It was annexed to the city in November 1966. Subsequently the City of Des Moines brought an action against defendants to enjoin their violation of the city zoning ordinance which bars the keeping of more than three dogs over six months old in areas zoned R--2.

In its 1971 decree in that case the court found defendants had kept up to 20 dogs on the premises prior to annexation and this constituted use of their property as a kennel. Since this established a nonconforming use under the ordinance, the court held defendants' keeping of 32 dogs on the property at the time of trial was not a zoning violation. The court's decree included:

'Whether or not the keeping of 32 dogs on the premises the size of those in question would constitute a nuisance is not before the court in this action, the only question being whether or not the defendants are in violation of the zoning ordinance of the City of Des Moines.'

Defendants contend the decree in that case is res judicata of this private nuisance action or at least precludes relitigation of the issue whether the keeping of 20 dogs is a nuisance. We do not agree.

In Goolsby v. Derby, 189 N.W.2d 909, 913--917 (Iowa 1971), we discussed the doctrine of res judicata as applied both to claim preclusion and issue preclusion. We identified the traditional three prerequisites to its application as '(1) identity of issues raised in the successive proceedings, (2) determination of these issues by a valid final judgment to which such determination is necessary, and (3) identity of the parties or privity * * *.' We modified the requirement of privity by eliminating the necessity of mutuality of estoppel where the doctrine is invoked defensively against a party who was so identified in interest with one of the parties to the prior litigation as to have had a full and fair opportunity to litigate the relevant claim or issue and be properly bound by its outcome.

The present action is predicated on private nuisance rather than the zoning ordinance. It was brought by 12 neighbors of defendants rather than the city. Although some of them cooperated with the city in the zoning action, they did not have or exercise any control of that case. See 1 J. Moore, Federal Practice, § 441(1) at 1255. We do not believe plaintiffs had the identity of interest necessary to make them subject to the Goolsby rule. In the absence of identity of issues and such identity of interest, plaintiffs' action cannot be affected by the outcome of the city's zoning suit.

Defendants failed to establish their defense of res judicata.

II. Proof of nuisance. Since this action was tried in equity our review of the evidence is de novo. Rule 334, Rules of Civil Procedure. We give weight to the fact findings of the trial court but are not bound by them.

Defendants live in a mobile home on a 100 by 175 foot lot in what is now a residential neighborhood in Des Moines, zoned for one and two family residences. When they first moved there in 1952 the area, then outside the city, was also residential in character but sparsely settled. Although several of the neighbors who testified for plaintiffs lived there before defendants, plaintiffs themselves followed defendants to the area by three or more years.

Defendant Lena McDonald, age 61 at trial, has a deep and abiding love for unwanted dogs. She has devoted her energies and property to caring for them since she was seven years old. She rescues dogs, takes them when no one else will, and they are sometimes brought to her property and left there. She put a sign in front of her home saying 'No more dogs,' but she still receives them.

Mrs. McDonald provides the dogs with food and shelter and attempts to place them in good homes. Although disputed, there is evidence defendants had relatively few dogs on their property until 1968. Estimates ranged up to about seven. Defendants and their witnesses contended defendants always had at least 15 to 20 there. Complaints started in about 1968.

At trial there were at least 40 dogs on the property, not including puppies. Dogs are chained or tied in the front, side and backyard of the premises. They are sheltered in doghouses, a garage, and a junk car. When her husband is out of town Mrs. McDonald has taken as many as 19 dogs into her trailer at night to keep them from disturbing the neighbors.

Plaintiffs live adjacent to or within one block of defendants' property. Their evidence was that the dogs bark frequently and loudly. The noise is so great it drowns out conversation and disrupts sleep. It can be heard with windows closed above ordinary household noise. It has made neighbors nervous and emotionally upset and has precipitated calls to the police.

Neighbors also complain of a sickening odor, evidently caused by dog urine. It is most noticeable on hot, muggy days when there is a slight breeze. It exists despite careful and extensive efforts by defendants to keep the property free of animal wastes. There is no way to avoid the urine odor.

Plaintiffs' evidence showed neighbors have been restricted in the...