Dill v. Excel Packing Co.

• Decision Date: 08 November 1958
• Docket Number: No. 40824,40824
• Citation: Dill v. Excel Packing Co., 331 P.2d 539, 183 Kan. 513 (Kan. 1958)
• Parties: Earl W. DILL, Carl E. Forbes, Irwin Langhover, R. C. Scott, Orris R. Ireland, Frank F. Rawley, and A. P. Wright, Appellees, v. EXCEL PACKING COMPANY, Inc., and Don Kutileck, Appellants.
• Court: Kansas Supreme Court

Page 539

331 P.2d 539

183 Kan. 513

Earl W. DILL, Carl E. Forbes, Irwin Langhover, R. C. Scott Orris R. Ireland, Frank F. Rawley, and A. P Wright, Appellees, v. EXCEL PACKING COMPANY, Inc., and Don Kutileck, Appellants.

No. 40824.

Supreme Court of Kansas.

Nov. 8, 1958.

Rehearing Denied Dec. 12, 1958.

Syllabus by the Court

1. In an action to enjoin the operation of a cattle feed lot on the ground that the odor and flies emanating therefrom constituted a nuisance to adjacent plaintiff property owners, the record is examined and it is held: (1) The findings made by the trial court do not, under all of the facts and circumstances more fully set out in the opinion, support the conclusion that the operation of the cattle feed lot constituted a nuisance subject to abatement; and (2) the judgment granting the injunction is not supported by the findings.

2. Where the operation of a business, such as a cattle feeding operation, is lawful in the first instance--that is, it does not constitute a nuisance per se--unless the circumstances disclose that it is in fact a nuisance, its continuance may not be enjoined upon the ground that the value of adjoining property is depreciated.

3. Generally whether or not the use of property, which in itself is lawful, constitutes an unreasonable use of that property amounting to a nuisance subject to abatement is dependent upon a number of circumstances--locality and surroundings, the number of people living there, the prior use, whether it is continual or occasional, and the extent of the nuisance and injury caused to the neighbors from the use. If the injury is slight and trivial and occurs in the development of the natural resources of the area it is not deemed to be unreasonable.

4. The operation of a cattle feed lot kept in an average state of sanitation in an area which is primarily agricultural is not an unreasonable use of the property and does not constitute a nuisance subject to abatement, where odor and flies affect the use and enjoyment of neighboring properties of the plaintiffs occasionally when the wind blows from the direction of the feed lot. Anyone moving into such area is bound to accept the agricultural pursuits carried on in the area, or which under reasonable circumstances might be expected to be carried on in the area by reason of its history.

Emmet A. Blaes, Wichita, argued the cause, and W. D. Jochems, J. Wirth Sargent, Roetzel Jochems, Robert G. Braden, J. Francis, Hesse, James W. Sargent, Stanley E. Wisdom, Vincent L. Bogart, Cecil E. Merkel, John W. Brimer and Harry L. Hobson, Wichita, were with him on the briefs for appellants.

H. W. Goodwin, Wichita, argued the cause, and Guy L. Goodwin, Wichita, was with him on the briefs for appellees.

SCHROEDER, Justice.

This is an action by various suburban property owners (plaintiffs-appellees) to enjoin the operation and maintenance of a cattle feed lot in the immediate neighborhood of their homes on the ground that such operation constitutes a nuisance. From a judgment of the lower court which permanently restrained and enjoined the appellants (defendants) from the operation of their cattle feed lot appeal was duly perfected.

The primary question with which this court is confronted is whether a cattle feeding operation carried on in a sparsely populated agricultural area of Sedgwick County constitutes a nuisance under all the facts, circumstances and conditions presented by the record.

The case was tried to the court upon issues made by the pleadings. The plaintiffs allege in substance that 'the keeping of large numbers of cattle on the feed lot and there feeding them for the purpose of fattening them for the market resulted in the accumulation of great quantities of manure and filth; that the prevailing wind in this area is from either the south or the southwest and that the resulting nauseous odors and stench were blown to the north and the northeast, with the result that the homes of the plaintiffs were rendered almost uninhabitable and the plaintiffs have been, and are now, denied the full use and enjoyment of their homes.' It was further alleged that all of the plaintiffs except Langhover and Rawley purchased and owned property in the immediate vicinity which was valuable for subdivision and the sale of home sites and that the installation, maintenance and operation of the feed lot have entirely destroyed the former value of the adjoining real property to the north and northeast for subdivision and sale for home sites. Complaint is also made that the drilling of a large number of wells to water the cattle is seriously depleting and threatening the water supply of the plaintiffs; that the feed lot is a menace to health because it furnishes an ideal place for the breeding of flies and mosquitoes which will become numerous; and that the feed lot has seriously depreciated the value of the homes owned and occupied by the plaintiffs. For relief plaintiffs requested permanent injunction. Defendants interposed a general denial except to admit installation of a feed lot at the location described in the petition. For affirmative defense it was alleged that the best known practices in the industry have been used in the construction, maintenance and operation of the feed lot and that the defendants have complied with the law in all respects.

The findings of fact made by the trial court were incorporated in the journal entry and with minor supplementation will adequately portray the factual picture revealed by the evidence in the record. Proper evaluation of the decision requires that the findings be quoted at length in lieu of a statement of facts. They are as follows:

'No. 1. The Court finds that the plaintiffs, I don't have the exact ownership of these tracts but the Court finds that the plaintiff Earl W. Dill, and that might be, and wife, owns 80 acres in the East Half of the Southwest Quarter of Section 32.

'No. 2. That the Langhover's are buying a 16 acre tract just west of the Dill land, on contract and that the plaintiffs Forbes own 8 acres just west of the south part of the Langhover property.

'No. 3. That the Excel Packing Company, Inc., own 20 acres across the road south in the Northwest quarter of Section 5, and upon which they are conducting a feed lot operation.

'No. 4. That the defendant Don Kutileck, and his family live on the 20 acres and that the defendant Don Kutileck is a partner in the operation of the feed lot with the Excel Packing Company, Inc.

'No. 5. That sometime prior to March of 1943 the Dills purchased their tract and moved on to the tract in March of 1943.

'No. 6. That the Forbes' acquired their tract in the early fall of 1953 and improved it between October 1st, 1953 and March 1st, 1954, about which time they moved on to their tract.

'No. 7. That Langhovers' acquired their tract in October of 1953.

'No. 8. That the plaintiff, Orris R. Ireland owns a 40 acre tract immediately to the east and adjoining the Excel Packing Company, Inc., tract of 20 acres and he acquired that tract in October, 1952.

'No. 9. That these four plaintiffs have an investment of approximately $105,000 invested in their properties.

'No. 10. That with the exception of the Dill Property, where they have invested approximately $13,000, approximately all of the money was invested in the years of 1952, 1953 and 1954.

'No. 11. That sometime in 1954, the defendant Excel Packing Company Inc., purchased the 29 acres for $22,500. That an additional $4,000 approximately was spent on remodeling the home and redecorating it, and that the balance of $8500 has been spent by the defendant Excel Packing Company for feed boxes, fence posts, water system and the like in building and improving the lots.

'No. 12. That the defendant Don Kutileck moved on to the 20 acre tract in August of 1954 and commenced feeding operations on a small scale.

'No. 13. That in September of 1955, 27 head were on the property and from that it raised to between four and five hundred head in November and December of 1955 and then dropped off down to a low of 287 on January 3rd, 1956; and then increased up to between four and five hundred until the 13th of March, 1956 when it dropped down to--in the summer months--as low as 95 to 99, and at one time between one and two hundred head. Commencing the latter part of July, 1956, it raised from 192 to 440 head; in August 15th 1956, then it jumped to 840 head and continued in the 8 to 9 hundred figures until November 28, 1956, when it dropped off to 770 head.

'No. 14. That the defendants intend to build additional lots to the west of the house and intend to continue to feed cattle on this property.

'No. 15. That the homes of the plaintiffs Forbes and Langhover are to the northwest of the feed lots and that the home of the plaintiff Dill is slightly to the west and north of the feed lots and that the home of plaintiff Ireland is directly east of the feed lots. And the home of Don Kutileck is directly west of the feed lots.

'No. 16. That the prevailing wind during 1955 was from the south.

'No. 17. That during the ten year period from 1939 thru 1948 according to the Weather Bureau record, the prevailing wind was from the SW 7.1%; South 29.2%; South east 19%; East 6.1%; and from the West 3.1% of the time.

'No. 18. That the cattle of the defendants are on full feed rations which consist of milo maize, green shelled corn, dehydrated alfalfa, dehydrated corn cobs, pellets and other items.

'No. 19. That this particular 20 acres is adapted well to the operations of a feed lot by the natural contours of the land.

'No. 20. That some pens have been built by the defendants since this lawsuit was filed.

'No. 21. That the plaintiffs caused letters to be written to the defendants in December of 1954, objecting to the installation and operation of a feed lot on this 20 acres.

'No. 22. That part of this 20 acres have been used as a lot commencing in 1924 until 1942 where an average of 100...