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IN THE SUPREME COURT OF IOWA
No. 63 / 04-1499 Filed June 2, 2006 WAYNE J. TETZLAFF, BARBARA A. TETZLAFF and BRIANA A. TETZLAFF, Appellants, vs. TIMOTHY CAMP and GLENNA CAMP, Defendants, AL PANGBORN and RACHAEL PANGBORN, Appellees. ________________________________________________________________________ Appeal from the Iowa District Court for Polk County, Glenn Pille, Judge.

Appellants contend on interlocutory appeal that district court's summary judgment decision finding lessors not liable for the nuisance activities of their tenants was in error. REVERSED AND REMANDED.

Brenda L. Myers-Maas, West Des Moines, for appellants.

Eldon L. McAfee of Beving, Swanson & Forrest, P.C., Des Moines, for appellees.

Paul Swinton of Morain, Burlingame & Pugh, P.L.C., West Des Moines, and Christina L. Gruenhagen, West Des Moines, for amici curiae.

2 STREIT, Justice. With ownership of property comes responsibility. The plaintiffs,

Wayne, Barbara, and Briana Tetzlaff (Tetzlaffs), rural homeowners, appeal from a summary judgment entered in favor of co-defendants Al and Rachael Pangborn (Pangborns), owners of adjacent property, on their nuisance claim. Tetzlaffs contend the district court erred in ruling as a matter of law that Pangborns could not be found liable for the other codefendants', Tim and Glenna Camp (Camps), decision to spread manure on the Pangborn property. Because we find a landlord may be liable if he or she renews a lease with notice that the tenant's prior use resulted in a nuisance, we reverse the decision of the district court. I. Facts and Prior Proceedings The three parties to this litigation are neighbors. Camps operate a three-hundred head hog finishing facility on land they own across the road from Tetzlaffs' acreage. Pangborns live on an acreage to the south of Tetzlaffs. Approximately ten acres of farmland (hereinafter the "south field") separates the Tetzlaff and Pangborn residences. In 1999,

Pangborns bought approximately sixty-seven acres of farmland directly north of Tetzlaffs' acreage (hereinafter the "north field"). Camps hay the south field and plant row crops on the north field. There is no written tenancy agreement between Pangborns and Camps. Instead, there is a verbal, yet nearly unspoken "gentlemen's agreement." On a year-to-year basis, Camps farm the property and pay 50% of the cash proceeds from the harvested crops to Pangborns. Pangborns

maintain grass paths around the north and south fields. They also drive their ATVs and snowmobiles over the grass paths, maintain deer stands in the north field, and hunt and allow others to hunt in the north field.

3 Camps routinely apply manure from their hog finishing

facility on Pangborns' north and south fields and, at Pangborns' request, spread manure on Pangborns' personal garden. The hog manure is

surface spread 90 feet from the south side of Tetzlaffs' home and 160 feet from the north side. In October of 1999, a month before Pangborns purchased the north field, Tetzlaffs complained to Pangborns about Camps' manure spreading procedures on the south field. Despite these complaints,

Pangborns purchased the north field and allowed Camp to spread manure there also. After Tetzlaffs' numerous complaints fell on deaf

ears, they filed an action in 2003 against both Pangborns and Camps alleging negligence, nuisance, and nuisance under Iowa Code chapter 657 (2003). Pangborns filed a motion for summary judgment contending they were not liable because they merely had a farm lease with Camps, the party controlling the nuisance activity. Tetzlaffs resisted the motion by arguing there was no lease, and even if there was a lease, Pangborns were still liable for allowing Camps to spread manure on the land. The district court concluded the "essential factual issue" determining Pangborns' liability was whether Pangborns substantially controlled or participated in the nuisance activity, "regardless of whether the case is analyzed through a landlord tenant-theory or independent contractor theory." The court concluded Pangborns did not substantially control or participate in the nuisance activity and therefore granted Pangborns' motion for summary judgment. On interlocutory appeal, Tetzlaffs argue the district court erred in summarily dismissing Pangborns from the case.

4 II. Scope of Review Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Keokuk Junction Ry. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000). We view the evidence in the light most favorable to the non-

moving party. Id. Every legitimate inference reasonably deduced from the evidence should be afforded the resisting party. Farm Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988). Our review of a Keokuk

summary judgment ruling is for correction of errors of law. Junction Ry., 618 N.W.2d at 355.

This decision is limited to the question of whether the district court's decision to grant Pangborns' summary judgment motion was appropriate. Whether the manure spreading activities were or were not a nuisance is not an issue before this court. III. Error Preservation As discussed below, we conclude the district court committed error when it concluded "[s]ubstantial control or participation is the essential factual issue that determines liability for the Pangborns in this dispute." However, before we proceed we must first address Pangborns' argument that Tetzlaffs failed to preserve a key issue for this appeal. Pangborns contend the district court did not address whether a landlord can be liable for a nuisance caused by a tenant in possession. More importantly, Pangborns argue Tetzlaffs did not preserve this issue for our review because they never filed a 1.904 motion 1 asking the court to enlarge its findings. See Meier v. Senecaut III, 641 N.W.2d 532, 537
A rule 1.904 motion is the proper method to ask the district court to enlarge or amend its findings of fact and conclusions of law when the district court failed to resolve an issue, claim, or other legal theory properly submitted for adjudication. Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 751 n.4 (Iowa 2006).
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5 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal."); Iowa R. Civ. P. 1.904(2). Because this argument was both raised and ruled upon by the district court, we find the issue was preserved for our review. The motion for summary judgment focused on several issues. The dominant issue was whether a farm tenancy existed between Pangborns and Camps. Another issue was whether Pangborns were liable, even if there was a farm tenancy. Pangborns argued that Camps, as farm

tenants in possession, were responsible for the farm ground and therefore Pangborns owed no duty of care to Tetzlaffs. In their

memorandum of authorities supporting the motion for summary judgment, Pangborns stated: In order to prevail under a nuisance theory, [Tetzlaffs] must establish that Pangborns would be liable if they carried on the alleged nuisance causing activity themselves, and at the time of the leasing, that the Pangborns consented to the activity and knew that the activity would necessarily result in a nuisance. See Restatement (Second) of Torts

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