Van Fossen v. Clark

• Decision Date: 23 January 1901
• Citation: 84 N.W. 989,113 Iowa 86
• Parties: VAN FOSSEN v. CLARK.
• Court: Iowa Supreme Court

113 Iowa 86

84 N.W. 989

VAN FOSSEN

v.CLARK.

Supreme Court of Iowa.

Jan. 23, 1901.

Appeal from district court, Linn county; William G. Thompson, Judge.

Action to recover damages for maintaining a nuisance, and to abate the same. There was a jury trial, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.Deacon & Good, for appellant.

F. L. Anderson, for appellee.

SHERWIN, J.

The defendant is the owner and operator of a creamery and cheese factory situated near the plaintiff's premises. A covered tile drain carries the refuse from the creamery onto the plaintiff's land, where it is discharged on the surface thereof. The plaintiff alleges that the water and filth so discharged upon his land emit “noisome smells and noxious vapors,” causing impure air about his habitation and premises, and that he has suffered damage thereby in various ways. The creamery and factory in question were in operation long before the plaintiff purchased the premises adjacent thereto, and no question is made as to the right of the defendant to conduct the waste therefrom through the plaintiff's land. The appellant does not plead an estoppel, but contends that the situation is practically the same as it was when the plaintiff bought, and that he should not now complain of the exercise of the defendant's easement in his land. There is no evidence tending to show that the easement given the defendant or his grantors contemplated the creation of a nuisance on the land in question. In fact, all the evidence which touches this question indicates the right only to construct a drain which would carry the water and filth clear across the land, instead of discharging it thereon. Even if the plaintiff knew of the existence of the nuisance when he bought, that would not, alone, estop him, if pleaded. Wood, Nuis. §§ 574, 575. It is conceded that the plaintiff can maintain this action only by proving special damage. This we think he has done. It is shown that the discharge from this drain has created a filthy mudhole, which the plaintiff was compelled to fence to keep his stock away from it. There is also evidence tending to show that the smell arising therefrom permeated the air to a distance of several hundred feet, and that the rental value of the land was thereby decreased. In Wood, Nuis. § 599, it is said “that any use of property * * * that corrupts the atmosphere with smoke, noxious vapors, noisome smells, dust, or other substances producing...