Mahlstadt v. City of Indianola, 49789

• Citation: 251 Iowa 222,100 N.W.2d 189
• Decision Date: 15 December 1959
• Docket Number: No. 49789,49789
• Parties: Ronald W. MAHLSTADT, Appellee, v. CITY OF INDIANOLA, Dan W. Dayton, Myron O. Criswell, B. B. Long, Lewis Johnson, William C. Morlock, William G. Beatty, Appeellants.
• Court: United States State Supreme Court of Iowa

Page 189

100 N.W.2d 189

251 Iowa 222

Ronald W. MAHLSTADT, Appellee, v. CITY OF INDIANOLA, Dan W. Dayton, Myron O. Criswell, B. B. Long, Lewis Johnson, William C. Morlock, William G. Beatty, Appeellants.

No. 49789.

Supreme Court of Iowa.

Dec. 15, 1959.

M. C. Herrick, Indianola, for appellants.

Watson, Elgin & Hoyman, Indianola, for appellee.

OLIVER, Justice.

Plaintiff instituted this suit in equity against the city of Indianola, its mayor and city council, to abate and enjoin as a nuisance, the operation of the city dump for refuse and garbage. Upon trial the court adjudged the dump, as operated, constituted a nuisance, and enjoined its operation, after a date some months thereafter. In the meantime, the judgment ordered the adoption of certain practices in connection with the operation of the dump. Defendants have appealed.

Indianola has a population estimated at 7,500. The dump was established by the city in 1923, upon a one-acre tract in an agricultural district, apparently within the city limits. It was enlarged in 1948 by the purchase of two acres of adjoining land and again in 1956, by the purchase from Samuel Kopp of approximately three-fifths of an acre. Later in 1956 plaintiff purchased from the widow and heirs of Mr. Kopp the remaining part of the eighty-acre tract from which the land for the dump had been taken. This tract was then agricultural land. Plaintiff platted the part of it adjacent to the dump as Mahlstadt's Park Addition to Indianola and has been developing it by building or moving upon it a half dozen dwellings. Plaintiff's home is one hundred and twenty yards from the dump. In 1958 a church was constructed in Mahlstadt's Addition. However, the church building is farther from the dump and does not directly overlook it as do the houses.

The dump is an open type dump for refuse and garbage which is hauled there by individual residents or a trucker engaged by them. This is deposited along the edge of the existing pile of refuse which had been covered with soil previously, the combustibles in it are burned and it is then leveled and covered with soil leaving a step down for the next dumping. A custodian or superintendent employed by the city has charge of the dump, directs the dumping and does the burning, leveling and covering.

Plaintiff and witnesses for him testified the dump was burning day and night, and when the wind was in a certain direction the smoke in the properties in his addition was heavy and thick and had a putrid odor, dogs were killed on the dump and their bodies and those of other animals were burned there, fire from the dump had burned an alfalfa field, in the spring and summer the area of the dump was infested with rats and with flies which spread to the homes in his addition. He testified also the road alongside his addition was covered with papers, debris and garbage, which fell out of private vehicles transporting the same to the dump, and such traffic was very heavy on weekends and Sunday mornings. On one occasion he saw, on the edge of the dump, materials from cesspools apparently left there by a sewage truck. Various witnesses for plaintiff gave similar testimony concerning the burning, smoke, odors, rats, flies, papers, debris and garbage in the street leading to the dump, etc. There was no evidence the health of anyone was affected.

Mr. Clemens, regional engineer of the state health department, testified for plaintiff, that he had driven to the dump but did not examine it. He observed no smoke nor ordor. He testified also: An open dump is conducive to the breeding of rats and flies. It requires that combustibles be burned. It is possible to reduce the number of rats and flies by treatments. The department would recommend a sanitary land fill dump if it could be economically operated. The open dump is the most common type in Iowa and is considerably less expensive for a smaller community. Many towns have ordinances requiring the use of covered vehicles in transporting refuse to the dump but complete prevention of the dropping of refuse on the road is difficult. According to common experience, a locked gate at the entrance to a dump when the caretaker is absent, results in the dumping of garbage at the gate.

Mr. Robinson, chief of the Environmental Sanitation Section for Des Moines testified for defendants, he examined the Indianola dump and 'whoever is handling it is doing a pretty good job of covering, considering that it is used for garbage. I was surprised to see it is in as good condition as I found it.' Combustibles must be burned as they arrive at a dump of this type, otherwise fires will start and will continue to smolder with underground explosions, despite efforts to extinguish them. 'I have several times checked the dumps in most cities in Iowa,' and, 'many of them are much worse than the dump in Indianola.'

Luther Young who had managed the dump for thirty-five years, testified many rats were there before a pest control organization started poisoning them, but he hadn't seen a rat on the dump for several months, nor any evidence of their having recently worked there. He testified also that in 1958 the city had secured and used a modern fog machine for fly control which kept the flies pretty well under control. He works from 8 to 5 except two afternoons and Sundays. People leave garbage and refuse at other times also. He burns garbage with brush, logs and automobile tires, which occasionally cause some smoke and smell. There is space in the present dump area for deposits for six or eight years more.

A pest control operator testified his company had been engaged by Indianola to keep down rodents on the dump. Their practice is to bait the dump for rats each month. When they started they found a moderately heavy infestation of rats. He testified he had recently carefully inspected the dump for rats and found none. He found some evidence of places where rats had been, but these did not look recent.

A defendant councilman testified the council had recently studied the question of the location and operation of the dump and he had concluded the land fill type of operation (in which the garbage and refuse is placed in a trench, compressed, and covered with soil) was not advisable at that time. One reason was that the city was not financially able to pay for a special machine and a skilled operator. Another reason given was the hauling was not done by the city and hence could not be properly controlled for the successful operation of a land fill dump. The city had considered three other sites for a dump and residents of each neighborhood had filed objections thereto.

I. Defendants pleaded: 'That the land * * * used for * * * a dump * * * was purchased * * * by the city * * * from the Grantors in the Plaintiff's chain of title * * * with the knowledge and consent * * * that the same was being purchased * * * for use as a city dump. That the * * * city, thereby acquired an implied easement over the land now owned by Plaintiff for the continued operation of the city dump * * *. That * * * the said sellers and their heirs and assigns, including Plaintiff, were forever estopped and barred from objecting to the use of said land as a city dump.'

This pleaded defense is not meritorious. Loughman v. Couchman, 242 Iowa 885, 888, 47 N.W.2d 152, 154, thus states the rule applicable where, as here, there was no written grant of an easement and an easement by implication over the unsold part of the tract is claimed. 'An easement by implication arises only where the use antedates the separation of title. That is, where the owner of an entire tract uses it so a part derives from the other a benefit or advantage of a continuous, permanent and apparent nature, and sells the part in favor of which such benefit or advantage exists * * *.'

To the same effect is language in Wilbur v. City of Council Bluffs, 247 Iowa 268, 271, 73 N.W.2d 112, 113; Marshall Ice Co. v. La Plant, 136 Iowa 621, 629, 111 N.W. 1016, 12 L.R.A.,N.S., 1073; Dyer v. Knowles, 227 Iowa 1038, 1043, 289 N.W. 911; McKeon v. Brammer, 238 Iowa 1113, 1119, 29 N.W.2d 518, 522, 174 A.L.R. 1229, 1234; 28 C.J.S. Easements § 31.

In the case at bar the property included in each of the purchases by the city was previously part of a tract of agricultural land. It is not contended the use of any part of it as a dump antedated the separation of title of that part, from the main tract. Hence, the claimed easement by implication could not have been created.

II. Appellants complain the judgment of the trial court was erroneously based upon an issue not within the pleadings and without support in the evidence. This assignment of error assails a conclusion of law of the trial court, that the approval by the city of the platting of Mahlstadt's Park Addition barred the city from defending the injunction case upon a ground pleaded by appellants. The record shows the proposition upon which the conclusion of law was based was not mentioned in the pleadings or the evidence. The first reference to it is in the findings of fact by the Court, as follows:

'Although it is not in evidence in this case, it is common knowledge that the city has created a City Planning Commission under the provisions of Chapter 373 of the Code [I.C.A.], and that any subdivision or addition to the City of Indianola must be approved by the City Planning Commission before it is submitted to the city council and approved by the city. Even though this is not in evidence, it is such common knowledge in the area that the Court will take judicial notice of the creation of the City Planning Commission. Chapter 409 of the Code [I.C.A.] provides that plats of subdivisions or additions to a city must be approved by the City Council before they become effective, and in case there is a City Planning Commission that it must be first approved by said commission.

'The Court, therefore, finds that Mahlstadt's Park Addition was first submitted to and...