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Category Archives: nuisance

Missouri hog farm flunks smell test, must pay $11 million to neighbors

I’ve heard that the vows of many vegetarians have been temporarily broken by the craving induced by the smell of bacon being cooked over a campfire.

But the process of creating bacon, ham and pork chops can create such awful odors that a Missouri jury awarded $11 million to those who could not escape the smell of hog farm effluent applied to neighboring fields.

Premium Standard Farms operates several hog farms in northern Missouri, where sparse population and proximity to feed grains hold costs down. These confinement feeding operations (CAFOs) produce lots of pork and staggering amounts of pungent effluent (urine and feces). PSF disposes of the effluent by tilling the fields around its hog houses and spraying the effluent into the air over the loosened soil. While the effluent is being sprayed (as much as 300 feet into the air) and as it soaks into the soil, it releases foul odors.

In one of many suits against PSF, sixty-one neighboring property owners sued PSF and its affilliates in 2002  for damages resulting from the bad smells wafting from PSF’s effluent application over an 11-year period ending in 2010. After much pretrial wrangling, with the plaintiffs being split up into groups based on distance from the hog farm, a four-week trial was held in Kansas City, and fifteen plaintiffs were awarded just over $11 million in compensatory damages.

The claims were made under the legal theory of temporary nuisance, which allows damages to be awarded if the plaintiffs can prove that the use of the defendant’s property was detrimental to the plaintiffs’ use and enjoyment of the plaintiffs’ properties. Plaintiffs are not required to prove that their property values were permanently diminished by the nuisance, only that their use and enjoyment of their properties were harmed during the time of the nuisance.

PSF appealed the jury verdict, claiming six different errors, a couple of which are interesting. The Western District of the Missouri Court of Appeals rejected all six. PSF’s most interesting arguments are:

  • owners of unoccupied farmland are not entitled to recover in a temporary nuisance suit because of their business use of their property.
  • the only measure of damages for loss of use of business property is the loss of  property value during the period of the nuisance, rather than whatever a jury thinks would compensate the owner for unreasonable interference with the use and enjoyment of the owner’s property.

The law of nuisance grew out of the common law. For nearly 150 years, law students have been told about Rylands v. Fletcher, an 1868 decision of an English court that changed the law of nuisance by establishing strict liability of those who produce or harbor dangerous or noxious substances on their land. Those who have the bad stuff on their land can be liable to their neighbors if the bad stuff escapes, regardless of whether the escape of the bad stuff happened as a result of negligence.

State legislatures don’t like to adopt regulations that create liability for those who create lots of jobs and tax revenues, so it remains the job of judges and juries to fashion remedies for dealing with some kinds of pollution. The Court of Appeals rejected PSF’s analysis of case law, concluding

there is no persuasive reason that land used for business purposes could not support an award for the loss of the use and enjoyment of such property by the business owner…We refuse to say as a matter of law that the owners of farmland are not entitled to the reasonable use and enjoyment of that land merely because business activities are conducted on it.

CAFOs provide markets for feed grains raised by neighboring farmers. That’s why many CAFOs are located in areas of fertile soil and ample water. Neighbors to a CAFO are likely to be substantial farmers, some of whom produce grains that feed the CAFO’s poultry, cattle or hogs. Many of their farms are large and highly mechanized and often owned by farming corporations or limited liability companies. CAFOs support local economies, generating tax revenues, income and jobs, keeping alive communities that would otherwise continue to wither.

CAFOs also consume huge amounts of water that becomes effluent, the smell of which can make it impossible to be outside during and shortly after it is applied to fields. Under Missouri law, users of private wells pay nothing for the withdrawn water, even though the withdrawals deplete shared acquifers. In other words, CAFO operators, like other businesses, don’t want to bear all the costs of their activities, hoping that these costs can be spread over the larger community. The judicial system, applying the common law, still allows juries to force polluters to bear more of their social costs than the polluters would voluntarily accept.


Meth on property doesn’t mean rescission or damages

Goldiluxe bought property from Abbott  for $140,000 without seeing it, relying on a property inspector’s report and a real estate agent’s video. The property included land, with a house, a cabin and three mobile homes.

Goldiluxe paid $50,000 down and gave Abbott a note for $90,000. A few months later, the police raided the property and made arrests for meth-related crimes. Goldiluxe’s owner visited the property and found two mobile homes on the property to be junk.  She had the two junk mobile homes removed from the property and moved one new mobile home onto it. Goldiluxe continued collecting rent for another year after the police raid, eventually falling behind on mortgage payments to Abbott.

To stop the foreclosure, Goldiluxe got an injunction, and also asked the court Read the rest of this entry

Variance for cell tower pokes a hole in Columbia’s height ordinance

Boards of adjustment can grant variances from zoning ordinances. But why should they?

What purpose is served by a government agency playing favorites?

The Missouri court of appeals affirmed the Columbia board of adjustment’s decision to allow Sprint to erect a 95-foot cell tower, disguised as a flagless pole, in a zoning district where structures taller than 41 feet were prohibited.

The court’s decision, The Highlands Homes Association v. Board of Adjustment, dated December 22, 2009, Read the rest of this entry

“I can’t make your loan; my zoning’s wrong.”

The idea of traditional zoning is to segregate land uses. For example, zoning should protect the value of ownership of retail or residential real estate from the effects of a tannery locating next door. In a sense, zoning is a mechanism for separating land uses that could be considered nuisances to neighbors.

But in practice, zoning can have the effect of regulating economic activity that has nothing to do with land use. A zoning dispute over a consumer loan office illustrates how zoning applications provide an opportunity to allow the public and the zoning board to get into such non-land-use issues as the size of a loan, the time allowed for repayment, or whether the collateral for the loan is a car or a post-dated check or something else.

In an August 25, 2009 opinion from the Eastern District of the Missouri Court of Appeals, Titlemax v. City of Bridgeton, the court Read the rest of this entry

Greenwood stands up for its streets and its citizens

It’s so easy to criticize city government for allowing the favored few to take advantage of public goods. And it’s difficult for a city to justify putting a damper on economic activity, even when the activity seems to consume public resources. But the City of Greenwood, Missouri, on the southeast side of Kansas City, did just that, with a jury of citizens deciding that a busy quarry’s truck traffic was a public nuisance.

In City of Greenwood v. Martin Marietta dated August 11, 2009, the Missouri Court of Appeals for the Western District of Missouri upheld a jury’s determinations (1) that heavy truck traffic from a quarry outside the city constituted a “public nuisance,” justifying the award to the city of damages, including punitive damages, and (2) that Martin Marietta Materials, Inc., and its partner were negligent in making street repairs. The Court of Appeals also approved the trial judge’s ruling on the legality of the city’s ordinance excluding commercial traffic.

From the map, the quarry is apparent on the southeast side of Greenwood, as is Greenwood’s Main Street, which is also State Highway 150. The Court of Appeals noted that the trucks hauling to and from the quarry preferred to travel north up Second Street, rather than to get to Highway 150 via State Highway 291; the alternate route would have been a little further and probably would have offended the citizens of Lake Winnebago, rather the citizens of Greenwood.

Read the rest of this entry

Water + animosity = punitive damages

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Bad fences make bad neighbors, especially if the neighbors start retaliating. Then it escalates.  They lawyer-up and make things even worse.

Greg and Lisa lived next to Tim on large tracts in a suburbanizing area southeast of Kansas City. They talked about building a fence on their common boundary, where a ditch looped from Greg’s and Lisa’s property onto Tim’s for 50 feet, then came back to Greg’s and Lisa’s property.

Tim put up “no trespassing” signs after seeing Greg and his son walking along the property line. “Somebody” shot the sign with a shotgun Read the rest of this entry

Decorating and undecorating graves

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Objects on a tombstone

The weather was rainy in much of the Ozarks today, so I was glad that I had visited cemeteries of mine and my wife’s ancestors on Friday and Sunday.

Pam’s comment to my previous post mentioned the custom of leaving small stones on a tombstone to indicate that a visit was made. I have not seen this, but I saw the arrangement above on a tombstone at Snowdenville Cemetery in eastern Madison County, Missouri, which could have been the work of a groundskeeper who picked up things ahead of the mowers, or it could have been a loving tribute.

When I was sixteen or seventeen, I was hired to mow the Newtonia IOOF Cemetery in Newton County, Missouri. Removing the artificial flowers and the containers of real and artificial flowers, with lots of wire and accessories, was a tedious job, especially for a self-important teenager. In preparing the cemetery for Memorial Day, my mower frequently hit those items as I plowed through the thick spring grass, leaving me to pick up the shredded plaster and plastic pots and unwind the wires from my mower blade.

Many of those paid and unpaid people who maintain cemeteries would be able to do their work more safely and easily if those who leave items would make another visit to pick up those items. These items are decorative for only a few days.

Private dam not grandfathered from safety regs

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Because the possibility that a dam could break is a continuing risk, an old dam isn’t exempt from newer rules for dam safety. So said the Missouri Supreme Court in an opinion released on May 5, 2009, reversing the ruling of a Springfield trial judge.

The trial judge threw out a suit filed by the Missouri Attorney General against the Olives, who had purchased a farm with an old dam on it. The suit alleged that the Olives violated the Missouri dam and reservoir safety law by failing to register the dam with the Missouri Dam and Reservoir Safety Council, a state agency. The dam was built in 1974, five years before the dam and reservoir safety regulations went into effect.

Registration of a dam triggers the implementation of a safety program and requires the submittal of an as-built survey of the dam. In other words, registration is the beginning of a process that allows the Dam and Reservoir Safety Council to keep track of the dam, make requirements for maintenance and repairs, and review any proposals for modification of the dam.

The trial judge’s decision was based on two points Read the rest of this entry

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