Botsch v. Leigh Land Co.

• Decision Date: 04 March 1976
• Docket Number: No. 40071,40071
• Citation: 239 N.W.2d 481,195 Neb. 509
• Parties: Glenn E. BOTSCH and Eola Mae Botsch, husband and wife, Appellants, v. LEIGH LAND COMPANY, a Nebraska Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 481

239 N.W.2d 481

195 Neb. 509

Glenn E. BOTSCH and Eola Mae Botsch, husband and wife, Appellants, v. LEIGH LAND COMPANY, a Nebraska Corporation, et al., Appellees.

No. 40071.

Supreme Court of Nebraska.

March 4, 1976.

Syllabus by the Court

1. Ordinarily a legitimate business enterprise is not a nuisance per 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.

2. A legitimate business which does not in and of itself constitute a nuisance, when conducted in such a manner as to become a nuisance, is conducted negligently and improperly.

3. 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.

4. Even in an industrial or rural area one cannot conduct a business enterprise in such manner as to materially prejudice a neighbor.

5. 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 proved that no application of endeavor, science, or skill can effect a remedy or that the owners cannot be induced to conduct it properly.

Healey, Healey, Brown, Wieland & Burchard, William A. Wieland, Fredrick L. Swartz, Lincoln, for appellants.

Ginsburg, Rosenberg, Ginsberg & Krivosha, Joseph Ginsburg, Barlow, Watson & Johnson, Steven J. Flodman, Lincoln, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

NEWTON, Justice.

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 The former opinion filed is withdrawn.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 maintenance 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 feedlots 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 plaintiffs' farm home. Drainage through the entire feedlot is to the west into the ponds. The Folken premises, where as many as 1,100 head of cattle are fed, lies to the east of the feedlot, but drains through it into the ponds. The Folkens' individual feeding is not an issue in this case and they are included as defendants because they conduct the feeding operation in the Leigh Land Company lots for the other defendants and because they own the unleased area where two of the ponds are located. Manure accumulating in the feedlots was not ordinarily removed, but was piled up into large mounds.

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 evidence amply sustains the finding of the court that plaintiffs were subjected to intolerable odors and a substantial increase in flies due to defendants' operation.

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.

Section 28--1016, R.S.Supp.1974, makes it a criminal offense for anyone to use or maintain any place for the exercise of any trade or business which, 'by occasioning noxious exhalations, noisome or offensive smells, becomes injurious and dangerous to the health, comfort or property of individuals or the public.' Chapter 81, article 15, of the Nebraska statutes comprises the Environmental Protection Act. Section 81--1501, R.R.S.1943, states its purpose is the conservation of the water, land, and air of the state and states: 'To achieve and maintain such a reasonable degree of purity of the natural atmosphere of this state that human beings and all other animals and plants which are indigenous to this state will flourish in approximately the same balance as they have in recent history; and to promulgate laws, rules and regulations and enforce uniformly the same in such a manner as to give meaningful recognition to the protection of each element of the environment, air, water and land.' The statutes referred to make it the definite responsibility of the Department of Environmental Control to prevent pollution, not only of the waters of this state, but also of the air and land of the state. Section 81--1506, R.S.Supp., 1974, makes it unlawful for any person: '(a) To cause pollution of any air, waters or land of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any air, waters or land of the state; or (b) To discharge or emit any wastes into any air, waters, or land of the state which reduce the quality of such air, waters, or land below the air, water or land quality standards established therefor by the council. Any such action is hereby declared to be a public nuisance.'

What is meant when it is said that a lawful business will not be enjoinedin 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 inpregnates it with noisome 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...