Cline v. Franklin Pork, Inc.

• Decision Date: 08 February 1985
• Docket Number: No. 84-151,84-151
• Citation: 361 N.W.2d 566,219 Neb. 234
• Parties: Jack CLINE et al., Appellees, v. FRANKLIN PORK, INC., Appellee, Hillside Hog Feeders, Inc., et al., Appellants.
• Court: Nebraska Supreme Court

Page 566

361 N.W.2d 566

219 Neb. 234

Jack CLINE et al., Appellees, v. FRANKLIN PORK, INC., Appellee, Hillside Hog Feeders, Inc., et al., Appellants.

No. 84-151.

Supreme Court of Nebraska.

Feb. 8, 1985.

Syllabus by the Court

1. Equity: Appeal and Error. Even though this is an equity action and upon appeal is triable de novo, it is still subject to the condition that when the evidence on material questions of fact is in irreconcilable conflict, the court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite.

2. Nuisances. 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 operation.

3. Nuisances: Presumptions. To justify abatement of a claimed nuisance, the annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities. There is a presumption, in the absence of evidence to the contrary, that a plaintiff in an action for abatement of a nuisance has ordinary sensibilities.

4. Property: Nuisances. The selection of a place of business is often a matter of both private and public concern and is not in all cases left to the owner alone.

5. Nuisances. A business which is lawful in itself may become a nuisance, either because of the locality in which it is carried on or because it is conducted in an improper manner.

6. Nuisances. The exercise of due care by the owners of a business in its operation is not a defense to an action to enjoin its operation as a nuisance.

7. Injunction: Nuisances. An injunction against a nuisance is an extraordinary remedial process which is granted not as a matter of right but in the exercise of the sound discretion of the court, to be determined on consideration of all the circumstances of each case.

8. Injunction: Nuisances. 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 where the owners cannot be induced to conduct it properly.

9. Injunction: Nuisances. The operation of a legitimate business or certain aspects of the business which constitute a nuisance may be enjoined where it clearly appears there is no other complete remedy for the injury done.

Steven E. Achelpohl, John J. Gilroy, and Christine M. Schild of Schumacher & Gilroy, Omaha, for appellants.

Thomas H. McNally, Alma, and William H. Stowell, Phillipsburg, Kan., for appellees Cline.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

WHITE, Justice.

This is a sequel to Cline v. Franklin Pork, Inc., 210 Neb. 238, 313 N.W.2d 667 (1981) (Franklin Pork I ). A factual background is necessary for a full understanding of the issues involved in this appeal.

On December 9, 1977, the plaintiffs, Jack and Ruth Cline, sued to enjoin the defendant, Franklin Pork, Inc., from operating a pig-feeding/breeding facility located adjacent to the plaintiffs' residence and farm. The plaintiffs alleged that the facility constituted a nuisance and interfered with the use and enjoyment of their home and farm.

At the conclusion of that trial the court found: "As to odor and flies, the operation of defendant's hog-raising facility ... constituted a private nuisance interferring [sic] with the plaintiffs' use and enjoyment of their property." Rather than enjoining the operation of the facility at that time, the trial court retained jurisdiction and monitored the facility to determine whether the nuisance could be abated. On November 26 and 27, 1979, and January 7, 1980, further hearings were held to determine whether the defendant had taken appropriate action and made substantial progress in reducing the level of flies and odor to an acceptable level. At the conclusion of the hearing the trial court found that the nuisance previously found to exist had been corrected in that the defendant's operation did not materially interfere with the plaintiffs' use and enjoyment of their premises. The plaintiffs' appeal from that order constituted the grounds for our decision in Franklin Pork I.

In Franklin Pork I this court held that "[t]here appears to be sufficient evidence in the record upon which one could find that the nuisance had not, in fact, been abated." We went on to hold that "[t]he trial judge's appointment of himself as monitor was error, and the error so permeates this trial as to make it advisable to reverse this matter and return it to the trial court with directions to hold a new hearing to determine if the nuisance has, in fact, been abated." Id. at 246-47, 313 N.W.2d [219 Neb. 236] at 672.

Additional defendants have been added since Franklin Pork I. Defendant Agri-Enterprises, Inc., purchased the land from Franklin Pork, Inc. Defendant Hillside Hog Feeders, Inc., owned the hogs in the facility. Defendant Burt Tribble is a stockholder and president and manager of the facility.

Upon remand the district court found that the nuisance had not been abated. The court enjoined the defendants from continued operation of the facility and ordered that the defendants move the facility off the premises within 60 days. The defendants' appeal from this order constitutes the basis for this opinion.

Three issues are raised on appeal: (1) Has the nuisance been abated? (2) If the nuisance has not been abated, what is the proper remedy? (3) Is the defendants' facility protected from being a nuisance under the Nebraska Right to Farm Act, Neb.Rev.Stat. §§ 2-4401 to 2-4404 (Reissue 1983)?

[E]ven though this is an equity action and upon appeal it is triable de novo, it is still subject to the condition that when the evidence on material questions of fact is in irreconcilable conflict, the court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite.

Cline v. Franklin Pork, Inc., 210 Neb. 238, 240, 313 N.W.2d 667, 669 (1981); Daugherty v. Ashton Feed and Grain Co., Inc., 208 Neb. 159, 303 N.W.2d 64 (1981).

"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." Franklin Pork, supra at 240-41, 313 N.W.2d at 669; Botsch v. Leigh Land Co., 195 Neb. 509, 239 N.W.2d 481 (1976).

"To justify abatement of a claimed nuisance, the annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities. There is a presumption, in the absence of evidence to the contrary, that a plaintiff in an action for abatement of a nuisance has ordinary sensibilities." (Syllabus of the court.) Burgess v. Omahawks Radio Control Org., 219 Neb. 100, 362 N.W.2d 27 (1985).

At this point we note that the record is replete with evidence that the nuisance created by the defendants has not been abated.

Concerning the odor problem, the plaintiffs and their witnesses testified that the odor emanating from the facility continues to be so rank that the plaintiffs must keep the doors and windows in the house closed. The plaintiffs cannot enjoy outdoor activities and they cannot entertain friends and relatives at their home. Jack Cline testified that in 1983 the odors were prevalent 75 to 80 percent of the time. He testified there is "still [a] nauseating type of smell" even in the winter months. Ruth Cline testified that ever since the facility has been in operation and continuing to the date of the last trial, the odor varies in intensity "from a slight hog smell to just absolutely horrid." From the time the facility commenced operation, Ruth Cline stated that the odor has gotten progressively worse.

The plaintiffs' evidence concerning the continuous noxious odors was, for the most part, uncontested by the defendants.

As was true with the odor problem, the record reveals that the fly population at the plaintiffs' home and farm has not substantially improved. From July 17 to July 24, 1983, approximately 12,976 flies were exterminated on the plaintiffs' premises. From July 24 to July 31, 1983, approximately 14,900 flies were exterminated.

The plaintiffs introduced into evidence numerous pictures which were taken shortly before the latest hearing. These pictures portray a profusion of flies both in and about the plaintiffs'...