Summary of a Recent
Judicial Development in
Urban Encroachment

Neighbors Prevail in Private Nuisance
Action Against Owners of Dairy Farm

Harrison M. Pittman
Staff Attorney

Two property owners brought a private nuisance action against operators of a dairy farm located less than one-third of a mile from the owners' property. Pestey v. Cushman, 788 A.2d 496, 500 (Conn. 2002). The trial court ruled in favor of the plaintiff-property owners. See id. 499-500. The Supreme Court of Connecticut affirmed the trial court's decision, ruling that the trial court properly instructed the jury with respect to the necessary elements of a claim for private nuisance and that the trial court properly admitted testimony from one of the property owners that the decline in the value of his property was due to the offensive odors produced by the operators' dairy farm. See id. at 502-09. It also ruled that the property owners established the foundation necessary to qualify a waste management handbook as a learned treatise with respect to the issue of odor control and that the evidence presented at trial supported the jury's determination that the dairy farm was the proximate cause of the property owners' loss of enjoyment of their property. See id. at 509-14.

Plaintiffs, James and Joan Pestey, lived less than one-third of a mile from Cushman Farms Limited Partnership, owned by defendants, Nathan R. Cushman and Nathan P. Cushman. See id. at 500. In 1990, the Cushmans built a "42,000 square foot free stall barn and milking parlor on their land to house a herd of dairy cows and a pit in which to store the manure generated by the herd." Id. The plaintiffs noticed odors from the dairy farm in early 1991 that were "nothing more than the typical . . . odors generated by a farm containing livestock." Id. Over time, however, odors from the farm became pungent enough to wake the plaintiffs from their sleep and force them to close the windows of their home. See id.

The plaintiffs brought an action against the defendants seeking monetary damages, injunctive relief, and declaratory relief. See id. They alleged that "the defendants' dairy farm generated offensive odors that unreasonably interfered with . . . [their] use and enjoyment of their property." Id. They also alleged that the defendants' dairy farm was not protected under Conn. Gen. Stat. § 19a-341, "which concerns the right to farm and protects farms from nuisance claims, because the odors resulted from the defendants' negligent operation of their farm." Id. at 500-01.

The jury determined that "the offensive odors emanating from the defendants' farm unreasonably interfered with the plaintiffs' enjoyment of their property, that the interference was continuous, and that the odors had a natural tendency to inflict harm by interfering with the plaintiffs' use of their property." Id. The jury also determined that the dairy farm "was the proximate cause of the plaintiffs' loss of enjoyment of their property and the defendants' use of their property was either unreasonable or unlawful." Id. Finally, the jury determined that because the plaintiffs had demonstrated that the offensive odors produced by the dairy farm "was the result of the defendants' negligence in the operation of their farm," Conn. Gen. Stat. § 19a-341 was inapplicable. Id. The trial court entered judgment in accordance with the jury's determinations. See id. The defendants appealed the trial court's decision to the Connecticut Court of Appeals. See id. The case was subsequently transferred to the Supreme Court of Connecticut. See id.

The court first considered the defendants' argument that the trial court's instructions to the jury relating to the unreasonableness element of the plaintiffs' nuisance claim was improper because "it failed to instruct the jury adequately with respect to the balancing of interests that must be performed in deciding whether a use of property is unreasonable." Id. The jury instruction pertaining to the unreasonableness element of the plaintiffs' nuisance claim was as follows:

You must also ask yourselves whether the defendants' use of their property is reasonable. A use which is permitted or even required by law and which does not violate local land use restriction may nonetheless be unreasonable and create a common-law nuisance. You must ... consider and weigh ... the location of the defendants' dairy farm, the size of the farm, the manner in which they operate the farm, including their handling and maintenance of the manure, the free stall barn, the milking parlors and the anaerobic manure digester and associated equipment and any other circumstance which you find proven which indicates whether the defendants is making a reasonable use of their property . . . . The question is not whether the plaintiffs or the defendants would regard the condition as unreasonable, but whether reasonable persons generally looking at the whole situation impartially and objectively would consider it [to] be reasonable.

Id. at 503-04.

The court explained that to determine whether the jury instruction was proper, it had to decide whether the instruction "'fairly present[ed] the case to the jury in such a way that injustice . . . [was] not done to either party under the established rules of law.'" Id. at 502 (citation omitted). It also explained that to make this determination it had to "clarify the elements that a plaintiff must prove to prevail on a claim for damages in a common-law private nuisance cause of action." Id.

"'A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.'" Id. (citations omitted). The law of private nuisance is predicated on the principle that "'[i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor.'" Id. (citations omitted). When determining unreasonableness in the context of a private nuisance claim, "'[c]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole.'" Id. (citations omitted). "'Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests . . . ." Id. (citations omitted). Finally, "[t]he proper focus of a private nuisance claim for damages . . . is whether a defendant's conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff's use and enjoyment of his or her property." Id. at 507 (citations omitted).

The court stated that the jury instruction pertaining to the element of unreasonableness demonstrates that the jury was instructed to consider several factors in reaching its determination. See id. at 504. It also stated that

[t]he jury . . . was instructed to consider the location of the farm in making its finding regarding reasonableness. The location of the farm as a factor inherently includes the interests of both the plaintiffs and the defendants, and the jury was just as entitled to find that the location of the farm tended to show that the defendants' use was reasonable as it was to find that the location tended to show that the defendants' use was unreasonable. In addition, the trial court explicitly instructed the jury to consider any other circumstances that it found proves that would indicate "whether the defendants [were] making a reasonable use of their property." This instruction underscored the trial court's previous instruction that the jury was to consider various factors in reaching its decision, including factors relating to the interests of both the plaintiffs and defendants. Although the trial court did not instruct the jury that the mere use of the property for a dairy farm was clearly a reasonable use if considered in a vacuum, . . . the . . charge nonetheless provided the jury with adequate guidance with which to reach its verdict.

Id.

The court concluded that the trial court's instructions to the jury "properly informed the jury of the necessary elements of a common-law private nuisance cause of action for damages and provided the jury with adequate guidance with which to reach its verdict. Accordingly, the trial court's jury charge was proper under the law . . . ." Id. at 508.

The court next considered the defendants' argument that "although it was proper for the trial court to allow James Pestey to give his opinion as to the value of his property both before and after the defendants began their farm operation, it was improper to allow him to testify that, in his opinion, the offensive odors" created by the dairy farm caused the plaintiffs' property value to decrease. Id. at 508-09. James Pestey testified that in 1990 his property was worth $585,000.00 and that in 1999, well after the defendants had begun operating their dairy farm, his property was worth $330,000.00. See id. at 509. He also testified that the decrease in the value of his property was due to the offensive odors produced by the defendants' dairy farm. See id.

The court explained that under Connecticut law, "'homeowners are qualified to testify as to their personal opinion regarding the value, or diminution in value, of their properties.'" Id. (citations omitted). The court noted that James Pestey was permitted to testify "as to his opinion of the value of his property both before and after offensive odors began emanating from the defendants' farm." Id. It also noted that "[a]fter testifying that the value of his property had diminished since the odors began, he made explicit the causal connection implied by his testimony by testifying further that, in his opinion, the offensive odors were the cause of his property's diminished value." Id. The court therefore concluded that under Connecticut law the trial court properly allowed James Pestey "to testify in this manner regarding the cause of the diminution in the value of his property." Id.

The court next turned to the defendants' argument that the trial court improperly admitted into evidence under the learned treatise exception of the hearsay rule "a section of the handbook titled, 'Control of Odors and Gases Leaving the Livestock Area,' . . . without the handbook first having been qualified as a learned treatise on the issue of odor control." Id. The handbook stated, among other things, that "a farm operation should be located at least one-half mile away from neighboring house." Id.

The court explained that "text from a published work 'on a subject of history, medicine, or other science or art' may be admitted into evidence under the learned treatise exception to the hearsay rule" as long as two foundation requirements are satisfied. Id. at 511. (citing Conn. Code Evid. § 8-3(8)). "First," the court explained, "the work must be 'recognized as a standard authority in the field by the witness, other expert witness or judicial notice,' and second, the work must either be brought to the attention of the witness on cross-examination or have been relied on by that expert during direct examination." Id. (citations omitted).

The court noted that the trial court sustained the defendants' first objection to the plaintiffs' request to introduce the handbook into evidence. See id. It further noted that the plaintiffs' counsel subsequently attempted to establish the proper foundation by asking one of the expert witness whether the handbook "was recognized as a standard reference work by people in . . . [the witness's] profession with respect to animal waste characteristics." Id. The court stated that the witness answered that question in the affirmative and that the plaintiffs' counsel then asked the witness whether the handbook "also was used as a reference with respect to controlling the spread of odors and gases from livestock areas." Id. The witness again responded in the affirmative. See id. The court explained that the plaintiffs then requested that the trial court allow the witness to read the relevant portions of the handbook into evidence. See id. The trial court granted the request over the defendants' objection, ruling that the witness had recognized the handbook "as a general reference on this topic." Id.

The court concluded that the witness's testimony

although not an unequivocal endorsement of the . . . handbook as a leading authority in the field, was nonetheless sufficient to establish the necessary foundation to qualify it as a learned treatise. In response to questions posed by the plaintiffs' counsel, . . . [the witness] acknowledged that the . . . handbook was a standard reference in his profession in which one could find general references and recommendations with respect to animal waste characteristics and controlling the spread of odors and gases from livestock areas. Accordingly, we conclude that the trial court did not abuse its discretion in allowing the introduction of the section of the . . . handbook at issue.

Id.

The defendants also claimed that the trial court improperly instructed the jury with respect to Conn. Gen. Stat. § 19a-341, which is the right to farm statute under Connecticut law. See id. at 513. The court did not address this argument, however, because the defendants did not properly preserve the issue at trial. See id.

The case was decided on February 5, 2002; this summary was posted August, 2003