Chase v. City of Winterset

*1362 Stevens, J. I. Appellee is the owner of, and resides upon, a lot in the northwest corner of a block in the city of Winterseh The residence fronts north on Filmore Street, and adjoins Third Street on the west. ■ Appellant, sometime prior to the commencement of this action, constructed a storm sewer on Third Street, which discharges into an open ditch on Filmore Street at the northwest comer of appellee’s lot. The storm sewer is constructed of 24-inch tile. A large number of .cesspools and septic tanks are discharged into the storm sewer, and it is claimed by appellee that the contents thereof are discharged into the open ditch'on Filmore Streét in front of her residence,'causing, offensive odors, which, particularly in the heated season, destroy the comfort and convenience of-her .home. • This action is against the city, .to recover damages therefor. - - ■ • ■ ■ ’ The petition is in three counts, but one of which was submitted to the jury. ' ■ "' ■ The evidence quite fully sustains.-the" allegations -of the-peti-' tion. - Numerous witnesses testified to the character- of the discharge from the sewer into the open ditch,'and to the presence of offensive anc3. thsagreeable odors therefiom The court permitted one or more witnesses to testify that the conditions described were unsani-. tary, and might be injurious to. the health' of' those residing in the vicinity. Another witness was permitted to describe the condition of the ditch at. a-, point remote from appellee’s residence.. Appellant .complains of the admission of this testimony. The petition did not allege that the health of appellee had been injured or impaired. -The testimony on this point was received as bearing upon the nature and character of the, nuisance, -complained, of- Whether properly received or not, its admission was without prejudice, as the court in. its instructions specifically and;clearly.limited the recovery of damages to the inconvenience and discomfort in the occupancy and enjoyment of the property. The testimony relative to the condition of the ditch at a point remote from appellee’s- property should and would -have been stricken, had the attention-of theecóuri been.called thereto-in the further progress of the trial. The court so indicated,'but reserved a;-ruling until-appellee was given, an opportunity to offer farther testi *1363 mony establishing a connection. If appellant desired a ruling on the objections interposed to this testimony, and on the motion to strike,-made at the ..time, a; later request, should have been made therefor. Gaar, Scott & Co. v. Nichols, 115 Iowa 223; Bean v. Bickley, 187 Iowa 689; Hornish v. McConnell, 191 Iowa 308. The error, if any, was waived. II. The court instructed the jury-thát'appellee* was entitled to recover all damages :that had arisen within five years immediately preceding the commencement of the, action. The ..giving of this instruction is assigned as error, It is the conte~ntion of appellant that the darn-ages complained’ of are to 'relative rights, and that, under Subdivision 3, Section 11007, Code, of 1924,- a right of action therefor would be barred in two.years. This contention cannot be sustained, for two reasons; one, that no exceptions were taken to the instruction, which,- because of such failure, became the law of the case; and the other, that the injuries complained of, for which recovery was permitted, are not to relative rights. O’Banion v. DeGarmo, 121 Iowa 139. We need not attempt :a comprehensive definition of. relative. .rights, but they, include such as may arise out of the relationship of .husband and wife, master and servant, -guardian and ward, and similar relationships. , ... ...... ,. . • g ... Counsel for appellant urge that it was the duty of .the court to correctly instruct the jury, and that a failure to do so constitutes reversible error. The court did instruct .the. jury fully as to the statute of limitations. The error, therefore, if any, was-in'the-instruction'given, and not jn a failure to instruct upon a material point' or upon some other theory. The failure of appellant to except'to the‘instruction given is fatal"'to its: right' to" have the" same reviewed on appeal. Powers v. Iowa Glue Co., 183 Iowa 1082; Fontana v. Fort Dodge, D. M. & S. R. Co., 180 Iowa 1183. No other rulings of the"court are complained of. " "' ' The -judgment below is' affirmed.-&emdash;NptrmecZ.' Evans,-,C. • J,,. and Fayille, Vermilion, .and, Kindis,:.JJj,;. concur. , ..... g. :