119 Iowa 473 | Iowa | 1903
This action was brought October 17,1900, to recover damages for a nuisance created by defendant which caused injuries to plaintiff’s farm. It appears that defendant city established a sewer system which emptied into what is known as “Indian Greek,” which flowed through plaintiff’s premises; that the mouth of the sewer was near the boundary of plaintiff’s land; and that the sewage escaped into Indian Greek' and was carried thence by the waters of that creek over and across the land belonging to plaintiff. It further appears that the discharge from the sewer polluted the water of the creek, rendered it impure and unwholesome both to stock and ' human beings, poisoned the atmosphere, and caused deposits of filth to accumulate on the banks of the creek, all to plaintiff’s great damage. Evidence was also adduced of prior actions against the city brought by plaintiff to recover damages for the nuisance, and of a suit in equity to permanently enjoin the nuisance, all of which resulted favorably to plaintiff. Defendant claimed that the waters of the creek were befouled by other causes than the discharge of the sewage, and introduced evidence tending
'Proper determination of this principal point involves a consideration of some facts additional to these already stated. The city of Marion has a population of about 6,000. It planned its sewer system with reference to an ultimate outlet into Indian creek, although, as a matter of fact, the sewage was gathered and conducted through pipes into a mainpipe or sewer which •emptied into a basin some twenty rods from Indian creek. Prom that basin it overflowed and ran into a small spring brook known as “Gray’s Pun,” and from Gray’s run it ran into Indian creek, and thence across plaintiff’s farm. The pool into which the sewage was first discharged was some distance from plaintiff’s land. Originally the discharge was into Gray’s run, and, to remedy the supposed nuisance, defendant dug the basin above referred to, hoping that this would afford some relief, but all to no purpose. The establishment of thh sewer system provoked considerable litigation, and at least two of the cases reached this court. See Hollenbeck v. City of Marion, 116 Iowa, 70; Bennett v. City of Marion, 102 Iowa, 425.
We reach the conclusion that the nuisance in question was a continuing one, and that plaintiff was entitled te all damages within the statutory period of limitations not theretofore recovered by him, notwithstanding the fact that the original cause of action was barred, and this for the reasons: First, that two or more courts have held it to be a continuing nuisance, and one has held it to be temporary and subject to abatement (Plate v. Railroad Co., 37 N. Y. 472); and, second, for the further reason that defendant may remedy and abate the nuisance without going off its own premises to do so. These facts clearly distinguish the case from Baldwin v. Light Co., 57 Iowa, 51, and other like cases. See, also, Bare v. Hoffman, 79 Pa. 71; Uline v. Railroad Co., 101 N Y. 98 (4 N. E. Rep. 536, 54 Am. Rep. 661); Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317 (2 Sup. Ct. Rep. 719, 27 L. Ed.739).
III. i These thoughts also dispose of defendant’s contention that the court erred in not submitting the questions of res adjudioata and the statute of limitations to the jury.
But this was not the real matter of the issue. The question presented.was the deterioration, if any, in the rental value of the farm as a whole by reason of the establishment of the nuisance. Defendant’s witnesses were allowed to answer questions calling fof their opinions on this subject, and this, we think, is all that it was entitled to. It was not permitted to go into the question as to the returns plaintiff actually had from some specific part of the land, and the ruling denying it this privilege was unquestionably correct. Plaintiff might take the chance of disease to his stock, or that of others pastured by him, if he saw fit; but, having, taken the chance, defendant should not now be permitted to show that a specific part of the land was not damaged because plaintiff used all of it as before the sewer was established. The inquiry was the damage done the entire farm by reason of the depreciation in its rental value, and not, primarily the injury done a particular forty acres. Doubtless such an inquiry would be proper on cross-examination,, but it would not b§ admissible as substantive proof either for or against the plaintiff. Surely it will not be contended that, plaintiff could prove the amount of depreciation in rental value by showing that he was not able to use the pasture, and that he lost the return he might have gained from
Error is also predicated on the admission of evidence from experts regarding the probable effects of the deposit ■of sewage in the running stream. That point is ruled by' Hollenbeck v. City of Marion, supra, and need not be further considered.
We have now examined all the points made by defendant, and find no error, except as is stated. But for the reasons pointed out, the judgment must be reversed.