Randolf v. The Town of Bloomfield
| Decision Date | 29 January 1889 |
| Citation | 41 N.W. 562,77 Iowa 50 |
| Parties | RANDOLF v. THE TOWN OF BLOOMFIELD |
| Court | Iowa Supreme Court |
Decided January, 1889.
Appeal from Davis District Court.--HON. CHAS. D. LEGGETT, Judge.
ACTION to recover for a nuisance caused by defendant constructing and maintaining a sewer, which emptied into a street, near plaintiff's dwelling house. There was a judgment upon a verdict for plaintiff. Defendant appeals.
AFFIRMED.
S. S Carruthers and F. W. Moore, for appellant.
Payne & Eichelberger, for appellee.
I.
The cause will be disposed of by considering the objections made by defendants to the judgment, in the order of their discussion by counsel. The petition alleges that the nuisance rendered plaintiff's dwelling "less habitable," and the smells emanating therefrom detracted from the enjoyment thereof, and produced "intolerable physical discomforts to plaintiff and his family, causing sickness in his family," to the great damage of plaintiff, etc. The defendant moved the district court for an order requiring plaintiff to make his petition more specific, so as to show the nature of the sickness of plaintiff's family, its duration, etc., and other matters. The motion was overruled. The defendant answered the petition, and thereby waived the error, if any there was, in overruling the motion. Kline v. K. C., St. J. & C. B. Ry. Co., 50 Iowa 656; Coakley v. McCarty, 34 Iowa 105.
II. The district court held in the instructions that plaintiff was not limited in his recovery to the damages sustained by reason of the depreciation of the rental value of the property, but was entitled to recover for the inconvenience and discomfort suffered, and the deprivation of the comfortable enjoyment of the property by himself and his family. We think the instructions are correct. The premises which the nuisance affects were occupied by plaintiff and his family as his homestead. Surely it would be vain to endeavor to determine plaintiff's damages by inquiring as to the rental value of his homestead. It was not for rent, and may not have been so constructed or so located as to be sought for by tenants. Yet it may have been well adapted to the wants, convenience and tastes of plaintiff and his family. To them it was a home, and the deprivation of the comforts enjoyed by plaintiff and his family could not be compensated by estimating its rental value alone. Wood Nuis., sec. 866; 3 Suth. Dam. 416; 5 Amer. & Eng. Cyclop. Law, p. 38, sec. 9, 2b; Brown v. Railway Co., 80 Mo. 457; Pierce v. Wagner, 29 Minn. 355. 13 N.W. 170; Emery v. Lowell, 109 Mass. 197. The law requires that plaintiff be compensated for the injury he has sustained by the nuisance. This court has held that the measure of damages for trespass to real property is not complete unless the owner be compensated for the use and enjoyment, if he be deprived thereof. Graessle v. Carpenter, 70 Iowa 166, 30 N.W. 392. While rental value may be the subject of inquiry in some cases in order to determine the damages, it is plain that when the enjoyment of a homestead, as in this case, was destroyed or diminished, the true rule for the measure of damages requires the owner to be compensated therefor. In Shively v. C. R., I. F. & N.W. Ry. Co., 74 Iowa 169, 37 N.W. 133, and in Loughran v. City of Des Moines, 72 Iowa 382, 34 N.W. 172, instructions were approved which hold that recovery for the depreciation of the rental value of property occupied by the plaintiffs as a homestead, caused by a nuisance, may be recovered; but it is not held that no other element, as the deprivation of the comfortable enjoyment of the property, cannot be considered in determining the damages. No such question was made in either case. In the last-named case it was held that damages resulting from loss of time, and expenses incurred by sickness caused by the nuisance, should be allowed.
III. The defendant proposed to prove that...
To continue reading
Request your trial