S. Percival v. Yousling

• Decision Date: 18 May 1903
• Citation: 94 N.W. 913,120 Iowa 451
• Parties: S. PERCIVAL, Appellee, v. IDA H. YOUSLING, Appellant
• Court: Iowa Supreme Court

94 N.W. 913

120 Iowa 451

S. PERCIVAL, Appellee, v. IDA H. YOUSLING, Appellant

Supreme Court of Iowa, Des Moines

May 18, 1903

Appeal from Ida District Court.--HON. S. M. ELWOOD, Judge.

AFFIRMED.

Macomber & Bradshaw for appellant.

Hastings & Brasted for appellee.

OPINION

THE opinion states the case.--Affirmed.

WEAVER, J.

Plaintiff alleges that certain lots owned by defendant in the vicinity of plaintiff's residence in the town of Ida Grove are used as a dumping ground or place of deposit for garbage and other refuse and decaying matter, creating a nuisance to the injury of plaintiff and others, and he asks that its maintenance be enjoined. Defendant denies the allegations of the petition. There was a trial to the court and finding in plaintiff's favor.

The evidence tends to show that defendant has deposited, or allowed others to deposit, in a gully or ravine on lots owned by her, considerable quantities of refuse, more particularly stable manure; that it was the source of more or less complaint in the community; that the town authorities had at one time interfered, and ordered the offensive material covered with earth; and that some effort had been made to comply with this order, but the covering was incomplete. Several expert witnesses testified that the condition of the premises was unsanitary, one physician describing it as a "menace to the community, and a breeding place for malarial and intermittent fevers"; though others, while conceding its unsanitary condition, thought it a source of no special public danger. After the parties had once rested their case, it was reopened upon application of the plaintiff, who further testified that the stench from the material dumped upon these lots was such that at times in warm weather he was compelled to keep the windows of his residence closed, and that there were several cases of fever in his family during the existence of the alleged nuisance. There was more or less conflict in testimony upon all these points, but the preponderance tends to sustain the finding of the trial court.

It is somewhat doubtful whether there is any such showing of an entry of judgment as will sustain an appeal The so-called "judgment" quoted in the abstract is simply the memorandum made by the trial judge in his calendar. Ordinarily, this would require a dismissal of the appeal (see Kennedy v. Bank, 119 Iowa 123, 93 N.W. 71, and cases there cited); but counsel, in argument, appear to concede that the judge's entry was carried by the clerk into the record, and approved at the next succeeding term of the court, and, as no objection is raised by the appellee to the sufficiency of the showing, we proceed to an examination of the questions submitted.

I. Appellant insists that there was no evidence of any damage or injury to plaintiff which was not suffered by him in common with the entire community, and he is, therefor, not entitled to maintain the action. This view ignores much of the evidence offered. Plaintiff's residence was within a short distance of the dumping ground. If the conditions prevailing upon such ground were of a nature to render it unsanitary, taint the air, and promote disease and discomfort among those living in that...