Rust v. Guinn

• Decision Date: 29 December 1981
• Docket Number: No. 1-381A81,1-381A81
• Parties: David RUST, Rose Acre Farms, Inc., Lookacres, Inc., and Eggacres, Inc., Defendants-Appellants, v. Hubert GUINN, Jr. and Margaret Suzanne Guinn, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 299

429 N.E.2d 299

David RUST, Rose Acre Farms, Inc., Lookacres, Inc., and Eggacres, Inc., Defendants-Appellants, v. Hubert GUINN, Jr. and Margaret Suzanne Guinn, Plaintiffs-Appellees.

No. 1-381A81.

Court of Appeals of Indiana, First District.

Dec. 29, 1981.

Roger L. Pardieck, Steven K. Robison, Montgomery, Elsner & Pardieck, Seymour, Bunger, Harrell & Robertson, Bloomington, Sharpnack, Bigley, David & Rumple, Columbus, for defendants-appellants.

James S. Kowalik, Hopper & Opperman, Sally O'Connor, Indianapolis, James R. Regester, Bloomington, for plaintiffs-appellees.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

This is an action for abatement of a nuisance and damages brought by Hubert Guinn, Jr. and Margaret Suzanne Guinn (Guinns) against David Rust, Rose Acre Farms, Inc., Lookacres, Inc., and Eggacres, Inc. (hereinafter collectively referred to as Eggacres when appropriate). Upon Eggacres' motion, the trial was bifurcated. Following a bench trial, the trial court ruled that a private nuisance existed and that such was abatable. Upon trial to a jury on the issue of damages, such were assessed against Eggacres in the amount of $9,500. Costs of the action were charged to Eggacres as well. From the judgment entered upon the jury's award, Eggacres brings this appeal. Eggacres does not appeal the initial judgment of the trial court in which the existence of the private nuisance was determined.

We affirm.

STATEMENT OF THE FACTS

The Guinns have resided on an 80-acre farm in Jackson County since 1965. Lookacres, Inc. and Eggacres, Inc. have operated facilities for the production of chicken eggs on property adjacent to the Guinns since 1969. The combined operations employ some 495,000 chickens for the purpose. Prior to 1969 the Guinns, who are presumably persons possessed of ordinary olfactory sensibilities, enjoyed their rural home with its attendant aroma, and suffered the normal amount of flies generally encountered in farm living.

Until 1976, Eggacres employed a system of lagoons for the purpose of storing accumulated chicken manure, two of which lagoons are located within 300 yards of the Guinns' farmhouse. At times the lagoons were suffered to attain a state of overflow. The redolence emanating from the lagoons achieved such a state of odoriferocity at times as to compel the Guinns to maintain their residence in a sealed state, to curtail their regular outdoor activities, and on occasion to vacate their residence in favor of more savory environs. Mrs. Guinn testified that as a result of the foul odor, which was characterized as "a urine-like, a gas, ammonia smell," she sometimes vomited, gagged, was otherwise nauseated, and experienced a burning sensation in her eyes. Devotion of the lagoons as a means of primary waste disposal was begun to be phased out in 1976; they are now used for the purpose of storing egg wash water and also for emergency purposes. Since 1977, the lagoons have been treated bacterially to diminish the odor and to purify the water.

After the Eggacres facilities commenced operations, a significantly larger number of flies began to visit the Guinns' property at intermittent times than had previously been the case, and these were found to have generated from Eggacres. A program of fly control involving the use of sprays and insecticides undertaken by Eggacres during the years 1969 through 1974 proved ineffective, and the odor of the sprays and insecticides themselves compounded the Guinns' discomfort. In 1974, a successful method of fly control exploiting the flies' natural predators was launched, and by 1975 the fly problem subsided.

The method of waste disposal employed by Eggacres since 1976 utilizes wet manure pits maintained beneath the chicken houses to catch and temporarily hold the droppings. When these pits are filled, the contents are removed and hauled away by trucks. Eventually the material is spread over nearby fields for the purpose of fertilization. Although the change in the means of disposal proved effective in eliminating the effluvium attributable to the lagoons, the new scheme has caused additional problems for the Guinns. The trucks hauling their fresh cargo frequently pass the Guinns' property and on occasion spill portions of the guanic substance in front of the residence, resulting in odor problems.

Based upon the foregoing facts, the trial court concluded the following:

"1. That Defendants, Lookacres, Inc., and Eggacres, Inc., by their method of operation of their lawful business, did create offensive odors, as to Plaintiffs, in excess of those normally associated with farm living from 1969 through 1977, which said odors were, during said period, unreasonable to a person of ordinary sensibilities.

2. That Defendants, Lookacres, Inc., and Eggacres, Inc., by their method of operation of their lawful business, as to Plaintiffs, in excess of those normally associated with farm living from 1969 through 1975, which said populations of flies were, during said period, unreasonable to a person of ordinary sensibilities.

3. That Defendants, Lookacres, Inc., and Eggacres, Inc., by their negligence have created, and continue to create, offensive odors, as to Plaintiffs, by spilling chicken waste in front of Plaintiffs' property, which odors are in excess of those normally associated with farm living and are, therefore, unreasonable to a person of ordinary sensibilities.

4. That Defendants, Lookacres, Inc., and Eggacres, Inc., have, thereby, since 1969 maintained a private nuisance, as defined by IC 1971, 34-1-52-1, which has been and is currently offensive to the senses and an interference with Plaintiffs' use and enjoyment of their property.

5. That said nuisance is abatable.

6. That the lawful and important social and economic nature of Defendants' businesses do not preclude Plaintiffs from being compensated for the burden placed upon the free use and enjoyment of their property resulting from said nuisance."

Trial was later had before a jury wherein damages in the amount of $9,500 were assessed against Eggacres. From the latter judgment, Eggacres appeals.

ISSUES

We have consolidated the three errors assigned by Eggacres into two issues and restate them as follows:

I. Whether the trial court erroneously instructed the jury on the measure of damages for an abatable private nuisance; and

II. Whether the trial court erroneously admitted into evidence at the trial on the issue of damages a jar of chicken manure.

DISCUSSION AND DECISION

Issue I. Measure of damages

Eggacres contends the trial court erroneously instructed the jury as to the damages recoverable for the nuisance found to have existed, alleging the jury was permitted to consider improper factors in making their determination. Eggacres tendered the following instruction, which was refused by the trial court:

"It has previously been determined that the facilities of the defendants known as Eggacres and Lookacres did during the period of 1969 through 1975 constitute a nuisance as to the plaintiffs with respect to causing excessive amounts of flies and did during the period 1969 through 1977 constitute a nuisance as to the plaintiffs with respect to causing excessive unpleasant odors, and did during the period of 1976 to the present constitute a nuisance as to the plaintiffs with respect to the occasional spillage of chicken waste upon the public road in front of plaintiffs' residence. If you find from the evidence that the plaintiffs' use and enjoyment of their property was unreasonably interfered with by such conditions, you should award them damages to compensate them for the interference with and loss of the use and enjoyment of their property caused by such conditions during such period. The measure of damages which you must apply to determine the plaintiffs' damages for the interference with and loss of use and enjoyment of their property is the reduction in the fair rental value of plaintiffs' real estate caused by the nuisance conditions. In other words, the difference between what you find would have been the fair rental value of plaintiffs' real estate without such nuisance conditions and what you find was the fair rental value with such nuisance conditions is the damage sustained by plaintiffs by reason of the interference with and loss of use and enjoyment of their real estate."

The trial court gave the following final instruction concerning damages:

"In determining the amount of damages sustained by the plaintiffs as a result of the nuisance maintained by the defendants, you may consider:

(1) Damages for interference with the plaintiffs' use and enjoyment of their property which damages are measured by the reduction in the fair rental value of the property during the period of existence of the nuisance proximately caused by the nuisance;

(2) Damages for actual expenses incurred by plaintiff in attempting to mitigate the effects proximately caused by the nuisance conditions found to have existed; and

(3) Damages for injury to health proximately caused by the nuisance.

Damages are not to be presumed. The burden is on the plaintiffs to prove by a preponderance of the evidence the damages proximately caused in the nuisance maintained by the defendants."

Eggacres contends the jury was erroneously instructed as to the proper measure of damages for an abatable private nuisance because the instruction allowed for consideration to be given to losses in addition to the diminution in rental value proximately caused by the nuisance. These losses, enumerated (2) and (3) in the instruction respectively, include actual expenses incurred by the Guinns in attempting to mitigate the effects of the nuisance, and injury to health proximately caused by the nuisance.

The essence of Eggacres' tendered instruction is that the extent of damages recoverable is limited to the diminution in rental value of the Guinns' property caused by the nuisance. The substance of the tendered instruction was...