Pestey v. Cushman

Decision Date05 February 2002
Docket Number(SC 16559)
Citation788 A.2d 496,259 Conn. 345
CourtConnecticut Supreme Court
PartiesJAMES PESTEY ET AL. v. NATHAN R. CUSHMAN ET AL.

Borden, Norcott, Katz, Palmer and Vertefeuille, JS. Jack G. Steigelfest, with whom were John Stephen Papa and, on the brief, Constance L. Epstein, for the appellants (defendants).

Linda L. Morkan, with whom, on the brief, were Eric Lukingbeal and James P. Ray, for the appellees (plaintiffs).

Opinion

VERTEFEUILLE, J.

The issues in this common-law private nuisance action arise out of the defendants' operation of a dairy farm near the plaintiffs' home. The principal issues in this appeal are whether: (1) the trial court properly instructed the jury with respect to the unreasonableness element of the common-law private nuisance claim; (2) a property owner may testify as to the reason for the diminution in value of his or her property; (3) the trial court properly admitted, under the learned treatise exception to the hearsay rule, evidence from a livestock waste management handbook; and (4) the evidence at trial was sufficient to support the jury's finding that the operation of the defendants' farm was the proximate cause of the offensive odors that affected the plaintiffs' property. We answer all four questions in the affirmative. Accordingly, we affirm the judgment of the trial court.

The plaintiffs, James Pestey and Joan Pestey, brought this action against the defendants, Nathan R. Cushman, Nathan P. Cushman and Cushman Farms Limited Partnership, seeking money damages and injunctive and declaratory relief. After a lengthy trial, the jury returned a partial verdict for the plaintiffs for $100,000 in damages. See footnote 2 of this opinion. The trial court denied all of the defendants' posttrial motions, and rendered judgment in accordance with the jury's verdict. The defendants appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The jury reasonably could have found the following facts. The plaintiffs' home is situated on property they own located along the west side of Route 87 in North Franklin. The defendants own and conduct farming operations on a large tract of land on the opposite side of Route 87, approximately one third of one mile north of the plaintiffs' property. In 1990, the defendants constructed a 42,000 square foot free stall barn and milking parlor on their land to house a herd of dairy cows and a pit in which to store the manure generated by the herd.

The plaintiffs first noticed objectionable odors emanating from the defendants' farm in early 1991, after the construction of the new barn. The odors were, at first, nothing more than the typical stercoraceous odors generated by a farm containing livestock. Over time, however, the odors became substantially more pungent and their character changed as they took on a sharp, burnt smell. In 1997, the defendants installed an anaerobic digestion system on their farm to process the manure generated by the dairy herd. The system was designed to mimic in a controlled manner the anaerobic process that occurs in nature. Under this process, manure is fed into the digester, which, through the use of high temperature and bacteria, breaks the organic compound into its constituent parts. The end result of a properly functioning anaerobic digestion process is the production of a low odor biosolid and a gaseous mixture that can be used as an energy source to power the digester's generators. Following the installation of the digester, the character of the odors affecting the plaintiffs' property changed again, becoming more acrid and evincing the smells of sulphur and sewage. This change was caused by the digester being either undersized or overloaded, which resulted in partially digested, higher odor manure being released at the end of the anaerobic digestion process. At times, the odors emanating from the defendants' farm were so strong that the smell would awaken the plaintiffs during the night, forcing them to close the windows of their home. Further facts will be set forth where relevant.

The plaintiffs commenced this action in three counts seeking monetary damages and injunctive and declaratory relief. In the first count of the amended complaint, sounding in common-law private nuisance, the plaintiffs alleged that the defendants' farm generated offensive odors that unreasonably interfered with the plaintiffs' use and enjoyment of their property. The plaintiffs further alleged in this count that the defendants' farm operation was not entitled to the protections of General Statutes § 19a-341,1 which concerns the right to farm and protects farms from nuisance claims, because the odors resulted from the defendants' negligent operation of their farm. Only this first count was ultimately submitted to the jury to decide.2

In addition to returning a plaintiffs' verdict, the jury answered interrogatories demonstrating that it specifically found that the offensive odors emanating from the defendants' farm unreasonably interfered with the plaintiffs' enjoyment of their property, that the interference was continuous, and that the odors had a natural tendency to inflict harm by interfering with the plaintiffs' use of their property. The jury further found that the defendants' farm operation was the proximate cause of the plaintiffs' loss of enjoyment of their property and that the defendants' use of their property was either unreasonable or unlawful. Lastly, the jury found that § 19a-341 did not apply because the plaintiffs had proven that the offensive odors produced by the defendants' farm were the result of the defendants' negligence in the operation of their farm. After the trial court rendered judgment in accordance with the jury's verdict,3 this appeal followed.

The defendants raise six claims on appeal. They assert that the trial court improperly: (1) instructed the jury with regard to the unreasonableness element of the private nuisance claim; (2) admitted the testimony of the plaintiff James Pestey regarding the diminution in value of the plaintiffs' property as a result of the nuisance; (3) admitted, under the learned treatise exception to the hearsay rule, a portion of a certain livestock waste management handbook; (4) found the cumulative evidence sufficient to support the jury's finding that the defendants' farm operation was the cause of the offensive odors experienced by the plaintiffs; (5) instructed the jury with regard to the application of § 19a-341; and (6) excluded, based on the best evidence rule, certain expert testimony concerning a second livestock waste management handbook. With respect to the first four claims raised by the defendants, we conclude that they are without merit. With respect to the last two claims, we do not reach their merits because, for the reasons explained hereinafter, we conclude that they were not properly preserved.

I

We first address the defendants' claim that the trial court improperly instructed the jury with regard to the unreasonableness element of the nuisance claim. Specifically, the defendants argue that the trial court's instruction to the jury was improper because it failed to instruct the jury adequately with respect to the balancing of interests that must be performed in deciding whether a use of property is unreasonable. The defendants contend that, although the trial court correctly instructed the jury to consider a multiplicity of factors in determining whether the defendants' use of their property was unreasonable, the court did not adequately instruct the jury to consider the defendants' legitimate interest in using their property.4 We conclude that the trial court's instruction to the jury on this issue was proper under the law both as expressed in our prior decisions and as clarified herein.

The standard of review for a challenge to the propriety of a jury instruction is well established. "[J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge.... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict.... The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).

In order to analyze properly the defendants' claim, we must reexamine and clarify the elements that a plaintiff must prove to prevail on a claim for damages in a common-law private nuisance cause of action. Specifically, we must clarify two sources of confusion. First, we must distinguish the concept of unreasonable interference with the use and enjoyment of property from the concept of an unreasonable use of property. Second, we must reaffirm the distinction between private and public nuisance actions.

"A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land." 4 Restatement (Second), Torts § 821D (1979); see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235 (1967). The law of private nuisance springs from the general principle that "[i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor." Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (1933). "The essence of a private nuisance is an interference with the use and enjoyment of land." W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 87, p. 619.

The defendants' claim is based on the principle of private nuisance law that, in determining unreasonableness, "[c]onsideration must be given not only to the interests of the person harmed but also [to] the...

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