Richards v. Holt

• Decision Date: 21 September 1883
• Citation: 16 N.W. 595,61 Iowa 529
• Parties: RICHARDS v. HOLT & HALL
• Court: Iowa Supreme Court

16 N.W. 595

61 Iowa 529

RICHARDS v. HOLT & HALL

Supreme Court of Iowa, Council Bluffs

September 21, 1883

Appeal from Clark Circuit Court.

The parties entered into an agreement of arbitration. Upon an award in favor of plaintiff a decree was entered, from which defendants appeal. The facts of the case appear in the opinion.

REVERSED.

John Chaney and B. H. Mitchell, for appellants.

James Rice, for appellee.

OPINION

BECK, J.

I.

The agreement of arbitration was in writing, and acknowledged in due form. As it shows the controversy between the parties the plaintiff's cause of action and the relief sought, it becomes necessary to set it out in full. It is in the following language:

"Whereas the plaintiff, J. W. Richards, complains that the defendants Holt & Hall, are guilty of erecting, maintaining and continuing and using a certain place known and used as a hog pen or feed lot, in which hogs are kept and fed; and further complains that said hogs are fed upon buttermilk carried in an underground drain from the creamery of Holt & Hall, in lot No. six (6), in block No. eight (8), in the town of Osceola, Iowa, to the aforesaid feed lot in lot No. five (5), in block No. five (5), town aforesaid, and that the said feeding is so managed and carried on, and is of such a nature that by reason of noxious exhalations, offensive smells and poisonous exhalations, the same has become injurious and dangerous to the health and comfort of the plaintiff and his family, who reside and live on lots No. 10, 11 and 12, in block No. five (5), in the town of North Osceola; and plaintiff claims that said place kept, used and maintained by Holt & Hall is a nuisance under the laws of the state of Iowa, and that plaintiff is entitled to an order of court abating the same, and an injunction restraining the continuance thereof. And whereas the above named parties are anxious to settle said difficulty without a suit at law, it is hereby agreed by both plaintiff and defendants that the subject matter of this controversy as above set forth be submitted to J. W. Holland, J. S. Baker, E. H. Wilson, E. Lawrence and D. K. Douthett, citizens of Clarke county, Iowa, who are hereby authorized to find the facts and conclusions of law upon the matters above set forth, all of which are deemed denied by the defendants. And said arbitrators are specially authorized to find and report upon the location of said feed lot and its proximity to the residence of the plaintiff, how it is kept and used, and by whom, and whether or not it occasions noxious smells and exhalations or other annoyances, such as to be dangerous or injurious to the property, health or comfort of plaintiff and his family, and fully decide and find whether or not such place is a nuisance, or should be abated or restrained by law. And it is further agreed that the circuit court of the state of Iowa, in and for Clarke county, shall be authorized and empowered to render judgement upon the award of finding of the arbitrators, and for costs and all expenses of arbitration, etc., as fully and completely and with the same force and effect as if upon the verdict of a jury."

Four of the five arbitrators united in an award; the other did not concur, and, in fact, did not participate in the final trial or hearing after which the award was rendered. The material parts of the award are as follows:

1. "That we find the premises occupied and used as a feed lot for swine by defendants, Holt & Hall, as set forth in agreement to submit to arbitrators. The feed is mostly buttermilk, which is run through a three-inch pipe, made from cement and sand, which runs from creamery located as stated in the agreement, and emptying into tank which contains about nine barrels--tank having a pump by which milk is drawn when needed to feed swine. Said tank and feed lot located as set forth in agreement. Proximity to plaintiff's residence is twenty-four rods, in a northeasterly direction from said tank, and located as stated in agreement. We find that said tank, hog lot and drain are so kept and used as to occasion noxious smells and other exhalations and other annoyances, such as are dangerous and injurious to property, health and comfort of plaintiff and his family. We therefore find that said tank, drain and hog lot is a nuisance and should be abated by law."

A motion was made by defendants to set aside the award upon grounds that need not be here stated, which was overruled and a decree was entered...