Valley Poultry Farms, Inc. v. Preece

• Citation: 406 S.W.2d 413
• Parties: VALLEY POULTRY FARMS, INC., a Corporation, Appellant, v. Calip PREECE et al., Appellees.
• Decision Date: 23 September 1966
• Court: United States State Supreme Court — District of Kentucky

Page 413

406 S.W.2d 413

VALLEY POULTRY FARMS, INC., a Corporation, Appellant, v. Calip PREECE et al., Appellees.

Court of Appeals of Kentucky.

Sept. 23, 1966.

H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellant.

Jack Q. Heath, Louisville, for Ky. Farm Bureau Federation, amicus curiae.

Kelley Asbury, Catlettsburg, for appellees.

WOODWARD C. TIPTON, Special Commissioner.

This is an action for permanent damages because of a private nuisance.

It appears that appellant bought its land about 1961 and constructed four chicken houses for laying hens. The land is located in a rural part of Boyd County on the Durbin road, with one of the chicken houses being alongside the Durbin road. The appellees acquired their land about 1936 and the main residence of the appellees is located about 250 to 300 feet from the chicken houses and the rental house of appellees is located about 150 feet from the nearest chicken house. The generally prevailing wind is from the chicken houses toward the residences.

The appellees complained of the chicken houses because of the noise, odor, insects and dust therefrom. The noise begins about 4:00 A.M., when it awakens appellees in their home preventing sleeping thereafter. The odors are so bad that the windows in the home have to be kept closed in the summer time, forbidding the use of fans. Appellees said no meal was fit to eat because of the odor and the dust caused by the hens flying and hitting the ceilings in the chicken houses. Dust thereform settles on the appellees' property. Because of the chicken manure there are many flies so that clothes cannot be hung out to dry without the clothes being flecked by the flies.

The appellant admitted there had been a temporary condition from the odor of wet chicken manure and an overflow from an artesian well under a chicken house over onto appellees' property, polluting the cattle watering hole of appellees; that an injustice had been done and they did what they could to correct it. For appellant it was shown that after correction there was no adverse finding by the county and state health departments; that the chicken houses were built and maintained according to the highest standards and that they used due care and were not guilty of negligence and that the business was a lawful business.

The jury found that the operation of the chicken houses was a permanent nuisance and awarded a verdict of $5,000.00 to appellees. The appellant does not complain of the instructions, nor does appellant complain of an excessive verdict.

The appellant raises three questions on appeal as follows:

1. That the evidence does not support the jury finding that the commercial poultry operation, operated with due care in a rural area and of the smallest size to be economically feasible, is a permanent nuisance;

2. Where the evidence shows that an alleged nuisance arose after commencement of a commercial poultry operation, it is error to prove damage by considering value 'without' the poultry houses;

3. The jury verdict must be set aside on the law and evidence in this case.

The three questions will be considered by the court in the order raised.

The jury found in answer to an interrogatory that appellant did operate its poultry houses with due care and there was no evidence but what they were located in a rural area and were of the smallest size to be economically feasible. The only thing to be considered is whether although the chicken houses were operated with due care, they are still a permanent nuisance. There was evidence by the appellant that there had been a temporary situation of which appellees might complain, but there was evidence by appellees and their witnesses that the odors, noises, dust and insects were continuing matters and one witness testified as to insects up until about a month before the trial. This court finds that there was probative evidence of value upon which the jury could and obviously did find that there was a permanent nuisance.

'If the structure is in character relatively enduring and not likely to be abated, either voluntarily or by an order of court, it is generally held that the nuisance is a permanent one.' Searcy v. Kentucky Utilities Co. (1954) Ky., 267 S.W.2d 71.

Even when the business is lawful in itself and is being operated with due care, yet a use of the property that is otherwise reasonable (in the sense of non-negligent) may be rendered unreasonable by the gravity of its effect upon the use and enjoyment of other property and therefore it can be a nuisance. Associated Contractors Stone Co. v. Pewee...