62 Iowa 540 | Iowa | 1883
-I. We have examined the evidence, and have reached the conclusion that the allegations of the peti
The evidence on the part of the plaintiffs is affirmative in character, while that introduced by defendan+s is necessarily negative.
But the evidence introduced by the plaintiffs is sustained by some of the witnesses introduced by the defendants. Some of the witnesses of the latter, while admitting that there were smells emanating from the slaughter-house, say that they suffered no inconvenience therefrom, and others say there were offensive odors at times, and that they would not like to live within the range thereof if they existed all the time.
¥e cannot disregard or fail to give due weight to the plaintiffs’ witnesses, who testify affirmatively that there are odors emanating from the defendants’ premises, which are injurious to health, and render the comfortable enjoyment of property impossible.
It appears from the evidence that cattle, sheep and hogs are slaughtered on the premises, and the refuse thereof, consisting of the heads, feet and entrails, are usually boiled in a kettle and fed to the hogs. The entrails of lambs have been so fed without being cooked. Tainted meat and tallow also have been rendered or cooked on said premises on at least two occasions.
From some of these sources, and from the pens, we are forced to the conclusion that there emanate odors and smells which are injurious to health and the comfortable enjoyment of property.
"We are not prepared to say that the premises are not kept as clean as the business carried on will permit. Nevertheless, we think such business, while necessary and essential, when carried on at the place it is, must be regarded as a nuisance.
The defendants’ slaughter-house is about seven hundred feet north of the limits of the city of Davenport. But west of the house is Grant’s addition, about five hundred feet distant.
Between the defendants’ premises and said addition there is a public highway, known as the Dubuque road, which connects with or is an extension of Brady street in said city.
Robinson & Ballew’s addition is north of the slaughterhouse, and about seven hundred feet distant. South avenue is a public highway, and is the southern boundary of said addition.
Defendant’s premises abut on Farnam street on the east, which is about eight hundred feet from the slaughter-house. The city engineer testifies that “the character of the neighborhood where defendants’ slaughter-house is is for residences.” Grant’s addition is laid off in lots and blocks, and there are fifteen or more residences thereon, some of which are directly across the Dubuque road from the premises of the defendants, and others immediately across said road, but on an angle therefrom.
Robinson & Ballew’s addition was, as we believe, originally laid off into ten-acre lots, but a portion of it has been subdivided into smaller tracts. It is occupied as residences, and some, at least, of the residents are engaged in gardening. Across Farnum street, directly east and northeast of the defendants’ premises, are two residences.
'From this brief and possibly imperfect statement, it will be seen that the slaughter-house is practically surrounded by residences that are, at most, not. more than five hundred to one thousand feet distant. We feel constrained to say that, situated as the slaughter-house and, pens are, and the business
II. But counsel for the defendants insist that, as there are four or more plaintiffs, the injury suffered by them must
We think the objection to plaintiffs’ recovery under consideration is not well founded. Although the plaintiffs separately own the property on which they reside, we are of the opinion that they can unite in asking the relief sought. Robisson v. Baugh, 31 Mich., 290; Brandirff v. Harrison Co., 50 Iowa, 164; Robbins v. S. C. Turnpike Co., 34 Ind., 461; Trustees v. Cowen, 4 Paige, 510; High on Injunctions, 1st edition, §. 748.
III. Counsel for the ap]jellants insist that plaintiffs have a plain, speedy'and adequate remedy at law, and therefore are
This question was somewhat considered, but not determined, in Daniels et al. v. Keokuk Water Works, 61 Iowa, 549. In that case it was said that, under a similar statute, it had been so held in Wisconsin. Remington v. Foster, 42 Wis., 608. In the cited case, the court so held on the ground that the statute “abrogated the equitable remedy” theretofore existing, and substituted the legal.
But, as was said in that case, there is no doubt that the equitable remedy at one time existed in that state. It will not be doubted, we apprehend, that this is true as to this state. The question, then, is whether such equitable remedy has been abrogated. In addition to the foregoing statute, there is another which provides that “an injunction may be obtained .as an independent remedy in an action by equitable proceedings, in all cases where such relief would have been granted -in equity previous to the adoption of this Code * * * (Code, § 3386;) and “the plaintiff may prosecute his action by .equitable proceedings in all cases where courts of equity before the adoption of this Code had jurisdiction *’ * .” Code, § 2508.
Under the foregoing statute, the remedy in equity, which, prior to the adoption of the Code, was freely administered, continues to exist because of the express terms of the statute. The several statutes must be construed together, and, .this being done, there has been added to the legal remedy, which has existed for more than a hundred years, the provision that an injunction might issue, and thus make the legal remedy more effectual. A plaintiff' may pursue either. 'This view is recognized, at least, in Ewell v. Greenwood, 26 Iowa, 377. It is, however, doubtful whether the point now made by counsel was directly presented in the case cited. But
The courts of equity granted relief. as readily and certainly, in a proper case, where the nuisance had been erected, as where it was about to be. If it had been intended to make the statute under consideration applicable to the latter class only, we think apt words would have been used to express such intent. Because, therefore, of the existence of the statute, continuing in force the equitable remedy, we think the Wisconsin case above cited is distinguishable. ,r
TV". The slaughter-house was erected, and the grounds on which it is situated were used substantially as now, when
Possibly, if nothing else was involved but damages to property, the point made would be well taken. But when, as in this case, health is injuriously affected and personal discomfort incurred because of offensive odors, adequate compensation in damages cannot be obtained. In such a case, if this action had been at law, the only adequate remedy that could have been granted would have been the abatement of the nuisance. As equity has concurrent jurisdiction with law, we do not think the sound discretion vested in the former should be so exercised as to deny any and all relief, and remit the plaintiffs to the remedy at law for the recovery of inadequate dam
In -this last case, pens in which were kept large numbers of cattle, horses and bogs were declared to be a nuisance, although they bad been erected and so used for thirty years, and, when erected, were outside of the limits of tbe city of Coving-ton, but by reason of tbe increase of population tbe pens became a nuisance. See also McKeon v. See, 51 N. Y., 300; Brady v. Weeks, 3 Barb., 157.
There is no allegation in tbe petition that plaintiffs own tbe jn’operty in which they live, nor is tbe location, character
Tbe petition was not attacked by either motion or demurrer, and we think it was too late to raise tbe objection when it was sought to introduce the evidence. The petition on its face stated a cause of action, because it did not appear therefrom that the interest of the plaintiffs was separate and distinct. From the petition it cannot be ascertained whether the plaintiffs owned the property jointly or severally. So far, therefore, as the injury to property was concerned, the petition stated a cause of action. Of course, the injury to health and personal comfort was separate and distinct. But the objection urged only relates to the property, and we think a motion for a more specific statement was the only remedy the defendants had. This, for sufficient reasons, no doubt, they
T. As to the plaintiffs’ appeal, as has been stated, two paragraphs of the petition were stricken out on motion, and in this, it is said, the court erred. Conceding this, we think the plaintiffs have not been prejudiced by the ruling of the court.
VI. The decree enjoins the defendants from continuing the nuisance on the premises, or in the immediate vicinity
We are disposed to think the defendants should have the opportunity of so showing, if they can, and see proper to do so. But the plaintiffs should not be required to resort to another action to obtain rights to which we hold they are justly entitled. We think the desired end can be best accomplished by remanding the cause to the circuit court, with directions to permit the defendants, within such reasonable time as the court may direct, to introduce further evidence upon'the question as to whether the manner of conducting said business can be so changed as to prevent the same from being a nuisance; the plaintiffs to have the opportunity of offering evidence in rebuttal of that introduced by the defendants. If the defendants decline to introduce any additional evidence, or if they do so, and the court is unable therefrom to determine that the said business can be so conducted as not to be a nuisance, then the court is directed to enter a decree unconditionally enjoining its continuance; but if the court should find otherwise, then a decree should be entered defining and protecting the rights of the parties. On defendants’ appeal the decree is affirmed, and on plaintiffs’ appeal
Modified and Affirmed.