Perry v. Howe Co-Operative Creamery Co.

• Decision Date: 26 October 1904
• Citation: 125 Iowa 415,101 N.W. 150
• Parties: PERRY v. HOWE CO-OPERATIVE CREAMERY CO.
• Court: Iowa Supreme Court

125 Iowa 415

101 N.W. 150

PERRY

v.HOWE CO-OPERATIVE CREAMERY CO.

Supreme Court of Iowa.

Oct. 26, 1904.

Appeal from District Court, Adair County; Jas. D. Gamble, Judge.

Action in equity for an injunction to restrain the continuance of a nuisance, and for damages. Upon hearing the prayer for injunction was denied, but plaintiff was given judgment for nominal damages, with costs. Both parties appeal. The plaintiff, having first perfected his appeal, will be denominated the appellant. Affirmed.Frank B. Wilson, for appellant.

Hinkson & Brown, for appellee.

BISHOP, J.

The trial court found that a nuisance existed as alleged at the time the action was commenced, but refused an injunction on the ground that before trial such nuisance had been abated. The several contentions of the parties lead us to inquire whether the findings of facts as to the existence and the abatement of the nuisance were warranted, and, if warranted, whether, as matter of law, the prayer for an injunction should have been granted nevertheless. A brief review of the facts is necessary to an understanding of the situation.

In 1898, plaintiff, with others, organized and procured to be incorporated the defendant company. As its name implies, the business of the corporation is the manufacture of butter, and this it does from milk supplied by its stockholders, farmers residing in the vicinity. The creamery buildings were located on the bank of a small waterway, a branch of the Middle river. In wet seasons a small stream of water runs through the way, while in dry seasons the water stands in pools along the way, or dries up entirely. Plaintiff's farm is below the location of the creamery, his farm buildings being situated about 40 rods from the creamery building. The waterway passes along to the rear of his barns and outhouses. As at first constructed, the refuse of the creamery, consisting of the washing of the churns, vats, cans, etc., was dumped immediately into the waterway. Without stating the facts in detail. we may say that, in our opinion, there is sufficient evidence upon which to predicate a finding that in the summer time, especially during low stages of water, such refuse became decomposed in the bed of the stream, and polluted the water, and, as well gave off noxious and offensive gases and smells, affecting the use and enjoyment of plaintiff's property. This was sufficient to make out a case of nuisance. Wood on Nuisances, §§ 332-561.

Having reached this conclusion, we may next inquire whether such nuisance had been abated before the trial in the court below, and, if so, the effect thereof. As to the fact question, we are content to hold with the trial court that an abatement had taken place. A large cesspool had been constructed, into which were drained all the washings, etc., from the creamery, and the only outlet therefrom was through a filtered drain. Witnesses, whose appearance and manner of testifying commended them to the trial court, testify that thereafter the offensive character of the discharge into the waterway was practically done away with. True, some of the witnesses insist that a creamery odor was still discoverable to one standing in the path of the wind, and there is testimony to the effect that to some extent the pollution of the water still continued. We conclude, however, that this was not sufficient to justify the injunction prayed for. It is not every pollution of a stream, nor every case of noisome or noxious smells, that will constitute a nuisance. The demands of the present day require the establishment and operation of creameries as well as other factories, and it is not to be expected that in the presence of such places there will be found the pure air incident to secluded and unfrequented stretches of country. So it has come to be the rule that “the fact that a trade, whether a noisy trade or one that liberates smoke, noxious vapors, or noisome smells, or any use of property, however improper, on the part of the person devoting his property to such use, impairs the value of an adjoining property, does not thereby create a nuisance, unless the ill resulting from the trade produces actual, physical discomfort, or a tangible, visible injury to the property itself.” Wood on Nuisance, § 640. See, also, Pennoyer v. Allen (Wis.) 14 N. W. 609, 43 Am. Rep. 728;Tiede v....