Pettit v. Inc. Town of Grand Junction

• Decision Date: 31 January 1903
• Citation: 119 Iowa 352,93 N.W. 381
• Parties: PETTIT v. INCORPORATED TOWN OF GRAND JUNCTION, GREENE COUNTY.
• Court: Iowa Supreme Court

119 Iowa 352

93 N.W. 381

PETTIT

v.INCORPORATED TOWN OF GRAND JUNCTION, GREENE COUNTY.

Supreme Court of Iowa.

Jan. 31, 1903.

Appeal from district court, Greene county; S. M. Elwood, Judge.

Action for damages, and to abate a nuisance. A verdict was directed for the defendant, on which judgment was entered. The plaintiff appeals. Reversed.W. W. Turner and Owen Lovejoy, for appellant.

Russell & Toliver and I. D. & R. G. Howard, for appellee.

LADD, J.

Main street, in Grand Junction, is intersected by Eleventh street, which runs north of it 165 feet, and terminates at the right of way of the Chicago & Northwestern Railroad Company, forming a cul-de-sac. The evidence tended to show that these streets were dedicated by the filing of an original plat of the town some 30 years ago, and had been accepted and improved. Lot 1, block 59, extends from Main street north to the right of way, abutting Eleventh street on the east. The south 100 feet is occupied by a bank. The north 65 feet, together with lot 2, next east, was purchased by plaintiff in March, 1900. The defendant constructed a town hall at the north end of this street, in 1882, next to the right of way, and about 27 feet from the east line of the street. Later (the precise date not appearing) it put a coal shed 4 or 6 feet wide on the east side, and erected a bell tower to the south, and four or five years ago moved its jail to the northeast corner of the cul-de-sac. Shortly after purchasing the land, plaintiff notified the town authorities to vacate the street, and, as they failed to comply, brought this action for damages to the use of his property, with a view of having the street obstructions abated. After his evidence had been introduced, the court directed a verdict for defendant.

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1. The appellee first insists, in support of the court's action, that there was no evidence of damages. Hamel testified: “I am acquainted with the rental value of property in Grand Junction, and, taking into consideration the situation of those lots, and the fact of those buildings there upon the street, and the purpose for which that property would be adapted by reason of its location, I would consider the reasonable rental value between March 25th and August 16th very little, if anything, per month. If those obstructions were out of the street, the reasonable rental value from March to August 16th would probably be from two to three dollars a month.” It appeared that the lots had grown up to weeds during the summer, and on cross-examination he said that, if left in that condition, the use would be of no value, with or without the obstructions. The test is not the value of the use when not devoted to any use whatever, but when occupied for the purposes for which the property is suitable in its then condition. Other evidence of similar import tended to establish plaintiff's claim for damages. Appellee makes the point that plaintiff would not have rented had the obstructions been removed. This is wholly immaterial, as he proposed to make use of it himself in the erection of a warehouse thereon. Not the value of it to him for that purpose, but the value of the use of which he was deprived by the existence of the obstructions generally, was the measure of damages, and such the evidence tended to establish.

2. Appellee next argues that, though the location of these structures in the street originally constituted a nuisance, it was permanent in character, and for that reason all damages accrued immediately, and, as more than five years have since elapsed, the claim is barred by the statute of limitations. It relies on Powers v. City of Council Bluffs, 45 Iowa, 652, 24 Am. Rep. 792;Fowler v. Railway Co., 91 Iowa, 533, 60 N. W. 116;Hodge v. Shaw, 85 Iowa, 137, 52 N. W. 8, 39 Am. St. Rep. 290;Bizer v. Power Co., 70 Iowa, 145, 30 N. W. 172;Stodghill v. Railroad Co., 53 Iowa, 341, 5 N. W. 495;Cain v. Railroad Co., 54 Iowa, 255, 3 N. W. 736, 6 N. W. 268. But we do not think the case within the principle of these decisions, which was thus stated in Town of Troy v. Cheshire R. Co., 3 Fost. 83, 55 Am. Dec. 177: “Whenever the nuisance is of such character that its continuance is necessarily an injury, and where it is of a permanent character, that will continue without change from any cause but human labor, there the damage is an original damage, and may be at once fully compensated.” It seems to have been limited strictly to nuisances of a character unchangeable save by the labor of man. In Powers' Case a ditch was so negligently constructed as to result in the excavation of a large portion of plaintiff's lots. “Its peculiar feature consists in the fact that the negligence complained of was injurious only through the gradual operation of an element of nature. But that element--the water--was a permanent and calculable force.” In the Stodghill Case water was diverted on the plaintiff's land by the construction of a permanent bank of earth. In Bizer's Case the jury especially found the dam and embankment permanent. In Hodge v. Shaw the structure was a brick building, and held to be permanent. In Fowler v. Railway Co. previous decisions are reviewed and the conclusion reached that “in a case like that at bar, where the injury complained of is the construction and operation of the main line of railroad, which is conceded by all parties to be permanent in its character, and which, it may well be presumed, will continue indefinitely and perpetually, and which cannot be remedied except by the company ceasing to do business over its main line, or removing the same to some other locality, the structure should be treated, in view of all the facts, as of a permanent character.” It will thus be seen that in all cases decided by this court where the nuisance has been deemed permanent, rather than continuing, the structures have been of such a nature as to continue indefinitely, and incapable of removal in their present condition. So, too, in Town of Troy v. Cheshire R. Co., where the defendant had erected a permanent embankment. Fowle v. New Haven & Northampton Co., 107 Mass. 352;Id., 112 Mass. 339, 17 Am. Rep. 106, often cited, has been overruled by Wells v. New Haven & Northampton Co., 151 Mass. 46, 23 N. E. 724, 21 Am. St. Rep. 423, and Aldworth v. City of Lynn, 153 Mass. 53, 26 N. E. 229, 10 L. R. A. 210, 25 Am. St. Rep. 608. In City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821, the damages claimed were because of the construction of an embankment in the street, and the court held that but one recovery could be had. Even with the rule limited as suggested, it has been met with vigorous opposition of, and been declared to be unsound in principle by, several courts of eminent respectability. See, in addition to above cases from Massachusetts, Uline v. Railway Co., 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661;City of Nashville v. Comar, 88 Tenn. 415, 12 S. W. 1027, 7 L. R. A. 465;Doran v. City of Seattle (Wash.) 64 Pac. 230, 54 L. R. A. 532, 85 Am. St. Rep. 948. Without intending to question the authority of our previous decisions, we are not inclined to extend the rule still farther, so as to include structures not ordinarily regarded as permanent in location or character. As the statute did not authorize the construction of the buildings in the streets, the intention to permanently...