                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1624
                              Filed August 7, 2019


LEE and RITA DVORAK,
     Plaintiffs-Appellants,

vs.

OAK GROVE CATTLE, L.L.C.,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Mitchell County, DeDra L.

Schroeder, Judge.



      Plaintiffs appeal the district court decision granting summary judgment to

defendant based on the statute of limitations. REVERSED AND REMANDED.




      Jeremy L. Thompson of Putnam & Thompson Law Office, P.L.L.C.,

Decorah, for appellants.

      David L. Riley of Swisher & Cohrt, P.L.C., Waterloo, for appellee.



      Considered by Mullins, P.J., Bower, J., and Vogel, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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BOWER, Judge.

         Lee and Rita Dvorak (Dvoraks) appeal the district court decision granting

summary judgment to Oak Grove Cattle, L.L.C. (Oak Grove), based on the statute

of limitations.     We conclude the district court improperly granted summary

judgment to Oak Grove on the ground the Dvoraks’ action was barred by the

statute of limitations. Oak Grove did not meet its burden to show the case involved

a permanent nuisance, rather than a continuing nuisance. We reverse the decision

of the district court and remand for further proceedings.

         I.     Background Facts & Proceedings

         The Dvoraks own property in rural Mitchell County. Beginning in 2006, Oak

Grove has operated a cattle lot immediately adjacent to the Dvoraks’ property.1

The Iowa Department of Natural Resources (DNR) investigated Oak Grove in 2009

due to manure run-off from the cattle lot and required that Oak Grove take remedial

action. Oak Grove was investigated again by DNR in 2013 based on manure run-

off.

         On December 19, 2016, the Dvoraks filed an action against Oak Grove,

claiming “from approximately 2009 to the present there have been multiple

occasions when manure from [Oak Grove’s] cattle lot has entered upon, and

traversed over, [the Dvoraks’] property.” The Dvoraks raised claims of negligence,

trespass, and nuisance. They sought damages for loss of value to their property,

loss of use and enjoyment of their property, and emotional and mental pain and

suffering.



1
    Oak Grove went out of business in August 2016.
                                          3


       Oak Grove claimed the Dvoraks’ action was barred by the five-year statute

of limitations found in Iowa Code section 614.1(4) (2016).2 Oak Grove also raised

a counterclaim for defamation, alleging the Dvoraks made false statements about

the cattle lot and published them to third parties.

       Oak Grove filed a motion seeking summary judgment on the ground the

Dvoraks’ claims were barred by the statute of limitations. The Dvoraks resisted

the motion, stating each successive incursion of manure onto their property

constituted a separate action so the statute of limitations would not bar an action

for Oak Grove’s conduct within the limitations period. They also claimed the

discovery rule should apply.

       The district court stated, “If injuries from a nuisance are claimed to be of

permanent character and go to the valuation of real estate, the Plaintiffs can have

only one recovery. If injuries from a nuisance are intermittent, a property owner

can bring successive actions to recover damages for each intermittent injury.” The

court found the Dvoraks were “making a claim for permanent injury rather than

temporary injury.” The court stated the problems and hazards associated with a

confined animal facility were ongoing and permanent, rather than temporary. The

court determined the statute of limitations began to run in 2006 and the Dvoraks’

action, filed in 2016, was barred by the five-year statute of limitations. The Dvoraks

now appeal.




2
 The statute of limitations has remained the same during the limitations period in this
case, and we use the 2016 version for ease.
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       II.    Standard of Review

       We review a district court’s ruling on a motion for summary judgment for

correction of errors of law. Kunde v. Estate of Bowman, 920 N.W.2d 803, 806

(Iowa 2018). Under Iowa Rule of Civil Procedure 1.981(3), summary judgment

should be granted when the moving party shows “there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law.”

“In determining whether a grant of summary judgment was appropriate, we

examine the record in the light most favorable to the nonmoving party, drawing all

legitimate inferences that may be drawn from the evidence in his or her favor.”

Homan v. Branstad, 887 N.W.2d 153, 163–64 (Iowa 2016).

       III.   Statute of Limitations

       The parties agree the five-year statute of limitations for injuries to properties,

found in Iowa Code section 614.1(4), applies in this case. They disagree on the

question of when the limitations period began to run. Oak Grove has the burden

to prove the action is barred by the statute of limitations. See Earl v. Clark, 219

N.W.2d 487, 491 (Iowa 1974) (“This court has held the statute of limitations is an

affirmative defense and the burden of proof is upon the pleader.”).

       “Whether an injured party is entitled to bring successive actions for

damages or must seek compensation for all injuries in one suit depends on the

nature of the injury, and to some degree, the nature of the nuisance.” K & W Elec.,

Inc. v. State, 712 N.W.2d 107, 118 (Iowa 2006). “[W]here the wrongful act is

continuous or repeated, so that separate and successive actions for damages

arise, the statute of limitations runs as to these latter actions at the date of their

accrual, not from the date of the first wrong in the series.” Hegg v. Hawkeye Tri-
                                              5

Cty. REC, 512 N.W.2d 558, 559 (Iowa 1994). On the other hand, when an injury

is considered to be permanent, the statute of limitations begins to run at the time

of the first injury. K &W Elec., 712 N.W.2d at 118–19.

       The issue of whether a nuisance should be considered permanent or

continuing is one where there are some inconsistencies in legal authorities.3 See

Harvey v. Mason City & Ft. Dodge Ry. Co., 105 N.W. 958, 961 (Iowa 1906) (“The

confusion which is found in the precedents has arisen not so much from the

statement of governing principles as from the inherent difficulty in clearly

distinguishing injuries which are original and permanent from those which are

continuing, and in assigning each particular case to its appropriate class.”); see

also Archer, 30 N.W.2d at 96 (“It is probably impossible to reconcile all the

language of the many decisions.”).

       The term “permanent” does not refer solely to the structure or object causing

the nuisance. Harvey, 105 N.W. at 961. We must also consider “the character of

the injury produced by it.” Id. The Iowa Supreme Court has stated:

       In other words, the structure or thing producing the injury may be as
       permanent and enduring as the hand of man can make it, yet if the
       resulting injury be temporary or intermittent, depending on future
       conditions which may or may not arise, the damages are continuing,
       and successive actions will lie for successive injuries.


3
  For example, in Thomas v. City of Cedar Falls, 272 N.W. 79, 83 (Iowa 1937), the court
found an embankment over a watercourse caused permanent injury and an action was
untimely because it was not filed within five years after the first injury to the property. Two
later cases, Archer v. J.S. Compton, Inc., 30 N.W.2d 92, 97 (Iowa 1947), considering an
embankment or dike, and Eppling v. Seuntjens, 117 N.W.2d 820, 825 (Iowa 1962),
considering a dike, determined similar injuries were continuous, so the statute of
limitations began to run after each successive injury. In Anderson v. Yearous, 249 N.W.2d
855, 860 (Iowa 1977), the court stated, “Continuing viability of the Thomas holding is at
best doubtful,” citing Archer, 30 N.W.2d at 97, and Eppling, 117 N.W.2d at 825. However,
the more recent case, K & W Electric, cites Thomas, 272 N.W. at 83, with approval. 712
N.W.2d at 117.
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Id.; see also Archer, 30 N.W.2d at 96; Thompson v. Ill. Cent. Ry. Co., 179 N.W.

191, 195 (Iowa 1920); City of Ottumwa v. Nicholson, 143 N.W. 439, 443 (Iowa

1913); Hughes v. Chicago, B. & Q. Ry. Co., 119 N.W. 924, 926 (Iowa 1909).

       A nuisance may be considered to be continuing if it is temporary and subject

to abatement. See Bennett v. City of Marion, 93 N.W. 558, 559 (Iowa 1903). In a

case involving noxious and offensive odors from a hog confinement facility, the

Iowa Supreme Court found the nuisance was permanent because there was no

evidence the defendant “can or will abate the nuisance in the future” due to a lack

of technology to “solve the odor problem.” Weinhold v. Wolff, 555 N.W.2d 454,

463 (Iowa 1996). The court determined abatement of the nuisance could be

accomplished only by closing the facility, a result it found neither equitable nor

practical. Id.

       We must consider whether the drainage of manure from Oak Grove’s cattle

feedlot caused temporary and abatable damages to the Dvoraks’ property or

whether the damage was permanent. In a similar factual situation, where plaintiffs

filed a nuisance action arising from the drainage of manure from a cattle feedlot

onto the plaintiffs’ property, the court stated the case involved a continuing

nuisance. See Earl, 219 N.W.2d at 490 (“It is inceptionally understood we are

concerned here with a temporary nuisance subject to abatement for which

injunctive relief and damages may be had.”).       Also, in a case involving the

discharge of sewage onto a plaintiff’s farm, the Iowa Supreme Court concluded

there was a continuing nuisance, noting the defendant could remedy and abate

the nuisance. Bennett, 93 N.W. at 559. We find these cases involving manure or
                                           7


sewage are more applicable to the present situation than cases involving different

types of damages to a plaintiff’s property.4

       As noted, Oak Grove had the burden of proof to show the damages to the

Dvoraks’ property were permanent, rather than temporary, and could not be

abated. See Earl, 219 N.W.2d at 491. In order to be granted summary judgment,

Oak Grove needed to show there was no genuine issue of material fact on this

issue and it was entitled to judgment as a matter of law. See Iowa R. Civ. P.

1.981(3). In its motion for summary judgment, Oak Grove stated, “A temporary

injury could be cured by clean-up,” and the “typical problems/hazards” presented

by cattle feedlots were not temporary issues. Oak Grove did not show the damage

to the Dvoraks’ property could not be cleaned up or abated. The Dvoraks stated

Oak Grove took remedial action after the manure run-off event in 2009.

       We conclude the district court improperly granted summary judgment to

Oak Grove on the ground the Dvoraks’ action was barred by the statute of

limitations. Oak Grove did not meet its burden to show the case involved a

permanent nuisance, rather than a continuing nuisance.

       We reverse the decision of the district court and remand for further

proceedings.

       REVERSED AND REMANDED.




4
  Other types of injuries include: (1) noxious and offensive odors, Weinhold, 555 N.W.2d
at 458; (2) stray voltage, Hegg, 512 N.W.2d at 559; and (3) excess water, Anderson, 249
N.W.2d at 858; Eppling, 117 N.W.2d at 822; Archer, 30 N.W.2d at 93; Thomas, 272 N.W.
at 79; City of Ottumwa, 143 N.W. at 440; Harvey, 105 N.W. at 959, we well as cases of
inverse condemnation, K & W Elec., 712 N.W.2d at 115; Scott v. City of Sioux City, 432
N.W.2d 144, 145 (Iowa 1988).
