from the Iowa District Court for Mitchell County, DeDra L.
appeal the district court decision granting summary judgment
to defendant based on the statute of limitations.
L. Thompson of Putnam & Thompson Law Office, P.L.L.C.,
Decorah, for appellants.
L. Riley of Swisher & Cohrt, P.L.C., Waterloo, for
Considered by Mullins, P.J., Bower, J., and Vogel, S.J.
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.
Background Facts & Proceedings
Dvoraks own property in rural Mitchell County. Beginning in
2006, Oak Grove has operated a cattle lot immediately
adjacent to the Dvoraks' property.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.
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
Grove claimed the Dvoraks' action was barred by the
five-year statute of limitations found in Iowa Code section
614.1(4) (2016). Oak Grove also raised a counterclaim for
defamation, alleging the Dvoraks made false statements about
the cattle lot and published them to third parties.
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
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.