Helmkamp v. Clark Ready Mix Co. , 249 N.W.2d 655 ( 1977 )

UHLENHOPP, Justice.

This appeal involves proceedings instituted by defendant Clark Ready Mix Company to vacate a prior decree enjoining the operation of its ready-mix plant. We set forth the facts which led to the injunction in Helmkamp v. Clark Ready Mix Co., 214 N.W.2d 126 (Iowa).

We held on the prior appeal that plaintiffs, the owners of homes near the plant, had proved nuisance and were entitled to an injunction closing the plant. We directed the district court to let a writ issue accordingly, which that court did. With respect to the period following, a witness testified: “Q. Now between the dates of April the 1st, 1974, and May 6th, 1974, was any cement dispensed through this plant during this period of time? A. No.”

Defendant made extensive improvements in the plant endeavoring to overcome the objectionable features. Plaintiffs instituted contempt proceedings against defendant, and defendant instituted proceedings asking modification of the decree. The trial court held for defendant and dissolved the-injunction. Plaintiffs appealed.

The instant appeal presents two main problems, the first legal and the second factual: whether our prior direction for issuance of an injunction means that the injunction goes on forever, and whether, since installation of the improvements, a nuisance actually exists.

I. Plaintiffs insist that defendant cannot challenge the injunction, because the trial court had to follow our mandate and issue an injunction and because of res judi-cata.

(1) Plaintiffs are right that when an appellate court remands with directions, the trial court must carry out the directions. Kuhlmann v. Persinger, 261 Iowa 461, 154 N.W.2d 860; Iowa-Illinois Gas & Electric Co. v. Gaffney, 256 Iowa 1029, 129 N.W.2d 832. But the district court did just that in the present case by issuing an injunction.

Then however the facts changed; defendant made extensive improvements endeavoring to correct the problems. Whether the district court itself had originally enjoined or enjoined under our mandate, the question relates to the power of a court to modify or vacate a “permanent” injunction on changed conditions in the future.

The law is clear that a court may so modify or vacate an injunction, otherwise the party restrained might be held in bondage of a court order no longer having a factual basis. Faucher v. Grass, 60 Iowa 505, 507-508, 15 N.W. 302, 303 (“Equity will not restrain further use of the lot for a smith’s shop, if it may be used without proving to be a nuisance, upon the ground that its past use was a nuisance.”). See also Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836; Union Interchange, Inc. v. Savage, 52 Cal.2d 601, 342 P.2d 249; 42 Am.Jur.2d Injunctions § 334 at 1138; 43 C.J.S. Injunctions § 218 at 956; Developments in the Law, Injunctions, 78 Harv.L. Rev. 994, 1082 (“Modification should, for example, be granted as a matter of right when a party, enjoined from operating his business because it causes an unreasonable amount of noise or smoke, can prove technological advances now make possible operation without such effects.”). The district court in the present case could vacate the injunction decree on proof of changed conditions.

(2) Plaintiffs also labor under misapprehension on the role of res judicata here. The original injunction decree is res judicata as to conditions then existing; it is not res judicata as to events thereafter occurring and conditions thereafter coming into being. Lowe v. Prospect Hill Cemetery Ass’n, 75 Neb. 85, 106 N.W. 429; 46 Am.Jur.2d Judgments § 443 at 613; 50 C.J.S. Judgments § 712 at 180.

II. The question, therefore, is whether a factual basis for the injunction does or does not any longer exist. On this question defendant developed a very strong case as to the improvements installed in the plant and, by expert testimony, as to the consequent reduction in dust, noise, and smell.

Defendant presented evidence of numerous improvements made in an effort to cut down the amount of dust created by operation of the plant. First, a closed-in metal shelter area was built in which the cement trucks are loaded with mixed concrete. Air leaving the shelter is filtered through a specially designed inch-thick filter made of material similar to horsehair. All other openings to this area are closed during the operation and all air is pulled through the filter with an exhaust system.

Evidence showed defendant made several changes in attempting to reduce the dust resulting from the process of receiving and storing raw cement. The cement is pumped directly from a delivery truck through an enclosed pipe into the storage area, and is never exposed to the open air. The original filter on the storage area has been moved from the roof of the building to an area three feet from the ground on the side of the building opposite the residences in question. Additionally, a second complete filter system has been added to the original one so as to filter the air twice before it is released.

In a further endeavor to cut down dust, two sprinkler systems were added to insure adequate moisture around the plant. The first system is located in the driving and parking areas of the yard and is operated by a time-release mechanism. The second sprinkler system was installed around the sand and aggregate pits; it wets down these areas as needed.

The evidence further showed that several other changes were made to reduce the noise created by operation of the plant. First, a metal structure built to contain trucks while loading reduces noise levels as well as dust. Evidence indicated that the use of a jackhammer for removing hardened cement from trucks has been discontinued and that a new payloader, which according to the testimony is quieter than the one previously used, was purchased. Finally, the loading hopper for the conveyor system was lined with rubber to reduce noise created when objects are placed on the hopper.

The testimony presented by defendant’s expert witnesses, although not conclusive, did substantiate the effectiveness of defendant’s improvements. Donald F. Stevens, an employee of an independent testing laboratory, testified that in tests made both while the plant was in full operation and while not in operation, the noise levels in the area of plaintiffs’ homes were at or below those to be expected for homes near a highway. Robert Corning, a chemical technology consultant who took measurements around defendant’s plant and analyzed Iowa Department of Environmental Quality reports, testified that the dust levels and general air quality around the plant were not out of line and in fact were about average for a community such as Carroll, Iowa.

In spite of the improvements shown by defendant, the question of whether defendant’s plant is still a nuisance is not as black and white as defendant paints it. Plaintiffs introduced persuasive evidence that if the improvements are not kept in full use, some of the old problems will arise. At the times defendant’s experts conducted tests, the improvements appear to have been operating efficiently. The trial court too seems to have been troubled by the possibility of defendant’s letting down in the operation of the improvements, and inserted a clause that defendant could operate as long as its dust and noise emissions meet standards of the Iowa Department of Environmental Quality.

Upon a de novo review of the evidence, Schlotfelt v. Vinton Farmers’ Supply Co., 252 Iowa 1102, 109 N.W.2d 695, we conclude as did the trial court that defendant by its improvements overcame the nuisance. The trial court properly vacated the injunction. We caution defendant, however, that just as an injunction will be vacated on changed conditions, so another injunction will be issued on changed conditions.

We also approve the part of the trial court’s decree requiring defendant to comply with the standards of the Department of Environmental Quality. We add the caveat that although defendant complies with the Department’s standards, defendant will still be subject to injunction if it permits a nuisance to arise.

AFFIRMED.

All Justices concur except HARRIS, J., who dissents.