Stovern v. Town of Calmar
| Decision Date | 22 November 1927 |
| Docket Number | 38319 |
| Citation | 216 N.W. 112,204 Iowa 983 |
| Parties | E. O. STOVERN, Appellant, v. TOWN OF CALMAR, Appellee |
| Court | Iowa Supreme Court |
Appeal from Winneshiek District Court.--W. L. EICHENDORF, Judge.
Action for injunction of a nuisance, and for damages. The trial court allowed damages, refused injunction, but ordered nuisance abated before January 1, 1927. Both parties appeal.--Modified, affirmed, and remanded.
Modified, affirmed, and remanded.
Goheen & Goheen and E. R. Acres, for appellant.
C. N Houck and W. M. Allen, for appellee.
The defendant is an incorporated town, having a population of a little in excess of 1,000 people. About 18 years ago, it installed a sewerage system, consisting of mains and laterals. In connection with this system, a 10-inch tile drain was installed, leading from the town to and upon land owned by one Busch, where it emptied into a cement tank; but there was no septic tank or filter beds installed as a part of said system, the city having employed a man who, twice a year, placed chemicals in the tank, for purposes of purification. At a later date, more than five years prior to the commencement of this action, a tile drain was installed, to carry sewage from the tank across the land of Gehling, where it emptied into a creek about 20 rods above the land of the plaintiff. On plaintiff's farm there are two sets of buildings, about one-half mile from the creek. For the last five years prior to the commencement of this action, the farm was rented, the plaintiff receiving $ 6.00 per acre cash rent, and milk and potatoes for his own use; and he reserved the use of one of the houses on the farm, in which to live. The creek hereinbefore mentioned, laden with sewage, flows through the edge of plaintiff's farm, a distance of approximately 900 feet, and cuts off about 4 3/4 acres of said farm. There is running into this creek on said farm another creek, with running water which is in no way affected by the pollution escaping from the sewerage system. The evidence establishes the fact, which is not seriously disputed by the defendant, that the creek is polluted by the sewage coming to it from the system as aforesaid, so as to constitute a nuisance.
The plaintiff, in his petition, asks an injunction, and also damages. The trial court allowed plaintiff damages in the sum of $ 259.91, refused an injunction, and ordered the nuisance abated on or before January 1, 1927. Both parties appeal.
The plaintiff complains because of the refusal of the court to grant an injunction, and because, as he claims, the amount allowed is not commensurate with the damages. The defendant contends that the plaintiff is entitled to no amount as damages, and that he was not entitled to an order of abatement. The corrupting or rendering unwholesome or impure the water of any stream constitutes a nuisance. Section 12396, Code of 1924. An action may be brought to enjoin the nuisance and abate the same and to recover damages sustained on account thereof. Section 12395, Code of 1924.
It is shown by the evidence that, at the time of the trial, in October, 1926, the defendant town had entered into a contract for the installation of a sanitary sewerage disposal plant, to take care of the sewage in a sanitary way, which plant was, at that time, about three fourths done, and the engineers in charge gave it as their opinion that the same would be completed by November 20, 1926.
It is further shown that tentative preliminary arrangements for the construction of the sanitary disposal plant were made about the first of March, 1926. As stated, the defendant town complains because of the order of abatement, and the plaintiff complains because the court did not grant an injunction. The defendant relies upon the two cases: Perry v. Howe Co-op. Cream. Co., 125 Iowa 415, 101 N.W. 150, and Bennett v. National Starch Mfg. Co., 103 Iowa 207, 72 N.W. 507. In the latter case, injunction was refused because the causes of offense for which the defendant was responsible were almost wholly removed before the action was commenced. In the former case, injunction was refused because it was shown, at the time of trial, that the nuisance had been abated. Neither of these conditions prevailed in the instant case. A nuisance was shown to exist at the time of the commencement of the action, and the same had not been abated at the time of the trial.
In some instances, the interests of the few must temporarily yield to the general welfare of the public. Had the court granted an absolute injunction before the town had time to install its sanitary disposal plant, it probably would have imperiled the health of all the people residing in the defendant town, and been a nuisance of greater significance than the one sought to be enjoined. The court should not have made its decree final, but the same should have been, in its nature, interlocutory, giving the defendant a reasonable time in which to abate the nuisance, but holding jurisdiction for the final determination herein as to the rights of the parties in this respect. The plaintiff should not be required to resort to another action to obtain rights to which it is justly entitled herein. Bushnell v. Robeson & Co., 62 Iowa 540, 17 N.W. 888.
"Where a use of property is found to be a nuisance, it is proper to allow defendant a reasonable time to rearrange or remodel his appliances so that they will not further operate as a nuisance, or to remove his plant, before an injunction against the business or use is allowed to take effect." 29 Cyc. 1250.
The trial court could not know as a certainty that the nuisance would be abated by January 1, 1927. We do not know whether the nuisance has been abated. We therefore remand the case to the district court, for the purpose of taking evidence upon the single proposition as to whether a nuisance still exists, and for the purpose that, upon said hearing, such decree with reference thereto as may be warranted by the evidence may be rendered.
Now to what, if any, amount is the plaintiff entitled by way of damages? He introduced evidence upon the question of the difference in the rental value of his farm of 170 acres during the 5-year period that the creek was polluted as aforesaid, and what would have been the rental value of said farm during said period, if the creek had not been befouled. That the diminution of such rental value is an element of damage in a case of this kind which can properly be shown, see Vogt v. City of Grinnell, 123 Iowa 332, 98 N.W. 782; Boyd v. City of Oskaloosa, 179 Iowa 387, 161 N.W. 491; Shively v. Cedar Rapids, I. F. & N.W. R. Co., 74 Iowa 169; McGill v. Pintsch Comp. Co., 140 Iowa 429, 118 N.W. 786. Therefore, the decrease is one of the elements of damage which can be recovered by someone. It is contended by the defendant that such recovery can be had only by the tenant.
This is an action in tort, and the rule is well recognized that a tort-feasor is liable for all damages accruing to any person which are the proximate result of his tort. What, if any, damage the tenant could recover, is not involved in this action. The question is as to whether or not the plaintiff, being the owner of the real estate, can recover the diminution of the rental value caused by the nuisance, as an element of damages. The nuisance in this case is not permanent, but an abatable one. Although the nuisance existed at the time when the real estate was rented to the tenant, it was subject to be abated at any time during the tenancy. In Boyd v. City of Oskaloosa, supra, which was an action brought by the owner in possession, for damages caused by an abatable nuisance, we said:
It appears that it was in the mind of the writer that, if the property had been...
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