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Keywords

plaintiffdamagesappeal
plaintiffdamagessustainedappellee

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Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W.2d 435

Facts

Albert Ryan owned a 40-acre tract of land adjacent to the City of Emmetsburg, Iowa, where he lived with his family and farmed. In 1939, the city constructed a sewage treatment plant near Ryan's property, which began emitting noxious odors shortly after it started operating. Ryan claimed that these odors constituted a permanent nuisance, interfering with his use and enjoyment of his property and sought damages for the discomfort caused to him and his family.

Plaintiff's petition alleged said conditions constituted a continuing and permanent nuisance, which interfered with the use of the homestead and said premises, thus depreciating the value thereof.

Issue

The main legal issue was whether the nuisance caused by the sewage treatment plant was permanent or temporary, and whether the plaintiff could recover damages based on that classification.

Although these conditions may constitute a public nuisance the case at bar concerns a private nuisance.

Rule

The court ruled that a permanent nuisance is one that is reasonably certain to continue indefinitely, while a temporary nuisance is one that can be abated. The distinction affects the type of damages recoverable.

Chapter 528, Code of Iowa 1939, forbids the maintaining of nuisances and provides that a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.

Analysis

The court analyzed the evidence presented, noting that the nuisance was caused by the active operation of the sewage plant and that the odors were intermittent, depending on various conditions. The court concluded that the nuisance was abatable and therefore temporary, which meant that the plaintiff's claim for permanent damages was not valid.

However, the appellee asserts he had the right to elect and did elect to bring his action for permanent damages.

Conclusion

The court reversed the judgment in favor of the plaintiff, ruling that the nuisance was temporary and that the plaintiff could not recover for permanent damages.

For the error above noted the case is reversed and remanded.

Who won?

City of Emmetsburg prevailed in the appeal because the court found that the nuisance was temporary and that the plaintiff's claim for permanent damages was not supported by the evidence.

Therefore, Instruction 6 was not erroneous.

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