Scott v. Jordan, 5828

• Decision Date: 10 February 1983
• Docket Number: No. 5828,5828
• Citation: 1983 NMCA 22,661 P.2d 59,99 N.M. 567
• Parties: Orville Keith SCOTT and Mildred E. Scott, Plaintiffs-Appellees, v. A.R. Pike JORDAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 59

661 P.2d 59

99 N.M. 567

Orville Keith SCOTT and Mildred E. Scott Plaintiffs-Appellees, v. A.R. Pike JORDAN, Defendant-Appellant.

No. 5828.

Court of Appeals of New Mexico.

Feb. 10, 1983.

[99 NM 568] Edwin B. Tatum, Walker & Tatum, Clovis, for defendant-appellant.

Dan B. Buzzard, Clovis, Sarah M. Singleton, Santa Fe, for plaintiffs-appellees.

OPINION

DONNELLY, Judge.

Defendant, A.R. Pike Jordan, appeals from a judgment in favor of plaintiffs, Orville Keith Scott and Mildred E. Scott, determining that defendant's livestock feeding operation constituted a nuisance and permanently enjoining defendant from operating his cattle feedlot in its present location.

Defendant contends on appeal that the judgment of the trial court was erroneous because: (1) the enjoined activities of defendant were not unreasonable; (2) acquiescence of plaintiffs should have precluded the granting of injunctive relief; and (3) the granting of a permanent injunction was improper. We affirm.

Plaintiffs filed suit against defendant seeking both injunctive relief and damages, alleging that defendant's operation of a cattle feeding business on property adjoining plaintiffs' residence and farm property gave rise to noxious odors, flies, and dust which constituted a nuisance and deprived them of the use and enjoyment of their property. Plaintiffs further alleged that defendant's operations had resulted in damages by reason of the loss of normal use and enjoyment of their real estate and the diminishing of the reasonable fair market value of their realty.

Plaintiffs own approximately 26.5 acres of farm land in Curry County, near Texico and Farwell. Plaintiffs' residence is located on land across the road and adjacent to the farm and livestock feedlots of defendant; they have resided on their land since August 1966. Defendant owns approximately four hundred acres of land which he purchased in 1979. The lands owned by both plaintiffs and defendant are primarily rural and agricultural in their nature.

After defendant purchased the farm adjoining the residence and lands of plaintiffs, he expanded the size of existing cattle pens located thereon and began operating a cattle feeding business comprising ten pens accommodating between 600 and 1,200 head of feeder cattle. Defendant's feedlots were located within 607 feet of plaintiffs' residence.

Defendant's answer denied that his cattle feeding business constituted a nuisance and asserted affirmative defenses of estoppel, laches and contributory negligence. Following a trial to the court, the court denied plaintiffs' requested relief for damages but granted a permanent injunction against defendant from any further operation of his cattle feeding business in its present location.

I. Reasonableness of Defendant's Activities

Defendant's first point argues that his activities were not unreasonable in light of all the evidence presented and challenges the sufficiency of the evidence to support the trial court's findings that defendant's cattle feeding operations constituted a nuisance.

The trial court adopted the following findings of fact, among others.

6. The manner in which Defendant uses his property is such as to cause Plaintiffs' home to be unusable for personal habitation because of the flies, dust, and odors.

7. Defendant's use of his property is unreasonable, and it deprives Plaintiffs of the right to use and enjoy their land and home.

8. Defendant's cattle feeding operation is the proximate cause of the condition of dust, odors, and flies that the wind currents carry to Plaintiffs' property, depriving Plaintiffs of the reasonable use and enjoyment of their home.

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10. As a result of Defendant's conduct, Plaintiffs suffer an irreparable injury.

11. Plaintiffs have no adequate remedy at law.

Defendant asserts that each of the five findings challenged above were not supported by substantial evidence. Defendant also challenged the following conclusions of law which were adopted by the trial court, contending that they were not supported by proper findings of fact:

2. Defendant's unreasonable use of his property causes injury, damage, inconvenience, annoyance, and discomfort to Plaintiffs in the legitimate enjoyment and reasonable right to property, to the detriment and health of Plaintiffs and their family.

3. Defendant's conduct in the method in which he uses his property proximately causes a nuisance.

4. Plaintiffs have no adequate remedy at law; and Defendant is enjoined permanently from the operation of his cattle feeding business in its present location.

The specific question of whether a feedlot or cattle feed pens constitute a nuisance has not been addressed in this jurisdiction. A number of jurisdictions have held that livestock feedlots or feed pens do not constitute nuisances per se. See e.g. Botsch v. Leigh Land Co., 195 Neb. 509, 239 N.W.2d 481 (1976). They may however, dependent upon the particular evidence adduced, comprise a nuisance in fact.

As set forth in Koeber v. Apex-Albuq Phoenix Express, 72 N.M. 4, 380 P.2d 14, 3 A.L.R.3d 1368 (1963), nuisances are generally classified as nuisances per se or nuisances in fact. In Koeber, the court quoted with approval Denney v. United States, 185 F.2d 108 (10th Cir.1950):

A nuisance per se is generally defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings, while a nuisance in fact is commonly defined as an act, occupation, or structure not a nuisance per se, but one which may become a nuisance by reason of circumstances, location, or surroundings.

Restatement (Second) of Torts Sec. 821 D (1979) defines a private nuisance as a "nontrespassory invasion of another's interest in the private use and enjoyment of land." This same authority at Sec. 822 sets out the elements of liability of proof of a private nuisance as follows:

General Rule. One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of the land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

A private nuisance is a civil wrong based upon a disturbance of rights in land. Jellison v. Gleason, 77 N.M. 445, 423 P.2d 876 (1967).

The trial court herein did not find defendant's cattle feeding operations to constitute a nuisance per se but did conclude that defendant's conduct did in fact constitute a nuisance. In light of defendant's challenges to the sufficiency of the evidence, we look to the record to ascertain whether the court's findings and conclusions are properly supported by the evidence.

The record before us indicates that defendant bought the farm adjoining the land of plaintiffs in 1979. Defendant began running an average of 588 cattle on the farm in November 1979, and in December 1979, he began building additions to the cattle pens which were completed in March 1980. By April 1980, defendant had an average head count of 1,764 feeder cattle on his premises. Defendant's feedlots were located approximately 600 feet from plaintiffs' home, and prevailing winds frequently blew from defendant's lands toward plaintiffs' property.

Evidence presented by plaintiffs indicated that there was such dust, flies, and noxious odors emanating from defendant's feedlots that they could not enjoy their home. The record contains several photographic exhibits admitted into evidence showing heavy infestations of flies swarming upon plaintiffs' home, and, which, according to the testimony of plaintiffs, originated from defendant's cattle feeding pens nearby. Plaintiff Mr. Scott testified that the value of his property prior to the commencement of defendant's cattle feeding operations was approximately $130,000.00 to $140,000.00 and that after defendant's expanded cattle feeding operations began the value of plaintiffs' property declined to $65,000.00.

Where factual evidence is in dispute, the trial court's findings should not be disturbed on appeal unless they are unsupported by substantial evidence. Balboa Const. Co., Inc. v. Golden, 97 N.M. 299, 639 P.2d 586 (Ct.App.1981). The court in Pacheco v. Martinez, 97 N.M. 37, 636 P.2d 308 (Ct.App.1981), stated that the long established rule in this jurisdiction is that an appellate court must sustain the trial court's findings and conclusions if they are supported by substantial evidence. The reviewing court will view the facts and evidence in a light most favorable to the prevailing party, will indulge in all reasonable inferences in support of the findings, and will disregard all inferences or evidence to the contrary. When this standard is applied to the facts of this case, the evidence clearly supports the ruling of the trial court and meets the criteria for establishing the existence of a private nuisance.

Defendant argues that the nature of the locality where the alleged nuisance occurred is a vital factor to be considered in ascertaining whether the activity carried on by him was reasonable. Defendant argues the evidence supported a finding that the area was primarily agricultural in nature. Mahone v. Autry, 55 N.M. 111, 227 P.2d 623 (1951); Dill v. Excel Packing Company, 183 Kan. 513, 331 P.2d 539 (1958). While this is true, this was not the determinative factor before the court which bore upon the issue of whether the court should have granted an injunction. Moreover, defendant has failed to challenge the trial court's Finding of Fact No. 9, which stated: "9. The health and comfort of Plaintiffs and enjoyment of Plaintiffs and their family of their property are impaired by the actions, conduct, and methods of Defendant in the use of his property."

The above unchallenged finding of the court was sufficient to justify...