Shannon v. Missouri Val. Limestone Co.

• Decision Date: 11 June 1963
• Docket Number: No. 50887,50887
• Citation: 122 N.W.2d 278,255 Iowa 528
• Parties: Terry SHANNON, Richard L. Wilson, Carl France, Robert Ahart, For Themselves and Representing Other Resident Property Owners, Taxpayers and Users of the Public Roads of Pottawattamle County, Iowa, Appellees, v. MISSOURI VALLEY LIMESTONE COMPANY, Pottawattamie County Board of Supervisors, et al., Appellants.
• Court: Iowa Supreme Court

Page 278

122 N.W.2d 278

255 Iowa 528

Terry SHANNON, Richard L. Wilson, Carl France, Robert Ahart, For Themselves and Representing Other Resident Property Owners, Taxpayers and Users of the Public Roads of Pottawattamle County, Iowa, Appellees, v. MISSOURI VALLEY LIMESTONE COMPANY, Pottawattamie County Board of Supervisors, et al., Appellants.

No. 50887.

Supreme Court of Iowa.

June 11, 1963.

Rehearing Denied Sept. 17, 1963.

Hogzett & Burgett, Oakland, for appellant Missouri Valley Limestone co.

Peter J. Peters, Pottawattamie County Atty., Council Bluffs, for appellants Pottawattamie County Board of Supervisors and others.

Richard C. Turner, Council Bluffs, for appellees.

THORNTON, Justice.

This is a class action brought by plaintiffs living along Limekiln Hollow Road in Pottawattamie County. The defendants are Missouri Valley Limestone Company, Pottawattamie County Board of Supervisors, and individual contract haulers who haul rock from Missouri Valley Limestone Company's quarry on Limekiln Hollow Road. Plaintiffs brought the case in equity seeking to enjoin defendants from using Limekiln Hollow Road in hauling rock because the dust caused by the rock trucks constituted a nuisance and obstructed the road. The trial court did not enjoin the use of the road or stop the operation of the quarry but did require the limestone company and county, jointly or severally, to treat the surface of the road from the quarry to the paved highway in such a way as to prevent dust damage to plaintiffs and their property in the future. If not carried out these defendants were enjoined from using the road for hauling rock. The individual truckers were required to cover their loads and enjoined from following closer than at 300 feet intervals.

The limestone company and Board of Supervisors appeal.

I. Defendant limestone company operates a limestone quarry and rock crushing plant located on Limekiln Hollow Road about three miles northwest of Highway 30A in Pottawattamie County. Limekiln Hollow Road is surfaced with limestone and dirt and is a hilly, winding road. There are 40 homes located along this three miles of road. The occupants of these homes include 70 school children. The evidence shows that from the last part of April to late in November as many as 75 different trucks haul crushed limestone or rock from the quarry. When business is good they haul as many as six to ten loads a day each. In other words, during the daylight hours the round trips made by the trucks are from 450 to 750. In a 12-hour day from 27 to 60 round trips an hour. One resident said she counted 40 trucks going by in an hour. Apparently this is about the average. There was evidence the dust rises to a height of 80 feet. The dust is so bad the trucks and other traffic usually drive with their lights on. Only two or three accidents are testified to as being caused by poor visibility due to the dust. The residents drive to and from work in Council Bluffs or Omaha every day. It is apparent from the testimony they have learned to be extra careful on this road. This is also true of the school bus drivers using this road. However, there is nothing they can do to protect themselves from the dust that settles on their lawns and homes and seeps into every crack and corner of their homes. The testimony of the occupiers of the homes shows they are subjected to unreasonable living conditions due to the extraordinary amount of dust caused by the frequent trips of the trucks. The dust is irritating to the skin, nose and throat, kills lawns, gets in their homes and food, is injurious to all vegetation and livestock, requires plaintiffs to keep their homes closed in hot weather, and in short makes ordinary use of a home and lawn impossible during spring, summer and fall during dry weather. We are compelled to agree with the trial court that a common law nuisance is created by the dust raised by the trucks hauling crushed rock from the quarry. This is not a temporary situation where the trucks are merely hauling to a particular site for use, but is continual during the entire working season. Schlotfelt v. Vinton Farmers' Supply Company, 252 Iowa 1102, 109 N.W.2d 695; Kellerhals v. Kallenberger, 251 Iowa 974, 103 N.W.2d 691; Riter v. Keokuk Electro-Metals Company, 248 Iowa 710, 82 N.W.2d 151; Miller v. Town of Ankeny, 253 Iowa 1055, 114 N.W.2d 910; Robinson v. Westman, 224 Minn. 105, 29 N.W.2d 1, 174 A.L.R. 746; 12 Drake Law Review 107; and Annotation, 47 A.L.R.2d 490. The defendants did not offer any evidence at the trial.

II. The limestone company does not contend here that a nuisance was not created by the use made of the road by the trucks hauling rock from the quarry. Its contention is that the truck operators are independent contractors and it does not exercise such control over them as to be liable here. Without question the truck operators are independent contractors. It is hardly necessary to go over the record in this respect. It does show the truck operators own their own trucks, pay all their own expenses, work when called, work for others, buy and sell rock on their own, are paid by the ton mile, and file income tax returns as self-employed individuals. They have permits as contract carriers from the Interstate Commerce Commission and the State Commerce Commission. All they are required to do is deliver the rock to the place designated. See Hassebroch v. Weaver Construction Company, 246 Iowa 622, 627-628, 67 N.W.2d 549.

This determination assists the limestone company very little. The general rule that the employer or contractee is not liable for the torts of the independent contractor is subject to exceptions. One of the exceptions is where the work contracted to be done is likely to create a nuisance. Bennett v. Incorporated Town of Mt. Vernon, 124 Iowa 537, 541, 100 N.W. 349.

In Brous v. Wabash Railroad Company, 160 Iowa 701, 142 N.W. 416, an action to recover damages to land occasioned by the diversion of flood waters where it was urged the work was done by independent contractors, we said at page 707 of 160 Iowa, page 418 of 142 N.W.:

'* * * And, if independent contractors, there is no evidence of any kind that they did not perform their contract in strict accordance with the plans and specifications furnished by the company or by its engineer in charge. Moreover, the change of the stream from its natural channel was something of open and notorious character which could not have well escaped the observation of the company, and it could not avail itself of such conditions and maintain its roadbed in the natural channel, and avoid liability for the injurious consequences, if any, to adjacent owners by the plea that this interference with the stream was the act of its contractors.'

And see Hough v. Central States Freight Service, 222 Iowa 548, 558, 269 N.W. 1, 6, where we quote with approval from Douglass v. Peck & Lines Co., 89 Conn. 622, 95 A. 22, 24, the following:

'If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature calculated to cause injury to others, or if the contractee negligently employs an incompetent or untrustworthy contractor * * * or if he is under a legal duty to see that the work is properly performed the contractee will be responsible for resultant injury.'

See also Watson v. Mississippi River Power Company, 174 Iowa 23, 38, 156 N.W. 188, L.R.A.1916D, 101; and see distinction pointed out in Hoff v. Shockley, 122 Iowa 720, 728, 98 N.W. 573, 64 L.R.A. 538, 101 Am.St.Rep. 289.

In IV Restatement of the Law of Torts, § 835, p. 278, is the following:

'A person who employs an independent contractor to carry on an activity is liable for a non-trespassory invasion of another's interest in the use and enjoyment of land caused by the activity, if the employer would be liable under the rule stated in § 822 had the activity been carried on by him; and if '(a) the activity, as he should know, necessarily involves such invasion or an unreasonable risk thereof, or * * *

'(d) the activity, as he should know, will necessarily create, during its progress, conditions containing an unreasonable risk of such invasion unless special precautions are taken, and he

'i. fails to provide in the contract that the contractor shall take such precautions, or

'ii. fails to exercise reasonable care to provide in some other manner for the taking of such precautions, * * *.'

In section 41, 27 Am.Jur., Independent Contractors, pp. 519-521, is the following:

'Where a nuisance will result from the performance of certain work in the ordinary manner, the employer cannot escape liability by employing an independent contractor to do the work. * * * Whatever is done by the contractor in pursuance of the plans and specifications which form a part of the written contract is manifestly to be considered a result of the contract for which the employer is responsible. The same remark applies to everything that the contractor does in compliance...