Daily Development for Tuesday, February 27, 2001

NUISANCE; PARTIES: Because pig farm can be abated, it constitutes a temporary nuisance, not a permanent one, and consequently damages are recoverable by occupants of nearby property affected by the nuisance whether or not they own any interest in that property.

Hanes v. Continental Grain Co., 2001 WL 118532 (Mo.App. E.D. 2/13/01)

Nearby residents sued the owner of a group of swine breeding operations for nuisance. The residents claimed that odor, flies and/or contaminated water emanating from Breeder's operations unreasonably impaired the use and enjoyment of their properties. After a three and onehalf month trial, a jury returned a verdict awarding 52 out of 108 plaintiffs $100,000 each on their nuisance claims. Breeder had asked for a directed verdict and appealed from the denial of that motion.

The Missouri Court of Appeals here affirmed the trial court verdict.

Breeders took the position that the nuisance presented by their swine breeding operation could not be abated, and was therefore a permanent nuisance. They insisted that Missouri law limited the types of damages that could be recovered for permanent nuisance, and that there was no evidence that such damage had occurred. Based upon later comments, it appears that this "other type of damages" the reduction in value of the neighboring property.)

The court discussed at length the facts of the case as adduced by the plaintiffs, who, because they convinced the jury, got every inference their way. It commented that a nuisance will be regarded as "abatable" even though the entire negative impact of the activity cannot be eliminated, but only moderated. The impacts generated by the operation could, according to the view of the court, been reduced to the point that they did not constitute a nuisance at all, even though they still existed. Consequently, the nuisance would be regarded as "temporary."

Some of the plaintiffs did not in fact own or lease the property on which they resided. One plaintiff lived with her child on property belonging to her mother. Another plaintiff lived with his family (also plaintiffs) on his father's property, paid no rent, but maintained the property. The court noted that although Missouri case law had in the past discussed nuisance as an interference in the "use and enjoyment on one's property," this did not mean that the plaintiff had to show a formal property interest in order to recover personal injury damages in nuisance.

Comment 1: Note that the facts of the case do not involve trespassers or people temporarily passing by the swine breeding operation. The question of whether trespassers can recover in nuisance is a provocative one, but this case should not be viewed as standing for that proposition. There is some authority that adverse possessors, who are possessors, and not mere trespassers, can recover in nuisance. See Restatement Torts 2d Sec. 821E and Comment c. Passersby, on a public right of way, presumably are lawfully where they are pursuant to a legal license, and consequently one would assume would be eligible to recover damages for nuisance.

Nuisance has some similarities to negligence actions, and some nuisances do result from negligence. But one can be liable for nuisance even without negligence, in which case some of the special theories addressed here would come into play.

Comment 2: The conclusion that a nuisance is temporary also has the effect of making it perpetually subject to suit. Permanent nuisances can ripen into prescriptive easements. Of course, one cannot obtain a prescriptive easement to violate the law, but one assumes that the swine breeders here had all necessary permits and were working well within all public regulatory tolerances. They still irritated the neighbors.

For a case in which a nuisance ripened into a right, see Bays v. Kent State University, 684 N.E. 2d 1328 (Ohio Ct. Cl. 1997), the DD for 2/23/98, on the DIRT Website. (Public agency not liable in nuisance for continuing nuisance when reforming of stream on its land leads to downstream injuries. Liability is limited to action or inaction of agency occurring during two year limitations period. Also see: Mangini v. AerojetGeneral Corp., 31 Cal. Rptr. 2d 272 (Cal. 1996) (Although contamination of a site can constitute a "continuing nuisance" for as long as the contamination remains on the site, it will not be regarded as "continuing" if it cannot be abated with reasonable effort and expense; the mere technical possibility of abatement is not sufficient.) (The DD for 9/13/96)

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