86 Iowa 352 | Iowa | 1892
But one question is presented by this record, viz: In an action at law, where the plaintiff claims damages for a nuisance, and also asks that the nuisance be enjoined or abated, and where the ease is tried and damages are recovered upon the theory that the nuisance is permanent in character, is the plaintiff,, as a matter of right, entitled to an injunction or order for abatement? Our statute provides: “Whatever is
It is insisted by the appellant that the word “may,” used in the statute, is to be construed to mean “shall” or “must;” that the power therein given is mandatory, and is not simply permissive or discretionary. IÍ this contention is correct, then it is clear that the court below should have entered the order abating the nuisance. The rule of construction is well stated in lá Amer. & Eng. Eneyelopsedia of Law, 979, thus: “The word ‘may in a statute is sometimes used in a mandatory, and sometimes in a directory and permissive, sense. It has always been construed to mean ‘must or ‘shall, whenever it can be seen that the legislative intent was to impose a duty, and not simply a privilege or discretionary power, and where the public is interested, and the public or third person have a claim de jure to have the power exercised. But it is only where it is necessary to give effect to the clear policy and intention of the legislature that it can be construed in a mandatory sense, and, where there is nothing in the connection of the language or in the sense and policy of the provision to require an unusual interpretation, its use is merely permissive and discretionary.” Black’s Law Dictionary, title, “May. It is said by a learned writer that “the rule that ‘may is to be interpreted as ‘shall or ‘must is not by any means uniform; its application depends on what appears tobe the true intent of the statute. Sedgwick on Statutory and Constitutional Law, p. 138. In some
It is claimed by the appellee that this court has recognized two classes of nuisances — that is, those where the injury is permanent, and in which damages are recoverable in a single action, and those which are continuing, wherein successive actions may be maintained for each fresh injury — and that the statute as to granting an order for abatement applies only to the latter class of cases. The question of original and continuing injuries, as applied to nuisances, will be found discussed in the following cases: Powers v. Council Bluffs, 45 Iowa, 655; Stodghill v. C., B. & Q. R’y Co., 53 Iowa, 341; Van Orsdol v. B., C. R. & N. R’y Co., 56 Iowa, 470; Bizer v. Power Co., 70 Iowa, 145; Shively v. C. R., I. F. & N. W. R’y Co., 74 Iowa, 169; Hunt v. Iowa Central R’y Co., ante, 15. In Miller v. K. & Des M. R’y Co., 63 Iowa, 680, which was an action for damages for
This question is one on which the authorities are not entirely harmonious. A leading author holds that, if a statute provides for a recovery of damages, and that the nuisance may be enjoined or abated, the allowance of the abatement or injunction does not follow, as a matter of course, but lies in the sound discretion of the court. 1 High on Injunctions [3 Ed.], section 749. In Kothenberthal v. City of Salem Co., 13 Or. 604, 11 Pac. Rep. 287, it was held by a divided court that the verdict of a jury finding a nuisance did not have the effect to make it absolutely incumbent on the court to issue a warrant of abatement; that it was a matter within its discretion. And, in Bemis v. Clark, 11 Pick. 454, under a statute providing that, where a judgment is rendered for the plaintiff in an action on the case for a nuisance, the court “may, on motion of the plaintiff, in addition to the common execution, issue a warrant to abate the nuisance,” it was held to be within the discretion of the court to grant or refuse the motion. In Wood on Nuisances, section 843, the author, in discussing this question, says: “It is proper
In the following cases the right to abatement in cases where damages were asked was sustained: Section 731 of the Code of Civil Procedure of California, among other things, provides that where a- nuisance-“is the subject of an action, such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the-nuisance; and by the judgment the nuisance maybe enjoined or abated, as well as damages recovered.” The court held that, under this statutory provision, a general verdict for damages included a finding in favor of the plaintiff upon all the issues, and the abatement of the nuisance could be included in the judgment. Learned v. Castle, 7 Pac. Rep. (Cal.) 34. In Chapman v. City of Rochester, 110 N. Y. 273, in an action to en join the continuance of a nuisance and for damages, and where the city had, by its sewerage, fouled a stream which the plaintiff used for the purpose of propagating-fish, as well as for domestic purposes, the court held that he was not only entitled to damages, but also to an.
Another class of cases hold, in effect, that where damages are recovered, past and prospective, for a permanent nuisance, the party recovering them is not entitled to an injunction or an abatement of the nuisance. Thus, in Kentucky it is held that one, by instituting an action for permanent damages, in effect, consents that the defendant may continue the nuisance as it then exists. Railway Co. v. Esterle, 13 Bush. 667. See Fowle v. New Haven, etc., Co., 112 Mass. 338. This same doctrine is recognized in Stadler v. Grieben, 61 Wis. 500, 21 N. W. Rep. 629, which was an action at law for damages and to abate a nuisance, the statute providing therefor, and where the verdict was against the plaintiff. The court held that the damages in such cases (a stock yard) were continuing, and, in discussing the admissibility of evidence, this language is used: “But to receive and recover pay for the amount of such permanent diminution in value would be to obtain full pay and satisfaction for all damages which had been, or could be, sustained by
In the light of the authorities, we think it is cleai’that, under our statute, in an action at law for damages for a nuisance, where damages for a permanent nuisance are recovered, it does not follow that the plaintff, as a matter of right, is entitled to either an injunction or an order for the abatement of the nuisance; that in that respect the statute is not mandatory, but the making of such an order is a matter in the sound discretion of the court, to be exercised in view of all the facts and circumstances of the case. There was no abuse of this discretion shown in this case. The plaintiff has recovered compensation for the permanent injury to her property. She now seeks to invoke the aid of the law to prevent the continuance of the injury, for which a