Vogt v. City of Grinnell

• Court: Iowa Supreme Court
• Writing for the Court: LADD, J.
• Citation: Vogt v. City of Grinnell, 123 Iowa 332, 98 N.W. 782 (Iowa 1904)
• Decision Date: 11 March 1904
• Parties: WILLIAM VOGT, Appellant, v. CITY OF GRINNELL

98 N.W. 782

123 Iowa 332

WILLIAM VOGT, Appellant, v. CITY OF GRINNELL

Supreme Court of Iowa, Des Moines

March 11, 1904

Appeal from Powesheik District Court.--HON. JOHN T. SCOTT, Judge.

THE city of Grinnell began the construction of a sanitary sewer system in 1891 or 1892, and continued the work until 1896 when about nine or ten miles of mains had been laid. Little Bear creek rises within the city limits, and has been used since 1895 as an outlet for the sewage. The plaintiff's farm is three miles from the city, and prior to August, 1897 the water of this creek, which flows through his pasture of about four hundred forty acres, does not appear to have become contaminated. But the evidence tended to show that during the four succeeding years the stream was poisoned by the sewage of the city, and that its waters threw off a stench of putrefaction. The lapse of so long a period before the water was affected is explained by the constantly increasing number of sewer connections--being one hundred one in 1897, and three hundred thirty-four in 1902--and the fact that, as the ground filled with sewage, it was forced farther and farther downstream, until reaching a point where the organic matter was completely destroyed by putrefactive bacteria. The evidence also tended to show that plaintiff kept one hundred twenty-five head of cattle in this pasture during the season of 1898 and each of the following years that, whereas cattle would ordinarily make a growth of from two hundred to three hundred pounds a year, his cattle, owing to the pollution of the water in the creek which they drank added nothing to their weight; and that the pasture, which was ordinarily worth $ 2.50 to $ 3 per acre, was rendered worthless thereby. It was conceded that the sewers were of permanent construction, and intended for use for all time. At the close of plaintiff's evidence the defendant moved that the court direct a verdict in its favor on two grounds (1) Because the nuisance was permanent, and had existed more than five years before the action had been begun; and (2) for that no depreciation in the value of plaintiff's farm, owing to such nuisance, had been proven. This motion was taken under advisement, and, when all the evidence had been introduced, a verdict was directed for defendant. Judgment was rendered thereon, and plaintiff appeals.

Reversed.

R. M. Haines, Jr. and P. G. Morris for appellant.

No appearance for appellee.

OPINION

LADD, J.

The mere fact that the city sewers were of permanent construction did not render the nuisance occasioned by them permanent also, for the municipality had the right at any time to abate it. In this respect cases like the present one differ from Powers v. City of Council Bluffs, 45 Iowa 652, for there, as was observed in Hunt v. Iowa Central Ry., 86 Iowa 15, 52 N.W. 668, "the whole injury was regarded as having occurred at one time, and that time having been more than five years prior to the commencement of the suit, it was held to be barred. The injury was of such a character as to be beyond the defendant's power to remedy. It would be compelled to go onto lands of others to erect barriers to prevent the damage. In this case, as is shown by the evidence, the remedy is in the defendant's own hands, by work done upon its own land." Again, it was pointed out in Bennett v. City of Marion, 119 Iowa 473, 93 N.W. 558, that the injury in the Powers Case was beyond the city's power to repair. "The remedy to be applied there, if any, was the construction of a wall on plaintiff's premises, where defendant had no right to go. Here the remedy could be applied on defendant's own premises, and there can be no doubt of its duty to abate the nuisance." As was said in Hollenbeck v. City of Marion, 116 Iowa 69, 89 N.W 210, "Modern scientific research has discovered means of disinfecting and deodorizing sewage so that it is practically innocuous. * * * While the system may be said to be permanent, it does not appear that the nuisance created thereby may not at any time be abated by the defendant or by the court." See, also, Pettit v. Town of Grand Junction, 119 Iowa 352, 93 N.W. 381, and Costello v. Pomeroy, 120 Iowa 213, 94 N.W. 490, where it is said that the wrong considered in Power v. City...