Holubec v. Brandenburger

• Court: Texas Court of Appeals
• Writing for the Court: Powers
• Citation: Holubec v. Brandenburger, 58 S.W.3d 201 (Tex. App. 2001)
• Decision Date: 30 August 2001
• Docket Number: No. 03-00-00684-CV,03-00-00684-CV
• Parties: (Tex.App.-Austin 2001) David Holubec and Mary Holubec, Appellants v. Carl Brandenburger, Individually, and as Next Friend of Payton Brandenburger and Carson Brandenburger, Kathy Brandenburger, William R. Lee, Laverne Lee, and R & J Livestock Company and Batesville Farming Company, Appellees

Page 201

58 S.W.3d 201 (Tex.App.-Austin 2001)

David Holubec and Mary Holubec, Appellants v. Carl Brandenburger, Individually, and as Next Friend of Payton Brandenburger and Carson Brandenburger, Kathy Brandenburger, William R. Lee, Laverne Lee, and R & J Livestock Company and Batesville Farming Company, Appellees

No. 03-00-00684-CV

Court of Appeals of Texas, Austin.

August 30, 2001

Rehearing Overruled November 15, 2001

From the District Court of McCulloch County, 198th Judicial District No. 1998084, Honorable Charles E. Sherrill, Jr., Judge Presiding

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Yeakel, Patterson and Powers^*

Powers, Justice (Retired).

David and Mary Holubec (the "Holubecs") appeal from a judgment recovered on the jury's verdict by several plaintiffs whom we will refer to collectively as the "Brandenburgers."¹ We will affirm the judgment.

THE CONTROVERSY

The Brandenburgers alleged against the Holubecs a nuisance action based upon conditions allegedly created by the Holubecs' feedlot adjacent to the Brandenburgers' home, namely: great deposits of manure, muddy hollows, rotting feed, and decaying animal bodies that gave rise to hordes of flies, clouds of manure-laden dust, mold spores, insecticides, and foul and obnoxious odors that invaded the Brandenburgers' property; bawling lambs confined in the feedlot for weaning; and, bright elevated lights that illuminated the Brandenburgers' home at night and prevented their sleeping. The jury found these conditions amounted to a nuisance and the Brandenburgers recovered judgment restraining the Holubecs from certain actions regarding the feedlot and requiring or permitting other matters.

To understand properly the Holubecs' appellate complaints, it is necessary that we summarize the body of evidence, the verdict, and the final judgment. The Holubecs and Brandenburgers share a common boundary. The Holubecs own three contiguous tracts of rural land totaling about 450 acres. Their feedlot lies against their western boundary and 135 feet from the Brandenburgers' home, which is situated just inside their eastern boundary. In addition to the 450 acres, the Holubecs own and lease other land in the vicinity amounting to about 4,500 acres. On their various properties, they ordinarily have about 3,000 ewes year in and year out and realize annually almost as many lambs. These lambs, together with others acquired by the Holubecs, are confined in the feedlot for weaning.

Before they purchased the three tracts of land comprising the 450 acres, the Holubecs leased one of the tracts. They fed sheep in a fenced twenty-acre pasture on the leased tract. They purchased the tract subsequently and converted part of the twenty-acre pasture to a ten-acre feedlot consisting of iron-pipe pens, feed troughs and other small structures. According to David Holubec's testimony, he designed the feedlot to accommodate 6,000 lambs and, from time to time, as many as 5,800 head were confined therein. Another witness testified the facility would accommodate 10,000 head. According to the Holubecs' evidence, the feedlot improvements were completed in June 1997, at a cost of $75,284.19, and at the time of trial had a depreciated value of $40,284.19 for income-tax purposes. No evidence was adduced to show the cost of moving the pens and other structures to another location or whether the feedlot was a profitable operation. The feedlot is not the Holubecs' livelihood. They make their living from farming and from their fertilizer and seed businesses. Although David Holubec testified he built the ten-acre feedlot before the Brandenburger home was erected in 1993, he was shown to be mistaken by testimony of other witnesses, county tax records, and an aerial photograph published by the United States Department of Agriculture. These show the feedlot was not constructed until several years after the Brandenburger home was built and occupied.

The Brandenburgers introduced testimony as follows: the conditions amounting to a nuisance did not exist so long as the Holubecs confined and fed a number of sheep in the twenty-acre pasture from which the ten acres were carved to build the feedlot; the nuisance conditions began when thousands of lambs were confined in the newly constructed feedlot pens. It was then that manure began to accumulate in large quantities, lambs began dying in sizeable numbers, dead animals were placed in nearby "dead pits," two lagoons were dug to catch runoff from the pens, and watering the animals in the feedlot resulted in muddy bogs, all of which furnished breeding grounds for flies, caused foul odors, and during dry periods led to dust that invaded the Brandenburger residence along with the flies, odors, and loud noise of bawling lambs.

The Holubecs confine lambs in the feedlot for about a ninety-day period during which the lambs are weaned from mother's milk to feed. About two percent of the lambs, or some 120 animals, die in the feedlot during such periods. According to David Holubec's testimony, the feedlot is checked for dead bodies at least three times each day. The dead bodies are removed immediately on being discovered and are placed in the dead pits where they are covered with a layer of soil to prevent flies and discourage scavengers. Photographic evidence was introduced, however, showing that some of the dead bodies were not covered for weeks or months and were in a state of decay. David Holubec testified that when he dug the dead pits, he never thought about whether they would result in odors that might bother his neighbors.

David Holubec testified further as follows: the elevated lights of which the Brandenburgers complained were erected to enable him to observe the lambs in the feedlot in darkness, and to move the animals about in the night; his feedlot and dead pits do not breed flies or produce dust or foul odors, nor do they attract buzzards; the weaning lambs in the feedlot do not bawl; and the flies of which the Brandenburgers complain do not come from his feedlot because he took measures to prevent their breeding. This testimony was contradicted absolutely by other evidence, including testimony given by the Brandenburgers, photographs, and contrary answers to written interrogatories given by David Holubec himself before trial. The contradictory evidence included the testimony of an etymologist who inspected the dead pits, the lagoons, the feedlot, and other aspects of the feedlot operation. In his opinion, the flies were bred in the dead pits and other specified locations in the feedlot. He was unable to find any condition on the Brandenburger property from which the flies might have come.

No evidence was adduced to show the Holubecs could not operate the feedlot elsewhere on their 450-acre tract or on another of their nearby properties where the operation would not bother a neighbor. David Holubec testified he was "not going to change the way" he operated the feedlot unless made to do so by the court; and he intends to keep the feedlot permanently where it is now. He admitted he never replied to inquiries from the Brandenburgers seeking to arrive at a mutually agreeable solution to the feedlot problem, and conceded he "ignored" the inquiries.

In response to Questions One and Ten, the jury found the feedlot was a permanent nuisance; in response to Question Three, the jury answered that the Holubecs had negligently constructed or operated the feedlot; in answer to Question Four, the jury failed to find any sum of money that would fairly and reasonably compensate the Brandenburgers for damages caused them by the nuisance or negligence, considering the elements of personal discomfort, annoyance, inconvenience, sickness, medical care, physical pain, and mental anguish; and, in answer to Questions Five and Six, the jury found the nuisance or negligence proximately caused a $12,932.50 reduction in the market value of the Brandenburger property. In response to Question Nine, the jury found the Holubecs had obstructed the normal flow of air to the Brandenburger land.

The trial court rendered judgment as follows:

On or before September 10, 2000, the Holubecs must desist and refrain from the following acts:

1. Operating a sheep feedlot or stabling, confining, feeding or maintaining on the [450 acres] any animals in confinement areas that do not sustain such animals on the crops, vegetation, forage growth, or post harvest residues produced in such areas in the normal growing season;

2. Feeding hay or other feed within 1750 feet of the [Brandenburgers'] residence;

3. Weaning lambs or other livestock in areas within 1750 feet of the [Brandenburgers' residence] during the period of time that such livestock is bleating or bawling because of the weaning process;

4. Maintaining lights on the [450 acres] that shine directly on the [Brandenburgers'] property;

5. Disposing of dead animals on the [450 acres].

By dates specified in the judgment, the Holubecs must:

6. Clean the feedlot area of manure, spilled feed and hay residue in such a manner that substantially all fly breeding areas are destroyed, feedlot odor is remediated [sic] and hay residue will not provide a breeding site for stable flies or produce mold.

7. Remove all feeders from the pens in the approximately 10 acre feedlot adjacent to [the Brandenburgers'] property;

8. Remove all sheds and water troughs from the pens . . . and remove or disconnect all water lines within [the feedlot];

9. Remove the wire fencing and feedlot pens now existing . . . ;

10. Remove overhead light [in the feedlot] adjacent to [the Brandenburgers'] property.

The Holubecs bring three assignments of error. We will consider them in order.

STATUTORY BAR

Against the Brandenburgers' nuisance action, the Holubecs interposed a defense embodied in section 251.004(a) of the Texas Agriculture Code. The statute provides as follows:

No nuisance action may be brought against an...