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IN THE COURT OF APPEALS OF IOWA No. 0-692 / 10-0523 Filed December 8, 2010 ROBERT HAFFNER and CAROL HAFFNER, Plaintiffs-Appellants, vs. TROY CLARK, SHARYN CLARK, BETH NELSON, KORY NELSON and CLARK'S TREE SERVICE, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Page County, James S. Heckerman, Judge.

Robert and Carol Haffner appeal from the district court ruling denying their claims against the defendants, Troy and Sharyn Clark, Beth and Kory Nelson, and Clark's Tree Service. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Brenda L. Myers-Maas, West Des Moines, for appellants. Patrick A. Sondag, Council Bluffs, for appellees Beth and Kory Nelson. Jon J. Puk of Walentine, O'Toole, McQuillan & Gordon, Omaha, Nebraska, for appellees Troy and Sharyn Clark and Clark Tree Service.

Heard by Eisenhauer, P.J., and Potterfield and Doyle, JJ.

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EISENHAUER, P.J. Robert and Carol Haffner appeal from the district court ruling dismissing their claims against the defendants, Troy and Sharyn Clark, Beth and Kory Nelson, and Clark's Tree Service. They contend the court erred in concluding they failed to establish a nuisance claim and in denying their request for an injunction against the defendants for their use of wood-burning furnaces. They also contend the court erred in considering and weighing certain evidence; in concluding their claims were barred by the doctrines of laches and estoppel; in dismissing their law claims for negligence, trespass, and assault; and in denying their motion for new trial. Because the Haffners failed to establish the existence of a nuisance, we affirm the dismissal of their claim for a permanent injunction against the defendants. We reverse the dismissal of their law claims and remand for further proceedings. I. Background Facts and Proceedings. The Haffners own a home in Yorkstown, where they have resided since 1977. The Clarks' home is located approximately forty or fifty feet to the west of the Haffners. Approximately 125 feet to the east of the Haffners is a home owned by the Nelsons.1 The issue in this case concerns the Clarks' and the Nelsons' use of wood burning furnaces. The Clarks installed a wood-burning furnace in their home in 1984 and have been operating it as their sole heat source since. In 1998, the Clarks installed a second wood-burning furnace in their detached garage; this furnace was disconnected in March 2008 following complaints made by the
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Beth Nelson is the adult daughter of Troy and Sharyn Clark.

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Haffners. The Nelsons also operate a wood-burning furnace in their home. Their furnace was installed on January 1, 2008. On December 24, 2008, the Haffners filed a petition alleging the Nelsons, the Clarks', and Clark's Tree Service's use of wood-burning furnaces generated smoke, soot, noxious fumes, and fly ash, which damaged their property, caused them physical injury, and reduced the value of their property, as well as infringing on their use and enjoyment of the land. They sought recovery under the theories of nuisance, negligence, assault, takings, and trespass to land. They requested an award of compensatory and punitive damages, as well as temporary and permanent injunctions to enjoin the defendants from using the furnaces. In their answer, the defendants denied the Haffners' claims and raised the affirmative defenses of failure to state a claim upon which relief may be granted, the statute of limitations, comparative fault, the doctrines of laches and estoppel, misjoinder of claims, failure to mitigate damages, and unclean hands. On February 24, 2009, the Haffners' request for a temporary injunction was heard. The defendants agreed to extend their smokestacks two feet above the highest peak of their rooflines and to burn only clean, seasoned wood. Although the defendants complied with the agreement, in April 2009 the Haffners informed the court the adjustments had not alleviated the problem. A trial was commenced in November 2009 on the Haffners' claims of nuisance, negligence, assault, and trespass, as well as their claim for permanent injunction. A jury was impaneled to hear the legal claims while the court was to consider the request for injunction. After two jurors were dismissed for personal

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or family illnesses, the trial court declared a mistrial on the Haffners' law claims. Their request for a permanent injunction was tried to the court sitting in equity, with the law claims to be tried at a later date. At the close of the Haffners' evidence, the defendants moved for directed verdict. The trial court withheld ruling on the motion and proceeded to hear the defendants' evidence. On December 21, 2009, the court entered its order directing a verdict in favor of the defendants on the Haffners' nuisance claim and their request for permanent injunction. The court found in the alternative the evidence did not establish a nuisance. It further found the Haffners' delay in complaining about the alleged nuisance was unreasonable and concluded "the Defendants' affirmative defenses of estoppel and laches should apply and be enforced." The court then went on to address the defense of election of remedies. It stated: Since this Court has concluded that no nuisance was proven, the Haffners cannot pursue that claim as an action at law to another fact finder. In deciding if any such nuisance was shown, the evidence offered by the Haffners also encompassed their separate causes of action at law for trespass (intentionally causing an object of thing to enter and do harm to their property) and for assault (doing an act intended to put another in fear of physical pain or contact). As such, the Haffners likewise cannot bring those claims again. On the Haffners' remaining cause of action at law for negligence, it is stated in Martins v. Interstate Power Co., 652 N.W.2d 657, 661 (Iowa 2002) that, "[w]here a nuisance is based on negligence, however, liability for nuisance may depend upon the existence of negligence." The Court reasonably also finds that the Haffners did not prove any negligence and that claim too cannot be relitigated. The Haffners sought enlargement of the ruling and filed a motion for new trial. In its March 1, 2010 ruling, the court denied both. The Haffners appeal.

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II. Scope and Standard of Review. This case was brought and tried as an equity action. Therefore, on appeal, this court will review the case de novo. See Perkins v. Madison County Livestock & Fair Ass'n, 613 N.W.2d 264, 267 (Iowa 2000). We give weight to the district court's findings of fact, but we are not bound by these findings. Id. This court is especially deferential to the district court's assessment of witness credibility. Id. III. Permanent Injunctive Relief. The Haffners first contend the court erred in concluding the evidence did not establish a nuisance and in refusing to grant permanent injunctive relief. It is incumbent upon parties to use their own property in a manner that will not unreasonably interfere with or disturb their neighbor's reasonable use and enjoyment of the neighbor's property. Id. at 271. A private nuisance is "an

actionable interference with a person's interest in the private use and enjoyment of the person's land." Id. (citing Wienhold v. Wolff, 555 N.W.2d 454, 459 (Iowa 1996)). The legislature defines a nuisance as: Whatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property, so as essentially to unreasonably interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof. Iowa Code

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