Baldwin v. McClendon

• Citation: 288 So.2d 761,292 Ala. 43
• Parties: Robert BALDWIN et al. v. James E. McCLENDON et al. SC 182.
• Decision Date: 24 January 1974
• Court: Supreme Court of Alabama

Page 761

288 So.2d 761

292 Ala. 43

Robert BALDWIN et al. v. James E. McCLENDON et al.

SC 182.

Supreme Court of Alabama.

Jan. 24, 1974.

Nash, NeSmith & Walker, Oneonta, for appellants.

Marshall H. Sims, Trussville, for appellees.

McCALL, Justice.

The respondents, Robert Baldwin and W. J. Bottcher, appeal from an adverse final decree in equity.

The appellees, James E. McClendon and Ethel McClendon, are husband and wife. Their home, for some fifteen years, has been a forty-seven acre farm, located in a rural agricultural area of Blount County, about seven miles southeast of Oneonta on the road to Springville. In early 1970, the appellants commenced hog production on a large commercial scale on the appellant Baldwin's property which adjoins the appellees. In their business, the appellants operate two hog parlors each with a separate connecting lagoon. One hog parlor will house something over a thousand hogs and a second smaller one will accommodate approximately four hundred. There is also a third servicing lagoon. The hog parlor is a covered shelter with a concrete floor, laid on a plane, slightly declining toward the adjoining lagoon. The hogs are fed and watered in the parlors, and there they live, sleep and grow to a desired weight, when they are topped out. The lagoons which adjoin the hog parlors are related facilities, designed for the purpose of retaining the disposing of the waste material excreted by the hogs on the floor in their parlors. These lagoons are entrenched bodies of water into which the hog waste is flushed down with water in cleaning the parlor floors. In the lagoons, the waste material, comingling with the water, creates a chemical reaction resulting in a disintegration of the waste. This causes the emission of offensive odors. During the trial, the extent and intensity of the odor was the subject of much conflicting testimony. The appellees and witnesses offered by them, in general, said that the odor was so bad that they had to keep the doors and windows in the house closed, that it sickened them at the stomach, caused loss of appetite and practically ruined all outdoor recreation about the homeplace. The appellees' residence was said to be at distances varying from two hundred to a thousand feet from the nearest hog parlor and adjoining lagoon. Witnesses testified that these facilities adjoined the appellees' land near the division line between the parties.

While much of the evidence conflicts, the appellants admit in their brief that there was an odor which arose from the operation of the hog parlor and that the evidence was in conflict as to how far it could be detected.

After stating that he visited the appellees' premises and inspected the stream in their pasture, the rock formation from which part of it flowed, the hog parlors and lagoons operated by the appellants, and the poultry houses and hog pasture of an adjacent neighbor, the trial judge found 'with no doubt about it.' that the appellants' operations emitted foul odors which had a detrimental effect on the appellees' enjoyment of their home and the value of their property.

On the premise that it was not quite clear from the testimony of the realtor McGinnis whether or not the entire damage of $6,000 was caused by the appellants' operation of the hog parlors and lagoons, or to poultry houses in the general area, the court said that, giving the benefit of all doubts to the appellants, it finds the damages, as far as the appellees' property is concerned, to be $3,000, due to the noxious and offensive odors brought about by the nearby operation of the hog parlors and lagoons.

The court further found that the operation of the hog parlors and lagoons was an obnoxious nuisance subject to abatement by a court of equity, and that the appellees suffered damages from the nuisance because of its proximity to their home, one of the lagoons being about as close to the appellees' property line as it could be built. The court also observed that the appellants had spent some $31,300 in creating the hog parlors and lagoons, and that an injunction would bring a severe blow to them. The court concluded that the appellees were entitled to have the nuisance abated, or else, be compensated in damages, if the nuisance is allowed to continue.

Accordingly, the court ordered and decreed that the appellants be enjoined, prohibited and restrained from operating the hog parlors and lagoons, provided that, if the appellants paid into the court the sum of $3,000 as damages for the use of the appellees, the injunction would not go into effect, and the appellees' only relief would be compensation for damages, but, if not paid within thirty days, the injunction would go into full force and effect without further orders of the court.

The appellants argue that their operation is carried on in a rural community given over almost entirely to agricultural pursuits, such as the growing of farm produce, the raising of turkeys and chickens, the dairy business, and hog and cattle production, and that it follows that fowl and animal odors will permeate the area to some degree. The assert that the appellees should endure some unpleasantness and not be permitted to enjoin a lawful business, the facilities for which were constructed according to approved plans and specifications, and the operation of which is conducted in a reasonable manner.

While these contentions must be considered in deciding the case, we think the decision also hinges on other factors, such as the location and proximity of the operation to the appellees' home, the intensity and volume of the odors, their interference, if any, with the appellees' own well-being and the enjoyment of their home, and any consequential depreciation in value of their home. It appears that the trial judge considered these matters.

In Grady v. Wolsner, 46 Ala. 381, the court said that anything constructed on a person's premises which, of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, is a nuisance.

In 1 Wood on Nuisances, § 556, quoted in Hundley v. Harrison, 123 Ala. 292, 297, 26 So. 294, the author lays down the rule as to a private nuisance to be that a man may do an act on his own land which is not unlawful or wrong--not using it in such manner as to injure another, for he may not so use his property as to injure another. Hundley, supra, states:

'* * * 'When he sends on to the lands of his neighbor noxious smells, smoke, etc., then he is not doing an act on his own property only, but he is doing an act on his neighbor's property also; because every man has a right, by the common law, to the pure air and to have no noxious smells sent on this lands, unless, by a period of time a man has, by what is called prescriptive right, obtained the power of throwing a burden on his neighbor's property.' * * *'

The above statement of a principle should be and is qualified in the same decision, where the court said:

'* * * 'In the case of noisome smells, as with nuisances from smoke or noxious vapors, the stenches must be of such a character as to be offensive to the senses, or as to produce actual physical discomfort, such as materially interfere with the comfortable enjoyment of property within their sphere. It is not necessary that the smells should be hurtful or unwholesome, it is sufficient if they are offensive, or produce such consequences, inconvenience or discomfort, as to impair the comfortable enjoyment of property, by persons of ordinary sensibilities,'--such as people generally, in the absence of proof to the contrary, will be presumed to have. 'A smell that is simply disagreeable to ordinary persons, is such physical annoyance as makes the use of property producing it a nuisance, whether it be hurtful in its effects or not.' . . . § 563; 16 Am. & Eng.Enc.Law, 948; Campbell v. Seaman, 63 N.Y. 568, (s.c.) 20 Am.Rep. 567.'

On several occasions, we have defined a private nuisance as 'any establishment, erected on the premises of one, though for the purposes of trade or business, lawful in itself, which, from the situation, the inherent qualities of the business, or the manner in which it is conducted, directly causes substantial injury to the property of another, or produces material annoyance and inconvenience to the occupants of adjacent dwellings, rendering them physically uncomfortable, is a nuisance. In applying this principle, it has been repeatedly held that smoke, offensive odors, noise, or vibrations, when of such degree or extent as to materially interfere with the ordinary comfort of human existence, will constitute a nuisance.' English v. Progress Electric Light & Motor Co., 95 Ala. 259, 10 So. 134; Hundley v. Harrison, 123 Ala. 292, 26 So. 294; City of Selma v. Jones, 202 Ala. 82, 79 So. 476; Coleman v. Estes, 281 Ala. 234, 201 So.2d 391. Title 7, § 1081, Code of Alabama, Recompiled 1958, defines what is a nuisance as follows:

'A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man.'

Guided by the above statements, whether or not a private nuisance exists depends on the facts in the case, Martin Bldg. Co. v. Imperial Laundry Co., 220 Ala. 90, 124 So. 82, and the weight and credibility that the court gives to the testimony and evidence heard in open court, including the fact that the trial judge made a personal inspection of the subject property and stated his own findings.

The trial court concluded from all the evidence that the odors and gases which came from the hog parlors and lagoons were of such noxious intensity and volume as to interfere with the appellees' enjoyment of their home and made its use physically uncomfortable, less...