GLENN E. BOTSCH ET AL., APPELLANTS, V. LEIGH LAND COMPANY, A NEBRASKA CORPORATION, ET AL., APPELLEES.
No. 40071
Supreme Court of Nebraska
March 4, 1976
239 N. W. 2d 481
NEWTON, J.
Joseph Ginsburg of Ginsburg, Rosenberg, Ginsburg & Krivosha, for appellee Leigh Land Co. et al.
Steven J. Flodman of Barlow, Watson & Johnson, for appellee Folken.
Hеard before WHITE, C. J., SPENCER, BOSLAUGH, MCCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
On rehearing this case has been heard before the full court. The former opinion filed is withdrawn. See ante p. 54, 236 N. W. 2d 815.
Plaintiffs are the owners and occupants of a farm in Colfax County, Nebraska, upon which they conduct normal farming operations and a small livestock enterprise consisting of the raising of purebred cattle and the feeding of a small number of hogs and cattle. To the south, directly across the road from plaintiffs’ farm-building site, the defendants have built cattle yards or pens in which they have fed from 408 to 3,746 head of cattle simultaneously. Four lagoons are maintained to catch the runoff of water and manure from the feedlot. Plaintiffs seek an injunction due to offensive odors, dust, and insects originating on the defendants’ premises. At the conclusion of plaintiffs’ evidence, the trial court dismissed their petition. We reverse that judgment and remand the cause for further proceedings.
Plaintiffs’ assignment of errors is directed primarily at the finding of the court that as a matter of law a nuisance did not exist and that there was a failure to prove negligent operation. In its memorandum opinion the court stated that plaintiffs were subjected to intolerable odors in the use, comfort, and enjoyment of their dwelling and farmstead and suffered from a substantial increase in flies, all due to defendants’ feeding operation and mаintenance of the lagoons. These findings are amply sustained by the record.
The evidence establishes the following additional facts. The Leigh Land Company, in which the defendants Roland Langemeier, Kermit Wagner, and Leroy Folken are stockholders, leased a tract of land from the defendants Folken. On the leased land feеdlots were constructed with two ponds to catch runoff water and manure. Later two more ponds were constructed on the Folken land in an area not covered by the lease. The ponds are almost directly across the road from
Dust from the feedlots frequently blew across to plaintiffs’ premises in considerable volume. Large numbers of flies were attendant on the feeding operations and infected plaintiffs’ premises in large numbers. Odors originating in the ponds were very obnoxious and continuously present. One witness described the odor as a stagnant smell and stated he would not like to live next door to it. Another said the smell was “pretty stout,” might make some people sick, and that he could not stand it all the time. Another stated that the odor penetrated clothing, and with the flies made it impossible for the plaintiffs to enjoy their lawn. Another said she found the smell “atrocious” and closed her car windows when passing by. Another said that the condition was such that he would not live on the plaintiffs’ farm. Another neighbor said that on one occasion the smell was so bad that he and his wife left their home temporarily. Another said the smell was worse than from a dead animal and the flies were bad, so that he would not live on plaintiffs’ farm. Another described it as a “dead sour smell” that “almost kills you.” A representative of the Department of Environmental Control stated he had inspected the feedlot premises. He testified that the department was not concerned with air pollution and that the ponds were adequate to prevent pollution of a stream into which the area drained.
The trial court found that as a matter of law a nuisance did not exist and appears to have based that finding on the theory that plaintiffs had to prove a negligent or improper operation of the feedlot. This conception of the law is erroneous.
What is meant when it is said that a lawful business will not be enjoined in the absence of evidence that it is operated improperly? A feed yard question was presented in Francisco v. Furry, 82 Neb. 754, 118 N. W. 1102. In that case the court said: “The corruption of the atmosphere by the exercise of any trade or by any use of property that impregnates it with nоisome stenches has ever been regarded as among the worst class of nuisances. The right to have the air floating over one’s premises free from noxious and unnatural impurities is a right as absolute as the right to the soil itself * * *. A feeding yard is not necessarily a nuisance and it becomes such only by being improperly maintained or conducted. There is nothing in the evidence showing it to be impossible to maintain the yard in question in such a manner as to free it from the objections which the plaintiffs make. The situation of the yard is favorable to its being conducted in a cleanly and proper manner. That the defendants should be enjoined from conducting their business in the yard in such a manner as to make it a nuisance cannot be denied; but, when the court goes beyond this and limits the time of its use for keeping cattle or hogs, or the number to be kept, we think that it has extended its decree beyond proper bounds. Until it is shown that the yard cannot be maintained as a feeding yard without becoming a nuisance, the feeding оf cattle therein should not be enjoined. The order of the court should go no further than to enjoin the defendants from making a nuisance of their feed yard.” It will be noted that the court did enjoin the operation of the feed yard in such a manner as to create a nuisance. In other words, the court enjoined the nuisance, but not thе lawful business operation. When a lawful business is operated in such a
Ordinarily a legitimate business enterprise is not a nuisance pеr se, but it may become a nuisance in fact. It may become such by reason of the conditions implicit in and unavoidably resulting from its operation or because of the manner of its operation. See, City of Syracuse v. Farmers Elevator, Inc., 182 Neb. 783, 157 N. W. 2d 394; Sarraillon v. Stevenson, 153 Neb. 182, 43 N. W. 2d 509, 18 A. L. R. 2d 1025.
The exercise of due care by the owner of a business in its operation is not a defense to an action to enjoin its operation as a nuisance. See, Sarraillon v. Stevenson, supra; 58 Am. Jur. 2d, Nuisances, § 34, p. 597.
Prima facie, the existence of the conditions revealed by the record in this case clearly establishes that defendants’ feeding activities, as operated, constituted a nuisance. The odors generated by the lagoons and the manure dust, together with the insects resulting from failurе to remove manure, have rendered plaintiffs’ premises well-nigh uninhabitable and the reduction in the number of cattle fed in recent months, due to unfavorable cattle prices or other conditions, cannot defeat this action when the potential for larger operations remains.
Defendants assert that since livestock feeding is essentially a rural activity and their project is located in a rural area, it cannot be denominated a nuisance and enjoined. It is true that rural residents must expect to bear with farm and livestock conditions normally found in the area where they reside. In the area under consideration almost every farm has a rеlatively small cattle-feeding operation, but nothing approaching in size the defendants’ large commercial operation or resulting in comparably objectionable features. Even in an industrial or rural area one cannot conduct a business en-
The Nebraska statutes make it clear that defendants’ operation constitutes a nuisance and the fact that the Department of Environmental Control saw fit to ignore the air and insect pollution features cannot excuse its maintenance. It may be noted that the statutes do not distinguish between rural and urban areas. They prohibit the generation of conditions injurious to the “health, comfort or property of individuals or the public.” A rural home and a rural family, within reason, is entitled to the same relative protection as others. The fаct that the residence is in a rural area requires an expectation that it will be subjected to normal rural conditions but not to such excessive abuse as to destroy the ability to live in and enjoy the home, or reduce the value of the neighboring property.
In the case of Sarraillon v. Stevenson, supra, this court held: “There is no reasonable doubt but that appellants hаve used their property for purposes and in a manner which deprives appellees and other residents of normal and ordinary sensibilities living in the area around it of the reasonable and comfortable use of their property, and so that the accepted law of decency is violated and the value of thеir property because thereof has been substantially depreciated. Complete freedom and full use and enjoyment of home life in the neighborhood has been limited if not destroyed. A court of equity has jurisdiction to enjoin such a use of private property when its continuance would occasion a constantly occurring grievance. * * * There is no difference in effect between a physical invasion which limits the use of or destroys the property and an in-
“A court of equity will not usually enjoin the operation of a lawful business without regard to how serious may be the grievance caused thereby. In the first instance, at least, it will require the cause of the grievance to be corrected and will enjoin the conduct of the enterprise perpetually after it has been proven that no application of endeavor, science, or skill can effect a remedy or that the owners cannot be induced to conduct it properly.” Prauner v. Battle Creek Coop. Creamery, 173 Neb. 412, 113 N. W. 2d 518.
On the evidence thus far submitted, it appears that the lagoons and the manner of handling manure constitute a nuisance. Defendants have not as yet introduced evidence and it may be that they can successfully rebut plaintiffs’ evidence of a nuisance. If no nuisance is finally established, judgment must be for the defendants; however, if a nuisance is finally established but it is shown that the nuisance-creating factors may be dispensed with by enlarging or otherwise handling the lagoons, removing manure or other means, then the nuisance only but not the feeding business would be subject to injunction.
The judgment of the District Court is reversed and the cause remаnded for further proceedings.
REVERSED AND REMANDED.
MCCOWN, J., dissenting.
The majority opinion now holds that evidence of intolerable odors and a substantial increase in flies is sufficient to constitute a prima facie case for the granting of a mandatory injunction against a cattle feedlot op-
The court assumes that feeding 1,100 cattle does not constitute a nuisance, but the feeding of 3,746 cattle does. That in itself would not constitute a problem if there were evidence to establish that а feedlot of a larger size could be operated in a fashion which would not produce odors and flies to the degree that it constituted a nuisance. That evidence is wholly lacking here and the majority opinion simply assumes that a large cattle feeding operation can be reasonably conducted without еxcessive odors and flies. The record wholly fails to establish that fact, and there is no basis whatever for taking judicial notice of facts which the plaintiffs failed to prove. Plaintiffs had their opportunity to prove those facts and did not do so. They failed to establish a prima facie case and there is no justification for letting them try again.
For other matters involved, see my dissent in Botsch v. Leigh Land Co., ante p. 54, 236 N. W. 2d 815.
WHITE, C. J., joins in this dissent.