Opinion
No. 1-517 / 00-0791.
Filed April 10, 2002.
Appeal from the Iowa District Court for Clayton County, JAMES BEEGHLY, Judge.
Interstate Power Company appeals from the district court judgment entered on a jury verdict in favor of Daniel and Coleen Martins, operators of a dairy farm, on their stray-voltage nuisance claim.
AFFIRMED.
David L. Hammer, Angela C. Simon, and Scott J. Nelson of Hammer, Simon Jensen, Dubuque, for appellant.
Christopher Stombaugh of Kopp, McKichan, Geyer Skemp, Platteville, Wisconsin, Scott Lawrence of Lawrence Desrochers, St. Nazianz, Wisconsin, and R. Craig Oppel of Allbee, Allison Denning, P.C., Muscatine, for appellees.
Heard by SACKETT, C.J., MILLER, J., and PETERSON, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).
Daniel Martins and Coleen Martins (Martins) filed a petition at law seeking damages from Interstate Power Company (Interstate) caused by stray voltage. The petition asserted claims under strict liability, negligence, trespass, and nuisance. Two weeks before trial, Martins dismissed all claims except the claim of nuisance. A motion for summary judgment filed by Interstate, asserting that a claim against a utility must be predicated on negligence and the petition must now be dismissed, was denied. The case went to trial, and the jury awarded judgment in favor of Martins in the amount of $700,000. Interstate appeals, contending that errors by the trial court require a reversal of the decision. We affirm the trial court.
From 1982 to March 1, 1997, Martins milked cows on Daniel's family farm which adjoins the city of Monona. They had purchased the farm in 1997 from a finance company. It had previously been owned by Daniel's parents. A dairy barn was constructed on the property in 1997. Interstate has a substation serving Monona and the farm located less than one quarter mile west of the farm. The farm is between the city and the substation. From 1989 the cows exhibited some very strange behavior. They also did not produce expected quantities of milk and suffered an unusual amount of illnesses and injuries. In 1989 Interstate tested the area for stray voltage but reported to Martins that there was no problem. During tests in July 1992, representatives of the dairy company to which Martins sold milk received an electric shock from the bulk tank and off the barn steel. They also found excessive alternating current from the utility at cow contact points in the barn. Interstate again checked the farm during the summer and fall of 1992 but did not inform Martins of any problems. In early 1993, Interstate suggested separating the farm neutral from the utility neutral. After the isolation of the neutrals, the cows' conduct improved substantially. The cows also put on weight, increased the milk production, and the somatic cell counts dropped.
In 1995 and 1996, the problems experienced in 1992 returned. In 1996 the natural gas company, in the process of placing plastic sections in the gas line, found abnormal amounts of AC current on the gas line on Martins' farm and reported it to Interstate. The herd continued to deteriorate and exhibit strange behavior through March 1997. The herd was moved to a different farm in March 1997 and, thereafter, improved substantially. The milk production increased, the strange behavior discontinued, the somatic cell counts dropped, and the cows gained weight normally. Experts had differing views concerning the source and existence of stray voltage and the effect of the stray voltage on the cattle.
Suffice it to say that issues relating to nuisances do not appear on the sea of tranquility. Rather, it appears whenever nuisance concerns are presented they land in troubled waters. "Confusion exists in statements of the legal basis of liability as applied to the law of nuisance because the term "nuisance" has been used indiscriminately to designate harmful results. . . ." Taylor v. City of Cincinnati, 55 N.E.2d 724, 729 (Ohio 1944). American courts have shown a deplorable tendency to call everything a nuisance and let it go at that. Moran v. Pittsburgh Des Moines Steel, 166 F.2d 908, 925 n. 14 (3d Cir. 1948). The confusion on this score vanishes in large part, however, when proper heed is paid to the sound propositions that private nuisance is a field of tort liability rather than a single type of tortious conduct; that the feature which gives unity to this field of tort liability is the interest invaded, namely the interest in the use and enjoyment of the land; that any substantial nontrespassory invasion of another's interest in the private use and enjoyment of land by any type of liability forming conduct is a private nuisance. Morgan v. High Penn Oil Co., 77 S.E.2d 682, 689 (N.C. 1953).
Negligence and Nuisance. Martins' claim was based solely on the theory of nuisance. Interstate contends that the motion for summary judgment should have been sustained and the proceedings dismissed for the reason that any claim against an electric utility must include the assertion of negligence.
Iowa has long recognized a distinction between the claim of nuisance and the claim of negligence. The term "private nuisance" and "negligence" are in different classes. Negligence is a type of liability forming conduct. A private nuisance is a tort. It is a substantial and unreasonable interference with the interest of a private person in the use and enjoyment of his land. It has been called a type of harm. Ryan v. City of Emmetsburg, 232 Iowa 600, 604, 4 N.W.2d 435, 439 (1942). A private nuisance today is a condition or activity that interferes with the possessor's use and enjoyment of his or her land by incorporeal or nonpossessory invasions to such an extent that the landowner cannot reasonably be expected to bear without compensation. Dobbs, The Law of Torts, § 463 at 1321 (2000). It may be said that negligence is some act or omission in violation of a duty, while a nuisance is a dangerous, unsafe, or offensive condition resulting from some act or omission. H. Christiansen Sons v. City of Duluth, 31 N.W.2d 270, 275 (Minn. 1948).
At the time of this trial the State of Iowa statutorily recognized a claim for damages based on nuisance. Iowa Code §§ 657.1, 657.2 (1999). The same provisions remain unchanged at this time. These statutory provisions do not modify the common law's application to nuisances. Bates v. Quality Ready-Mix Co., 261 Iowa 696, 704, 154 N.W.2d 852, 857 (1967). These provisions are skeletal in form, and the courts look to the common law to fill in the gaps. Weinhold v. Wolff, 555 N.W.2d 454, 459 (Iowa 1996).
Interstate contends that they cannot be held liable in nuisance without a prerequisite showing of negligence. Authorities hold that any unreasonable or unlawful use of property which unreasonably interferes with the lawful use and enjoyment of other property is an actionable nuisance; that negligence is not an essential or material element of such an action; and that the actor is, as a rule, liable for the resulting injury to others notwithstanding the actor's exercise of skill and care to avoid such injury. Ryan, 232 Iowa at 605, 4 N.W.2d at 439. It is well established that the same acts or conduct may and often do create liability either for negligence or for nuisance; and while, generally speaking, a nuisance presupposes negligence, negligence is not necessarily one of the material elements of nuisance. Negligence is not vital to the establishment of an action based on nuisance. Christiansen, 31 N.W.2d at 275. While the same act may constitute negligence and also give rise to a private nuisance, a private nuisance may be created or maintained without negligence. It is well established that the existence of a nuisance is not "affected by the intention of its creator not to injure anyone." Mel Foster Co. Props., Inc. v. Am. Oil Co., 427 N.W.2d 171, 174 (Iowa 1988). Thus, unless there is an exception of an electric utility company from the claim of nuisance, with the absence of negligence, the motion was properly overruled. Interstate contends that in Iowa a claim of nuisance against a utility can only be predicated upon negligence, citing Blackman v. Iowa Union Elec. Co., 234 Iowa 859, 14 N.W.2d 721 (1944). The phrase "can only be predicated on negligence" used in Blackman was not intended to exclude all utilities from nuisance claims. Blackman, 234 Iowa at 862, 14 N.W.2d at 723. When read in context it can be stated that the court concluded that when a gas company is accused of negligent conduct for the escape of gas, the damages are based on the liability for the negligence. Id. (emphasis supplied). It may be concluded that the court in Blackman perceived that the escape of gas, not being a normal part of the operation of the utility, necessarily requires a determination that the escape was a result of some negligent act on the part of the gas utility before liability can be assessed. Id. In fact, Blackman follows the general rule that directs the court to determine the theory of the case that was tried. Notwithstanding what the case may be labeled, if the case is treated as a negligence case; that is, predicated on a negligent act or omission of a duty, it cannot be said to be a nuisance case. Blackman was pled and tried as a negligence case, thus negligence principles applied. Blackman did not intend to carve out an exception in the law favoring utilities and excluding them from the law of nuisance when the circumstances so warranted. Negligence is not vital to the establishment of an action based on nuisance. Christiansen, 31 N.W.2d at 275. The same acts or conduct may and often do create liability either for negligence or for nuisance; and while, generally speaking, a nuisance presupposes negligence, negligence is not necessarily one of the material elements of nuisance. Id. at 273-74. In this case, Martins relied solely on a claim of nuisance against Interstate. They were very careful not to cross the line to assert a claim of negligence against Interstate, nor was the presentation of their case premised upon the utility's negligent acts. An action for damages for nuisance is not predicated on negligence. It is a condition, not an act or failure to act. If the wrongful condition exists, the person responsible for its existence is liable for resulting damage. Kriener v. Turkey Valley Cmty. Sch. Dist., 212 N.W.2d 526, 530 (Iowa 1973); Claude v. Weaver Const. Co., 261 Iowa 1225, 1229, 158 N.W.2d 139, 143 (1968). In Dobbs, The Law of Torts, § 463 at 1322, it is stated: "If the defendant's electromagnetic radiation or stray voltage invades the land, it is a nuisance if it is any tort at all." There appears to be no reasonable basis for carving out a special exemption for electric utilities from the law of nuisance without negligence.
Interstate contends the trial court should have applied negligence principles to Martins' claim and instructed the jury on Martins' comparative fault. The trial court declined to submit the issue of comparative fault. Iowa recognizes the cases of nuisance in which negligence is involved. In those cases, the concept of negligence and nuisance are interrelated and are referred to as negligence-nuisance cases. Gusman v. Des Moines Hotel Partners, Ltd. P'ship, 489 N.W.2d 10, 11 (Iowa 1992); see also Awad v. McColgan, 98 N.W.2d 571, 574 (Mich. 1959). But Gusman also makes a distinction between cases of nuisance based on negligence and nuisance without negligence. "In nuisance cases based on negligence, contributory negligence has been held to be a defense." Gusman, 489 N.W.2d at 11. The obverse thus follows: If the nuisance case is not based on negligence, comparative fault is not an issue. This concept has long been the law in Iowa. The court in Bowman v. Humphrey, 132 Iowa 234, 109 N.W. 714 (1906), reached the conclusion that the doctrine of contributory negligence has no proper application to an action to recover damages for a nuisance. The court went on to state that nuisance is a condition, and not an act or failure to act on the part of the person responsible for the condition. Bowman, 132 Iowa at 237, 109 N.W. at 715. If the wrongful condition exists, and the person charged therewith is responsible for its existence, he is liable for the resulting damages to others, though he may have used the highest possible degree of care to prevent or minimize the deleterious effects. Id. The trial court correctly declined to include an instruction on comparative fault in these proceedings.
Strict liability. Interstate contends the trial court, in effect, imposed a strict liability standard on the utility, asserting that Schlader v. Interstate Power Co., 591 N.W.2d 10, 13 (Iowa 1999), determined that by the repeal of Iowa Code section 489.16 (1966) the legislature rejected the strict liability standard for utilities. Section 489.16 formerly provided:
Injury to Person or Property. In case of injury to any person or property by any such transmission line, negligence will be presumed on the part of the person or corporation operating said line in causing said injury, but this presumption may be rebutted by proof.
Iowa Code § 489.16. This statute was repealed by 1986 Iowa Acts ch. 1198, § 1.
"Strict liability does not arise merely because a public utility is involved." Schlader, 591 N.W.2d at 120; see also Northwestern Nat'l Ins. Co., v. Raid Quarries Corp., 249 N.W.2d 640, 645 (Iowa 1977). The elements of the claim for nuisance and a claim under strict liability are not the same. A lawful business, properly conducted, may still constitute a nuisance if the business interferes with another's use of his own property. Weinhold, 555 N.W.2d at 461; Valasek v. Baer, 401 N.W.2d 33, 35 (Iowa 1987). Strict liability, generally speaking, imposes responsibility for damages proximately caused by the mere existence of the dangerous instrumentality or condition. It is liability without fault. The defendant is subject to liability for conduct that amounts neither to negligence nor to any intentional tort. Dobbs, The Law of Torts, § 342 at 941 (2000). Although by statute the Iowa legislature has included strict liability under the provisions of Iowa Code section 668.1, nuisance is not strict liability. Each of the elements necessary to establish actionable nuisance must be presented before liability is imposed.
The issue of a claim for nuisance was not before the court in Schlader. Schlader did not abolish nuisance as a cause of action when a utility is involved.
Discovery. Interstate claims discovery violations on the part of Martins and asserts that such violations prejudiced Interstate and should have resulted in dismissal of the case. The standard for review is abuse of discretion by the trial judge. Sullivan v. Chicago and N.W. Transp. Co., 326 N.W.2d 320, 324 (Iowa 1982). The primary complaint relates to a denial of a motion for sanctions filed by Interstate. Interstate's experts were unable to enter and inspect Martins' farm when they understood the inspection should occur. The court declined to impose sanctions for the reason that the arrangement was informal and the court determined that there was not a clear and unambiguous understanding of the terms, conditions, and timing of the inspection. The court further concluded that adequate advance arrangements for the inspections had not been provided. The court on January 20, 1998, then directed counsel to make formal request for entry upon the land pursuant to Iowa Rule of Civil Procedure 1.512(1). A "Request to Permit Entry and Notice" was filed by Interstate. Order was entered by the court on February 17, 1998, stating the following:
The attorneys have agreed that they will consult with their expert witnesses and arrange a mutual time for experts of their choice to meet at the Plaintiff's farm where the alleged stray voltage has occurred, so that the experts can each observe the other in conducting tests and inspections.
Apparently, Martins' experts did testing in the absence of Interstate's experts, and Interstate learned of this testing during deposition of Martins' experts.
A motion to dismiss was filed by Interstate on February 3, 1999, asserting Martins' failure to comply with the February 17, 1998, order as the basis of the motion. A pretrial order dated March 17, 1999, addressing several pending issues before trial scheduled in March denied the motion for dismissal for failure to comply with the prior discovery stating, "the court finds no violation of Judge Beeghly's Order of February 17, 1998." No evidentiary record was made at that time. The issue was again before the court during trial concerning the limiting of the reference to the "agreement" of counsel relative to inspection, and the claimed violation thereof. No evidentiary record or proffer of evidence was presented.
It is expected that parties comply with discovery processes provided by the rules of civil procedure. Discovery rules should be liberally construed to effectuate disclosure of all relevant and material information to the parties. Hutchinson v. Smith Labs., Inc., 392 N.W.2d 139, 140-41 (Iowa 1986). Discovery violations, as well as assertion of discovery violations, are serious concerns of the court. Because of their significance, it was essential that the matter be before the trial court upon an evidentiary record pursuant to the then existing rule 134 motion to compel. The district court is vested with wide discretion in rulings on discovery matters. Pierce v. Nelson, 509 N.W.2d 471, 473 (Iowa 1993). The record available to this court fails to support a conclusion that the trial court abused its discretion on this discovery issue.
Interstate makes other complaints concerning alleged discovery violations. These issues were not presented to the trial court in a manner that preserved the issues for appeal.
Spoliation. Interstate filed a motion to dismiss Martins' petition premised upon an assertion that during the pendency of the action, without notice to Interstate, Martins moved the affected cattle to another farm and also removed electrical equipment resulting in spoliation of evidence. Interstate contends that they did not have an opportunity for its experts to test the cattle and equipment while on the affected property. Hearing was held on the motion. We are not provided with a transcript of any record made of such hearing. After hearing the judge denied the motion finding:
1. The evidence clearly established that Martins moved their dairy herd to a different farm, in an effort to mitigate their damages, and not for the purpose of "destroying" evidence.
2. Any presumption under Evidence Rule 301 has been overcome.
The nonproduction, alteration, or destruction of evidence is commonly referred to as spoliation. State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979). Spoliation is a rule of evidence that, if established, creates a presumption that the evidence and testimony, if produced, would be adverse to that party. Iowa R. Evid. 5.301; Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 491 (Iowa 2000); Gamerdinger v. Schaefer, 603 N.W.2d 590, 595 (Iowa 1999); Holmquist v. Volkswagen of Am., Inc., 261 N.W.2d 516, 523 (Iowa 1977). When established, the inference is regarded as an admission by conduct of the weakness of the party's case. Langlet, 283 N.W.2d at 333. The inference can only be based upon the intentional destruction of evidence and must be within the control of a party whose interests would naturally call for its production. State v. Hulbert, 481 N.W.2d 329, 334 (Iowa 1992); Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 127, 143 N.W.2d 345, 348 (1966). A spoliation inference must be utilized prudently and sparingly. It must be applied in a fair and even manner to all parties. The party seeking the inference must generate a genuine factual issue whether the party in control of the evidence intentionally altered or destroyed it. If we permit the inference to be used in any lesser standard, the inference will lose its vitality and impose unfair sanctions. Phillips v. Covenant Clinic, 625 N.W.2d 714, 720 (Iowa 2001). In the absence of any transcript of the hearing on the motion to dismiss, this court is not in a position to determine that the trial judge abused his discretion when he did not rule in favor of Interstate requesting dismissal on the spoliation issue. Even if established, it is an evidentiary issue, and it would rarely be sufficient to support a dismissal of the entire claim.
Evidence. Interstate raises issue with several evidentiary rulings of the trial court. We generally review evidentiary rulings for abuse of discretion. Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997).
A. Martins' initial pleadings asserted claims of negligence, strict liability, trespass, and nuisance. Shortly before trial Martins withdrew the claims based on negligence or strict liability. The trial court excluded evidence of the withdrawn pleadings. The generally accepted view is that withdrawn pleadings are admissible in evidence in the same case between the same parties to show that the pleader made a different claim at another time. 4 Wigmore, Evidence, § 1067 at 88-90 (Chadbourn Revision 1972). In Katcher v. Heidenwirth, 118 N.W.2d 52, 59 (1962), the supreme court held the opposite party was entitled to introduce inconsistent pleadings relating to the same issue into evidence for whatever the jury might find it worth in arriving at the truth of the controversy. The weight to be assigned was a question for the jury. Katcher, 118 N.W.2d at 59. The question before this court is whether the refusal to allow the pleadings to be admitted is prejudicial error. We review rulings of the district court on the admission of evidence for correction of errors at law. Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 265 (Iowa 1998). "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Iowa R. Evid. 5.103(a). We will not disturb the trial court's evidentiary rulings "unless there is a clear and prejudicial abuse of discretion." Gamerdinger, 603 N.W.2d at 594. We conclude that since the assertion of negligence in the withdrawn pleadings did not constitute a judicial admission but rather only evidence of an alternate claim of basis for recovery by Martins, the failure to allow the admission of the pleadings did not constitute a prejudicial abuse of discretion by the trial judge.
B. Interstate claims error contending the trial court had no discretion but to instruct the jury on the existence of an easement in favor of Interstate on the affected property after the court had taken judicial notice of the easement, contending that Iowa Rule of Evidence 5.201 is a mandatory provision. The easement in question granted the right and privilege and authority for Interstate to "construct, operate, maintain a line of poles, wires and fixtures, for the purpose of transmitting electric or other power . . . on, through, over or across" the southerly boundary of the affected property. Interstate misconstrues the action of the trial court on this issue. The trial court, in its colloquy on the issue, concluded the easement was insufficient to raise a fact issue regarding whether the conduct complained of was authorized by the easement and determined as a matter of law in construing the written instrument that the easement did not include the authorization to allow electric current to pass through the earth at such levels as to interfere with agricultural and other use of the dominant estate. We believe the trial court is correct on that issue. Martins had objected to the introduction of the easement document as irrelevant to the issues. The trial court sustained the objection. The trial court qualified the judicial notice of the document to "an offer of proof for this issue," thereby preserving the issue in the event of appeal. Under such limited purposes expressed by the court, the court is not required to instruct the jury on the fact judicially noticed. The trial court did not err on this issue.
C. Dr. Michael Behr was presented as an expert witness by Martins. Interstate contends that he was allowed by the court to testify beyond his level of competence. Interstate's primary concern is Dr. Behr's criticism of some of the conclusions of the USDA Redbook, a treatise that addresses research on stray voltage. In Mercer v. Pittway Corp., 616 N.W.2d 602 (Iowa 2000); (quoting Mensink v. Am. Grain, 564 N.W.2d 376, 380 (Iowa 1997)), the supreme court stated that "we are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area." The analysis set forth in Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786. 125 L.Ed.2d 469 (1993), is not required to be applied by the trial court when considering the admissibility of testimony of an expert, but it may be helpful in complex cases to use one or more of the relevant Daubert "considerations" when assessing the reliability of the expert testimony. Leaf v. Goodyear Tire and Rubber Co., 590 N.W.2d 525, 533 (Iowa 1999). The admission of such testimony rests within the sound discretion of the district court. Tappe v. Iowa Methodist Med. Ctr., 477 N.W.2d 396, 402 (Iowa 1991). Iowa Rule of Evidence 5.702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
The proper test for admission of expert testimony in Iowa is whether the evidence is relevant; whether it is in the form of scientific, technical, or other specialized knowledge that will assist the trier of fact; the witness must be qualified as an expert by knowledge, skill, experience, training, or education; and in addition, any potential for an exaggerated effect of the proffered evidence should be considered. Leaf, 590 N.W.2d at 533.
Sufficient testimony was elicited for the trial court to determine that the reliability of the documentation in the USDA Redbook was relevant. The witness had specialized knowledge of the compilation of the data, and such specialized knowledge was in the form which could assist the jury in weighing the evidence presented. The trial court did not abuse its discretion in the admission of evidence from this witness.
D. The trial court limited the testimony of Dr. David Reid, listed as an expert for Interstate, to the report provided to Martins that he had prepared for them when Martins engaged him prior to trial. Interstate had failed to provide Martins with an answer pursuant to Iowa Rule of Civil Procedure 1.508 in response to interrogatories requesting opinions of this expert. Interstate asserts the trial court committed error by limiting the testimony of Dr. Reid. Although identified as a brief point, Interstate presents no argument in support of its contention on this issue.
No proffer of the additional opinions Dr. Reid would have presented was elicited from the witness. It cannot be determined from the record what prejudice, if any, occurred from the limitation of testimony from this witness. No abuse of discretion, if any, on the part of the trial judge can be established from this record.
E. Dr. Shoemaker, an expert for Interstate, testified over objection of relevancy, that Martins' alleged violations of the National Electric Code may have contributed to the stray voltage on the farm. After substantial testimony from this witness, the court reconsidered its ruling, struck the evidence of compliance or noncompliance with the National Electric Code, and instructed the jury to disregard it. In the final instructions submitted to the jury the court restated the curative instruction. Interstate contends the court erred in refusing to admit the testimony and erred in repeating its curative instruction in the final instructions.
It is apparent the trial court, on reflection, concluded the testimony of Shoemaker concerning National Electric Code violations was an attempt to introduce the element of comparative fault into the case and properly corrected his ruling. It is noted that no motion for mistrial was made by Interstate at that time.
Interstate complains that the repetition of a curative instruction in the final instructions directing the jury not to consider evidence of compliance or noncompliance with the National Electric Code because it was stricken from the record unduly emphasized this issue to the prejudice of Interstate. Correct statements of the law, if repeated to the point of undue emphasis, may constitute reversible error. Clinton Land Co. v. M/S Assocs., Inc., 340 N.W.2d 232, 234 (Iowa 1983). In this case, the repetition of the curative instruction was a reminder to the jury to disregard certain evidence and not a restatement of a legal principle. No prejudicial error was created by the court by this procedure.
Statute of limitations. The nature of the action determines the proper statute of limitations. Venard v. Winter, 524 N.W.2d 163, 165 (Iowa 1994). Iowa Code section 614.1 provides:
Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards except when otherwise specially declared:
. . . .
4. . . .[T]hose brought for injuries to property . . . within five years. . . .
The evidence reflects that stray voltage was a continuing and recurring event. Where 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-County REC, 512 N.W.2d 558, 559 (Iowa 1994); Anderson v. Yearous, 249 N.W.2d 855, 860 (Iowa 1977); Earl v. Clark, 219 N.W.2d 487 , 491(Iowa 1974). The undisputed record reflects that Martins did not become aware the stray voltage in the barn was affecting their cattle until August of 1992, although there is reason to conclude the stray voltage may have been affecting the herd since 1989. Iowa courts have followed the principle that a cause of action based on negligence does not accrue until the plaintiff has in fact discovered that he or she has suffered injury or by the exercise of reasonable diligence should have discovered it. Lebeau v. Dimig, 446 N.W.2d 800, 801 (Iowa 1989); Franzen v. Deere Co., 377 N.W.2d 660, 662 (Iowa 1985). The same rule should be applicable in nuisance cases. The injuries were recurring and successive recovery is limited to those actions accruing during the statutory period. In this case the period is five years preceding the inception of the current action for damages. Hegg, 512 N.W.2d at 560. The trial court correctly instructed the jury concerning this issue.
Instructions. Interstate contends the trial court failed to properly instruct on the elements of nuisance. Instruction fifteen correctly defined private nuisance. It defines the interest in land which is required, the elements of unreasonable invasion necessary to consider, the definition of substantial cause, and the measure of damages. See Weinhold, 555 N.W.2d at 465-66; Bates, 261 Iowa at 703-04, 154 N.W.2d at 857. The instruction of the trial court embodies the applicable factual considerations the jury must consider in determining whether liability lies, and if so, the manner of assessing damages. Interstate further contends the instructions were not balanced but were slanted in favor of Martins. We follow well-established standards in our review of the propriety of the submission of the instructions to the jury. See Young v. Gregg, 480 N.W.2d 75, 80 (Iowa 1992). We find no prejudicial error in the instructions given or in the refusal of instructions proposed by Interstate. The instructions given thoroughly and fully present the issues so that the jury had a proper understanding of the law applicable to determination of the verdict. We find no merit in the contention that the instructions were unfairly biased in favor of Martins.
Damages. Interstate complains that the trial court improperly instructed the jury on the proper measure of damages contending that it is only the interest in real property that is compensable. In Weinholt v. Wolff, 555 N.W.2d at 465, the elements of damage in permanent nuisance cases was defined. Our supreme court stated:
When the nuisance is permanent, the proper measure of damages is the diminution in the market value of the property. 58 Am. Jur. 2d Nuisances § 289 (1989); Mel Foster Co. Props., 427 N.W.2d at 175. Where the nuisance is permanent, the landowner may also recover such other special damages the landowner may prove. 58 Am. Jur. 2d Nuisances, § 293 (1989). The rule is that
in addition to depreciation in the market . . . value of the realty, the plaintiff may recover the damages he himself suffers from the deprivation of the comfortable enjoyment of his property, and the inconvenience and discomfort suffered by himself and his family, or other affected persons.
The personal inconvenience, annoyance, and discomfort to a property owner or occupant caused by a nuisance is a separate and distinct element of damage, and thus, damages for personal inconvenience, annoyance, and discomfort caused by the existence of a nuisance are separately and independently recoverable in a nuisance action in addition to, or separate from, damages suffered in respect of the market value of the premises, or injuries to or destruction of buildings and crops resulting from a permanent nuisance. . . .
The trial court has properly incorporated these elements of damages in the instructions presented to the jury.
The trial court is affirmed.
AFFIRMED.