Shively v. Cedar Rapids, I. F. & N. Ry. Co.

• Decision Date: 10 March 1888
• Citation: Shively v. Cedar Rapids, I. F. & N. Ry. Co., 74 Iowa 169, 37 N.W. 133 (Iowa 1888)
• Parties: SHIVELY v. CEDAR RAPIDS, I. F. & N. RY. CO. ET AL.
• Court: Iowa Supreme Court

74 Iowa 169

37 N.W. 133

SHIVELY

v.CEDAR RAPIDS, I. F. & N. RY. CO. ET AL.

Supreme Court of Iowa.

March 10, 1888.

Appeal from district court, Lyon county; GEORGE W. WAKEFIELD, Judge.

This was an action by Samuel A. Shively against the Cedar Rapids, Iowa Falls & Northern Railroad Company and the Burlington, Cedar Rapids & Northern Railway Company, to recover damages caused by an alleged nuisance. The court gave the following instructions to the jury, viz.: “(1) Plaintiff, for cause of action against the defendant, states: That he is the owner of lot 5 in block 1, Burkholtz' addition to the town of Rock Rapids, having a dwelling-house thereon which he occupies as a home; that defendants, during September and October, 1886, built into said town a line of railway, and for the use thereof, and convenience of shippers, erected on lot 6 of block 1, aforesaid, a stock-yard or hog lot; that said lot joins plaintiff's lot, and said hog lot or stock-yard is immediately adjoining plaintiff's lot, and within sixty feet of plaintiff's house; that ever since building said hog lot or stock-yard, defendants have maintained the same, and have almost continuously kept therein a large number of hogs, by reason whereof said lot 6 has become foul and loathsome, and is a nuisance, emitting foul, unsavory, and unhealthful smells, so as to render plaintiff's house almost uninhabitable, and almost totally destroying its value, greatly inconveniencing plaintiff, and endangering the health of plaintiff and his family; that plaintiff has demanded defendants to remove said stock-yard; that they have refused so to do; by reason whereof plaintiff has been damaged in the sum of eight hundred dollars. (2) The defendants for answer to said petition, denies every allegation thereof. (3) Such are the issues made by the pleadings herein, and you are instructed that the burden is upon the plaintiff to prove to you, by a preponderance of the evidence, the material allegations of his petition, and substantially as set forth in the first paragraph of this charge; and if he has so proven, then you will find for the plaintiff, but if he has failed so to prove, then you will return your verdict for the defendants. You are instructed as a matter of law, that whatever is injurious to health, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life and property, is a nuisance; so if you find from the evidence that plaintiff has established the allegations of his petition, and that the hog lot in question is injurious to health, offensive to the senses, or an obstruction to the free use of plaintiff's property, so as to essentially interfere with the comfortable enjoyment by the plaintiff of life or his said property, and that plaintiff has sustained any damages, then you will find for the plaintiff. If you do not so find, then you will find for defendants.” [The fourth paragraph is set out in the opinion.] There was a verdict and judgment for plaintiff in the sum of $132, and defendants appeal.Van Wagenern & McMillen and S. K. Tracy, for appellants.

J. M. Paisons, for appellee.

ROBINSON, J.

The plaintiff alleges that he is the owner of a house and lot in the town of Rock Rapids which he occupies as a home; that in September or October, 1886, the defendants built and have since maintained within 60 feet of said lot stock-yards for the use of...