Opinion
No. 3-134 / 02-0777.
Filed April 30, 2003.
Appeal from the Iowa District Court for Washington County, DAN F. MORRISON, Judge.
Defendants appeal a district court order to abate a nuisance. AFFIRMED.
Chad Warren, Iowa City, for appellant.
David Brown of Hayek, Hayek, Brown Moreland, L.L.P., Iowa City, for appellee.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
Defendants appeal a district court order to abate a nuisance. They allege the district court erred in: (1) admitting testimony by individuals who do not live in the neighborhood regarding the existence of a nuisance; (2) excluding videotapes that compared the level of sound generated by a motorbike to other motorized vehicles and equipment; (3) finding the use of their property as a dirt bike track constitutes a nuisance; and (4) enjoining them from using their property as a dirt bike track or operating dirt bikes or motorcycles on their property. We affirm.
Background Facts and Proceedings. About eighteen years ago Richard and Glennda Wieland built their home on approximately five acres of land in rural Washington County. The land is located primarily in an agricultural area. At the time the house was built, the Wielands' closest neighbor was one-half mile away. In 2000 David and Ammie Neal acquired approximately fifty acres of land across the road from and east of the Wielands' property. In the summer of 2000 the Neals constructed a motorcycle dirt bike track located on hilly terrain directly across the road from the Wielands' property. The Neals and their guests would use the track at anytime during daylight hours.
In the fall of 2000 Mr. Wieland informed Mr. Neal that the motorcycle noise was disruptive to him and his wife. Mr. Neal indicated to him that he would consider moving the track to a location further away from the Wieland residence in the spring of 2001. However, once spring arrived the Neals resumed operating their dirt bikes and the track in the same location. Again Mr. Wieland approached Mr. Neal about moving the track, and he refused.
On September 12, 2002, the Wielands brought suit against the Neals requesting they be enjoined from riding motorcycles or participating in similar activities causing unreasonable noise on their property. At trial, the Wielands testified they are unable to use their patio or carry on conversations outside when the dirt bikes are in operation. In addition, they complain it is necessary to close the windows in the house and turn up the volume of the television in order to watch a program. They have gone so far as to leave their property on three occasions in order to get away from the noise. Also, they are unable to plan gatherings at their home because they never know when or how long the bikes will be operating on the track. Mrs. Wieland further testified she is unable to enjoy gardening while the dirt bikes are running and dreads weekends because she knows the bikes will be making noise most of the time. The district court concluded:
[T]he operation of a dirt bike track within two hundred and fifty feet of the [Wielands'] residence constitutes a nuisance as a result of the noise which unreasonably interferes with the [Wielands'] reasonable use and enjoyment of their property. The appropriate and only meaningful remedy is an injunction. The granting of the injunction creates a hardship on the [Neals] of far less magnitude than the hardship the noise creates for the [Wielands].
The Neals appeal.
Admission of Evidence. Our review of the admission of testimony is for abuse of discretion. Kuta v. Newberg, 600 N.W.2d 280, 289 (Iowa 1999). The district court allowed two individuals who do not live in the Wielands' neighborhood to testify about the noise emanating from the Neals' property. The Neals argue since the individuals do not live in their neighborhood their testimony is irrelevant. We disagree. The standard used in determining whether an invasion involving personal discomfort or annoyance is substantial, is the standard of a normal person in a particular locality. Patz v. Farmegg Prod. Inc. 196 N.W.2d 557, 561-62 (Iowa 1972). We find the focus of this standard should be on whether a person in the locality has the ordinary sensibilities to determine if an invasion of one's personal comfort is substantial enough to constitute a nuisance, not whether the person actually resides in the locality. Here, both witnesses were at the Wielands' home when they made their observations regarding the noise coming from the Neals' dirt bike track. Consequently, we conclude the witnesses' testimony was admissible and was properly considered by the district court when determining whether the Neals' dirt bike track constituted a nuisance.
Exclusion of Videotape. The Neals contend the district court erred in refusing to allow them to introduce into evidence two videotapes and a summary document regarding the videotapes prepared by them that compared the decibel readings generated by a motorbike to other motorized vehicles and equipment. A videotape to be admissible must be authenticated, although no particular methodology is required. Hutchinson v. American Family Mut. Ins. Co., 514 N.W.2d 882, 890 (Iowa 1994) (citing State v. Deering, 291 N.W.2d 38, 39 (Iowa 1980)). A proper foundation for admission into evidence of a videotape demands only that the fidelity of the film's portrayal be established. Deering, 291 N.W.2d at 40. This determination lies in the discretion of the district court, which must apply to the videotape the standards of relevance and prejudice in Iowa Rules of Evidence 5.402 and 5.403. Hutchinson, 514 N.W.2d at 890. In applying those rules, the district court concluded and we agree:
[T]he evidence is irrelevant because (1) Neal is not an expert; (2) there was no evidence as to the meaning of the decibel readings; (3) there was no evidence as to the decibel readings of bikes actually on the track; (4) there were no decibel readings from the plaintiffs' patio and/or living room; (5) there was no evidence as to the effect of decibel readings or noise for sustained periods of time as opposed to a short duration of time.
The decibel readings taken of chain saws, power tools, etc., if it proves anything, proves that the plaintiffs are not ultra sensitive to noise. There is no evidence that the plaintiffs have ever complained about farm equipment, chain saws, power tools, or motorcycles that drive by on the public road during the eight years they have owned the property.
Consequently, we find it was within the sound discretion of the district court to exclude the videotapes and summary document regarding the videotapes.
Existence of a Nuisance. This case was brought and tried as an equity action. Therefore, on appeal, this court will review the case de novo. See Iowa R.App.P. 6.4. We give weight to the district court's findings of fact, but we are not bound by these findings. See Perkins v. Madison County Livestock Fair Ass'n, 613 N.W.2d 264, 267 (Iowa 2000). We are especially deferential to the district court's assessment of witness credibility. Id.
The legislature had defined a nuisance in Iowa Code section 657.1 (2003):
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.
This statute is supplemented by common law principles governing private nuisances: A private nuisance is an actionable interference with a person's interest in the private use and enjoyment of the person's land. Perkins, 613 N.W.2d at 272. The existence of a nuisance is not affected by the intention of its creator not to injure anyone. Patz, 196 N.W.2d at 560-61. Rather, it depends on the following three factors: priority of location, the nature of the neighborhood, and the wrong complained of. Perkins, 613 N.W.2d at 271. As mentioned above, in determining whether a property owner's use of his land is a nuisance, we use an objective, normal-person standard. See Bates v. Quality Ready-Mix Co., 154 N.W.2d 852, 857 (Iowa 1967); Patz, 196 N.W.2d at 561.
In applying the factors set forth by the court in Perkinsto the present case, we conclude that a nuisance exists. As to the first of these factors-who was there first-our supreme court has said, "Priority of occupation is a circumstance of considerable weight. . . ." Bates, 154 N.W.2d 15 858. Since the Wielands acquired their property long before the Neals moved in and began operating a dirt bike track, we find the Wielands have priority of location, a factor that weighs heavily in their favor. The second factor also supports the Wielands' claim the dirt bike track constitutes a nuisance. The neighborhood is primarily agricultural; thus, the Wielands could expect to be subject to the normal uses and sounds of an agricultural area. However, as the district court pointed out, "the riding of dirt bikes for extended periods of time is not a normal use of agricultural land." The final factor, the wrong complained of, also weighs in the Wielands' favor. It is undisputed in the record that dirt bikes, because of their construction, are noisier than street bikes. The Neals contend this factor weighs in their favor given the limited duration and frequency that dirt bike riding occurs on their property. "The fact that an injury from an alleged nuisance is only occasional, or that the annoyance exists during part of the time only, does not prevent the act or thing causing it from being a nuisance, although such fact is to be considered with all of the evidence in the case." Perkins, 613 N.W.2d at 274 (citing 58 Am. Jur.2d Nuisances § 96, at 746 (1989)). We agree with the district court the noise from the dirt bike track is intense and severe even though it only occurs a few months of the year. Accordingly, we affirm the district court on this issue.
Dirt bikes have been stripped of some of the manufacturer's original equipment.
Relief. To justify the abatement of a claimed nuisance the annoyance must be such as would cause physical discomfort or injury to a person of ordinary sensibilities. Helmkamp v. Clark Ready Mix Co., 214 N.W.2d 126, 129 (Iowa 1974) (citing Schlotfelt v. Vinton Farmers' Supply Co., 109 N.W.2d 695, 698 (Iowa 1961)). Several other factors must be weighed. The American Law Institute enumerates the main factors in Restatement (Second) of Torts § 936(1) 1965):
The appropriateness of injunction against tort depends on a comparative appraisal of all of the factors in the case, including the following primary factors:
(a)the nature of the interest to be protected,
(b)the relative adequacy to the plaintiff of injunction and of other remedies.
(c) plaintiff's delay in bringing suit,
(d) plaintiff's misconduct,
(e)the relative hardship likely to result to defendant if injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g)the practicability of framing and enforcing the order or judgment.
After a careful review of the record, we agree with the district court the only appropriate and meaningful remedy is an injunction. We note the Wielands tried to resolve the noise problem on several occasions and were unsuccessful. Further, this injunction creates a hardship on the Neals of far less magnitude than the hardship the noise creates for the Wielands. Therefore, we affirm the district court on this issue.