Gerrish v. Wishbone Farm of N. H., Inc.
Decision Date | 18 July 1967 |
Docket Number | No. 5636,5636 |
Citation | 231 A.2d 622,108 N.H. 237 |
Parties | William E. GERRISH et al. v. WISHBONE FARM OF N.H., INC., et al. |
Court | New Hampshire Supreme Court |
Burns, Bryant, Hinchey & Nadeau and Robert P. Shea, Dover, for plaintiffs.
Sulloway, Hollis, Godfrey & Soden, Martin L. Gross, Concord, and Dupont, Pavetti & Dupont and Ralph P. Dupont, New London, Conn., for defendants.
The Wishbone Farm is located on both sides of Governor's Road in Rochester at or near the boundary between Rochester and Farmington. Homer Blake and Mary Blake are husband and wife and own a home and real estate situate in Farmington and a little less than a quarter of a mile north of Wishbone Farm on Governor's Road. The Gerrish home is about a half-mile south of Wishbone Farm on Governor's Road. The land owned by Wishbone Farm abuts land of the Blakes on the north and west and land of Gerrish on the west and south. The Gerrish farm has been in the Gerrish family for a long period of time. The Blakes obtained title to their property some years ago with the intention of occupying the house as a retirement home upon their retirement from the armed services which event preceded the bringing of this action. The area involved is zoned for agriculture.
Wishbone Farm is engaged in the business of producing and processing eggs in large quantities for sale to various metropolitan areas. The chickens are housed in a series of buildings, all enclosed and containing a system for automatically removing the eggs for cleaning and removing the manure from the buildings. The droppings and waste from the chickens fall into a glass-lined pen to which water is added. The material then goes into cross gutters and flows into outside cement tanks. A tank truck is used to truck the liquid waste from the cement tanks to be emptied into open lagoons. These lagoons are open pits ranging from one hundred and fifty feet square to two hundred feet by one hundred and fifty feet and the depth ranges from five to nine feet. There are three lagoons situated on the west side of Governor's Road. The material undergoes a chemical change and emits odors. The lagoons remain uncovered at all times, and when filled to capacity other lagoons are to be built.
The first lagoon constructed in the late summer of 1962 was used until the spring of 1965 when the dike broke and waste material flowed onto the land of both plaintiffs. The matter of damages sustained by the plaintiffs from this break has been settled between the parties.
The buildings house 80,000 chickens, of which 63,000 or 64,000 are laying hens. Martin Blair is president and majority owner of Wishbone Farm of New Hampshire. He testified that the defendant, Wishbone Farm of New Hampshire, Inc., has an investment of six hundred thousand dollars in this enterprise.
The Court found in part: '* * * that on damp days or in foggy weather the odors from the Wishbone property are discernible at the Gerrish residence. It is more noticeable and offensive in the fields while haying is in progress or when wood is being cut. It is found that in the summer time the odors from the open lagoons are 'odiferous' and offensive, as they permeate the atmosphere around the Blake residence, so much so that the Blakes cannot engage in outside activities when the wind is toward their home * * *.
'The Court finds on all the evidence, including what was seen on the view, that the petitionee, Wishbone Farm of N.H. Inc., is maintaining on its premises an accumulation of chicken manure in such a manner as to constitute a public and private nuisance.
'The Court finds that te petitionee, Wisbone Farm, is making an unreasonable use of its land in the manner in which it is disposing of the chicken manure involved in these proceedings.'
Based upon the Court's findings and rulings the defendant was enjoined from continuing their present method of...
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...in the balancing process involved in the determination of its reasonableness under all the circumstances. See, Gerrish v. Wishbone Farm, 108 N.h. 237, 231 A.2d 622 (1967); Obrecht v. National Gypsum Co., supra, 361 Mich. at 417-418, 105 N.W.2d at 151-152 (1960). See generally Note, Aestheti......
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...that equity requires a balancing of the consequences of granting relief against the need for granting it, Gerrish v. Wishbone Farm, 108 N.H. 237, 239, 231 A.2d 622, 624 (1967), but the "mere fact that a wrongdoer may suffer will not of itself deter equity from granting relief to an injured ......
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