Laux v. Chopin Land Associates, Inc.

• Decision Date: 15 February 1990
• Docket Number: No. 57A03-8907-CV-305,57A03-8907-CV-305
• Citation: 550 N.E.2d 100
• Parties: Robert R. LAUX and Laura L. Laux, Defendants-Appellants, v. CHOPIN LAND ASSOCIATES, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 100

550 N.E.2d 100

Robert R. LAUX and Laura L. Laux, Defendants-Appellants, v. CHOPIN LAND ASSOCIATES, INC., Plaintiff-Appellee.

No. 57A03-8907-CV-305.

Court of Appeals of Indiana Third District.

Feb. 15, 1990.

M. Robert Benson and Timothy Logan, Benson, Pantello, Morris & James, Fort Wayne, for defendants-appellants.

David C. Ford, Gen. Counsel, Indiana Farm Bureau, Inc., Indianapolis, for amicus curiae.

Edward L. Murphy, Jr., Philip A. Renz, and Larry L. Barnard, Miller Carson & Boxberger, Fort Wayne, for plaintiff-appellee.

GARRARD, Judge.

The plaintiff-appellee (Chopin) has petitioned the court for rehearing asserting that we erroneously reported the date its action was commenced and erred in the proper interpretation of the Indiana Right-to-Farm Act, IC 34-1-52-4.

We grant rehearing and vacate the former opinion in this case.

The record discloses that in June 1986 Lauxes listed for sale with a local real estate dealer approximately 113 of the 123 acres they owned and farmed in Whitley County, Indiana. They intended to retain the remaining ten acres which surrounded their home.

In late July or early August Lauxes' sons purchased 29 feeder hogs and had them delivered to Lauxes' property. Initially the hogs were raised in a vacant implement shed. The size of the hog raising operation grew and at the time of sale closing in December 1986 Lauxes were feeding between 85 and 90 hogs. In March 1987 Lauxes commenced construction of a hog raising facility which was put into use in late May or early June 1987. During the summer of 1987 the number of hogs increased to between 300 and 350 in a farrow-to-finish operation.

Meanwhile, on August 14, 1986, several individuals had made a proposal to Lauxes to purchase the 113 acres being offered for sale. Negotiations continued through the fall, an agreement was reached and the sale was closed on December 2, 1986. Title was to be placed in the name of Chopin, which was subsequently incorporated in January 1987.

At all pertinent times the entire area was zoned for agricultural uses. While the purchasers advised Lauxes that they intended to use the land for the purpose of developing large residential tracts, the land has been actually used as a grain farm since the sale.

No tracts have been sold nor residences built, but Chopin lost an opportunity to sell a portion of the real estate to a physician because of odors produced by the hog raising operation.

Additionally, the trial court found that Mr. Popp of Chopin first learned of the hogs in late June of 1987 and protested to Lauxes. In August he caused a notice to be served upon them requesting abatement of a nuisance.

Chopin commenced suit on January 19, 1988, to abate the hog operation as a nuisance. Lauxes answered asserting inter alia that they were entitled to the protection of the Right-to-Farm Act, IC 34-1-52-4.

The trial court, after hearing, entered its special findings of fact and conclusions thereon. It determined that the odor generated by the hog raising operation constituted a nuisance, and enjoined the Lauxes from maintaining, assisting or permitting the operation of any feeder hog operation on the 10.673 acres and to refrain from conducting or permitting any livestock raising operation on that real estate. This appeal followed.

In 1981 the Indiana legislature amended IC 34-1-52-1 et seq. concerning actions for nuisance by adding a new section often referred to as the Right-to-Farm Act.

This section, IC 34-1-52-4, declares the policy of this state to conserve, protect and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. It further states the purpose of the section to be to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance, noting that when non-agricultural land uses extend into agricultural areas, nuisance suits against agricultural uses are often the result.

The critical provisions of the section state:

(f) No agricultural or industrial operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one year, provided:

(1) There is no significant change in the hours of operation;

(2) There is no significant change in the type of operation; and

(3) The operation would not have been a nuisance at the time the agricultural or industrial operation, as the case may be, began on that locality.

(g) This section does not apply whenever a nuisance results from the negligent operation of an agricultural or industrial operation or its appurtenances.

The statute is essentially a non-claim statute. Thus, if the operation was not an actionable nuisance at the time it was begun, and if it is engaged in continuously for more than a year on that locality, then it will not become a nuisance because of any subsequent changed conditions in the vicinity. In other words, activities or uses subsequently "coming to the nuisance" will have no claim for its abatement.

The statute imposes three conditions, or limitations on that bar. Subsection (g) removes from the protection of the statute nuisances which result from negligent operation.

In addition, subsections (f)(1) and (2) remove the bar where there has been either a significant change in the hours of operation or a significant change in the type of operation. Because the language of the statute makes it applicable to any given point in time, the effect of a significant change in either hours of operation or type of operation is to again invoke the statutory conditions and recommence the running of the statutory clock. If then the operation was not an actionable nuisance when the change occurred (i.e., went into effect), it will not become one by virtue of changed conditions in the vicinity which occur more than a year after the operation continuously exists in the changed form. See Hand, Right-to-Farm Laws--Breaking New Ground in the Preservation of Farmland, 45 U.Pitt.L.Rev. 289, 308-09.

In Erbrich Products Co. v. Wills (1987), Ind.App., 509 N.E.2d 850 our First District considered the statute's application to industrial operations. It determined that the burden of proof as to subsection (f) rested with the party claiming the benefit of that provision. It also determined that subsection (g) concerning negligent operation is an exception to subsection (f)'s application and the burden of proof for the exception rested upon the party opposing the application of the statutory defense. 509 N.E.2d at 858. The court in Erbrich was not directly concerned with which party bears the burden of proving the existence or non-existence of the three numbered provisos to subsection (f) that there be no significant change in hours of operation, and that the operation would not have been a nuisance at the time it began on that locality. Nevertheless, the reasoning employed by the court on general principles of evidence involving statutory exceptions clearly indicates that the court would have placed the burden of establishing compliance with the provisos upon the party claiming the benefit of the statute.

We therefore accept Erbrich as...