Payne v. Town of Wayland

• Decision Date: 19 October 1906
• Citation: 131 Iowa 659,109 N.W. 203
• Parties: PAYNE ET AL. v. TOWN OF WAYLAND.
• Court: Iowa Supreme Court

131 Iowa 659

109 N.W. 203

PAYNE ET AL.

v.TOWN OF WAYLAND.

Supreme Court of Iowa.

Oct. 19, 1906.

Appeal from District Court, Henry County; James D. Smyth, Judge.

Suit in equity to enjoin the defendant from using certain land for cemetery purposes. Judgment for the plaintiffs, from which the defendant appeals. Affirmed.Babb & Babb, for appellant.

Palmer & Kopp, for appellees.

SHERWIN, J.

The defendant is a town duly incorporated under the law of the state, and in virtue of the authority conferred upon it by chapter 10 of the Code it purchased land to be used by the inhabitants of the town for the burial of their dead. The plaintiffs are residents within or near the corporation, and brought this action in equity to restrain the defendant from using the land in question for cemetery purposes, alleging, in substance, that the land lies near the northern limits of the town, and in immediate proximity to the wells and other sources of domestic water supply of the inhabitants thereof; that south and southwest of said tract of land the streams and surface water draining said land, reinforced a short distance by certain springs, combine to form a stream of running water during many months of the year; that this stream, flowing in a westerly and southerly course through said town and the public pastures adjacent thereto, is a source of water supply to cows pastured therein; and that the principal residence district of said town lies to the south and southwest of said proposed burial ground and partly along said stream. It is further alleged that if burials of the dead are made in said tract of land, as proposed, it will pollute and poison the wells of plaintiffs, and will pollute and poison the streams and springs below said tract of land; that said springs are used for domestic purposes and a water supply for cows; that microbe germs and other sources of pollution may be carried from the dead human bodies interred therein, through the soil, to said wells and springs and streams; that thereby the health, lives, and welfare of the inhabitants would be endangered and liable to infectious diseases from contaminated water, and real estate used for residence purposes would be greatly lessened in value--all to the irreparable injury and damage of the plaintiffs. The issue tendered by the answer, so far as it is material for present purposes, is a denial that the land is unsuitable for burial purposes or unsuitably located therefor, and a denial that burials therein will endanger the health or property of the plaintiffs. The answer also avers that the same stream which passes through a part of this ground also drains the old cemetery, of which this has become a part, and has so drained it for many years without any injurious effects.

There does not seem to be any serious disagreement between counsel as to the law governing this case; the principal bone of contention having reference to the sufficiency of the evidence in support of the finding of the trial court. Code, § 697, authorizes cities and towns to provide places for the interment of the dead and to adopt regulations for their burial; and the authority thus given carries with it discretionary powers, which will not ordinarily be interfered with by the courts. But a statute will never be construed to authorize the creation and maintenance of either a public or a private nuisance, unless it expressly so declares, or a nuisance is the natural and probable result of the act authorized. In other words, the Legislature will never be presumed to have intended to authorize a nuisance, particularly a private one. Miller v. City of Webster City, 94 Iowa, 162, 62 N. W. 648. It is a well-settled rule that a cemetery is not a nuisance per se, and it cannot be presumed that the Legislature, in authorizing cities and towns to provide burial places for the dead, contemplated that they would be so located as to be private nuisances. We need not now discuss the power of the Legislature to itself create, or to authorize another to create, a private nuisance without compensation to the injured party; for it is evident that no such power is...