132 Iowa 234 | Iowa | 1906
Defendant owns and operates a creamery in Wayne county, Iowa, and this action is based upon the claim that he, by his employes and servants, casts the filthy refuse matter from said creamery into a running stream which passes from his premises to those of the plaintiff, and thereby has so befouled and corrupted the waters as to poison the same and cause noxious and offensive odors to arise therefrom to the injury of plaintiff and his family. Defendant answers alleging that he has conducted his creamery according to the most modern and best approved methods, and kept the same in a cleanly condition. He further alleges that the real source of the corruption of the water is the act of the neighboring town of Humeston, and of a certain railway company, both being farther up the stream, and both it is alleged draining unclean substances therein. He also charges that plaintiff himself deposited dead animals and other unclean substances on his land in such manner as to cause or contribute to the fouling of the stream. Upon trial to a jnry, there was a verdict and judgment for plaintiff for
That the doctrine of contributory negligence does not apply where nuisance is charged is illustrated in cases where the complainant has purchased property or perhaps, has established his residence in the immediate vicinity of an already existing nuisance. This, it is generally held, he has a right to do, and his imprudence or negligence in thus moving into the sphere of the injurious effects of the nuisance will not serve to avoid his claim for damages. People v. Lead Works, 82 Mich. 471 (46 N. W. 735, 9 L. R. A. 722);
A careful reading of the instruction .given by the trial court in this case seems to indicate an intention to direct the jury with reference to plaintiff’s “ contributory wrong ” as distinguished from “ contributory negligence,” and, for this distinction, there is to be found apparent support in Ferguson v. Firmenich, supra, decided by this court. In that case, under circumstances very similar to those in the case at bar, it was shown that the defendant polluted the stream by the discharge of refuse matter from its glucose works, and there was also evidence tending to show that plaintiff, owning the land below those works, also, maintained a slaughter house from which other offensive material drained into the same stream. In the course of the opinion, it is said: .“ It is insisted by the appellee that he is entitled to recover if a wrong has been proven notwithstanding the fact
The defendant’s wrong, if any, in the present case, as well as in the Ferguson case, consisted in his own separate and independent act in fouling the water, and causing it to pass to the plaintiff’s premises in a polluted condition. In that wrong there is no pretense that plaintiff united in
So, also, if the plaintiff had no part or agency in the fouling tíf the stream by the defendant, and if plaintiff’s own act in fouling said stream did not amount to a legal wrong against any other person (and both hypotheses are sustained by the record), then it is legally impossible to
From the rule approved in this opinion there have been noted by the courts at least two recognized exceptions, which to avoid any misconception we briefly mention, without stopping to consider the reasons on which they are based. First, where public works or improvements are authorized by law, and do not encroach directly upon private property, they cannot be treated or pi’oeeeded against as nuisances, nor will their existence be a good ground for the recovery of damages as for a nuisance except upon allegation and proof of negligence in their construction or operation. Second, where an alleged nuisance is the result of the development by the owner of his own land in the production and utilization of its natural resources, such as coal, iron, gas, oil, and other forms of mineral wealth, the charge can be sustained only when it is shown that such owner has failed to exercise due care to so conduct his business as to avoid the injurious results complained of. Hauck v. Pipe Line, 153 Pa. 366 (26 Atl. 644, 20 L. R. A. 642, 34 Am. St. Rep. 710); Transportation Co. v. Chicago, 99 U. S. 635 (25 L. Ed. 336). Whether these exceptions are not themselves subject to limitations and qualifications under some circumstances, we need not here consider.
The judgment of the district court is therefore affirmed.