Wesley v. City of Waterloo
| Decision Date | 09 March 1943 |
| Docket Number | 46225. |
| Citation | 8 N.W.2d 430,232 Iowa 1299 |
| Parties | WESLEY et al. v. CITY OF WATERLOO. |
| Court | Iowa Supreme Court |
W. L. Beecher, of Waterloo, for appellant.
M F. Fields, of Waterloo, for appellees.
Plaintiffs have been owners of a home in Riverview Addition to Waterloo and so owned and occupied it prior to the erection and operation of the alleged nuisance. In the neighborhood were a ravine and sand pit used to some extent as a dump. At varying distances were several buildings and manufacturing establishments, including a sheep yard, rendering works, feed lot and dump, and a mixing plant which prepared black-top for streets. The house occupied by plaintiffs as a home was on an unimproved street about 150 to 200 yards northwest of a sewage disposal plant belonging to the City of Waterloo which began operation about June 1, 1940. The disposal plant consists of a pumphouse, offices, power house, filter beds and five other units. The plant was erected pursuant to order of the State of Iowa. There was evidence that the operation of the plant created odors described as sickening and other evidence as to the effect on the enjoyment of the premises, also evidence as to the odors from other plants in the neighborhood.
For the purpose of this case the above outline is sufficient to indicate the nature of the action. Testimony was given as to the value of plaintiffs' property both before and after the erection and operation of the sewage disposal plant. The jury returned a verdict of $2,000 for plaintiffs and judgment was entered thereon. Defendant's motion for new trial and objections and exceptions to the court's instructions were overruled, from all of which defendant appeals.
The only errors assigned are to the action of the court in overruling Grounds 2 and 1 of defendant's exceptions to the court's instructions. We have, therefore, for our consideration only the alleged error in the giving of such instructions.
I. Defendant excepted to Instruction No. 5, the first part of which told the jury they should allow the plaintiffs the difference, if any, between the reasonable market value of their real estate immediately before and immediately after the erection and operation of the sewage disposal plant by the defendant as such difference is shown to be the direct and proximate result of such erection and operation of the plant. The second part of the instruction reads as follows:
***"
Appellant claims that said Instruction No. 5 required the jury to allow the plaintiffs double damage, i. e., it required the jury to compensate the plaintiffs both for the depreciation in the market value of the plaintiffs' real estate and for depreciation in the value of the use of plaintiffs' premises, resulting from the nuisance. In other words, Instruction No. 5 required the jury to give to the plaintiffs both original and temporary or continuing damages. Appellant also argues that such instruction did not tell the jury that in ascertaining the amount of damages to the use of plaintiffs' premises they could consider only those damages suffered by the plaintiffs prior to the time of trial.
Appellees argue that the case was tried on the theory that the nuisance was permanent and the first part of the court's instruction so indicated since the difference between the reasonable market value of the real estate immediately before and immediately after the erection and operation of the sewage disposal plant was given by the court as the measure of damages.
This is contrary to the rule laid down by us in our most recently considered case of Ryan v. City of Emmetsburg, Iowa, 4 N.W.2d 435. This was a case almost parallel in its facts to the case at bar and involved noxious and nauseous gases and odors from a sewage disposal plant of a modern, approved type from which gases and odors spread over plaintiff's premises and into the rooms of the house. Plaintiff in that case alleged that the conditions constituted an original and permanent nuisance that interfered with the use of the homestead and depreciated its value. The action was for original damages and resulted in a verdict for plaintiff. In the opinion by Justice Oliver, filed June 16, 1942, this court reversed and remanded the case. In that opinion the subject of nuisances of the sort we are now concerned with is fully gone into and former cases on the subject reviewed. The holding was that such a nuisance was not permanent for the reason that the person creating it has the legal right and is under the legal obligation to remove, change or repair it and thereby terminate the injury resulting therefrom, and being abatable, is not considered a permanent nuisance. See cases cited in 4 N.W.2d at page 441.
The opinion further reviews cases in which parties had elected to try their cases upon the theory that the nuisance was permanent but refers to the fact that in the Ryan case such allegation of permanency was controverted by the general denial in the answer, (as it is in this case) and the court concludes that in such cases election could not be applied to damage from a continuing nuisance of the nature therein alleged where the condition results from defendant's active operation of a permanent structure when the damage is not to the freehold itself and the beneficial use is not wholly destroyed. It was held that under the facts and circumstances of that case plaintiff had no right to elect to claim permanent damages and limited plaintiff's right of recovery to temporary or continuing damages, holding that the court erred in submitting to the jury the question of permanent nuisance. It is unnecessary to review here the numerous authorities cited in the Ryan case but the decision therein is conclusive both as to the question of permanent or continuing injury and election in the class of cases here considered.
We refer briefly to the general rules for the...
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