Pauly v. Montgomery
| Decision Date | 21 January 1930 |
| Docket Number | No. 39819.,39819. |
| Citation | 209 Iowa 699,228 N.W. 648 |
| Parties | PAULY v. MONTGOMERY ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Muscatine County; Wm. W. Scott, Judge.
An action in equity to enjoin the defendants from maintaining a garage in the City of Muscatine. From a judgment in favor of the defendants, the plaintiff appeals. Reversed and remanded.
Drake & Wilson and G. Allbee, all of Muscatine, for appellees.
Park avenue in the city of Muscatine runs north and south, and is intersected by Madison street running east and west. At the southwest corner of this intersectionis lot 6 on which the garage in controversy was constructed by the defendant William J. Montgomery. Plaintiff, John Pauly, owns lot 7 immediately west, abutting on Madison street, of which lot he became possessed in 1901 and on which he constructed a dwelling house where he and his family have ever since lived. He originally owned lot 6, but later disposed of the same, and his grantee conveyed the same to Montgomery some time about 1923. It was then a vacant lot. Montgomery established an oil station near the northeast corner of said lot and constructed a small building as a part thereof in which he handled accessories and supplies. Later the defendant erected three additions to this building as originally constructed, adding a repair department; the last of these additions being made after this lawsuit was commenced. It was about 30 feet square. The garage was so constructed that the west line thereof was within 3.8 feet from the lot line, and the plaintiff's house was about 24 feet west of the lot line.
Plaintiff's claim is that after the construction of the oil station, the defendant established a garage and general repair business in the additions on said building, and that thereby defendants made a great deal of noise, like pounding and hammering in and about said building, running of gasoline engines and motorcars, opening and closing of large doors; and that said noise was continuous and unreasonable, during the day and at unseemly hours of the night, including Sundays; that frequently the defendant placed automobiles along the west line of said lot 6 and allowed the engines to run idly for several hours at a time, thereby causing carbon monoxide and carbon dioxide gases to escape from the exhausts of the cars to penetrate plaintiff's premises, causing great physical discomfort to plaintiff and his family and being very injurious to their health; that the defendant turned water out of the building onto the north side of the lot where there was a depression where said water stagnated or evaporated, making an unhealthy condition which materially impaired the health and comfort of plaintiff and his family; that the defendant heated the garage with stoves, but had no chimneys thereon, carrying the smoke through the roof by means of stovepipes; that poisonous gases and clouds of black smoke were sometimes emitted from the stovepipe on said building which blew over and onto and through plaintiff's premises through the doors and windows of his dwelling and through the rooms thereof, causing much dirt and soot therein, causing plaintiff and his family much physical discomfort, all of which materially interfered with and destroyed the peace and comfort of his home; that automobile horns were sounded and there was much pounding of metal, tires were removed and replaced, engines were tested at various rates of speed, their mufflers oftentimes cut out, an air compressing pump was often operated, batteries were charged and repaired, all of which cause much loud, disagreeable, and unreasonable noise which was carried to plaintiff's premises and through his home; that oil, grease, and water collected in and about the garage; smoke and gases were emitted from the exhausts of running automobiles in and about said garage; that offensive, disagreeable, and noxious odors and poisonous gases therefrom were carried to plaintiff's premises and through his home; that thereby the plaintiff and his family were caused much physical and mental pain and discomfort, and materially interfered with, disturbed, and destroyed their peaceful and comfortable enjoyment of their home, and were such as would cause much physical and mental pain and discomfort to and interfere with, disturb, and destroy, the peaceful and comfortable enjoyment of a reasonable person of ordinary sensibilities situated as plaintiff was situated in relation to said garage.
Generally, the defendant denies and alleges that there is no continuous or disagreeable noises caused by the operation of said business, and that said business is conducted in a careful and prudent manner, with due regard at all times to the convenience and rights of all persons. He pleads that plaintiff is not a person of ordinary sensibilities, is old and childish in his likes and dislikes, and continuously complains of minor disturbances in the neighborhood in which he lives. Further pleads an estoppel against the plaintiff by reason of certain statements made by plaintiff to defendant.
The evidence on behalf of the plaintiff tends to show that he and his family were annoyed and inconvenienced by reason of the noises produced in said garage by pounding and hammering iron and tin, cars running and backfiring, and throwing gas fumes into the air which were blown by the wind into the residence of the plaintiff. Witnesses testified that the noise was so loud that the members of plaintiff's household could not talk to each other “without yelling”; that the smoke and gases from the garage and the running cars which were being tested were carried into plaintiff's house. The evidence generally tended to support the allegations of plaintiff's petition.
Section 12395, Code 1927, defines “nuisance” as follows: “Whatever is injurious to health, indecent, or 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.”
It is further provided by section 12396 that “the erecting, continuing, or using any buildingor other place for the exercise of any trade, employment, or manufacture, which, by occasioning noxious exhalations, offensive smells, or other annoyances, becomes injurious and dangerous to the health, comfort, or property of individuals or the public” is a nuisance.
[1][2] From their nature, nuisances are classified by some writers as per se or per accidens; by others, as a nuisance in law and a nuisance in fact. Nuisances per accidens or in fact are those which arise where a legitimate business is so conducted as to be a nuisance. It is apparent, therefore, that when the matter under consideration is whether a given matter is a nuisance in fact, depends wholly upon the surrounding facts and circumstances, the location where it is claimed said nuisance existed, and the manner and method of conducting the business.
[3] It is not claimed that plaintiff is harmed by the filling station itself, or anything incidental thereto; neither is it claimed that plaintiff suffers any injury by reason of the storage of cars in the garage, and the situation here seems to be somewhat different from the ordinary filling station or a garage for the storage of cars. Defendant has in addition thereto, a repair shop, and it is largely from the noise, fumes, gases, etc., incident to this repair shop that plaintiff lodges his complaint. But however we may view this question, defendant's business is not in itself unlawful. It has been held that a garage is not a nuisance per se in Radney v. Ashland, 199 Ala. 635, 75 So. 25, L. R. A. 1917E, 366;Huddleston v. Burnett, 172 Ark. 216, 287 S. W. 1013;People v. Ericsson, 263 Ill. 368, 105 N. E. 315, L. R. A. 1915D, 607, Ann. Cas. 1915C, 183;Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 A. 606;Sherman v. Levingston (Sup.) 128 N. Y. S. 581;Phillips v. Donaldson, 269 Pa. 244, 112 A. 236;Lewis v. Berney (Tex. Civ. App.) 230 S. W. 246;Wasilewski v. Biedrzycki, 180 Wis. 633, 192 N. W. 989. As bearing on this question, see also City of Des Moines v. Manhattan Oil Co., 193 Iowa, 1096, 184 N. W. 823, 188 N. W. 921, 23 A. L. R. 1322.
We may therefore start with the proposition that the business conducted by the defendant was not in itself unlawful. A business of this kind, however, which is confessedly lawful, may become a nuisance when located in a residential district. We have applied this...
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