Yeager & Sullivan, Inc. v. O'Neill, 3--873A100

• Decision Date: 26 March 1975
• Docket Number: No. 3--873A100,3--873A100
• Citation: 163 Ind.App. 466,324 N.E.2d 846
• Parties: YEAGER AND SULLIVAN, INC., and Charles L. Yeager, Defendants-Appellants, v. Lynn and Lucile O'NEILL, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 846

324 N.E.2d 846

163 Ind.App. 466

YEAGER AND SULLIVAN, INC., and Charles L. Yeager Defendants-Appellants, v. Lynn and Lucile O'NEILL, Plaintiffs-Appellees.

No. 3--873A100.

Court of Appeals of Indiana, Third District.

March 26, 1975.

Rehearing Denied May 27, 1975.

James T. Robison, Robison, Robison & Miller, Frankfort, Phil Goddard, Indianapolis, for defendants-appellants.

Frank E. Tolbert, Miller, Tolbert, Hirschauer & Wildman, Logansport, for plaintiffs-appellees.

HOFFMAN, Judge.

On August 23, 1972, plaintiffs-appellees Lynn O'Neill and Lucile O'Neill (O'Neills) filed an amended supplemental complaint against defendants-appellants Yeager & Sullivan, Inc. and Charles L. Yeager (Yeager) wherein they alleged, inter alia, that Yeager maintained a hog feedlot upon property adjacent to their own and that the particular condition of such operation constituted a nuisance. Trial to the court was commenced on November 21, 1972, and on December 12, 1972, judgment was entered in favor of the O'Neills. Therein, the trial court ordered that the nuisance created by Yeager be immediately abated; that Yeager be enjoined from any further use of the property in question for the purpose of operating 'a hog raising business' until such time as certain of the conditions giving rise to the nuisance are abated; and that the O'Neills recover damages in the amount of $3,225, together with their costs. Defendants-appellants' motion to correct errors was subsequently overruled and the present appeal was perfected.

An examination of the record reveals that on April 1, 1969, Yeager commenced a hog feeding operation upon property which it leased from the State in Cass County, Indiana. Thereafter, the Yeager enterprise maintained an inventory of from 2,500 to 3,000 hogs except for two periods of at least thirty days in duration during 1969 and 1970 when the entire premises were depopulated by the Federal Government.

Approximately thirty to sixty days following the commencement of the Yeager operation, the O'Neills, who reside on an adjacent farm to the south, became aware of a pungent aroma emanating from the hog feedlot. The odor, which varied in intensity throughout the year, was particularly foul and obnoxious during the summer months. Atmospheric conditions together with the magnitude of the aroma at such time necessitated that the O'Neills maintain their residence in a sealed condition; and on several occasions during the years 1970, 1971 and 1972, they were obliged to go elsewhere overnight. Under direct examination, Mrs. Lucile O'Neill testified that 'the odor was just so pungent that you just couldn't get your breath.' She further stated that, '(m)any times we went down town because it just seemed like all the food tasted like it when I put it on the table.'

The O'Neill residence which is situated approximately 1,000 feet from the buildings occupied by Yeager was, in addition to the distinctive bouquet referred to above, beset by a multitude of flies and rats following the commencement of the hog feeding enterprise. Although the O'Neills had not previously been completely free of flies, testimony by Mr. Lynn O'Neill indicated that they were more abundant during the two years preceding the trial herein. Under direct examination, Lucile O'Neill testified that '(t)he flies were thick and in our garage you couldn't hardly get in the car.' While the O'Neills 'had some rats' during a period when they had grain and maintained livestock, 'the rats pretty well left' when the O'Neills dispensed with the keeping of livestock in the 1950s. After the Yeager operation began, however, the rats returned and the O'Neills employed the services of pest exterminators in addition to distributing rat poison and food items with 'electric taste.'

During the years 1969, 1970, 1971 and 1972, Mr. O'Neill, on occasion drove past the Yeager operation and at four times beginning in 1971 proceeded onto the premises. He observed a greater accumulation of filth and animal waste material during 1971 and 1972 than that which he had noticed in 1969. Mr. O'Neill also testified that a pile of waste material approximately forty to forty-eight inches high was situated near a door of one of the buildings, that it remained throughout the entire summer of 1972, and that it was not removed until the month of November, 1972. Furthermore, rain during the summer of 1972 had washed an accumulation of solid waste into drainage ditches and onto a nearby road. Mr. O'Neill stated that 'the ditch that extended from the southerly most building draining off onto the road, stood full and is presently full of liquid waste material.' In one of the buildings, 'possibly the area of twenty by twenty five or thirty feet square, * * * an accumulation of three to five inches of pure animal waste' was observed. To the north of one of the feeding lots, a pit, 'possibly eighteen to twenty feet across' contained liquid animal waste. And, ditches on either side of a driveway contained 'an accumulation of two to three four inches of liquid animal waste.'

Richard Leffert, a policeman for the City of Logansport, Indiana, was asked by Mr. O'Neill to photograph the feedlot operation. He testified that during his visit to the feedlot on September 25, 1971, the observed three dead hogs, 'a lot of soggy manure', a '(v)ery strong unpleasant odor', and '(p)lenty of flies.' Bernard Leavitt, a health officer, inspected the Yeager operation on September 16, 1971, and September 21 or 23, 1971. He observed many flies and 'a lot of water run-off and manure' and concluded that the operation was 'unclean.'

The first issue to be considered is whether the judgment of the trial court in favor of plaintiffs-appellees O'Neills is supported by sufficient evidence.

In determining the sufficiency of evidence this court, on review, may not weigh the evidence nor resolve questions regarding the credibility of witnesses; rather it is confined in its survey to a consideration of only that evidence and reasonable inferences therefrom which support the judgment of the trial court. In Re Estate of Barnett (1974), Ind.App., 307 N.E.2d 490, 41 Ind.Dec. 87; Glidden v. Nasby (1970), 147 Ind.App. 546, 262 N.E.2d 548; Butler v. Forker, Bd. of Comm. (1966), 139 Ind.App. 602, 221 N.E.2d 570.

If, from that perspective, there is evidence of probative value to support the judgment of the trial court, it is the duty of this court to affirm. Indiana & Michigan Electric Company v. Schnuck (1973), Ind., 298 N.E.2d 436.

It has been stated that the term 'nuisance' is incapable of any precise definition which could be applied in every case; for it 'has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion.' Prosser, Torts, § 87, at 573 (4th Ed. 1971).

IC 1971, 34--1--52--1 (Burns Code Ed.), provides that:

'Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.' See: Kissel v. Lewis (1901), 156 Ind. 233, 59 N.E. 478; Haggart et al. v. Stehlin et al. (1893), 137 Ind. 43, 35 N.E. 997, 22 L.R.A. 577; Hedrick v. Tubbs (1950), 120 Ind.App. 326, 92 N.E.2d 561; Zeppenfeld v. Franklin Motor Service Co. (1922), 77 Ind.App. 687, 134 N.E. 487; Acme Fertilizer Co. v. State (1905), 34 Ind.App. 346, 72 N.E. 1037, 107 Am.St.Rep. 190; Shroyer v. Campbell (1903), 31 Ind.App. 83, 67 N.E. 193.

Largely on the basis of the nature of the interests invaded or rights infringed, nuisances have been classified as either public, private, or a combination of the two. The Ohio and Mississippi Railway Company v. Simon (1872), 40 Ind. 278; 58 Am.Jr.2d, Nuisances, § 6, at 559--560; 66 C.J.S. Nuisances § 2, at 730--733. Where, as in the present case, the subject of the complaint relates to an interference with the use and enjoyment of land by a limited number of individuals, or where such interference is peculiar to an individual, the character of the nuisance alleged is regarded as private. Zeppenfeld v. Franklin Motor Service Co., supra; Kissel v. Lewis, supra. See: Ott v. Johnson (1974), Ind., 319 N.E.2d 622, 624.

'The essence of a private nuisance is the fact that one party is using his property to the detriment of the use and enjoyment of the property of another.' Stover v. Fechtman (1966), 140 Ind.App. 62, at 67, 222 N.E.2d 281 at 284, 9 Ind.Dec. 691, at 695.

In Meeks v. Wood (1918), 66 Ind.App. 594, at 597--598, 118 N.E. 591, at 592, it is stated:

'The law is well understood that every man has the exclusive dominion and right to the free enjoyment of his own property to use it as he pleases, and that his neighbor enjoys the same rights and privileges with his property; consequently it is the duty of each to so use his own as not to injure that of the other. This duty, however, must be taken with some qualifications, for as it has been held: 'In the nature of things and of society, it is not reasonable that every annoyance should constitute an injury such as the law will remedy or prevent. One may therefore make a reasonable use of his right, though it may create some annoyance or inconvenience to his neighbor. But even in such case, an annoyance lawful in itself may become unlawful when done maliciously. * * * According to our settled notions and habits, there are convenient places, one for the home, one for the factory, but, as often happens, the two must be so near each other as to cause some inconvenience. The law cannot take notice of such inconvenience, if slight or reasonable, all things considered, but applies the common sense doctrine that the parties must give and take, live and let live; for here extreme rights are not enforceable rights, at any rate not by injunction.' Powell v. B. G. Furniture Co. (1891), 34 W.Va. 804, 809, 12 S.E. 1085, 1087,...