Fuller v. Chicago, Rock Island & Pacific R'y Co.

15 N.W. 861, 61 Iowa 125

• Court: Supreme Court of Iowa
• Decided: June 6, 1883
• Status: Published

Opinion

Day, Ch. J.

— Section 3331 of the Code pi’ovides: “Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought thereon by any person injured thereby; in which action the nuisance may be enjoined or abated, and damages also recovered therefor.” Section 4093 of the Code provides: “When upon indictment,' complaint, or action, any person is adjudged gxxilty of a nuisance, the court before whom such conviction is had may, in addition to the fine imposed, if any, or to the judgment for damages or cost for which a separate execution may issue, order that such nuisance be abated or removed at the expense of the defendant, and, after inquiry into and estimating as nearly as may be the sum necessary to defray the expenses of such abatement, the court may issue a warrant therefor.”

The evidence upon which the case was tried is not contained in the abstract. The motion for order of removal is based simply upon the facts alleged in the petition. It seems to be assumed by appellant that the verdict in favor of plaintiff is conclusive of the fact that the side track was a nuisance, or, at least, is conclusive of enough of the facts alleged in the petition to show that the side track was a nuisance. It is apparent, we think, however, that the verdict for the plaintiff does not necessarily determine that the side track was a nuisance at the time of the trial. The court instructed the jury upon the trial as follows: “You are instructed as a matter of law that the defendant did have lawful authority to properly construct the side track referred to in the pleadings and evidence at the time and place it is alleged and admitted to have been constructed; and, having such lawful authority, it is not liable to plaintiff for any damages that he may have received by reason of the proper construction thereof. The defendant was bound to exercise ordinary care and prudence in the building of said track, and is liable for any damage resulting from a want of such care and prudence. You will observe that it is only for damages resulting from the negligent exercise of the right that defendant had to build the track that plaintiff can recover. As there is no evidence tending to show negligence in constructing the track, except as to the water-ways, you are only called upon to inquire whether there was negligence in that particular, and, if so, what damage plaintiff sustained within the five years named, as the direct result thereof.”

Now it is evident that, under these instructions, the jury may have found that, at some time during the period covered by the petition, the water-ways were in such condition as to occasion the plaintiff damage, for which he might recover, without finding that, at the time of the trial, they were in such condition as to constitute a nuisance. It follows'that tbe- verdict for plaintiff does not necessarily involve a finding tliat tbe side track was a nuisance at tbe time of tbe trial.

It is insisted, however, that the resolution. authorizing G-etchell and others to construct a side track, under which the defendant claims to have acted, was a mere personal license to the individuals named, and that it was not assignable or transferable to the defendant, and that tbe defendant, cannot claim any rights thereunder. Suppose this should be conceded. The fact still remains that, under the instructions, the jury could not have awarded any damages for tbe mere construction of the side track, but must have based their verdict upon the negligent construction of the water-ways. The verdict does not therefore involve a finding that tbe side track, in itself, interfered with the comfortable enjoyment of the plaintiff’s property. This must appear before he can have it abated in a private action. Code, section 3331; Ewell v. Greenwood, 26 Iowa, 377. In our opinion we cannot, without the evidence on which the court below acted, determine that it erred in overruling the motion to remove the side track.

Affirmed.