Greetings!
Thank for visiting us and posing this very interesting question.
Let’s begin with my basic disclaimer; presuming that private means of
settling this dispute have not yielded the fruit that you would like,
you are entering into a complex area of property law that requires the
particular skills and knowledge of a lawyer trained and experienced in
the unique actions available in the Missouri law.
I would like to summarize my suggestions as follows:
1. Make sure that you have all the information available concerning
your neighbor’s application to Missouri DNR and assess whether it is
truthful, complies with the requirements, and you have taken the
opportunity to provide comments to the regulatory process.
2. The legal action which may restrain the neighbors activities is
one for “Nuisance”. I am including a Missouri supreme court case on
point.
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ADMINISTRATIVE PROCEEDINGS:
My colleague, Darrel-ga, has suggested, and validly so, that one
should look very carefully into the Department of Natural Resources
permitting process. May I suggest, if not done already, that you
obtain a copy of the neighbors permit and all attendant exhibits and
documentation given to the DNR. http://www.dnr.state.mo.us/homednr.htm
Further, I would suggest that you obtain a copy of all internal DNR
documents supporting/opposing the grant of the permit which apparently
has been given to your neighbor. Finally, the permit itself should be
investigated to determine whether there are any conditions precedent
that must have been complied with prior to the construction of the
facility.
This information is available through the Missouri freedom of
information act.
Is there an opportunity for public or private comment? If there is,
certainly you would want to avail yourself of this opportunity, for
purposes of establishing a record if for no other reason.
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ACTION FOR NUISANCE
The remedy in the law, aside from the administrative remedies that may
be available by scrutinizing the DNR permitting process, is that of an
action for NUISANCE.
A NUISANCE is that activity which arises from unreasonable,
unwarranted or unlawful use by a person of his own property, working
obstruction or or injury to right of another, or to the public, and
producing such material annoyance, inconvenience and discomfort that
law will presume resulting damage. Black’s Law Dictionary under
“Nuisance.”
That which annoys and disturbs one in possession of his property,
rendering its ordinary use or occupation physically uncomfortable to
him, e.g. odors.
More particularly, a private nuisance, includes any wrongful act which
destroys or deteriorates the property of an individual or of a few
persons or interferes with their lawful use of enjoyment. This is
distinguished from a public nuisance which is one which affects an
indefinite number of persons.
Here is a brief summary of nuisance actions:
http://www.prairielaw.com/articles/article.asp?channelId=16&articleId=1126
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THE “BOWER” CASE FOR NUISANCE
There is an interesting Missouri Supreme Court case that is on point
with your facts:
Glenn and Doris Bower, Frank and Minnie Bower, Plaintiff/Respondents,
versus Hog Builders, Inc., Defendant/Appellant. This case can be found
at 461 S.W.2d 784 (Supreme Court of Missouri, December 14, 1970).
In the Bower case, a hog breeder owned land which was used for the
raising and the sale of hogs. The hog breeder's neighbors brought an
action against it alleging that large amounts of waste discharged onto
their properties from the hog breeder's land, constituting a nuisance.
The court ruled that that one could not make such an unreasonable,
unusual, or unnatural use of his property that it substantially
impaired the right of another to peacefully enjoy his property and
that what was a reasonable use and whether a particular use was a
nuisance could not be determined by any fixed general rules, but
depended upon the facts of each particular case such as location,
character of the neighborhood, and the nature of the use.
The neighbors won, both at trial and in the Missouri Supreme Court.
The Bower case establishes that it is the law that one may not make
such an unreasonable, unusual or unnatural use of his property that it
substantially impairs the right of another to peacefully enjoy his
property. What is a reasonable use and whether a particular use is a
nuisance cannot be determined by any fixed general rules, but depends
upon the facts of each particular case, such as location, character of
the neighborhood, nature of the use, extent and frequency of the
injury, the effect upon the enjoyment of life, health, and property,
and the like. The use of property in one locality and under some
circumstances may be lawful and reasonable, which under other
circumstances would be unlawful, unreasonable, and a nuisance.
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KEEPING (LEGAL) COSTS LOW
The more information that you can compile relating to your neighbor’s
activities, the easier, and more inexpensive, will be your attorney’s
job. For example, your attorney will require a copy of the deed of
your property and your neighbors. All of the MoDNR application and
permits, along with copies of any internal MoDNR documents relating to
the processing of the application. Any other regulatory information –
copies of local health department tests (e.g. percolation tests). Any
detailed maps that would show the proximity of your property to the
neighbors and in particular the site location of the pit, would be
very worthwhile. Finally, any thoughts that you have, as well as other
neighbors, as to the scope the nuisance – how smelly would it be,
where are the prevailing winds, are there any natural springs, creeks
or rivers. How is the topography? Anything that comes to mind.
Cataloguing all of your concerns will help the attorney focus his
request for relief.
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AND IF YOU NEED ANYTHING ELSE –
To keep from writing a 3 volume set, let me leave this with you.
I AM SURE THAT YOU WILL HAVE FURTHER QUESTIONS!! Ask away – by
clicking on the CLARIFICATION Button – and I will get back to you as
soon as I can.
You have volunteered a big price (thank you : - ) and you deserve a
comprehensive answer. I look forward to providing you with the
fill-ins to any particular questions that you might have.
Best,
Weisstho-ga
Search Strategy:
Black’s Law Dictionary
Case resources from my law office
://www.google.com/search?sourceid=navclient&q=missouri+dnr
://www.google.com/search?sourceid=navclient&q=nuisance+law
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ENTIRE TEXT OF THE BOWER CASE
Plaintiffs owned farms to the south of and adjoining defendant's
139-acre farm in the northern portion of Clinton County, Missouri,
which it used for breeding, raising and the sale of hogs. All four
plaintiffs joined in suing defendant because of a nuisance it was
alleged to have created by causing noxious odors, depositing large
amounts of waste in open lagoons and causing them to discharge onto
plaintiffs' properties, placing hog pens and lagoons on its land so
that surface waters were accumulated and after contamination
unreasonably discharged the waters onto plaintiffs' lands. All four
plaintiffs joined in Count I for injunction, but that count was denied
by the court and is not here in issue. Glenn and Doris Bower sued on
Count II for actual and punitive damages, which resulted in a jury
verdict for them of $34,200 actual and $60,000 punitive damages. Under
Count III, Frank and Minnie Bower were awarded $12,000 actual and
$30,000 punitive damages by the jury.
Ten points are made by appellant, the first of which attacks the
submissibility of plaintiffs' case; four points relate to claimed
erroneous giving of instructions; one presents as error in permitting
questions on voir dire examination relating to other (affiliated to
plaintiff) corporations; one, with four subpoints, to the admission
and exclusion of evidence; one, with two subpoints, relates to final
argument; one claims error of the court in misstating the law in the
jury's presence; and the final point is that "The verdict is against
the weight of the evidence and is so excessive, both for actual and
punitive damages, that it had to result from bias and prejudice of the
jury."
The two farms of the plaintiffs are approximately 13 miles east of St.
Joseph, Missouri, and are located on the south side of an east-west
graveled county road. The farm of Glenn and Doris, adjoining that of
Glenn's father, was bought by Glenn about 20 years ago, and the
buildings were thereafter improved by him. Prior to the time defendant
came there, the air and streams were pure and there was no bad odor in
the air. Glenn then had no trouble with rats, and there was just the
normal amount of country flies. He had a good clear water pond in
which his nephews could swim and fish, and from which the livestock
could drink. He had another older pond which also had fish in it. The
house was equipped with a patio where Glenn and Doris entertained
their friends many times. They had no trouble drinking their water, it
being good soft water. Glenn's occupation most of his married life was
that of a house building contractor in the St. Joseph area and around
his home.
Defendant established its hog breeding operation in the first part of
1965, the first hog houses being located on the northern part of its
property. Glenn's farm and that of defendant were situated on gentle
rolling farm country. Glenn was on the downhill slope from the hog
farm which had a (northwest-southeast) ridge on it, from which the
water drained in all directions, and the fall of the land to the
southwest was downhill across Glenn's farm and also that of his father
to his west. A "cesspool" was built on the south slope of the hog farm
before a second group of hog houses was built. Glenn observed the
lagoon overflowing and running down the stream. At that time Glenn
started conferring with the health department, the water pollution
people and the manager of the hog farm. Thereafter, four other
buildings were constructed on the hog farm, and defendant started
raising hogs in them and filling the lagoon. According to Glenn, who
had been in the buildings, they were near 30 feet wide and 130 feet
long. There was a cement floor and a pit in the middle with a slat
floor over it. At least 40 pens were placed on each side of the pit.
The sides of the buildings had cement blocks for 3 or 4 feet, above
which was car siding. Flap doors were provided which could be raised
to let the odor out. The roofs were metal with four ventilators on
each. The trough in the middle of the buildings, containing "manure
and stink and waste feed and urine and water," was near 8 feet wide
and 5 feet deep. The hogs were fed by means of an overhead elevator
which spilled feed out on the floor, and there were drinking cups on
the inside of the pens. The holding tanks were connected to a ground
pipe which dumped into the lagoon.
The lagoon north of Glenn's home was constructed after he saw the west
(first) lagoon (which did not drain onto his property) overflowing in
1965 from the overflow pipe. Glenn reported this overflow to the State
Health Department and to Mr. Jack Smith of the Water Pollution Board.
Mr. Smith observed a small overflow to the northeast from a lagoon,
and suggested to defendant's manager that it be stopped. As the weeks
went along the second lagoon with manure, stink, waste and rotten feed
flushed from the pits of four buildings, "and as days went by it
filled up faster than you could imagine, and the day came when over
the top it went." The lagoon was a rectangular shape about 120 feet by
160 feet, and was about 4 feet deep. It filled in the latter part of
1966 and went over the top of the dam early in 1967. Glenn complained,
and the lagoon was raised a little. In January, 1968, the plug blew
out of the drain pipe and flooded Glenn's pond after which defendant
built up the side of the lagoon and covered up the pipe. After the
lagoon filled up in the summer of 1967, the black manure came over the
top of the dam very often, and on following the flow Glenn found it
ran in a southwesterly direction down a water ditch and on his
property about a half mile.
Early in 1968, defendant constructed another lagoon above the second
one, which filled to rim capacity, then ran over the top of the dam
and continually seeped from its west side, taking the same course as
the lagoon below it. In January, 1969, defendant constructed a third
lagoon in the same (east) area. Glenn saw people on the hog farm using
a power-driven pump and hose pumping out of the lower lagoon over the
dam, after which the "crud" followed the course of the natural
drainage down the north ditch of the road to Glenn's driveway.
Glenn identified Plaintiffs' Exhibit 5, a photograph looking north
across the road from his place, showing a water ditch filled with
erosion. Other exhibits show the ditch and the south end of the tubing
draining from the hog farm, and although in black and white show
accumulated, flowing sludge, and according to Glenn they show manure
and debris. On the north side of defendant's property is its water
supply pond which has a diversion terrace to keep the holding pens
from draining therein. No such diversion terraces were constructed on
the three southeast lagoons to keep the runoff from coming onto
Glenn's property.
As to the odor, Glenn testified "It is the most stinking, rotten,
putrid, nauseating odor I have ever smelled bar none." It is there
continually. His home was not air conditioned, and the odor was in the
bedclothes, closets, drawers, car, barn and the shop. The odor and
pollution of the vicinity upset the high school life of Glenn's
daughter, Donna Denise. He noticed a difference in his drinking water,
and he and his father have been overrun with rats since the hogs came.
The number of flies seemed greater, and Glenn saw a lot of the big,
green blow flies. Glenn's friends, as they would go by the road by the
edge of the lagoons, would salute him by holding their noses. On
January 18, 1968, he had entertained friends, one couple (the Kerns)
departing about 11:00 p.m. They returned shortly and Glenn accompanied
them down his driveway. He there saw the "filthiest, stinkenest,
overflow out of a septic tank" he had ever witnessed. He followed it
up his lane for 200 feet, and up the north side of the road, stepped
on the hog farm property to the outlet of the septic tank. Glenn
identified a color photograph showing the outlet, which he testified
was a piece of fiber pipe 6 inches in diameter reduced to a 4 inch 90
degree (vertical) L with a piece of burlap pushed in the end of the L.
The overflow pipe was located near the east end of the dam. When he
went to the dam he saw a piece of plywood lying on the side of it over
the flow of black liquid. The plywood was staked down at its top, and
on its being raised Glenn saw the pipe plugs lying there with the
4-inch pipe adaptor. Other color photographs were taken by Kerns of
that scene, and others were taken the next morning after defendant had
shut off the flow. Glenn called his neighbors, James White and John
Pipes, the conservation agent, Mr. Rice, and the sheriff's department.
As a result of the flow, in about eight hours Glenn's pond was filled
and the flow went on into Jordan Creek.
In January, 1967, Glenn took pictures of his west pond showing dead
fish. In July, 1968, there were catfish killed in the other pond in
front of Glenn's house. Three photographs show a decomposed hog which
was lying on the hog farm right across from Glenn's property in the
summer of 1967. The waste also killed vegetation on the north side of
the road. In the last several months (before trial) the liquid inside
the cesspools was almost blood red. Glenn's cattle, when he had them
at home, would not drink from his pond or his father's pond. The ditch
on the north side of the road was 10 feet wide at its bottom and 3 to
4 feet deep prior to the operation of the hog farm, and thereafter it
became level with the road 95% of the distance, except at the tubing
in front of Glenn's driveway.
Glenn gave his opinion that his 58-acre farm had a value prior to the
time the hog farm operation started and as of December 31, 1964, of
$72,000. At the time of trial, his opinion was that his farm had a
value of $20,000, a depreciation of "at least $52,000." Prior to the
hog farm operation it was Glenn's opinion that his father's farm had a
value of $57,000, and afterward the value was $16,000.
There was a well on Glenn's farm, and when the hog farm started
operating they got an odor in the water. He then had a test made of
the water by Dr. Baird, the health officer in the City of St. Joseph.
The substance of Dr. Baird's report was "that if this water was in a
swimming pool in St. Joseph, they couldn't even go wading in it."
Thereafter, Glenn's wife began boiling all the water used in the home.
Doris Bower's version of their situation was this: Before defendant
acquired the property across the road from the Bowers the air, water
and ponds were clear. Defendant's property had been in the past used
as a wheat field and for cattle grazing. Since defendant came, pond
fishing, stream wading, and mushroom hunting ceased. Doris took the
picture of the dead hog which was just across from them outside
defendant's fence and in the ditch line. She also took pictures of the
dead fish in their pond in June, 1967, when they started dying. On
June 23, 1967, a day when the odor was unbearable, Doris and her
daughter Denise were both sick at their stomachs. (On
cross-examination Doris did not relate the sickness to the hog farm
operation.) Up to July 13, 1967, there was only one lagoon serving
four buildings, and on that day defendant started bulldozing another
lagoon. On January 19, 1968, Doris again observed foam in the ditch
along their lane. In March, 1968, the water in the pond was black, as
shown by a color photograph. After a period of time without rain,
there came one on July 16, 1968, and the water came over the road, the
ditch being full of eroded dirt, after which she noticed the dead fish
in the pond. The same thing occurred on July 23, after a rain. On
July 25, 1968, the ditches on both sides of the road were full of
filth and the odor was unbearable. In October, 1968, there was a
mudhole from drainage off the hog farm onto the road in front of the
Bower's house and in their driveway. On December 20, 1968, defendant
started bulldozing a third lagoon at which time the other two were
full and overflowing. On January 16, 1969, it became warm, the snow
thawed, and water was running off the lagoons. Doris looked at the
lagoon and saw red water running, which was the same color as in the
mud hole in the road. She took a sample of the water in the road. A
slide color photograph shows the pump operating out of the lower
lagoon, which Glenn referred to in his testimony. On cross-examination
Doris testified that she boiled the water used in the home for about a
year, and then ceased. The odor from the farm was not constant --
there were days when they did not notice it.
Denise Bower testified that prior to the hog farm operation she had
school activities with schoolmates at the Bower farm. At one time
there were forty girls present at a wiener roast in the front pasture.
After the hog farm operation started it was impossible to have them
again because of the odor, which definitely hurt Denise's social life
when she wanted to have friends in her home.
Mrs. Frank (Minnie) Bower and her husband lived on their place to the
west of Glenn and Doris since 1917. Prior to the time defendant
started its operations the air was pure and enjoyable, and the water
was clear and pure in the wells and the creek (from which Frank drank
while in the fields working). Since the hog farm began operation the
odor has been real bad at times, the like of which she had never
smelled before. She has seen the black crud, sludge pollution coming
off the hills and out of the open cesspools, running across the road,
over onto Glenn's property, then onto their own property.
Frank Bower came to the area when he was sixteen years of age. Back
through the years, before defendant put in its hog farm across the
road, the rural place was "the garden spot of the world" with good
water and the creeks clear and nice. He was never bothered with rats
until the last three or four years. The rats got into his corn field
and ate corn off the cobs causing him to sort out the cobs before
selling the corn. The odor was bad, "it couldn't be any worse"; it
made his eyes smart and caused him to get off his tractor and vomit.
Phillip Rice was the regional supervisor for the Department of
Conservation, a part of his duties being pollution investigator in 17
counties in northwest Missouri. He was in the vicinity of defendant's
farm in July, 1967, in response to a telephone call from Doris Bower
in regard to fish kills. Officer Ticknor accompanied Rice and waded up
Jordan Creek about 2 miles from the hog farm, there finding several
dead fish, bullheads, crayfish and green sunfish, which had been
killed somehow in the past 24 to 36 hours. The stream had a cast in it
which would indicate a high organic content in the water, and it had a
definite odor about it. The content became greater as they went
upstream, and west of Frank Bower's residence it was more intense and
had the odor of hog manure. Rice was at the place again on January 18,
1968 at 11:05 p.m. He then saw black effluent coming out of a fiber
pipe under a piece of plywood from the first lagoon. There were no
criminal charges filed against defendant as a result of Rice's
investigation.
Conservation Agent Paul Ticknor was at the Glenn Bower home on June
20, 1967, and then observed the dead fish in the west pond --
bullheads, channel catfish, bass and green sunfish. There were
"several bullheads piping at the surface in the pond," and organic
material floating on the surface. On July 12, 1967, with Rice, he
waded up Jordan Creek from Highway 36. He observed dead fish and a
prevalent odor which became worse as he agitated the bottom of the
stream, which was murky. On January 18, 1968, Ticknor followed the
effluent and foam from the lagoon to Glenn's pond.
Deputy Sheriff Chalmer Peters was present when the plywood was lifted
on the lagoon showing a pipe with black sludge pouring out of it, then
running down the hill to Glenn Bower's property. He saw a piece of
frozen burlap and an elbow lying by the pipe.
Billy G. Kerns and his wife discovered foam in the road as they left
the Glenn Bower's residence. The car heater picked up the odor "and
you couldn't hardly stand it." Billy got out of his car and saw where
the sludge was coming from and informed Glenn.
The Kerns live to the northwest of the Bowers, and when the wind was
from the northwest coming through a kind of valley they had the same
problem as the Bowers. The odor was not the same as produced in a
general agricultural area. A concentrated hog operation has a
different odor than any other type of hog operation. Billy held up the
plyboard at the lagoon and got the water pretty well all over him. His
wife would not let him in the house later until he took off all his
clothes, and he could smell the odor on his hands a week later.
James L. White lived "a strong quarter of a mile southeast" of
defendant's hog farm. Since it was established he had noticed a
difference in the quality and nature of the odors prevalent in the
neighborhood. He compared the odors to that of maggot-filled bones not
under refrigeration when he worked for Swift and Company, an
ammonia-like gas. The odor has been in his own home when the wind was
from the north coming down from the hog farm ridge. White never before
had rats, but had them after the hog farm started. He had seen
discharge from the lagoons coming down across the road. He saw the
pumps at the lagoons and imagined that they were pumping from one to
the other.
Mrs. Doris Kerns testified that before defendant came she never
noticed "this overwhelming vile, suffocating smell, coming from the
area of the biggest hog raisers in the vicinity." Since the hog farm
operation began, its odor was in her home, there being days when it
was worse, according to the wind and the humidity.
Dr. Ron Miner was an Assistant Professor of Agricultural Engineering
at Iowa State University, Ames, Iowa. He had done pollution research,
sewage treatment plant design, and stream investigations for the
Department of Health of Kansas. He had written some papers on cattle
feed lot runoff, and had done (and was currently doing) work on odor
research at Iowa State, and also some work on management and treatment
of swine waste. Without much success he had been able to isolate and
duplicate certain chemical gases which were comparable to (but not
exactly the same as) swine odors in a hog raising building similar in
design to those of defendant. Dr. Miner explained the difference
between "anaerobic decomposition" and "aerobic decomposition": the
first is decomposition that takes place without oxygen being present,
such as in septic tanks and cesspools; the latter takes place in the
presence of oxygen, as in a trickling filter or activated sludge-type
sewage treatment. The first has an end product of hydrogen sulphide,
ammonia and methylene, "or the foul-smelling ones," and is a result of
bacterial action. The anaerobic decomposition odor situation has the
definite characteristics of clinging to fabrics, clothing, hair and so
on. This was demonstrated by Dr. Miner in the exhibition of a sweater
he hung in his laboratory pen for two days, then sealed and brought to
the trial, and also another sweater which he had hung in defendant's
building for 1 1/2 hours. As the temperature increases the
decomposition accelerates and allows more gases to escape into the
air. An anaerobic lagoon is not designed or intended to be a final
waste treatment device -- it does not get rid of anything and does not
produce an effluent acceptable for discharge, which discharge is some
five to ten times the concentration of untreated domestic or municipal
sewage. "Lagoons are principally storage devices until a more
convenient time or a more convenient method for disposal is achieved,"
as prior to spreading the manure on the ground.
Dr. Miner made an investigation of defendant's operation on March 11,
1969, the day before trial started. In the one building he entered he
did not find as strong an odor as he expected, and in attempting to
get a liquid manure sample out of the storage pit he found the sample
was essentially fresh manure without significant decomposition --
indicating the tank had been recently filled with relatively clear
water and had only a very limited manure accumulation in it.
On cross-examination Dr. Miner testified that defendant's buildings
were of the popular type, the prime consideration being how to
mechanize feeding, for which they do nicely. He would not say
defendant's lagoons had a good design, except that the slopes were
well done and the dikes nicely maintained. He explained the design in
this manner: where additional cells for storage capacity are added in
a series, it means that the initial cell is overloaded which will
result in more offensive odors; and there was no provision for proper
disposal of effluent. The lagoon system is generally one stage of
manure disposal -- "It is not the only thing an operator has to do for
manure disposal" -- as by spreading it on the land when the ground is
dry and unfrozen (thus preventing it being carried off by runoff
water).
On redirect examination it was developed by Dr. Miner that a seriously
overloaded anaerobic lagoon has more offensive odors more often, but
the elimination of odors by proper design has not yet come about. The
(present) designs assume that something will be done with the effluent
rather than the discharge into a stream -- either there will be no
overflow, which is most unlikely in the midwest, or some alternate
disposal method will be used.
Dr. Ted Willrich was a Professor of Agricultural Engineering and
Extension Agricultural Engineering at Iowa State University. His
primary responsibility was in off-campus education in water supply,
treatment and quality, in sewage disposal, animal waste treatment,
pollution control, drainage, and erosion control in the area of water
and waste. He visited defendant's hog farm in May, 1968, there
observing the buildings, the partially slotted floors for manure
collection, and the plugs which could be pulled to permit gutters to
overflow and enter the upper-west cell. The uppercell lagoon contained
brownish water, gas bubbles on the surface which indicated biological
decomposition, and there was a scum and a definite asceptic odor. Rat
rail maggots (not a nuisance organism) were observed also indicating
anaerobic conditions. A deodorant or masking chemical odor was also
detected, making it difficult to detect the true septic odor of the
lagoon. The masking odor was unpleasant and apparently clung to their
clothing. In another lagoon he observed black water, which indicated a
better situation than the brown color with respect to effective
anaerobic decomposition. Purple pigmented bacteria on the surface of
the water cause it to have a reddish color. These bacteria absorb some
of the hydrogen sulphide (a rotten egg odor). Dr. Willrich observed
the lagoons later on March 11, at which time the south lagoon was
about 4 inches from overtopping; and in the third lagoon the water
level had increased indicating pumpage from the upper-second lagoon to
prevent overflow in the lower, fourth lagoon. Anaerobic lagooning is
not considered to be a final sewage treatment device, but is primary.
The waste from an average weight hog is equivalent to the waste from
three people. The number of hogs was given Dr. Willrich by defendant's
personnel, and using a figure of 3,860 hogs he calculated the total
volume of diluted waste per day at 23,000 gallons.
On cross-examination Dr. Willrich testified that with the exception of
his sanitary survey of the open dump, the apparent long-time holding
of dead animals, the disposal of pesticide containers in natural water
courses, defendant's "general housekeeping is good and above average."
The over-all conditions of its lagoons border on a situation where
they were very subject to malfunctioning and causing elevated odor
conditions.
E. R. Ritchey was at the hog farm taking photographs on January 17,
1969. He observed that pumping was going on at the second lagoon out
on the surface of the ground thence running down on the road and into
the ditch.
The jury was permitted, on the request of defendant, to go to
defendant's farm and surrounding areas and view the same.
In general, defendant's evidence was that it conducted a very good hog
breeding farm operation, with adequate lagoons which did not overflow.
Further testimony was that the values of plaintiffs' farms were not
affected by the hog farm operation, and it did not adversely affect
the living conditions of other persons residing in the rural area.
Defendant's manager testified that the construction of the lagoons was
in accordance with the standards of the Agricultural Engineers'
Digest, which it introduced as a photocopy as Defendant's Exhibits E-1
and F-1. The photocopy omits the reverse of the document which was
introduced by plaintiffs as their Exhibit 47. The pertinent parts of
the latter exhibit are:
"When a lagoon is full, the addition of new wastes will cause some
liquid to overflow. In the typical livestock lagoon, the overflow is
not completely decomposed and may be a health hazard.
"To avoid pollution, all overflow from an anaerobic lagoon should go
into an aerobic lagoon or other waste treatment system for further
decomposition. Check with State Health officials concerning overflow
from aerobic lagoons and anaerobic lagoons.
* * *
"* * * Sludge accumulation will have to be removed when it causes the
lagoon to be inefficient or to malfunction. * *."
Defendant contends that the court erred in failing to direct a verdict
for it because under the facts and circumstances there was no
nuisance. The above recitation of facts is therefore set forth in the
light most favorable to plaintiffs. Burns v. Maxwell, Mo., 418 S.W.2d
138. Under Point I(A) defendant says that the case being a suit in
equity for injunction it is here for review and adjudication by this
court on the law and competent evidence. The review is not that of an
equity case because the trial court denied the prayer for injunctive
relief. The review is that of an action at law where the submission to
the jury and resulting judgment will not be disturbed if it is
supported by substantial and competent evidence, and the reviewing
court will not weigh the evidence. Higgins v. Terminal R.R. Ass'n of
St. Louis, 362 Mo. 264, 241 S.W.2d 380; Reames v. St. Louis-San
Francisco Ry. Co., Mo. App., 359 S.W.2d 230.
By Point I(B), defendant expands its argument that there was no
nuisance because it "was making a reasonable use of its property." It
cites and first relies on 66 C.J.S. Nuisances § 8, pp. 744, 741. These
pages refer to a nuisance as being the reasonableness or
unreasonableness of conducting a business or making use of the
property complained of in a particular locality and in the manner and
circumstances of the case, and if reasonable no actionable nuisance is
created; and (p. 741) to the effect that an owner may use his property
as he desires recognizing that same right in another, and
"Nevertheless, one may make a reasonable use of his property, even
though it may create some annoyance or inconvenience, and doubts
should be resolved against restraint in the lawful use of property."
But in the same section of C.J.S. (p. 739) it is said, "As a general
rule, every unlawful, unwarrantable, or unreasonable use by a person
of his own property in such a way as to cause material annoyance,
discomfort, or hurt to other persons or the public generally, and
every enjoyment by one of his own property, which violates the rights
of another in an essential degree, constitute a nuisance against which
relief may be obtained." At § 23(d), p. 778 of 66 C.J.S., it is said
that "it is well established that noxious smells or odors may
constitute a nuisance, although they are not unwholesome or injurious
to the health but merely offensive and unpleasant." Section 33, p. 787
of 66 C.J.S. Nuisances, says that the keeping of pigs, being lawful,
is not a nuisance in itself, but such does not justify conducting such
business so as to create a nuisance, which may be so by reason of the
manner in which they are kept or the locality or both. It is a jury
question usually whether a particular act or use of property, which is
not in itself a nuisance, is a nuisance in fact. 66 C.J.S. Nuisances §
153, p. 960; Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485,
489[4-6]. See also 4 Am.Jur.2d Animals, § 65, p. 313.
For its proposition that its use made of its property was reasonable
defendant cites Schott v. Appleton Brewery Co., Mo. App., 205 S.W.2d
917, and Fuchs v. Curran Carbonizing and Engineering Co., Mo. App.,
279 S.W.2d 211. In the Schott case the action was tried to the court,
and the Court of Appeals, viewing the evidence as a whole, found that
the trial court's finding and judgment against plaintiffs was not
against the weight of the evidence. It was held that there was no
doubt that the defendant brewery company had adopted every means
within its power to eliminate the escape of soot, smoke, cinders and
fly ash through its smoke stack and that while the plaintiffs had
suffered some inconvenience and annoyance from the fly ash, others had
no difficulty, and that the amount of fly ash was sufficient to create
a nuisance was very much in dispute. It was stated in the Schott case
(205 S.W.2d l.c. 920) that "It is the law that one may not make such
an unreasonable, unusual or unnatural use of his property that it
substantially impairs the right of another to peacefully enjoy his
property. * * * What is a reasonable use and whether a particular use
is a nuisance cannot be determined by any fixed general rules, but
depends upon the facts of each particular case, such as location,
character of the neighborhood, nature of the use, extent and frequency
of the injury, the effect upon the enjoyment of life, health, and
property, and the like. The use of property in one locality and under
some circumstances may be lawful and reasonable, which under other
circumstances would be unlawful, unreasonable, and a nuisance."
In the Fuchs case, similarly to the Schott case, in addition to the
statement about the relative rights of the parties, it was said that
these elements should have been considered in the determination of a
nuisance by appropriate instructions to the jury (279 S.W.2d at
218[7,8]): "* * * [The] locality and the character of the
surroundings, the nature, extent and frequency of the harm involved,
the nature, utility and social value of the use or enjoyment invaded,
the effect upon the enjoyment of plaintiff's life, health and business
and the health and convenience of the members of plaintiff's family.
(Citing cases and authority)." The defendant here seizes upon some of
the pronouncements on these standards in its effort to demonstrate
that its use of its hog farm premises was reasonable, and therefore
that no nuisance was proved. Defendant first says that the location
and character of the surroundings are in a country, an agricultural
area of rolling slopes and scrubby growth of timber; a not highly
productive Shelby type of soil suitable not for much cultivation but
for livestock raising area; and (as shown by aerial photographs) the
area is sparsely settled. It is said that the distance to the Bowers'
residences from defendant's lagoons can be computed from the aerial
photographs: Glenn and Doris Bower, over 800 feet, and Frank and
Minnie Bower, over 1,800 feet. It is argued further that Defendant's
Exhibits E-1 and F-1 (Agricultural Engineers' Digest) prescribe a
minimum lagoon location of 300 feet from any dwelling, and it should
be located so that southeast and southwest breezes of summer would
carry the odors away. Defendant contends that it loaded, designed and
constructed its lagoons in accordance with Engineers' Digest and that
the prevailing summertime winds were generally from the south. (The
southerly prevailing wind was indicated by defendant's witness, a
consultant meteorologist, Seth Kemble. Dr. Willrich, for plaintiffs,
used a summary of weather observations from Kansas City Municipal
Airport for the years 1951 to 1960, showing the time that wind blew
(indicating the quadrant for the jury) from defendant's lands toward
the Bowers: January 24.8%; February 28.6%; March 30.8%; April 27.4%;
May 27.8%; June 22.1%; July 27.1%; August 27.9%; September 27.1%;
October 23.3%; November 16.0%; and December 23.0%. Dr. Willrich also
gave the percentages for the same months that the wind blew from the
Bowers toward defendant's land.) There was no county zoning when
defendant started its operation in January, 1965, and the zoning code
later adopted on June 13, 1967 had a nonconforming use provision.
Citing Kays v. City of Versailles, 224 Mo.App. 178, 22 S.W.2d 182,
defendant correctly says that its business was lawful and not a
nuisance per se. It says there was no effect of its hog farm operation
on plaintiffs' health and welfare; and reiterating its position that
it had complied with Agricultural Engineers' Digest recommendations,
claims that plaintiffs overstated the facts regarding odors.
In arguing the sufficiency of the evidence defendant fails to set it
forth in the light most favorable to plaintiffs, and in accordance
with the jury's verdict and the judgment. As to odors, defendant says
that its neighbors (who were its witnesses) living to the north,
northwest and northeast of its farm had no complaints. Others living
to the east and southwest also had no complaints; its bookkeeper,
Joetta Fowler, who had been so employed since 1965, testified that
there had been very few days when she smelled obnoxious odors. It says
that according to defendant's evidence there had never been any
overflow from its lagoons, no pumping from the lagoons out onto the
ground, and that there was no evidence that it collected surface
waters in any fashion and then cast it upon plaintiffs' premises, and
there was no evidence of percolation of sewage into underground waters
as alleged. By argument 7 of Point I defendant even argues the
credibility of witnesses saying that plaintiffs were interested
parties in the action, but such a contention is without merit in this
court because the jury was the sole judge of the credibility of
witnesses and the weight and value of their testimony. Thayer v.
Sommer, Mo., 356 S.W.2d 72; Daniels v. Brown, Mo., 266 S.W.2d 680.
Defendant cites Casanover et al. v. Villanova Realty Co., Mo. App.,
209 S.W.2d 556, for the law regarding surface waters. That case
reiterates the "common enemy" doctrine as to discharge of surface
waters and the opinion states that there was no contention that
defendant collected surface water in any fashion. The case is not in
point because what is here present is the collection of hog manure and
urine and rotted feed, along with water, in lagoons, then permitting
the same to flow onto plaintiffs' properties, together with stench in
such a manner and in such quantity as to unreasonably interfere with
the enjoyment plaintiffs previously had in their properties.
The evidence of plaintiffs is that since 1965 defendant's lagoons have
overflowed and seeped on many occasions and the black manure and
liquid ran down into Glenn and Doris Bower's driveway and pond, thence
on into Jordan Creek and upon the property of Frank and Minnie Bower.
The fish were killed in both of Glenn's ponds. And, with a few
exceptions which were conceded by Glenn and Doris, the odor was
continuous and pervaded the entire living premises of both Bowers. The
flies and rats increased in number, and social lives of the Bowers and
the daughter, Denise, were disrupted by the odors. The neighbors
noticed the odors in the area, and saluted Glenn and Doris by holding
their noses. The well water of Glenn and Doris acquired an odor, and
although boiling of the water was done for only a year, the test
showed that it was not fit even for wading. This refutes defendant's
contention that there was no percolation of liquid from the lagoon, as
the jury could find. The miserable conditions of life of the Bowers as
above outlined, the accounts of which are replete in this record,
began in 1965 when the first lagoon was filled and continued up to the
trial date, March 12, 1969. Thus, plaintiffs have, for about four
years, been forced to live next to concentrated filth in defendant's
lagoons which has flowed onto their premises, and which has
practically continuously given off foul odors during that time.
In the case of Clark v. City of Springfield, Mo. App., 241 S.W.2d 100,
107, the court held that plaintiffs, who from defendants' sanitary and
storm sewer had deposits of raw, human excrement and filth with a
sickening odor attracting large numbers of flies, and had their well
contaminated, made a submissible case for damages for nuisance, all of
which "certainly was an interference with the peaceful enjoyment of
their premises." In Anno. 50 A.L.R. 1017, 1018, II, it is said, citing
Bielman v. Chicago, St. P. & K.C.R. Co., 50 Mo. App. 151, "A piggery,
pigpen, or keeping of pigs, is a private nuisance when so located that
it violates private rights and produces discomfort, damage, or injury
to a few or even only to one person." See also the cited case of
Smiths v. McConathy, 11 Mo. 517, where it was held error to instruct
to the effect that stenches actually produced disease in plaintiffs or
some of their family in a case where large quantities of slops and
offal from the hog-pens passed into a creek which ran over plaintiffs'
lands, from which noxious and offensive smells and stenches arose
which annoyed and disturbed plaintiffs in the possession and enjoyment
of their dwelling and farm. Compare also Flanigan v. City of
Springfield, Mo., 360 S.W.2d 700; and the temporary nuisance case of
Chappell v. City of Springfield, Mo., 388 S.W.2d 886. A comparable
situation was presented in Ruppel v. Ralston Purina Company, Mo., 423
S.W.2d 752, and see the later Annotation "Nuisance-Keeping Pigs" 2
A.L.R. 3rd 931. Defendant's contention that plaintiffs made no
submissible case is ruled against it.
There was no instruction on the subject of private nuisance in MAI at
the time this case was tried in March, 1969. Defendant says that
Instruction No. 3 did not comply with the rules of MAI in drafting
such an instruction. It says that Instruction No. 3 did not include
the ultimate issues under the law, saying that those issues and
considerations for the jury were set forth in Fuchs v. Curran
Carbonizing and Engineering Co., supra, loc. cit. 279 S.W.2d 218.
Instruction No. 3 is as follows:
"Your verdict must be for the plaintiffs, if you believe:
"First, Hog Builders, Inc. was located in close proximity to the
property owned and occupied by the plaintiffs; and
"Second, Hog Builders, Inc. caused and permitted obnoxious gasses and
odors to escape from their premises, and onto the premises of the
Plaintiffs, and
Hog Builders, Inc. deposited large amounts of waste materials in open
pools which in turn they caused and permitted to discharge onto
surrounding ground and over onto the property of the plaintiffs; and
Hog Builders, Inc. occupied open feed lots with hogs and caused the
surface of the feed lots to become contaminated with waste materials,
the surfaces of which were washed over onto the property of the
plaintiffs, and
Hog Builders, Inc. designed and built a portion of the hog farm and
their open pools of sewage in such a way as to cause the animal waste
and sewage to be stored on the downhill side toward the plaintiffs'
property so that any discharge would run over onto the property of the
plaintiffs, and
"Third, such use by Hog Builders, Inc. of their property and their
storage of sewage has substantially impaired the plaintiffs' use of
their property, and
"Fourth, such use by the Hog Builders, Inc. and their storage of
sewage was unreasonable, and
"Fifth, as a direct result thereof, the plaintiffs were damaged.
"Not in M.A.I. Pl. Prepared."
Since the case was tried MAI 22.06 on the subject of private nuisance
has been provided. Comparing Instruction No. 3 to the newly approved
MAI 22.06, it is seen that it contains the essential ultimate issues
of the description of the nuisance and its being in close proximity
to plaintiffs' property. All of the acts of defendant are submitted in
causing and permitting noxious gases and odors to escape, and waste
materials to be discharged onto plaintiffs' properties, substantially
impairing their uses of their properties, that defendant's use of its
property and the storage of sewage was unreasonable, and the direct
result of which was plaintiffs' damage. Instruction No. 3 embodies all
the ultimate elements of private nuisance as set forth in the
pre-existing Fuchs case, supra; the Clark case, supra; Whipple v.
McIntyre, 69 Mo.App. 397; and the Ruppel case, supra; and the further
cases cited in the Committee's Comment, page 201 et seq. of MAI.
Instruction No. 3 is brief, simple, free of evidentiary detail, and is
within the spirit and purpose of MAI. And while defendant is correct
that MAI 22.06 cannot be retroactively applied (its effective date was
September 1, 1969), its adoption does serve to demonstrate that
plaintiffs have followed MAI directions with respect to submitting
ultimate issues in instructions where none on the subject appears in
MAI. If the ultimate propositions existed at the time MAI 22.06 was
adopted they were in existence prior to that time, and it is clear
that plaintiffs have selected them so as not to be in the position of
misdirection of the jury. Instruction No. 3 is not erroneous for the
reasons claimed.
Further complaints are that Instruction No. 3 "was a positive
misdirection of law regarding defendant's use of its property and no
evidence was introduced to subject it to liability." It is argued that
the submission that defendant caused the surface of the feed lots to
be contaminated with waste washing onto plaintiffs' property was not
supported by evidence. Related to the claim is the apparent argument
that the instruction ignored defendant's lawful use of its property.
It is next said that the instruction was not a proper one under MAI;
that there was no evidence to support the term "close proximity"; that
plaintiffs, Glenn and Doris Bower and Frank and Minnie Bower, were not
similarly situated, that the same injuries were not applicable to
them, and that separate instructions should have been used detailing
the applicable injuries; that the instruction was prejudicial because
defendant was named as Hog Builders, Inc. (more than once for
identification); and that the instruction enlarged the area and the
property usage of the law of nuisance. The trouble with these
additional contentions is that they were not presented to the trial
court in the motion for new trial and hence are not preserved for
review. They will not be here considered for the first time. Civil
Rules 83.13(a), 79.03, V.A.M.R.; Chambers v. Kansas City, Mo., 446
S.W.2d 833, 840[8, 9].
Instruction No. 5 told the jury that if it found for plaintiffs it
must award them (as damages) such sum as it believed would fairly and
justly compensate them for any damages it believed they sustained and
were reasonably certain to sustain in the future as a direct result of
the use Hog Builders, Inc. was making of its property. Although
defendant now correctly states that under Stewart et al. v. City of
Marshfield, Mo. App., 431 S.W.2d 819, 822 et seq., the measure of
damages for permanent nuisance (which was plaintiffs' theory in
pleading, proof and submission) is the difference between the values
of the property before and after the nuisance was initiated and
maintained, defendant in no manner set forth that proposition in its
motion for new trial. In the after-trial motion, defendant merely says
that Instruction No. 5 is MAI 4.01, and it quotes Civil Rule 70.01,
saying that "[Plaintiffs]' pleadings and proof and Instruction 5 all
relate to both personal injuries and property damage." In no way does
the motion assert that Instruction 5 is the wrong measure of damages.
The point was not specifically presented to the trial court and was
therefore not preserved for review. Civil Rule 70.02, V.A.M.R.; Larson
v. Alton and Southern Railroad Company, Mo. App., 431 S.W.2d 687.
Plaintiffs prepared and the court gave Instruction No. 6:
"If you find the issues in favor of the plaintiffs, and if you believe
the conduct of defendant as submitted in Instruction No. 3 was
willful, wanton or malicious, then in addition to any damages to which
you find plaintiffs entitled under Instruction No. 5, you may award
plaintiffs an additional amount as punitive damages in such sum as you
believe will serve to punish defendant, and to deter it and others
from like conduct.
"M.A.I. 10.01
Plaintiffs Prepared."
Defendant says this instruction is in error for two reasons: "A.
Plaintiffs' pleadings fail to raise the issue of punitive damages,"
and "B. In any event, the evidence will not support the submission of
punitive damages for all of plaintiffs' alleged injuries under
Paragraph Second of Instruction 3."
In both counts for damages plaintiffs pleaded "The acts on the part of
the defendant have been careless and negligent and in addition thereto
have been intentional, purposeful and unlawful, * * *." At 22
Am.Jur.2d Damages, § 293, p. 388, the subject of pleading exemplary or
punitive damages is discussed. It is said: "While it is not always
necessary specifically to allege wantonness, malice, or ill will, it
must nevertheless appear from the complaint, either by direct averment
or from necessary inference, that the act occasioning the damages was
done maliciously or was the result of the wilful misconduct of the
defendant or of that reckless indifference to the rights of others
which is equivalent to an intentional violation of them, at least
where the wrongful act does not in itself imply malice." It is there
also said that the person demanding exemplary damages must make such
averments as will advise the defendant that he will have to meet a
demand of that kind at the trial. In O'Brien v. Snodgrass, 123 W.Va.
483, 16 S.E.2d 621, it was held that although exemplary damages need
not be pleaded eo nomine, the declaration must allege that the tort
pleaded was done maliciously, wantonly, wilfully, or with like animus.
The definition of legal malice has long been held not to be actual
malice, i.e., that the wrongful act was done in spite or ill will, but
that such act or acts be done intentionally without just cause or
excuse. Beggs v. Universal C.I.T. Credit Corporation, Mo., 409 S.W.2d
719; State ex rel. United Factories v. Hostetter, 344 Mo. 386, 126
S.W.2d 1173. The pleadings here that the wrongful acts complained of
were done intentionally and purposefully, coupled with the allegation
that such entitled plaintiffs to punitive damages, fairly informed
defendant of the nature of the demand. It was not necessary to plead
that the acts were done with malice or maliciously since those words
are equivalent in definition to wrongful acts intentionally done
without just cause or excuse. Greaves v. Kansas City Junior Orpheum
Co. et al., 229 Mo.App. 663, 80 S.W.2d 228, 234, 235[2-4], and the
there cited case of Mooney v. Kennett, 19 Mo. 551, had no words in the
pleadings that the arrest and the assault and battery (in Mooney) were
done maliciously or equivalently, intentionally, and thus are to be
distinguished.
As to the contention that there was no evidence to submit the issue of
punitive damages, the same must be overruled. The evidence reveals
that defendant, from the outset, designed and constructed its
buildings, pens, holding pool and lagoons in such manner that the
offal therefrom would flow downhill toward plaintiffs' properties.
From the time the first lagoon overflowed and Glenn Bower complained
to defendant, it had notice of the condition and the results thereof.
And although defendant says that it constructed its lagoons in
accordance with the Agricultural Engineers' Digest, yet that very
publication in the omitted portion above mentioned cautioned that when
a lagoon is full, addition of new wastes will cause overflow of not
completely decomposed liquids which may be a health hazard; that all
overflow should go into an aerobic lagoon or other waste treatment
system for further decomposition; that sludge accumulation will have
to be removed when it causes the lagoon to be inefficient. Both of
plaintiffs' experts in management and treatment of swine waste
testified that anaerobic lagoons are but a temporary treatment or
storage device. Something more has to be done as by spreading the
manure on the ground, or an aerobic lagoon should be utilized. The
evidence here is overwhelming from the plaintiffs and their witnesses
that not only was there sludge, manure and waste overflow from the
lagoons at the time of their inception, which overflow ran down onto
their lands and into Glenn's ponds polluting the same and Jordan Creek
and killing fish in both waters, but at practically all times there
were unbearable odors from the hog farm operation. There was an
increase in the number of flies and rats in the area. Defendant
contends that there was no evidence that its lagoons were overloaded,
but from the evidence the jury could find otherwise. Dr. Miner
testified that a seriously overloaded anaerobic lagoon has more
offensive odors more often; where additional cells for storage
capacity are added in a series it means that the initial cell is
overloaded which will result in more offensive odors. Dr. Willrich
observed that the south lagoon was about four inches from overtopping
in March. Glenn Bower and E. R. Ritchey observed pumping by defendant
out onto the ground. In the face of all of this evidence of overflow
and noxious odors which continued for more than four years, the record
is devoid of any proof that defendant took any effective steps to
alleviate the conditions. The conclusion which the jury was entitled
to draw is that defendant intentionally operated its hog farm and
lagoons in such a manner as to substantially interfere with
plaintiffs' peaceable enjoyment of their adjoining properties. The
giving of Instruction No. 6, permitting the assessment of punitive
damages, was supported by the evidence. See Ruppel v. Ralston Purina
Company, supra, 423 S.W.2d l.c. 756[4], 757[5].
[NOTE: I am omitting detail of a dispute as to a particular
instruction to the jury since I do not believe that it impacts upon
your case or facts]
The judgments are affirmed.
BARRETT, C., Concurs.
STOCKARD, C., Not sitting.
PER CURIAM:
The foregoing opinion by Pritchard, C., is adopted as the opinion of
the Court.
All of the Judges Concur. |
