Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Hog Farm Sued for Nuisance, Trespass

Ursula T. Ransburg
National AgLaw Center Research Fellow

In Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, (Minn. Ct. App. 2003), the Minnesota Court of Appeals held that invasive odors that emanated from a hog manure lagoon did not give rise to an action for trespass, that wrongful conduct need not be established in order to maintain a nuisance action, and that there was no absolute two-year statute of limitations with respect to nuisance claims brought against agricultural operations. It also held that agricultural operations do not have an affirmative defense against nuisance claims based on their compliance with "generally accepted agricultural practices" as provided under Minnesota law and that further fact-finding was required to determine whether a relationship between a hog farm operation and hog processor constituted an agency relationship. Wendinger, 662 N.W.2d at 553-54.

Plaintiffs Julie and Gerald Wendinger owned land located near a confined animal feeding operation known as Forst Farms, Inc. (Forst Farms). See id. at 549. The owners of Forst Farms entered into an agreement with Wakefield Pork, Inc. (Wakefield) to build and operate a confined animal feeding operation that housed and fed pigs owned by Wakefield. See id.

The liquid animal waste produced at Forst Farms was stored in a two-stage outdoor concrete manure lagoon. See id. The lagoon was first emptied in the fall of 1995, and around that time the plaintiffs complained about the odors they believed to be emanating from Forst Farms. See id. The plaintiffs filed numerous complaints about the odors with state and local agencies. See id.

In 2001, the plaintiffs sued defendants Forst Farms, its owners, and Wakefield for negligence, nuisance, and trespass and sought injunctive and compensatory relief. See id. The district court dismissed the plaintiffs' trespass claim, determining that invasive odors can only give rise to an action for nuisance, not trespass. See id. at 549-50. It also dismissed the plaintiffs nuisance claim, ruling that a claim for private nuisance requires proof of wrongful conduct by a defendant. See id. at 551. The plaintiffs also filed a motion for summary judgment that Wakefield had an agency relationship over the Forst Farms, an issue that the district court did not address. See id. The plaintiffs appealed the district court's decision to the Minnesota Court of Appeals. See id.

The appeals court first addressed whether invasive odors can give rise to an action in trespass. See id. The plaintiffs argued that "the odors from the feeding operation physically invaded their land because the odors migrated onto the property in the form of airborne particulate matter." Id. at 550.

The court explained that "'[t]respass encompasses any unlawful interference with one's person, property, or rights, and requires only two essential elements: a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.'" Id. (citations omitted). Recognizing that although several jurisdictions have "applied principles of trespass to cases in which a plaintiff claims invasion by particulate matter," the court explained that under Minnesota law "'trespass is an invasion of the plaintiff's right to exercise exclusive possession of the land and nuisance is an interference with the plaintiff's use and enjoyment of the land.'" Id. (citations omitted). The court concluded that because the odors interfere with the plaintiffs' use and enjoyment of their land and not their exclusive possession of their land, the district court properly dismissed the plaintiffs' claim. See id. at 550-51.

The court next addressed whether a plaintiff that alleges a nuisance must establish that the harm caused by the alleged nuisance is the result of a wrongful act. See id. at 550. The court explained that under Minnesota law a nuisance is "'[a]nything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property.'" Id. (quoting Minn. Stat. § 561.01). It also explained that a nuisance action "'may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.'" Id. (quoting Minn. Stat. § 561.01).

The court held that "[i]n applying the statute in this case, the district court read into it an additional requirement of 'wrongful conduct,' . . . ." Id. It added that

we believe that a plaintiff who presents evidence that the defendant intentionally maintains a condition that is injurious to health, or indecent or offensive the senses, or which obstructs free use of property, states an actionable claim in nuisance. The Wendingers supported their nuisance claim with evidence that the . . . [owners of Forst Farms] were aware of their operation's alleged impact on the Wendingers' use and enjoyment of their land as early as 1996. . . . That evidence is sufficient to demonstrate intentional conduct. . . . We therefore conclude that the district court erred as a matter of law in holding that an allegation of nuisance must be supported by evidence that the defendant caused the nuisance harm by an independent wrongful act.

Id. at 552.

The court next addressed whether Minn. Stat. § 561.19, subd. 2, imposed an absolute two-year limitation on nuisance claims against agricultural operations or provided an affirmative defense against such claims for an agricultural operation that complied with "generally accepted agricultural practices." Id. at 550. The court explained that Minn. Stat. § 561.19, subd. 2(a), provides, in relevant part, that "an agricultural operation shall not become a nuisance once it has been established for two years 'if the operation was not a nuisance at its established date of operation.'" Id. (citation omitted).

The court stated that pursuant to this statutory language "a court considering the timeliness of a nuisance claim against a facility that has been in operation for more than two years must determine whether the complaint alleges the operation was a nuisance when established." Id. Noting that the Wendingers stated in their complaint that the manure lagoon produced noxious odors "'from the beginning'" and that the district court made no determination with respect to that allegation, the court held that absent a determination that the plaintiffs' allegation was "unsupported by evidence, the district court did not have a basis to conclude that the Wendingers' nuisance claim was barred under subdivision 2(a)." Id.

Turning to the question of whether § 561.10, subd. 2, provided an affirmative defense against nuisance claims for operations that complied with "generally accepted agricultural practices," the court noted that the district court interpreted § 561.19 subd. 2, "to suggest that compliance with generally accepted agricultural practices provides an agricultural operation with an affirmative defense to a nuisance claim." Id. Section 561.10, subd. 2(b), provides that "[a]n agricultural operation is operating according to generally accepted agricultural practices if it is located in an agriculturally zoned area and complies with the provisions of all applicable federal and state statutes and rules or any issued permits for the operation." Id.

The court stated that the district court

apparently read subdivision 2(b) as the source of this affirmative defense. Subdivision 2(b), however, only provides a definition of the phrase "operating according to generally accepted agricultural principles;" it does not connect that definition to any operative section. Neither subdivision 2(b) nor any other part of the statute explains the purpose of the definition, and, indeed, the phrase "generally accepted agricultural practices" appears in no other Minnesota law or regulation. . . . Although we are unable to discern the legal significance of subdivision 2(b), the plain language of the provision creates no affirmative defense for operations in compliance with generally accepted agricultural practices. We therefore reject the district court's conclusion that the Wendingers' nuisance claim may be considered only to the extent that it alleges nuisance harm caused by negligence.

Id. at 553.

The court also rejected the district court's holding that "Minnesota Statute § 561.19, subd. 2(b), states a duty of care applicable to a hog-confinement operator and . . . that the Wendingers' claim in negligence failed as a matter of law, because the Wendingers offered no evidence that . . . [Forst Farms] deviated from generally accepted agricultural practices." Id. The court explained that "[a] legal duty of care is imposed either by the common law rule requiring exercise of ordinary care not to injure another, or by a statute designed for the protection of others." Id. at 554. (citation omitted). It also explained that even though the violation of a statutory duty may constitute negligence per se, . . . the inverse proposition- that compliance with a statute precludes a finding of negligence- is not the law." Id. It added that "[a] statutory standard is no more than a minimum and it does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions." Id. (citations omitted). The court therefore held that the district court "erred as a matter of law in dismissing the Wendingers' claim without determining whether . . . [they] alleged a legally significant cause of action in negligence." Id.

Finally, the court examined the plaintiffs' argument that Forst Farms and its owners were agents of Wakefield, "so that Wakefield would be liable for any negligence in the operation of . . . [Forst Farms] or resulting nuisance harm under a theory of respondeat superior." Id. The court held that although the district court did not rule on this issue, it is "clear that the factual basis of the Forst-Farms-Wakefield relationship is contested and must therefore be subject to further fact-finding." Id.

The case was decided on June 10, 2003; this summary was posted Jan. 27, 2004.