Carpenter v. Double R Cattle Co., Inc.

• Decision Date: 31 August 1983
• Docket Number: No. 13750,13750
• Citation: 105 Idaho 320,669 P.2d 643
• Parties: Adrian CARPENTER and Ruth Carpenter, husband and wife; John Eisenbarth and Violet Eisenbarth, husband and wife; J. Keith Jones and Patricia Jones, husband and wife; Kenneth F. Skow and Margie Skow, husband and wife; Duane Wiggins and Rosemary Wiggins, husband and wife; Gary Lewallen and Carol Lewallen, husband and wife, Plaintiffs-Appellants, v. The DOUBLE R CATTLE COMPANY, INC., the Sunnyside Feed Lot Company, Inc., and the Idaho Feed Lot Company, Inc., Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 643

669 P.2d 643

105 Idaho 320

Adrian CARPENTER and Ruth Carpenter, husband and wife; John Eisenbarth and Violet Eisenbarth, husband and wife; J. Keith Jones and Patricia Jones, husband and wife; Kenneth F. Skow and Margie Skow, husband and wife; Duane Wiggins and Rosemary Wiggins, husband and wife; Gary Lewallen and Carol Lewallen, husband and wife, Plaintiffs-Appellants, v. The DOUBLE R CATTLE COMPANY, INC., the Sunnyside Feed Lot Company, Inc., and the Idaho Feed Lot Company, Inc., Defendants-Respondents.

No. 13750.

Court of Appeals of Idaho.

Aug. 31, 1983.

Petition for Review Granted Nov. 10, 1983.

Daniel T. Eismann, Eismann Law Offices, Homedale, for plaintiffs-appellants

Robert M. Tyler, Jr., Elam, Burke, Evans, Boyd & Koontz, Boise, for defendants-respondents.

Andrew Harrington, Anderson, Kaufman, Ringert & Clark, Boise, for Amicus Curiae, Food Producers of Idaho, Inc., and Western States Meat Assn, on rehearing.

ON REHEARING

This opinion supersedes the Court's prior opinion issued on August 31, 1982, which is withdrawn.

BURNETT, Judge.

Dean William Prosser once observed, "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'." W. PROSSER, HANDBOOK OF THE LAW OF TORTS, § 86, at 571 (4th ed. 1971). Today we review a case that has thrust us into the jungle of nuisance law. We are asked to define the legal test for determining whether an intended use of property, which incidentally produces adverse effects upon neighboring properties, constitutes a nuisance.

This lawsuit was filed by a group of homeowners who alleged that expansion of a nearby cattle feedlot had created a nuisance. The homeowners claimed that operation of the expanded feedlot had caused noxious odors, air and water pollution, noise and pests in the area. The homeowners sought damages and injunctive relief. The issues of damages and injunctive relief were combined in a single trial, conducted before a jury. Apparently it was contemplated that the jury would perform a fact-finding function in determining whether a nuisance existed and whether the homeowners were entitled to damages, but would perform an advisory function on the question of injunctive relief. The district judge gave the jury a unified set of instructions embracing all of these functions. The jury returned a verdict simply finding that no nuisance existed. The court entered judgment for the feedlot proprietors, denying the homeowners any damages or injunctive relief. This appeal followed. For reasons appearing below, we vacate the judgment and remand the case for a new trial.

The homeowners contend that the jury received improper instructions on criteria for determining the existence of a nuisance. The jury was told to weigh the alleged injury to the homeowners against the "social value" of the feedlot, and to consider "the interests of the community as a whole," in determining whether a nuisance existed. In Part I of this opinion we consider the adequacy of the record upon which to review the jury instructions. In Part II we establish an historical framework for reviewing the instructions, by examining the development of American nuisance law. In Part III we turn to pertinent sections from the nuisance chapter of the RESTATEMENT (SECOND) OF TORTS (1977). We explain how these sections limit the utilization of such concepts as "social value" and "the interests of the community as a whole" in determining whether a nuisance exists. We discuss the implications of these sections; and we adopt them. Finally, in Part IV, we return to the jury instructions in this case, holding them to be erroneous and offering guidance to the trial court upon remand.

I

The feedlot proprietors contend that we are precluded from reviewing the jury instructions because the appellant homeowners have not furnished a full record of the proceedings below. The homeowners have provided a record embracing the items automatically included in the clerk's record under I.A.R. 28; all jury instructions requested or given; a reporter's transcript of colloquies between the district court and counsel concerning the jury instructions; and the exhibits produced at trial. We have not been furnished a full reporter's transcript of the trial itself, which consumed approximately two weeks. We may safely assume that the cost of producing such a transcript would have been substantial.

The proprietors invite our attention to the well-established propositions that error in the trial court is never presumed, and that an appellant has the burden of making an affirmative showing of error. As a corollary to these propositions, it has been held that, without a transcript of the evidence presented in the trial court, an appellate court will presume the jury instructions to be supported by the evidence. E.g., Towers v. Johnson, 11 Ariz.App. 455, 465 P.2d 592 (1970). However, this corollary is inapposite to the present appeal. The homeowners have challenged the jury instructions, not upon the ground that these instructions varied from the evidence at trial, but upon the ground that they misstated the law of nuisance. We need not compare the instructions to the evidence in order to determine whether the instructions contained defects of law.

The proprietors also urge, in the alternative, that even though it may be possible to review jury instructions for legal error without a trial transcript, it is not possible to determine whether any such error was prejudicial and therefore reversible. We recognize that a party attacking a jury instruction must show not only error but resultant prejudice. E.g., Packard v. Joint School Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct.App.1983). However, a transcript of evidence is not the only means of identifying prejudice. Our Supreme Court has held that where instructions on a material point create ambiguity or uncertainty, the error will be deemed prejudicial. Yacht Club Sales & Service, Inc. v. First Nat'l Bank of N. Idaho, 101 Idaho 852, 623 P.2d 464 (1980). Such confusion or ambiguity may arise from incomplete instructions on a material point. McNichols v. J.R. Simplot Co., 74 Idaho 321, 262 P.2d 1012 (1953). In the present case, the homeowners argue that the jury instructions contained an incomplete statement of criteria for determining the existence of a nuisance. The question, then, is whether these criteria were material to the outcome of the trial.

Although the record on appeal is limited, the detailed minute records of the court and the exhibits indicate the general nature of evidence adduced. There was evidence tending to show a cattle operation involving several thousand head at the feedlot; swarms of insects on various properties near the feedlot; flocks of birds near the feedlot; manure piles at the feedlot; and drainage of waste water from the feedlot. The evidence identified the nature of the homeowners' properties and fixed their location relative to the feedlot. There was expert testimony regarding the economic values of the properties. The evidence included monthly cattle totals at the feedlot during the alleged expansion of the facility. A comprehensive plan and a zoning ordinance of Washington County were presented. At the close of the homeowners' evidence, and at the conclusion of trial, the proprietors moved for dismissal of the homeowners' complaint. Both motions were denied.

We cannot, and do not, form any view regarding the specific content or weight of the evidence presented. But the record is adequate to show that existence of a nuisance was a question squarely framed before the jury. We conclude that the jury instructions concerning criteria for determining the existence of a nuisance were material to the case. Accordingly, we reject the feedlot proprietors' contention that the merits of the homeowners' challenge to those instructions should not be considered.

II

The concept of nuisance originated in the law of property. At common law, a distinction was maintained between two encroachments upon property rights--interference with possession of land, and interference with the use and enjoyment of land. The first type of encroachment was subject to an "assize of novel disseisen," a remedy for trespass. The latter form of encroachment was subject to an "assize of nuisance," a remedy for a variety of invasions which diminished the owner's enjoyment of his property without dispossessing him of it. Thus, nuisance and trespass have common roots in property law, and occasionally it is difficult to distinguish between them. But where an invasion of property is merely incidental to the use of adjoining property, and does not physically interfere with possession of the property invaded, it generally has been classified as a nuisance rather than as a trespass. See cases collected in 58 AM.JUR.2D Nuisances, § 2, 556-57 (1971).

The early concepts of nuisance and trespass shared the common law's reverence for property rights. Invasions of property were deemed wrongful per se, and the parties responsible for such invasions were subject to a form of strict liability. Thus, in the famous case of Rylands v. Fletcher, L.R. 1 Ex. 265 (1866), aff'd L.R. 3 H.L. 330 (1868), an English court held that the owner of a reservoir would be liable to the owner of adjacent property for any injury caused by escaping water. The court stated:

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. [L.R. 1 Ex. at 279.]

Although a physical intrusion by water might have been viewed as a trespass, rather than as a nuisance, the court noted that the result would have been the same regardless of whether the mischief was caused by "beasts, or water, or filth, or...