Mitchell v. Flynn Dairy Co.

• Decision Date: 13 March 1915
• Docket Number: No. 29880.,29880.
• Citation: 151 N.W. 434,172 Iowa 582
• Parties: MITCHELL ET AL. v. FLYNN DAIRY CO.
• Court: Iowa Supreme Court

172 Iowa 582

151 N.W. 434

MITCHELL ET AL.

v.FLYNN DAIRY CO.

No. 29880.

Supreme Court of Iowa.

March 13, 1915.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Suit in equity to enjoin the maintenance of a nuisance. The defense was a general denial. There was a decree for the plaintiffs. The defendant appeals. Modified and affirmed.Thomas A. Cheshire and Stipp & Perry, all of Des Moines, for appellant.

Howe & Lyon, of Des Moines, for appellees.

EVANS, J.

Since 1909 the defendant has been engaged in a branch of the dairy business. Its plant is located on Seventh street and University avenue, being on the south side of University avenue and on the west side of Seventh street. Its business at that plant consisted in collecting and distributing dairy products in the form of milk and cream and in the manufacture and sale of ice cream in large quantities. The plaintiffs are owners of residences in the near vicinity of this plant. The operation of this plant involved the labor of many teams for the purpose of hauling milk and cream to and from the plant. The activities of the plant were in operation in some form practically every hour of the night and day. The following plat will indicate the location of the plant and the residences of the plaintiffs:

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The west end of the plant is upon the alley line. The buildings extend from University avenue to the south line, and cover about two-thirds of the two lots owned by the defendant. The uncovered portion is that part that lies next to Seventh street. Across the alley to the west is the residence of Jaderstrom. The east line of his house is about 4 feet from the alley line. The width of the alley is 14 feet. This residence has one east door and five east windows. The necessary hauling for the defendant has involved the coming and going of about 130 teams per day. Most of these pass through the alley in question. They stop at one point for the purpose of unloading.This point is close to Jaderstrom's door. The teams then pass to the south, then turn to the left into the building and north along an inside driveway and out into University avenue. They also drive the same route in a reverse direction. Sometimes when there is congestion at the south end of the alley the teams back out. On the east side of the buildings there is also a short driveway without outlet. The teams drive thereon to an unloading window and platform and then back out again. The home of plaintiff Mitchell is located north of University avenue, facing Seventh street. His house is located on his north lot, which is 50 feet distant from University avenue. The locality is a residence locality, but there is no residence facing north on University avenue between Sixth and Ninth streets except that of Jaderstrom. On the north side of University avenue, however, are many residences, and Seventh, Eighth, and Ninth streets are thickly occupied in that general vicinity.

The allegations of the petition which set forth the alleged nuisance character of the defendant's plant are very extensive. Nothing appears to have been omitted. The findings of the trial court for the plaintiffs was general in form, and quite as broad as the allegations of the petition. The charge of nuisance is based mainly upon the following specifications: Smoke from the chimney, foul odors of sour milk and the offal of horses, and noises. The noises complained of consist: (1) Of the profanity and obscenity of the teamsters; (2) of the steam exhaust; (3) of the ice crusher; (4) of the rattle of milk cans and bottles upon metal platforms and upon the cement walk; (5) of the rattle of wagons over the pavement. It is alleged, also, that the annoyance of such noises was emphasized by the fact that they occurred at unreasonable hours of the night. As to these alleged nuisance features there is considerable conflict in the testimony. Before proceeding to a consideration of these we must set forth the material undisputed facts. These are well epitomized in the brief of the appellant as follows:

The Statement of the Facts.

The Undisputed Facts.

The testimony shows without dispute that the plaintiffs W. F. Mitchell and Louis W. Jaderstrom were the owners of the real property described in the petition; the plaintiff Mitchell having resided upon his property for 30 years and the plaintiff Jaderstrom having bought his property a year and a half before he testified as a witness in the case, and paid $3,000 therefor, and with full knowledge of the conditions existing and surrounding the property he purchased for three years. The Flynn Dairy Company was the owner of the property described in the petition, and occupied its property as a dairy and was engaged in the business of receiving sweet milk, sterilizing the same, and manufacturing, and delivering sweet milk and cream in sealed bottles to the retail trade in the city of Des Moines, Iowa. That it also made and delivered ice cream, sherbet, buttermilk, and butter to the wholesale and retail trade of the city of Des Moines, Iowa. That the source of the supply of its milk was from the farmers in the immediate vicinity of Des Moines, some of it being delivered at Des Moines by railways and some of it by farmers' teams. That it had invested $100,000 in its plant, which was located about the center of the city of Des Moines, and was engaged in serving about 3,000 families daily with milk and cream products. That it also supplied hotels, restaurants, cafés, boarding houses, and drug stores with milk products, and its gross sales at the time of this trial ran about $20,000 per month. The company had located its plant geographically in the center of the population so as to shorten the delivery system and to deliver its products quicker to the people. That there was a general custom in this city, and in other cities, with respect to the time of making deliveries, dependent upon the season of the year. That in the summer months during the hot weather it was the practice to deliver milk so the patrons would receive it before breakfast, and when the weather got cooler so it was not necessary that its patrons keep ice, deliveries were made in the forenoon. That it was necessary to keep milk at a temperature below 50 degrees, and many families in the summer time did not buy sufficient ice, or did not have ice, to maintain this temperature to keep the milk sweet, and for these reasons, during the hot months, the milk had to be delivered to the people before breakfast, and that about 9 out of 10 families used the milk and cream that was delivered before breakfast. That it had been the custom and practice of the Flynn Dairy in respect to the time of making its deliveries, beginning about the 1st of May each year and terminating about the 1st of October, to deliver milk before breakfast, and from the 1st of October to the 1st of May to deliver its milk in daylight and before noon. The delivery wagons from about the 1st of May to October 1st began to leave defendant's plant at 1.30 a. m., and at intervals of 10 minutes 14 wagons left the plant. That from the 1st of October to the 1st of May the wagons began to leave the plant between 4 and 5 o'clock in the morning, and from then on to 7 or 8 o'clock depending on the weather. The company has promulgated orders to its employés and drivers orally that the drivers should walk their horses within a block of the plant, and they should refrain from any loud language on going to the plant or leaving the plant in the early morning hours. That the last of these 14 wagons left the plant approximately at 3 o'clock in the morning. That about 4 o'clock in the morning a wagon delivering to the wholesale trade left the plant with deliveries of milk and cream to cafés, restaurants, and hotels in the business district. That about 5:30 in the morning another wagon for wholesale trade left the plant. That the ice cream wagons were at the plant between 5 and 5:30 in the morning in the hot summer months, in order that it may be delivered to the drug stores. That the milk wagons began to return to the plant about 6 o'clock, and generally all returned by 8:30 in the morning during the summer time, and during the fall and winter and spring they returned all the way betwen 11 o'clock in the forenoon to 3 or 4 o'clock in the afternoon. In the summer time, in addition to these, there were two or three wagons, called special ice cream and milk wagons, that came and went throughout the day, beginning about 7 o'clock in the morning. That when the wagons return after they have made deliveries to the houses they bring back empty bottles, entering the plant upon an alley in the west side of the plant, and unload their empty bottles in what is termed an unloading window, in what is known as the center driveway, in the plant, and occasionally the drivers unloaded their empty bottles on the sidewalk on University avenue when the driveway in the rear was congested. That a truck was pulled out and the empties placed upon the truck, which was then wheeled into the building, and the empties were unloaded from the truck. That this unloading on the sidewalk on University avenue was only done when the alley west of the plant was obstructed by teams. In July, 1913, the company used over 400 tons of ice, and in August 380 tons of ice, and most of this ice was ground. That in the forenoon, beginning at 8 o'clock and extending to 12 o'clock, farmers brought milk to the plant in tin cans and the number of wagons and horses belonging to the farmers bringing in milk at the time of the trial was eight. This milk was unloaded in a short driveway on the east side of the Flynn Dairy Company's building.

The milk came in 5 and 10 gallon cans. These cans were delivered by farmers to the receiving room, where they were dumped, weighed, and washed, and the empty cans were returned to the farmers. That the site of defendant's plant had been formerly a heating plant. The size of the plot of ground...