Schlotfelt v. Vinton Farmers' Supply Co.

• Decision Date: 13 June 1961
• Docket Number: No. 50281,50281
• Citation: 252 Iowa 1102,109 N.W.2d 695
• Parties: Max SCHLOTFELT, Appellee, v. VINTON FARMERS' SUPPLY COMPANY, Inc., Appellant.
• Court: Iowa Supreme Court

Page 695

109 N.W.2d 695

252 Iowa 1102

Max SCHLOTFELT, Appellee, v. VINTON FARMERS' SUPPLY COMPANY, Inc., Appellant.

No. 50281.

Supreme Court of Iowa.

June 13, 1961.

Beecher, Buckmaster, Beecher & Lindeman, Waterloo, for appellant.

M. H. Bordewick, Vinton, and George C. Claassen, Cedar Rapids, for appellee.

THOMPSON, Justice.

Plaintiff's action was originally brought at law, but by stipulation of the parties was tried in equity. It alleged the creation and maintenance of a nuisance by the defendant in the operation of its feed grinding, feed mixing and fertilizer sales business in the City of Vinton, asked injunctive relief and further prayed for damages. The trial court entered it judgment and decree awarding plaintiff damages in the sum of $3,605 for depreciation in the rental value of plaintiff's property adjoining defendant's plant, and granting an injunction against the use of a public alley running along the south side of plaintiff's residence and of the plant for defendant's business purposes; ordering defendant to arrange its entrances and exits so that defendant and its customers would not use the alley in going to and from its plant; restraining defendant from operating its machinery so as to cause vibration, noise and annoyance to the occupants of plaintiff's property; and from so using its plant as to cause oat hulls, dust, or noxious odors to be emitted into the air either by normal or accidental means. The decree was entered on June 25, 1959, and the defendant was given until September 1 next to comply with the injunctive part of the decree; after that date the court decreed that a further hearing should be had to determine whether the defendant had corrected its procedures in conformity to the court's judgment. The defendant apparently did not elect to make the ordered changes, but on July 23, 1959, filed its notice of appeal to this court. We shall therefore consider the decree and judgment as final.

On May 6, 1939, the plaintiff acquired title to Lot 1 in Block 3, South Vinton, an addition to the City of Vinton, and has owned it at all times since. The property was then and still is improved by a substantial, modern, two story residence. At the time plaintiff acquired his title Lots 2 and 3, lying immediately west, were unimproved. In 1942 the defendant purchased these two lots, and soon thereafter erected on Lot 3, the westerly one, a building 60 feet east and west and 120 feet north and south. It then began the business of grinding and mixing stock feeds, and selling fertilizer, and has since at all times continued handling feeds and fertilizer and livestock equipment, both at wholesale and retail. It grinds feed for farmer customers, and sells fertilizer and other equipment. The average employed force is about eight persons.

At the time of the erection of the first building, known in the record as No. 1, Vinton had no zoning ordinance affecting this block. About March 14, 1946, the city adopted a zoning ordinance which classified the properties of plaintiff and defendant as being in a restricted residence district. In March, 1958, that part of Block 3, which includes these properties, was rezoned as a restricted industry area. The plaintiff contends that there is no proper proof of this last-referred-to ordinance; but we think, although the matter is not of great importance, there was a sufficient showing that since 1958 the properties have been in a restricted industry zone. There is a good deal of discussion in the briefs of the effect of the zoning ordinances or absence of same, and whether the defendant did or did not secure permits for some of its buildings, if they were required. But as we view the case none of these questions is of controlling weight and we give them little consideration.

In March, 1946, the defendant built an addition to the No. 1 building. This structure was on Lot 2, immediately adjoining plantiff's lot. Defendant's two lots have a combined area about 133 feet square. The 1946 building was 40 feet east and west and 120 feet north and south. It is a cement block fireproof structure, and its easterly wall is about one foot from the west line of plaintiff's property, and about eight feet from the rear porch of his house. Apparently the east wall of the No. 2 building was 20 feet in height. In 1951 the defendant built a silo at the southeast corner of its property. The east edge of this structure is within a few feet--from 2 to 6 feet, as shown by the evidence--of the west side of plaintiff's garage, which is attached to his house. In 1954 or 1955, the silo was enlarged by an addition on the top, which brought its total height to 36 feet. This was augmented by dust collectors 13 feet high, so that the silo with the additions is now 49 feet above the ground. It is within 10 to 12 feet of the southwest corner of plaintiff's house.

It is evident that the No. 2 building, with the silo at the south end, must seriously interfere with plaintiff's enjoyment of light and air. However, the trial court did not grant any injunctive relief against this condition, and plaintiff has not appealed. It is discussed, however, in connection with the question of damages allowed because of the decreased rental value of plaintiff's property. Other facts will be referred to in the divisions following.

I. Certain principles of law applicable to nuisances of the sort claimed to exist here are well settled. Some definitions are found in our statutes. Section 657.1, Code of 1958, I.C.A., provides: 'Whatever is * * * offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.' Following this is a definition of nuisances which includes this language found in Section 657.2: 'The following are nuisances: 1. * * * using any building or other place for the exercise of any trade, * * * which, by occasioning noxious exhalations, offensive smells, or other annoyances, becomes injurious and dangerous to the health, comfort, or property of individuals * * *.' These statutory definitions and enumerations do not modify the commonlaw rule applicable to nuisances. Kellerhals v. Kallenberger, 251 Iowa 974, 979, 103 N.W.2d 691, 695; Riter v. Keokuk Electro-Metals Company, 248 Iowa 710, 721, 82 N.W.2d 151, 157.

Another well established rule is that one must use his own property so that his neighbor's comfortable and reasonable use and enjoyment of his estate will not be unreasonably interfered with or disturbed. Kellerhals v. Kallenberger, supra, at page 980 of 251 Iowa, at page 694 of 103 N.W.2d; Amdor v. Cooney, 241 Iowa 777, 783, 43 N.W.2d 136, 141. We have also held: 'A fair test as to whether the operation of such industry constitutes a nuisance has been said to be the reasonableness of conducting it in the manner, at the place and under the circumstances in question.' Riter v. Keokuk Electro-Metals Company, supra, 248 Iowa 710, 722, 82 N.W.2d 151, 158. And to justify the abatement of a claimed nuisance the annoyance must be such as would cause physical discomfort or injury to a person of ordinary sensibilities. Kellerhals v. Kallenberger, supra, at page 980 of 251 Iowa, at page 694 of 103 N.W.2d, and citations.

II. The record shows that the location of plaintiff's property and of defendant's plant is in what is generally a residential district of Vinton. There are two neighborhood groceries within a few blocks; there is a woodworking shop conducted in a small way in a garage; and there is some evidence of a filling station and a beauty salon not far away. The Rock Island railroad tracks are just north of the location. But the area is chiefly devoted to substantial residences, and has been so at all times material here. The city of Vinton had a population as shown by the federal census, in 1940, of 4,163; in 1950, of 4,307; and in 1960, of 4,781. It is a beautiful and prosperous small city; but it is evident it is not a great industrial center.

We have said that we do not regard the question of the zoning of the tract in which the properties are located as of importance. Nor do we consider the issuance of permits, or their refusal, as in any way controlling. The city could not, by zoning as an industrial district, or issuing permits for construction, authorize the creation or maintenance of a nuisance. Dawson v. Laufersweiler, 241 Iowa 850, 856, 43 N.W.2d 726, 730, and citations. In Pauly v. Montgomery, 209 Iowa 699, 705, 706, 228 N.W. 648, 651, we said: 'The city could not, by its action in issuing a permit or otherwise, authorize appellees to so conduct their business as to create a nuisance.' (Italics supplied.) This rule is somewhat modified in Dawson v. Laufersweiler, supra, at page 856 of 241 Iowa, at page 730 of 43 N.W.2d, by the statement that granting a permit is an expression of municipal opinion which it is proper of municipal opinion which it is proper to consider on the matter of nuisance, should be given little attention in the case at bar. A building permit, or a commercial or industrial zoning, cannot be claimed to be an approval by the city of the conduct of a business so that a nuisance is caused to adjoining property owners.

III. We come next to a fact which we think is of much importance in the case at bar. It is uncontradicted that the plaintiff 'was there first'. When his house was built and first occupied is not shown; but certainly it was there in 1939 when plaintiff purchased it. Defendant's lots were then vacant; it was not until 1942 that its first building was erected. This brings into application another rule also well settled both by authority and by reason. In Mahlstadt v. City of Indianola, 251 Iowa 222, 231, 100 N.W.2d 189, 194, we quoted with approval from 66 C.J.S. Nuisances, § 8e, page 746, with...