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ARTICLE ID 8410

Public nuisance - Odors emanating from hog farm are alleged by plaintiffs to cause a nuisance and affect ability to enjoy their property - Trespass.

Nicollet County, Minnesota

The plaintiffs resided in a home approximately one-half mile from the defendant’s pig farm. The plaintiff’s alleged that the odors emanating from the defendant’s facility were so severe that it prevented them from using and enjoying their property. The defendants maintained that the odor was similar to the odor from any other livestock facility in the area. The defendants further contended that the hog raising facility was within ________ feet of their home.

Forst Farms, Inc. is a family owned farm corporation owned by the individual defendants and their son. In part to diversify their farming operation, and in part to ensure a constant cash flow, the Forsts constructed a finishing barn to raise pigs from approximately 45 pounds until slaughter weight for the defendant Wakefield Pork, Inc. Wakefield Pork, Inc. is the owner of a farrowing operation, which produces pigs that are raised by various growers situated throughout southern Minnesota.

The Forst facility housed approximately ________ feeder pigs. Waste generated by the pigs is removed from the barn and deposited in a two-stage lagoon system.

The plaintiffs contended that the odor emanating from the Forst facility was at times so severe that it prevented them from using their farm site. The plaintiffs continually contacted the Minnesota Pollution Control Agency from approximately July ________ through ________. In response, a representative of the Minnesota Pollution Control Agency tested for hydrogen sulfide and determined that the defendant Forst facility was not violating hydrogen sulfide standards established by the state of Minnesota.

The plaintiffs brought suit against the defendants Forst and codefendant Wakefield Pork alleging nuisance, negligence and trespass. The trespass action was dismissed. The jury was presented with a special verdict and instructions on the nuisance and negligence claims.

The defendants contended that the odor emanating from the Forst facility was neither unusual nor significantly different than animal odors emanating from other livestock facilities in the immediate area, which is primarily rural and would not by a reasonable person affect the full use and enjoyment of the plaintiffs’ property.

Testimony from a MPCA representative at trial suggested that the odor emanating from the Forst facility was not significantly different than odor emanating from other facilities of the same size and, in fact, often times was significantly less. Neighbors living in the immediate vicinity of the Forst facility testified that odor emanating from the Forst facility did not disrupt their lives and that the odor from the Forst facility, detected when they were at or near the plaintiff’s residence, was not stronger than at other locations in the area and was not annoying.

The plaintiffs sold their home approximately one year prior to the trial and the purchaser, together with the purchaser’s live- live-in girlfriend, testified at trial on behalf of the defendants. The girlfriend testified that the odor on a few occasions was strong enough to prevent her from completing her outside activities, but for the most part, she indicated that she was able to use the site for such activities (gardening, sun bathing and the like). She further stated that she thought the site was beautiful and that had she remained in a relationship with the owner, she would have enjoyed living at the site.

Finally, an older farmer testified that during the period of time the plaintiffs were complaining about the smell, he approached them to purchase their residence as a wedding present for his son. He further testified that the odor emanating from the Forst facility was not of concern to him or his son.

The trial in this matter lasted eight days. The jury deliberated for approximately six hours before returning its unanimous verdict in favor of the defendant. The plaintiffs filed an appeal which was dismissed by agreement between the parties.

In Minnesota, there is an issue as to whether a nuisance, in order to be actionable, must be harmful. Since case law on the issue was not clear, although there was a suggestion that the element of harmful was not necessary to prove a nuisance action, a special verdict form was drafted. The special verdict form was to have the jury determine if the defendants created a nuisance before considering whether the nuisance was harmful. Only after making such determination, were they required to then determine if there were sufficient facts to characterize the nuisance as harmful. The jury did not consider the harmful issue, finding that the defendants did not create a nuisance.

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