Knoff v. American Crystal Sugar Co.

• Decision Date: 07 January 1986
• Docket Number: No. 10928,10928
• Citation: 380 N.W.2d 313
• Parties: Robert J. KNOFF, Roger E. Knoff, Judith A. Pokrzywinski, Carole R. Born, Raymond E. Knoff, Jr., and Thomas Heine, Plaintiffs, Appellants and Cross-Appellees, v. AMERICAN CRYSTAL SUGAR COMPANY, Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 313

380 N.W.2d 313

23 ERC 1971

Robert J. KNOFF, Roger E. Knoff, Judith A. Pokrzywinski,

Carole R. Born, Raymond E. Knoff, Jr., and Thomas

Heine, Plaintiffs, Appellants and Cross-Appellees, v. AMERICAN CRYSTAL SUGAR COMPANY, Defendant, Appellee and Cross-Appellant.

Civ. No. 10928.

Supreme Court of North Dakota.

Jan. 7, 1986.

Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, for plaintiffs, appellants and cross-appellees; argued by Shirley A. Dvorak.

McConn, Fisher & Thune, Grand Forks, for defendant, appellee and cross-appellant; argued by Patrick W. Fisher.

GIERKE, Justice.

Robert J. Knoff, Roger E. Knoff, Judith A. Pokrzywinski, Carole R. Born, and Raymond E. Knoff, Jr., ["Knoffs"] and Thomas Heine appeal from a district court judgment ¹ dismissing their claims against American Crystal Sugar Company ["American Crystal"]. American Crystal has filed a cross-appeal. We affirm in part, reverse in part, and remand for further proceedings.

During the summer of 1964, American Crystal constructed three waste-water lagoons on land adjacent to Raymond Knoff's farmland. The Knoffs allege that in the early 1970's Raymond Knoff began experiencing crop losses on a strip of land immediately adjacent to the American Crystal lagoons. In 1978, Raymond Knoff leased the farmland to Thomas Heine. Knoff informed Heine of his past difficulties with the property near the lagoons. Heine farmed the land continuously from 1978 through the time of trial.

Knoff and Heine commenced this action in June 1983, alleging that the land had been damaged by American Crystal's placement of its waste-water lagoons on the adjacent property. The complaint alleged that the lagoons were negligently constructed and maintained, and that they constituted a private nuisance. Knoff and Heine sought damages of $300,000 and a permanent injunction prohibiting further use of the lagoons. Following Raymond Knoff's death in December 1983, his children were substituted as plaintiffs. ²

The action was tried to a jury. During the course of the plaintiffs' case, the court dismissed Heine's nuisance claim. At the close of the plaintiffs' case, the trial court granted American Crystal's motion for a directed verdict on the Knoffs' nuisance claim and on Heine's negligence claim. The Knoffs' negligence claim was submitted to the jury. The jury returned its verdict finding no liability. These appeals followed.

I.

The trial court concluded that American Crystal's activities constituted an "agricultural operation" as defined in Section 42-04-01, N.D.C.C., and that its waste-water lagoons therefore could not constitute a nuisance under Section 42-04-02, N.D.C.C. The Knoffs and Heine contend that the court erred in applying Chapter 42-04 to American Crystal's activities.

Section 42-04-02, N.D.C.C., provides:

"42-04-02. Agricultural operation deemed not nuisance. An agricultural operation is not, nor shall it become, a private or public nuisance by any changed conditions in or about the locality of such operation after it has been in operation for more than one year, if such operation was not a nuisance at the time the operation began; except that the provisions of this section shall not apply when a nuisance results from the negligent or improper operation of any such agricultural operation."

"Agricultural operation" is defined in Section 42-04-01, N.D.C.C.:

"42-04-01. 'Agricultural operation' defined. As used in this chapter, 'agricultural operation' means the science and art of production of plants and animals useful to man, by a corporation as provided in chapter 10-06, a partnership, or a proprietorship, and including, to a variable extent, the preparation of these products for man's use and their disposal by marketing or otherwise, and includes horticulture, floriculture, viticulture, forestry, dairy, livestock, poultry, bee, and any and all forms of farm products, and farm production." [Emphasis added.]

American Crystal concedes that it does not meet the requirements of a corporation allowed to engage in farming pursuant to Chapter 10-06, N.D.C.C. See Sec. 10-06-07, N.D.C.C. ³ However, American Crystal contends that Section 42-04-01 does not restrict "agricultural operation" status to only those corporations which meet the prerequisites of Chapter 10-06, but rather creates two distinct types of activities which qualify as agricultural operations: (1) production of plants and animals, which may be engaged in by a proprietorship, a partnership, or a Chapter 10-06 corporation, and (2) preparation and marketing of these products for man's use, which may be engaged in by any entity. In effect, American Crystal is asking us to construe the term "including" to mean "and in addition."

Words used in a statute are to be understood in their ordinary sense. Section 1-02-02, N.D.C.C. "Include" has been defined as "... to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate...." Webster's Third New International Dictionary (1971). We conclude that preparation and marketing of agricultural products fall within the definition of "agricultural operation" only insofar as they are encompassed within "the science and art of production of plants and animals" by a proprietorship, a partnership, or a corporation which meets the requirements of Chapter 10-06, N.D.C.C. Thus, a corporation which does not qualify under Chapter 10-06 is not entitled to invoke the protections of Section 42-04-02, N.D.C.C.

We further note that the interpretation urged by American Crystal would create an extremely broad category of activities which would be protected by Chapter 10-06. If carried to its logical conclusion, every manufacturing process and commercial transaction which to some extent involves the preparation or marketing of products devolving from plants or animals would fall within the statute. We do not believe that it was the intent of the Legislature when it created protections for "agricultural operations" to encompass remote preparation and marketing of such products by large national corporations. It would be the ultimate irony to construe the statute to prohibit an action by a North Dakota family farmer against a large corporation for damage to his land.

American Crystal contends that we have previously applied the statute under similar circumstances in Jerry Harmon Motors, Inc. v. Farmers Union Grain Terminal Association, 337 N.W.2d 427 (N.D.1983). However, in Harmon Motors we did not apply Chapter 42-04 to the situation presented; we merely looked at the general legislative purpose evidenced by its passage in resolving an issue of "coming to the nuisance." We looked to the statute only as an indication that the Legislature considered agriculture and related businesses to have a positive effect on the state. See Harmon Motors, supra, 337 N.W.2d at 431-432. Our opinion in Harmon Motors should not be read as an indication that all farm-related corporations are to be afforded the protections of Chapter 42-04, N.D.C.C.

We hold that American Crystal's activities are not "agricultural operations" under Section 42-04-01, N.D.C.C., and are not protected by the provisions of Chapter 42-04.

American Crystal further contends that, even if Chapter 42-04 is inapplicable, it cannot now be found liable to the Knoffs and Heine on a nuisance theory because the jury found no liability based upon negligence. We have previously distinguished between nuisance and negligence principles, and it is well settled that a nuisance may be created wholly without negligence. Jamestown Plumbing & Heating Co. v. City of Jamestown, 164 N.W.2d 355, 361 (N.D.1968); Thorson v. City of Minot, 153 N.W.2d 764, 769 (N.D.1967); Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 510, 57 N.W.2d 588, 596 (1953). As we stated in Kinnischtzke, supra, 79 N.D. at 510, 57 N.W.2d at 596:

"Negligence may or may not result in the creation of a nuisance, and, on the other hand, a nuisance may be created wholly without negligence. The distinction is set out in 39 Am.Jur., Nuisances, Section 4, thus:

" 'liability for negligence is based on a want of proper care, while, ordinarily, a person who creates or maintains a nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury.' "

Proof of absence of negligence is not a defense to an action grounded in nuisance, because the focus is upon the condition created and not upon the exercise of care or skill by the defendant:

"A nuisance is a condition, and not an act or a failure to act on the part of the person responsible for the condition. If the wrongful condition exists, and the person charged therewith is responsible for its existence, he is liable for the resulting damages to others although he may have used the highest possible degree of care to prevent or minimize the deleterious effects. In determining whether a defendant's conduct is 'unreasonable' in a nuisance case, the test is not unreasonable risk or foreseeability as these terms are used in negligence cases. Recovery in an action for a nuisance cannot be defeated by showing that there was no negligence on the part of the defendant, or that the plaintiff was guilty of contributory negligence." 58 Am.Jur.2d Nuisances Sec. 34 (1971) [Footnotes omitted.]

Section 42-01-01, N.D.C.C., defines "nuisance" in pertinent part:

"42-01-01. Nuisance--Definition. A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission:

1. Annoys, injures, or endangers the comfort, repose, health, or safety of others;

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4. In any way renders other persons insecure in life or in the use of property."

Although Section 42-01-01, N.D.C.C., defines nuisance in part as "omitting to perform a duty," the type of "duty" which gives rise to a claim of nuisance may differ from the "duty" implicated in a negligence action:

"To render a person liable on the theory of either nuisance or...