Ness v. Independent School Dist. of Sioux City
| Decision Date | 17 June 1941 |
| Docket Number | 45580. |
| Citation | 298 N.W. 855,230 Iowa 771 |
| Parties | NESS v. INDEPENDENT SCHOOL DIST. OF SIOUX CITY. |
| Court | Iowa Supreme Court |
Appeal from District Court, Woodbury County; D. C. Browning, Judge.
Suit to enjoin defendant from maintaining a nuisance and for damages. Decree for plaintiff. Plaintiff and defendant appeal from decree.
Modified and affirmed on appeal of defendant. Affirmed on plaintiff's cross-appeal.
Shull & Marshall, of Sioux City, for appellant.
Audley W. Johnson, of Sioux City, for appellee.
Plaintiff acquired his residence in Sioux City in 1913. Subsequently, defendant built a junior high school west of and adjacent to plaintiff's home. Defendant maintains a playground south of plaintiff's property. There is an alley between the two properties. Plaintiff's residence is about 12 feet from his south line. The playground runs the full length of plaintiff's lots and contains about two lots. The average number of children enrolled at the school is about 1,100. Plaintiff's complaint is that the students play baseball on the playground with the consent encouragement and supervision of defendant; that the school children repeatedly trespass on his premises and have destroyed his flower beds, gardens, trees and vegetation and that baseballs have seriously damaged his property; that the playing of the ball games created artificial dust storms which interfered with the comfortable enjoyment of his home; that he has received and is in fear of receiving personal injuries from balls batted on his premises.
Defendant alleged in its answer that the operation of the playground was the exercise of a governmental function and denied that it constituted a nuisance and that the trespasses and damage if any, were not caused by the defendant.
A decree was entered " restraining and enjoining the defendant from so directing or conducting the games to be played on said playgrounds as to trespass upon plaintiff's property, and from throwing, kicking or batting footballs, baseballs, softballs or any other balls used in its play so as to go or fall over and upon the premises of the plaintiff, and restraining and enjoining the defendant or students under defendant's control and supervision from going upon the plaintiff's said premises for the purpose of retrieving balls thereon thrown, batted or kicked over and upon the plaintiff's said premises." The decree rendered judgment against the defendant in the sum of $300 for damages sustained by plaintiff.
It is well settled in this state that a school district, a quasi corporation, is an instrumentality of the state exercising a governmental function and is not liable for negligence of its officers and employees. Larsen v. Independent School District, 223 Iowa 691, 272 N.W. 632.
As stated in Smith v. City of Iowa City, 213 Iowa 391, 239 N.W. 29, 31, " The rule long established in this state is that a municipality, in the exercise of its purely governmental function, is not liable for negligence." However, the rule in this State, and the majority rule, is that the immunity of a governmental agency for liability for negligence in the exercise of governmental functions does not exempt it from liability for a nuisance created and maintained by it.
In Fitzgerald v. Town of Sharon, 143 Iowa 730, 121 N.W. 523, 524. Plaintiff brought suit for damages based upon trespass and nuisance. In affirming a judgment for damages, the opinion states:
In Hoffman v. City of Bristol, 113 Conn. 386, 155 A. 499, 500, 75 A.L.R. 1191, the opinion states: R.C.L., Perm.Supp., 4896; 75 A.L.R. 1199; Harris v. City of Des Moines, 202 Iowa 53, 209 N.W. 454, 46 A.L.R. 1429, and Note; 56 C.J. 530, § 621; Bruhnke v. LaCrosse, 155 Wis. 485, 144 N.W. 1100, 50 L.R.A.,N.S., 1147; Hagerman v. City of Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110; Heller v. Smith, Iowa, 188 N.W. 878; Adams v. City of Toledo, 163 Or. 185, 96 P.2d 1078; Hanson v. Independent School District, 61 Idaho 109, 98 P.2d 959.
Section 12395, 1939 Code, defines nuisance. It reads:
Plaintiff offered the following evidence to sustain his contention that the playground was used in a manner that caused continuous trespasses on his property and damages and essentially interfered with the comfortable enjoyment of life and his property;
Students played softball on the playground at lunch time, in the forenoon and in the afternoon. While plaintiff could not keep a record of all the balls batted or thrown onto his premises, the record kept by him from April, 1937, to September, 1939, shows there were over 200 trespasses observed by him during said period. In May, 1940, school children entered on the premises 25 times to retrieve balls. On May 24, there were 6 students running around on his property picking up balls. The students were instructed to retrieve the balls. Defendant furnished bats and balls for use by the students. Defendant, on complaint of plaintiff, raised the fence between the property from 8 feet high to 16 feet high, but this did not prevent invasion of plaintiff's property. Plaintiff was compelled to abandon his garden and flower beds because of continuous damage to them by trespassing students. Screens and windows were broken by balls batted by the students. The slate roof on his house was broken into pieces, some of which lodged in the spouting which caused the water to leak through the roof and caused serious damage to several rooms.
" Two bed rooms and two closets were ruined by rain coming through the plastering." Plaintiff was struck by a ball several times, the last time being about two months prior to this trial, and " I did not feel safe in my yard at any time they were playing ball." Plaintiff testified the situation detrimentally affected his health and interfered with the comfortable enjoyment of his property. We concur in the conclusion reached by the trial court that defendant created and maintained a private nuisance which caused plaintiff special damages for which defendant is liable.
Appellant relies primarily on the case of Spiker v. Eikenberry, 135 Iowa 79, 110 N.W. 457, 11 L.R.A.,N.S., 463, 124 Am.St.Rep. 259, 14 Ann.Cas. 175; Casteel v. Town of Afton, 227 Iowa 61, 287 N.W. 245.
In Spiker v. Eikenberry, supra, plaintiff...
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