127 Iowa 505 | Iowa | 1905
'Plaintiff owns one lot-and tbe fraction of another in tbe town of Tipton. Tbis property faces tbe
It appears that in -March of the year 1901 this same plaintiff brought an equitable action for an injunction against the defendant, in which he asked for the abatement of the nuisance by the removal of the buildings, the manure, and other substances surrounding the same, and for other equitable relief. To that action defendant appeared and joined issue, and, after a trial upon the merits, the trial court on November 16, 1901, entered a decree, -pursuant to a settlement and compromise of the case, requiring defendant to remove the horseyard from the north of his barn, to remove the privy from the southwest to the southeast corner of the barn, to keep the manure in a bos upon his premises, to permit plaintiff to get water from a hydrant in defendant’s.bam for the period of six months, and to remove the high board fence between the lots. This is the decree which was pleaded in bar of plaintiff’s • present action for damages. Plaintiff in his reply pleaded that this decree did not bar his action for damages, (1) because no damages were asked in the equity ease, (2) because defendant did not comply with the decree, in that he did not regard all of the terms .thereof, and that by reason thereof he has been damaged. To the ruling on the demurrer no exception was taken, but the ■case proceeded to trial as ^ if it were sufficient in law. No exceptions having been taken to the ruling on this demurrer, there is nothing here for us to consider.
Defendant contends that the court was in error in permitting plaintiff to show the value óf his property before and after the establishment of the nuisance, for the reason that the matters complained of were not permanent in character, and could be easily abated. He also insists that the trial court adhered to the wrong measure of damages, both in the introduction of testimony and. in its instructions. Purther claim is made that the instructions given by the
(3) If you find for the plaintiff, the measure of his recovery, if any, between the fair and reasonable value of the use of his home as it existed prior to the establishment of the alleged nuisance and after the premises were rendered offensive by the noxious odors from defendant’s outbuildings located on the adjoining lot, if you so find, together with such other and further sum as will reasonably compensate him for the inconvenience and discomfort which he has suffered, if any, in being deprived of his home by and in consequence of the continuance of the alleged nuisance. (4) If you find for the plaintiff, he will be entitled to recover as damages the loss sustained by him in the comfortable use and enjoyment of his home since November 16, 1901, and such further sum as in your judgment will compensate him for the inconvenience and discomfort suffered in the deprivation of the comfortable enjoyment of his homestead by himself and family during said period, to-wit, November 16, 1901.
These instructions are difficult to reconcile; but if we may assume that they limited plaintiff’s loss in the value of the use of the property from November 16th down to the
It is perfectly manifest tbat tbe trial court was in error, either in its rulings on evidence, or in tbe giving of instructions. Assuming tbat tbe instructions are correct as abstract propositions of law, they were erroneous here, because there was no evidence to support them. On tbe other band, if we assume tbat tbe rulings on evidence were correct, tbe instructions were wrong, for thereby plaintiff was denied a right to recover any damages done prior to November 16th, and tbe verdict should have been for tbe defendant under tbe instructions given. If we understand these instructions, they announce a correct rule of law, and tire trial court was in error not only in its rulings on evidence, but in submitting tbe case on a theory which there was no evidence to support.
Other matters argued are not likely to arise on a retrial, hence we do not consider them.
Nor the errors already pointed out, the judgment must be, and it is, reversed.