Kriener v. Turkey Valley Community School District

212 N.W.2d 526, 1973 Iowa Sup. LEXIS 1160
CourtSupreme Court of Iowa
DecidedNovember 14, 1973
Docket54862
StatusPublished
Cited by39 cases

This text of 212 N.W.2d 526 (Kriener v. Turkey Valley Community School District) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kriener v. Turkey Valley Community School District, 212 N.W.2d 526, 1973 Iowa Sup. LEXIS 1160 (iowa 1973).

Opinion

RAWLINGS, Justice.

By action in equity plaintiffs, as owners-occupants of a dairy farm, seek injunc-tive relief and damages by reason of a nuisance allegedly created by construction and maintenance of defendant school district’s sewage lagoon.

Trial to the court resulted in an adjudication adverse to plaintiffs and they appeal. We affirm in part, reverse in part.

An understanding of the problems instantly presented necessitates a prefatory portrayal of the asserted events upon which this cause of action is predicated.

In 1953 plaintiffs Luke and Leona Kri-ener purchased a 120 acre Winneshiek County farm located near Jackson Junction.

The Krieners promptly started dairy farming. At the same time they embarked on a herd, milk facility and home improvement project. By 1964 the herd had been increased from four or five cows and *529 probably the same number of heifer calves to about 50 grade cattle, some pure bred, an equal number of “springing heifers”, and an unknown number of calves.

Also, by 1964 Krieners had caused to be constructed on the farm a modern milk house and milking parlor, cement stave silo, new granary, a concrete covered livestock courtyard and walkway. Within the same period a modern home was built.

As a result of these improvements the Krieners, in August of 1959, moved directly from a “Grade B” classification to an improved “Grade A” milk production program.

By 1967 plaintiffs had added a cattle loafing or free-stall barn, and new Harves-tore silo.

In 1963 defendant school district started using a new high school located near Jackson Junction. The sewage disposal system, utilized in connection therewith, consists of a stabilization pond or lagoon located about 40 feet east of the Kriener property. This farm is intersected by Highway 24, with a 9-10 acre pasture tract being situated on the same side of the road as the lagoon. Prior to 1964 plaintiffs’ cattle were customarily pastured in this area.

A small creek runs in a westerly direction near the pipe outlet of the school sewage lagoon. Effluent from this stabilization pond runs into the creek, thence across Krieners’ farm. Their home and appurtenant structures, supra, are about one-half mile from the lagoon. The aforesaid creek is, at one point 200 feet from plaintiffs’ dairy building site and home area.

Plaintiffs contend that after defendant commenced using the sewage lagoon in 1963, offensive and sickening odors emant-ing from the lagoon and effluent therefrom in the nearby creek were noticeably present on the Kriener farm. At times these odors permeated their home and milking facilities.

Commencing in 1964 and continuing into 1966 most of plaintiffs’ 35-40 calves died shortly after birth. The Krieners also then encountered a herd mastitis problem. In an attempt to correct the situation plaintiffs tried numerous veterinarians, various treatments, called in sanitation inspectors, and changed equipment, feeds and medicines, all to no avail. Krieners were consequently twice dropped from the “Grade A” program and suffered a loss in milk production. They were resultantly forced to sell about 52 dairy cattle on the slaughter market and replace them with presumably healthy milk producing stock.

During the same year Krieners started using some drugs produced by Impro Products. Representatives of that firm visited plaintiffs’ farm and in 1966, on their recommendation, use of the aforesaid pasture tract was totally discontinued because the above mentioned creek bed was there accessible to the cows. All livestock was thereafter pastured in another area fenced off from the creek. No herd mastitis problem was subsequently encountered.

Also in August 1966, defendant school district, through its superintendent and board, was given oral notification by Mr. Kriener regarding the alleged lagoon related nuisance.

By their petition plaintiffs seek damages and injunctive relief because of alleged nuisance created by defendant school district in the maintenance and operation of a sewage lagoon which has caused injurious pollution of (1) air, and (2) creek water.

Defendant school district categorically denies any plaintiff asserted nuisance has resulted from creation and usage of the sewage lagoon.

These matters and attendant conflicting testimony, introduced by both parties hereto, will be later considered as it relates to issues instantly presented.

In support of a reversal plaintiffs here assert trial court erroneously found and *530 held they had not established by the requisite degree of proof (1) existence of a nuisance, (2) entitlement to damages and (3) right to injunctive relief.

I. At the threshold it will be noted plaintiffs’ petition invokes jurisdiction in equity though compensatory relief is in part sought. The propriety thereof is neither here disputed nor could it be effectively challenged.

As stated in Grandon v. Ellingson, 259 Iowa 514, 518, 144 N.W.2d 898, 901 (1966):

“It is conceded the allegations of plaintiff’s petition called for equitable jurisdiction. ‘ * * * once equity has obtained jurisdiction of a controversy it will determine all questions material or necessary to accomplish full and complete justice between the parties, even though in doing so it may be required to pass upon some matters ordinarily cognizable at law.’ (Authority cited).”

See also Rule 320, Iowa R. Civ.P.; Travelers Indemnity Co. v. Cormaney, 258 Iowa 237, 242, 138 N.W.2d 50 (1965); Newton v. Grundy Center, 246 Iowa 916, 922, 70 N.W.2d 162 (1955); McClintock on Equity, § 52, at 121 (2d ed. 1948); R. Sorenson, “The Law of Nuisance in Iowa”, 12 Drake L.Rev. 107, 113-116 (1963); 27 Am.Jur.2d, Equity, §§ 108-110; 30 C.J.S. Equity §§ 67-72.

II. Since this case stands in equity our review is de novo. We accordingly give weight to trial court’s findings are not bound by them. See Iowa R.Civ.P. 334, 344(f)(7).

III. Plaintiffs unquestionably acquired and located on their farm prior to construction of the school and its service related lagoon. This factor weighs heavily in favor of the Krieners. See Patz v. Farmegg Products, Inc., 196 N.W.2d 557, 561 (1972); Bates v. Quality Ready-Mix Co., 261 Iowa 696, 704, 154 N.W.2d 852 (1967).

In other words, what is commonly known as “coming to the nuisance” concept is not instantly involved. See generally East St. Johns Shingle Co. v. City of Portland, 195 Or. 505, 246 P.2d 554, 556-563 (1952); 58 Am.Jur.2d, Nuisances, § 216; Annot., 42 A.L.R.3d 344.

It is also of no consequence that plaintiffs voiced no objection to construction of the school and sewage lagoon. See Amdor v.

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Bluebook (online)
212 N.W.2d 526, 1973 Iowa Sup. LEXIS 1160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kriener-v-turkey-valley-community-school-district-iowa-1973.