State v. Quality Egg Farm, Inc.

Citation311 N.W.2d 650,104 Wis.2d 506
Decision Date03 November 1981
Docket NumberNo. 80-938,80-938
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. QUALITY EGG FARM, INC., Defendant-Appellant.
CourtWisconsin Supreme Court

Maryann Sumi, Asst. Atty. Gen. (argued), for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Milton C. Konicek, Konicek Law Offices, S. C., Burlington, for defendant-appellant.

STEINMETZ, Justice.

The issues in this case are the definition in the state of Wisconsin of a public nuisance and whether the evidence in this case sustained the trial court's conclusion of a public nuisance which allowed the state of Wisconsin as a proper party to bring the complaint.

The court of appeals reversed and found as a matter of law that there was no public nuisance established and, therefore, the attorney general's office was not empowered to seek the abatement of defendant's (Quality Egg Farm, Inc.) operation. We reverse the court of appeals, 101 Wis.2d 732, 306 N.W.2d 305, and remand to the trial court for findings consistent with the evidence as determined by that court consistent with this opinion.

In 1967, the Quality Egg Farm, Inc., commenced operation of its egg farm in Bristol, Wisconsin. At that time, both Dr. John Skinner, a professor of agricultural sciences at the University of Wisconsin, and the county agricultural agent had recommended against starting operation in this location, due to the close proximity of the egg farm operations to neighboring homes and a grade school. Despite these recommendations and the egg farm owner's own reservations about the location, the Quality Egg Farm commenced operations, starting with 60,000 chickens and increasing that number to 140,000 by 1974, with plans to increase to 300,000 chickens in the future.

The Quality Egg Farm houses its chickens in seven houses with approximately 20,000 chickens per house. The operation produces 15 tons of chicken manure per day. There was testimony that the operation causes the emission of chicken manure odors and chicken body odors, and flies are a constant problem. Dr. Skinner described the source of the odors as follows:

"(I)t was a combination of the manure odors and the normal body odors of the chickens, in this concentration, being forced on the community by the fans that ventilate the birds, and by the agitation of the manure in removing it from the house and depositing it on the land."

There was testimony describing the odor as "nauseating," "pungent," "unbearable," and that it made one sick or ill or gave one a headache.

Manure is removed from the houses and spread on the ground surface of the egg farm, even when the ground is frozen and unworkable.

Over two-thirds of the people available at trial to testify for the state lived in the vicinity of the egg farm at least five years before the egg farm moved into the area. The majority of the people in the area are farmers or are from farm backgrounds.

Two years before this action was commenced (February and March, 1976) the department of natural resources investigated complaints of odors emanating from the farm. A public hearing was held in Bristol to determine whether a proposed order to abate malodorous emissions should issue. The proposed order was rescinded by the hearing examiner on March 22, 1977. No further action was taken with respect to that proceeding.

The department of justice has independent jurisdiction under sec. 823.02, Stats., 1 to seek abatement of public nuisances. State v. Dairyland Power Cooperative, 52 Wis.2d 45, 54, 187 N.W.2d 878 (1971), held the doctrine of exhaustion of administrative remedies does not apply to a public nuisance action of this kind.

This action for abatement of a public nuisance was commenced by the state of Wisconsin by summons and complaint filed April 12, 1978, in Kenosha county circuit court against the Quality Egg Farm, Inc. Pursuant to sec. 823.02, Stats., the state sought abatement of the emission of chicken and chicken manure odors caused by the operation of defendant's egg industry in the town of Bristol, Kenosha county.

On May 17, 1978, the Kenosha county circuit court, the Honorable Michael S. Fisher, granted the state's motion for preliminary injunction finding that:

"(L)andowners in the vicinity are entitled to the reasonable use and enjoyment of their property, that the situation which presently exists has curtailed these rights, that the granting of a preliminary injunction will not prohibit the defendant from continuing its operations until a full hearing on the merits can be held."

The court issued orders with the preliminary injunction to the Quality Egg Farm, Inc., to properly dispose of the chicken manure and to conduct its operations in a sanitary and nuisance-free manner.

Less than two months later, the state petitioned the court for contempt of the May 17 order. An evidentiary hearing was held on July 28, 1978, and a trial to the court on November 16 and 17, 1978. On February 27, 1979, the circuit court issued its decision granting the defendant nine months to eliminate all objectionable odors emanating from the chicken farm and to materially reduce the fly problem. A referee, Professor Richard W. Miller of the Carthage College Geography Department, was appointed by the court to monitor the situation.

A final hearing was held on April 16, 1980, to receive the report of the referee.

On May 2, 1980, the court issued its final decision finding inter alia that:

"(D)ue to the poor location of the Egg Farm in relationship to the closeness of its residential neighbors, the great number of birds and the great amount of manure they produce, there will never be a solution to the problem. While the odors have been somewhat lessened, they are still present and the fly problem remains. It is highly doubtful that these problems can ever be overcome."

The court also in the decision stated:

"The Court is satisfied that in the fact situation before the Court the interference created by the Egg Farm is both substantial and unreasonable in that it has for many years prevented the neighbors from the normal use and enjoyment of their property and has had some effect on their health.

"...

"The odors complained of and fly problem were established by clear and convincing proof to be more than a minor visitation. It was shown that the nuisance was substantial and unreasonable and did affect the normal use and enjoyment of the complainants' life, health and property.... Under the circumstances the Court does not believe the nuisance has been, nor can it be, abated .... Therefore, the Court finds no alternative but to order a permanent injunction."

In the May 2, 1980, decision the trial court made no statement whether the egg farm was found by him to be a public nuisance.

A reference by the trial court to the nuisance being public was in the March 30, 1979, interlocutory judgment "for injunctive relief to abate public nuisance caused by the operation of the Quality Egg Farm." Accordingly, the judge ordered the egg farm operators to take corrective actions and appointed the referee. The decision of the trial court leading to the interlocutory judgment applied the evidence of the case to hold the operation of the egg farm was a nuisance. The only commentary regarding public nuisance was:

"This Court sees good reason for the neighbors to complain and for one party, in this case the State of Wisconsin, to act on behalf of the neighbors as a single spokesman." (Emphasis added.)

And:

"Under the conditions as they now exist, the evidence clearly shows an interference with the use and enjoyment of the land of the surrounding residential neighbors. This interference is substantial and unreasonable."

In findings and conclusions dated March 30, 1979, in conclusions of law, the trial court held:

"4. The operation of the Quality Egg Farm constitutes a public nuisance, entitling the plaintiff to injunctive relief abating the public nuisance caused by the egg farm.

"5. The injury caused due to the operation of the Quality Egg Farm as a public nuisance is not permanent, but there exists a potential for permanent injury.

"...

"IT IS HEREBY ORDERED that judgment be entered in favor of the plaintiff, State of Wisconsin, and against the defendant, Quality Egg Farm, Inc., for injunctive relief to abate the public nuisance caused by operation of the Quality Egg Farm, Inc...."

In the May 2, 1980, decision, the operation of the farm is referred to as creating a nuisance as found in the decision of February 27, 1979, and that the interference created by the egg farm "is both substantial and unreasonable in that it has for many years prevented the neighbors from the normal use and enjoyment of their property and has had some effect on their health."

Quality Egg Farm appealed the May 2, 1980, decision and order of the circuit court to the court of appeals. The court of appeals reversed the trial court, and the state of Wisconsin sought review by this court.

The court of appeals in reversing the trial court found the evidence failed to support a finding of public nuisance and, therefore, the state of Wisconsin, plaintiff, was not entitled to any relief pursuant to sec. 823.02, Stats. The court held that the proof was the citizens affected by the operation of the egg farm were affected only as to their private interests, but they were not parties seeking private relief.

The court of appeals discussed, in an unpublished opinion, the dichotomy between the definition of public nuisance in Wisconsin and what that court referred to as the majority rule. It cited 58 Am.Jur.2d Nuisances sec. 10 (1971) at 565 for the majority rule as follows:

"The difference between a public and private nuisance is that a public nuisance affects the public at large whereas a private nuisance affects an individual or a limited number of individuals only."

The court of appeals went on to state:

"It...

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