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IN THE SUPREME COURT OF IOWA No. 22 / 04-0706 Filed August 25, 2006 CAROL MILLER, DOROTHY MILLER, ROBERT DWYER, HOLLY DWYER, LINDA FRANCK, and DEBRA LITTS, Appellees, vs. KENNETH ROHLING, TODD ROHLING and JANA ROHLING, Appellants.

Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor, Judge.

Defendants appeal judgment for damages based on temporary nuisance. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

Rand S. Wonio of Lane & Waterman LLP, Davenport, for appellants.

Steven J. Kahler of Schoenthaler, Roberg, Bartelt & Kahler, Maquoketa, for appellees.

Paul S. Swinton of Morain, Burlingame & Pugh, P.L.C., West Des Moines, for amici curiae Iowa Farm Bureau Federation, Iowa Institute for Cooperatives, Agribusiness Association of Iowa, and Iowa Corn Growers Association.

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Christina L. Gruenhagen, West Des Moines, for amicus curiae Iowa Farm Bureau Federation.

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TERNUS, Justice. The appellants, Kenneth Rohling, Todd Rohling, and Jana Rohling, appeal an adverse judgment for nuisance damages entered after a bench trial on claims asserted by the appellees, Carol Miller, Dorothy Miller, Robert Dwyer, Holly Dwyer, Linda Franck, and Debra Litts. The defendants contend the trial court erroneously found their grain drying and storage activities constituted a nuisance. They also challenge the court's

calculation of damages and award of attorney fees, which together totaled over $190,000. Although we find the evidence sufficient to support the trial court's finding of a nuisance, we do not think the record fully sustains the trial court's damage awards or the recovery of attorney fees. Accordingly, we affirm in part, reverse in part, and remand for entry of a new judgment consistent with this opinion. I. Background Facts and Proceedings. The parties own various parcels of land in a commercial area of Wheatland, Iowa. Prior to the defendants' purchase of their property in 1992, the site had been used for a commercial grain storage and drying facility. The defendants also used the property for the storage and drying of grain, but only for their own crops. When the defendants bought the land, there were three grain bins, a grain dryer, and associated equipment on the property. The defendants added two additional bins, one in 1996 and one in 1999. After this lawsuit was filed in 2003, they erected two more, for a total of seven grain bins at the site. The plaintiffs live on residential lots in the vicinity of the defendants' property. In addition, the Dwyers own a rental property adjacent to the lot on which they reside. According to the plaintiffs, grain dust, corn chaff, and beeswings 1 are released, primarily during the harvest season, when grain is
1 "Beeswings"

are "very thin filmy pieces of bran." Webster's Third New International

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transferred to and from the defendants' bins. The plaintiffs testified these emissions have increased since 1998 and physically accumulate on their properties to the extent the fugitive dust interferes with the plaintiffs' use and enjoyment of their land. The plaintiffs further assert noise from the grain dryer and truck traffic is annoying and makes it difficult for them to sleep and converse in their homes. The plaintiffs brought this nuisance suit to recover damages and obtain injunctive relief in 2003 after the Wheatland city council issued a building permit allowing the defendants to erect two additional grain bins. Following the district court's refusal to order a temporary injunction, the defendants built two new bins and made improvements to the conveying system in all but one bin. These improvements were intended to enclose the system for filling the bins, thereby eliminating the open transfer system that allowed debris to escape into the air. The plaintiffs' claims proceeded to a bench trial in March 2005. In addition to testifying to the complaints outlined above, the plaintiffs introduced into evidence a videotape that showed corn chaff, beeswings and dust on outdoor furniture, on a grill, on a fence, and floating in one of the plaintiffs' swimming pools. The plaintiffs asked for damages for the

annoyance, discomfort, and inconvenience caused by the emissions and noise emanating from the defendants' land, as well as for the cost of additional cleaning necessitated by the particulate matter settling on the plaintiffs' property and personal belongings. No bills or receipts were

presented at trial to document any out-of-pocket expenses. Based on this evidence, the trial court found the use of the defendants' bins in 2001, 2002, and 2003 constituted a temporary nuisance. The court determined plaintiff Dorothy Miller had testified to the
________________________ Dictionary 197 (unabr. ed. 2002).

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most credible list of cleanup expenses, with the exception of the cost of rodent control. Using Miller's testimony as a basis, the court awarded each plaintiff $1670 for cleanup in each of the three years in which the defendants operated a nuisance. On the plaintiffs' claims for loss of use and enjoyment of their property, the court determined a reasonable figure for such loss was $6 per hour for sixteen hours per day for a period of ninety days, totaling $8640 per year per plaintiff. In addition, the court awarded plaintiff Holly Dwyer $1900 in lost rental value based on evidence Dwyer reduced the rent charged to a tenant due to the grain residue falling onto the rental property. In summary, each plaintiff was awarded $30,930 in compensatory damages, with the exception of Holly Dwyer, who was awarded $32,830. In addition to the compensatory damage awards, the court ordered the defendants to pay $4000 towards the plaintiffs' attorney fees, notwithstanding the absence of any demand for such fees. II. Scope of Review. The plaintiffs brought this action at law. See Weinhold v. Wolff, 555 N.W.2d 454, 459 (Iowa 1996) (indicating action to recover nuisance damages may be brought at law or in equity). Our review of the trial transcript confirms that the case was tried as a law action. Therefore, our review is for correction of errors of law. See In re Estate of Boyd, 634 N.W.2d 630, 635 (Iowa 2001) ("The scope of review depends on how the case was tried in the district court."); Iowa R. App. P. 6.4. Under this scope of review, "[t]he trial court's findings of fact are binding on us if supported by substantial evidence." Bates v. Quality Ready-Mix Co., 261 Iowa 696, 699, 154 N.W.2d 852, 854 (1967). We view the evidence "in the light most favorable to the trial court's judgment." Id.

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III. Existence of a Nuisance. Iowa has statutory nuisance provisions that are supplemented by the common law of nuisance. See Perkins v. Madison County Livestock & Fair Ass'n, 613 N.W.2d 264, 271 (Iowa 2000). Under the Iowa Code and under common law, the use of property or structures in such a manner as to unreasonably interfere with another's reasonable use and enjoyment of his property or in such a manner as to injure another's health is a nuisance. See id.; Iowa Code

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