Wayne J. Tetzlaff, Barbara A. Tetzlaff And Briana A. Tetzlaff Vs. Timothy Camp And Glenna Camp, Al Pangborn And Rachael Pangborn ( 2006 )

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.
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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 co-
defendants’, 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.
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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.
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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
summary judgment ruling is for correction of errors of law. Keokuk
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
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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).
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 § 837. . . .
The Pangborns could not have known or anticipated that an
activity such as fertilizer application on agricultural property
in a rural Iowa county would, at some point in the future,
necessarily result in a nuisance to neighbors living on an
adjacent acreage that, at the time of leasing, did not yet
exist. The law does not require a lessor to exhibit this degree
of foresight. Therefore, [Tetzlaffs’] claim of nuisance against
defendant Pangborns is void as a matter of law and should
be dismissed.
While Tetzlaffs themselves did not specifically cite Restatement section
837 in their resistance to the summary judgment motion, they clearly
addressed the issue of Pangborns’ reliance on the Restatement in their
memorandum of authorities:
Iowa Courts have also found owners of land who allow others
to create or maintain nuisance conditions on the owner’s
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land liable for the nuisance. Percival v. Yousling, 120 Iowa
451, 94 N.W. 913 (1903) (owner of land who allowed others
to dump manure and other refuse on land liable for
nuisance). . . . The court must go one step further and
determine whether, even if there is a landlord-tenant
relationship between [Pangborns and Camps], the Pangborns
are liable for nuisance or negligence because of their
involvement in creating and/or maintaining the nuisance
complained of.
The court devoted the bulk of its decision to discussing whether
Pangborns substantially controlled or participated in the nuisance
activity. The court found Pangborns were not liable “regardless of
whether the case is analyzed through a landlord tenant-theory or
independent contractor theory” because Pangborns did not substantially
control or participate in the manure spreading. A landlord’s liability for
the nuisance causing activities of his or her tenants was clearly argued
to the court, and the court ruled upon this issue by concluding it was
not an avenue for liability.
Tetzlaffs did not need to file a rule 1.904 motion to preserve this
issue for appeal. When a district court does not rule on an issue properly
raised, a party must file a motion requesting a ruling in order to preserve
error for appeal. Meier, 641 N.W.2d at 539; Benavides v. J.C. Penney Life
Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). We require such a motion
because it is “in the best interests of the public, and especially the
litigants” to give the court an opportunity to address an issue it may
have missed. Estate of Grossman v. McCreary, 373 N.W.2d 113, 114
(Iowa 1985). Also, an “overlooked issue, called to the trial court’s
attention, might be resolved so as to avoid an appeal” or “a ruling on [the
overlooked issue] might avert a second trial and possible appeal.” Id. In
this case, the court summarily resolved the issue—Pangborns were not
liable under a landlord/tenant theory. Tetzlaffs correctly concluded it
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was not necessary to belabor the point with a rule 1.904 motion
asking the court to reconsider its decision on the issue.
IV. Merits
Property law regards a lease as equivalent to a sale of the premises
for the term of the lease, making the tenant both owner and occupier
during the lease. Harms v. City of Sibley, 702 N.W.2d 91, 103 (Iowa
2005); accord Restatement (Second) of Torts § 356 cmt. a, at 240 (1965)
(“When land is leased to a tenant, the law of property regards the lease
as equivalent to a sale of the land for the term of the lease. The lessee
acquires an estate in the land, and becomes for the time being the owner
and occupier, subject to all of the liabilities of one in possession, both to
those who enter the land and to those outside of it.”); see also Van Essen
v. McCormick Enters. Co., 599 N.W.2d 716, 721 n.5 (Iowa 1999) (quoting
in part Restatement (Second) of Torts § 356 cmt. a, at 240 (1965)).
Because the tenant has exclusive possession of the property, and the
right of entry of the landlord is suspended during the term of the lease,
the landlord’s responsibility for removing objectionable conditions is
likewise suspended. Harms, 702 N.W.2d at 103. Therefore, the
landowner is generally not responsible for the tenant’s acts in creating or
maintaining a nuisance upon the leasehold once the landlord transfers
possession to the tenant. Id.Recently, we discussed one important exception to this general
rule. In Harms v. Sibley, we were presented with a landowner who found
himself on the wrong end of a nuisance action against his tenants. Id. at
96. The landowner, Sandbulte, leased property to Joe’s Ready Mix, Inc.
Id. at 104. Joe’s Ready Mix constructed and operated a ready mix plant
on the property. Id. A neighboring landowner sued both Joe’s Ready Mix
and Sandbulte for nuisance. Id. at 94. The district court found
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Sandbulte liable for the nuisance. Id. at 95. On appeal, Sandbulte
argued he was not personally liable because he “merely leased the
property to Joe’s Ready Mix and had minimal personal involvement.” Id.
at 103. Rather than analyzing whether Sandbulte was liable for
participating, to a substantial extent, in carrying on the nuisance
activity, we applied section 837 of the Restatement Second of Torts and
affirmed the district court judgment. See id. at 103-04 (citing other
jurisdictions applying same). Section 837 provides:
(1) A lessor of land is subject to liability for a nuisance
caused by an activity carried on upon the land while the
lease continues and the lessor continues as owner, if the
lessor would be liable if he had carried on the activity
himself, and
(a) at the time of the lease the lessor consents to the
activity or knows or has reason to know that it will be
carried on, and
(b) he then knows or should know that it will
necessarily involve or is already causing the nuisance.
(2) A vendor of land is not liable for a nuisance caused solely
by an activity carried on upon the land after he has
transferred it.
See also 58 Am. Jur. 2d Nuisances § 120, at 647 (2002) (“Under the
Restatement Second of Torts, a lessor’s liability is generally based on his
or her consent to or knowledge of the nuisance.”).
We found the following facts constituted “substantial evidence” to
support all of the elements of section 837. Harms, 702 N.W.2d at 104.
First, at the time Sandbulte leased the property to Joe’s Ready Mix,
Sandbulte knew that Joe’s Ready Mix planned to operate a ready mix
plant on the property and knew the types of activities that would be
performed within the plant. Id. Also, Sandbulte was aware of the
plaintiff’s protests about the proposed conditions before the plant was
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even constructed. Id. And finally, Sandbulte was, at some point, the
president of Joe’s Ready Mix and oversaw all operation of the plant. Id.Section 837 does not require that the lessor work, or participate in the
nuisance activity, but Sandbulte’s role as president illustrates he knew
the lessee’s activities and understood the externalities that flowed
therefrom.
The facts of the present case, viewed most favorably for the
Tetzlaffs, similarly demonstrate Pangborns, as lessors, may be liable for
the alleged nuisance caused by their tenants.
The first element of section 837(1)—“the lessor would be liable if he
had carried on the activity himself”—is not in dispute. Pangborns would
be liable if they had caused a nuisance by personally spreading manure
on the north and south fields. See Michael v. Michael, 461 N.W.2d 334(Iowa 1990) (holding that spreading hog manure near neighboring
residents can be a nuisance for which injunctive relief may be awarded);
Valasek v. Baer, 401 N.W.2d 33 (Iowa 1987) (holding same). Likewise, if
Pangborns had allowed others, without a lease, to spread manure on
their property, they would also have potential liability. See Percival, 120
Iowa at 455, 94 N.W. at 914-15 (holding owner of land liable for nuisance
for allowing others to dump horse manure in a ravine on his property).
The second element of section 837(1)—“at the time of the lease the
lessor consents to the activity or knows or has reason to know that it will
be carried on”—is also satisfied by Al Pangborn’s statement that he
assumed Camps would spread manure on the north field, just as they
had done on the south field.
Pangborns vigorously dispute whether the record satisfies the third
element of section 837(1)—that Pangborns knew or should have known
that Camps’ activities would necessarily involve a nuisance or was
10
already causing the nuisance. Pangborns contend they could not
have known or anticipated that manure spreading on agricultural
property in a rural area would, at some point in the future, necessarily
result in a nuisance. They contend the law should not require a lessor to
exhibit this degree of foresight. This argument ignores the stage of
proceedings and the facts of this case.
Tetzlaffs complained to Pangborns about Camps’ surface spreading
of manure on the south field and Pangborns’ personal garden before
Pangborns even purchased the north field. Common sense would
indicate that more of the same activity, in an area adjacent to Tetzlaffs’
property, would exacerbate Tetzlaffs’ complaints. Beyond this initial
complaint, Tetzlaffs also complained to Camps, the Madison County
Sheriff, and the Department of Natural Resources 2 about the manure
spreading activities after the “gentlemen’s agreement” was formed, but
before at least one of its subsequent renewals. 3 Pangborns were alerted
to the continuing complaints in early 2000 when a third party spoke
individually with Rachael Pangborn about Tetzlaffs’ complaints. In 2002,
the Madison County Sheriff spoke with Al Pangborn about Tetzlaffs’
complaints. In his notes regarding the conversation, the sheriff indicated
Al Pangborn agreed the manure spreading was probably very offensive to
the Tetzlaff family. Tetzlaffs’ complaints to Pangborns, along with
2The Department of Natural Resources’ conclusions that Camps’ manure
spreading procedures were not in violation of existing regulations does not terminate
Tetzlaffs’ nuisance complaint. A business operated within government guidelines may
still, under some circumstances and in some locations, constitute a private nuisance.
See, e.g., Kriener v. Turkey Valley Comm. Sch. Dist., 212 N.W.2d 526, 535 (Iowa 1973);
Patz v. Farmegg Prods., Inc., 196 N.W.2d 557, 561 (Iowa 1972).
3Although the exact date of the “gentleman’s agreement” was not known, it was
formed at some point between the fall of 1999 and March 1, 2000. The agreement
would have therefore been renewed on approximately March 1, 2001, March 1, 2002,
and March 1, 2003. This action was filed in early April, 2003.
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Pangborns’ discussions with the sheriff about such complaints,
create a permissible inference that Pangborns knew the manure
spreading was interfering with Tetzlaffs’ property rights. Pangborns’
subjective conclusion that Tetzlaffs’ complaint had no merit does not
mean he did not know of at least the potential for a nuisance action.
Comment g to section 837 also supports this conclusion. It
provides:
If at the time that the lessor renews the lease he knows that
activities are being carried on or that physical conditions
have been created upon the leased land that are causing an
unreasonable interference with the use and enjoyment of
another’s land, he is liable for the continuance of the
interference after the renewal.
Restatement (Second) of Torts § 837 cmt. g, at 153-54 (1979). As noted
above, it is beyond dispute Pangborns were on notice that the manure
spreading activity was “already causing [a] nuisance” when they renewed
their lease with Camps. See Restatement (Second) of Torts § 837(1)(b) (“A
lessor of land is subject to liability for a nuisance caused by an activity
carried on upon the land while the lease continues and the lessor
continues as owner, if . . . . [the lessor] knows or should know that [the
activity] will necessarily involve or is already causing the nuisance.”).
Therefore, it is clear that, under section 837, Pangborns may be liable for
the manure spreading activities of their tenants. 4
4While there are no Iowa cases with facts similar to this case, at least one other
court has found a lessor of agricultural land liable for nuisance for allowing a lessee to
spread manure near neighboring residents. In Koch v. Randall, the parties owned
properties adjacent to each other. 618 A.2d 283, 284 (N.H. 1992). Randall owned a
home on a portion of his property and leased the remainder of his acreage to a co-
defendant who farmed the fields and spread chicken manure thereon for fertilizer. Id.
at 284-85. The New Hampshire Supreme Court held Randall, as lessor, was liable for
nuisance because he knew his lessee used chicken manure to fertilize the fields and he
had been put on prior notice of the nuisance when the plaintiff complained to county
health officials who in turn relayed the complaints to Randall. Id. at 285-86.
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The amici curiae, a conglomeration of farming-related
associations, fear that holding Pangborns liable for the actions of their
farmer tenants will negatively impact Iowa’s economy because other
landowners would then forbid their tenants from utilizing manure as a
fertilizer. The amici hypothesize the rental price for farm land will
“undoubtedly” fall, and the state’s economy will necessarily suffer
because a farmer interested in renting property for crop production will
be less inclined to rent a piece of land when the landlord forbids
fertilization of the land with manure application. 5
We disagree. It is still the law of this state that a landlord is
generally not responsible for the tenant’s acts in creating or maintaining
a nuisance upon the leasehold. Section 837 protects the landlord so
long as he or she does not know, at the time of the lease, (1) that the
activity will be carried on by the tenants and (2) that the activity involved
will necessarily cause a nuisance. These are formidable barriers, but
Pangborns’ specific activities in this case generate enough of a factual
dispute to preclude summary judgment. Pangborns knew of Camps’
manure spreading activities and Tetzlaffs’ corresponding complaints
before the alleged farm tenancy was created. Pangborns also continued
to renew Camps’ lease (and thereby endorsed Camps’ manure spreading
procedures) despite Tetzlaffs’ repeated complaints. It is also important
that the initial “gentlemen’s agreement” and the ensuing renewals placed
no limitation on the method of manure application. Not surprisingly,
5
In addition, the amici speculate farmers will lose an important outlet for the
manure created by their livestock. They hypothesize that small livestock operations will
be forced to cease operations because of the high cost of otherwise treating and
disposing of manure. We reject the amici’s attempt to have this case decide the hog lot
debate in Iowa. To find that section 837 does not apply to farm tenancies would allow
other rural landowners to rent their ground out as a manure disposal site, without any
regard for the consequences to the neighbors. This is not an acceptable alternative.
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Camps chose the quickest and cheapest method of manure
application—surface spreading, where a plume of manure is broadcast
only on the surface of the ground. As discussed in our previous
decisions in Michael v. Michael and Valasek v. Baer, surface spreading
hog manure leads to nauseating odors which may result in a nuisance to
others. Michael, 461 N.W.2d at 335; Valasek, 401 N.W.2d at 35-37.
We do not hold that all rural landlords who allow manure
spreading on their property are liable for nuisance. We merely find that
this landlord’s unique level of involvement with both the lessee and
complaining neighbor generate enough factual issues to surmount the
obstacles to landlord liability at this stage in the proceedings. Therefore
summary judgment is not appropriate in this case.
V. Disposition
If a nuisance arises from the use of the premises during the period
of the lease, the landlord likely does not have the power to abate that
nuisance. However, at the expiration of the lease, the landlord, knowing
that the potential nuisance exists, has the ability to stop the nuisance by
not renewing the lease or by adding restrictive terms in the lease. If the
landlord does not choose to do so, but renews the lease, then the
landlord may be liable for the continuance of the interference after the
renewal. We reverse the district court’s grant of summary judgment in
favor of Pangborns and remand for further proceedings consistent with
this opinion.
REVERSED AND REMANDED.