Civil Litigation FlashPoints December 2012

News Flash! Cattle Farms Have Flies, and That’s No Manure!

Illinois is home to quite literally thousands of cattle and dairy farms. USDA 2007 Census of Agriculture, Vol. 1 Ch. 1: State :Level Data, Table 1, Historical Highlights: 2007 and Earlier Census Years, www.agcensus.usda.gov/Publications/2007/Full_Report/Volume_1,_Chapter_1_State_Level/Illinois/st17_1_001_001.pdf (case sensitive). Not surprisingly, manure is a byproduct of each and every one. And, as common sense informs, manure is a sought-after food source for flies. The upshot? There are flies on cattle farms. (The author in no way means to insinuate that flies appear only on cattle farms. Flies show up wherever there is a large amount of manure.) If this seems obvious to you, the Illinois Supreme Court would agree.

The Supreme Court in Toftoy v. Rosenwinkel, 2012 IL 113569 (Nov. 29, 2012), recently threw out a nuisance lawsuit brought against a cattle farmer by neighbors who were upset about the flies on their property. The defendant began operating its cattle farm in 1991. Six years later, the plaintiffs acquired the neighboring property from their father, who gave them the land.

The plaintiffs took their time looking this proverbial gift horse in the mouth, since the cattle farm was no secret to them. Indeed, the plaintiffs did not immediately move onto the property due to concerns about living across the street from a cattle farm. Nevertheless, six years after acquiring the property, they constructed a house on the property and moved into it. Two years later, the plaintiffs filed this lawsuit, claiming that the flies generated by the neighboring cattle farm interfered with their use and enjoyment of the property. They sought injunctive relief against the flies.

Because farming is a major industry in Illinois, Illinois law protects a farmer’s “right to farm.” 2012 IL 113569 at ¶15. Part of that protection includes §3 of the Farm Nuisance Suit Act, 740 ILCS 70/0.01, et seq., which bars suits against farms that have been in operation for one year and that were not a nuisance when the farm began operating. 740 ILCS 70/3. Under the Act, a nuisance suit cannot be brought against these farms due to “any changed conditions in the surrounding area.” Id. This Act was designed to “reduce the cost of farming and help prevent the loss of farmland.” 2012 IL 113569 at ¶15.

In this case, the defendant moved the trial court for summary judgment based on the Act. The trial court denied the defendant’s motion, determining that the Act did not apply to this case because the plaintiffs’ property had been used as a residence prior to 1991, the year the cattle farm began operating. 2012 IL 113569 at ¶8. The appellate court affirmed, based on similar reasoning. The appellate court found that the plaintiffs’ acquisition of the property did not change “the character of the area” near the cattle farm so as to create a nuisance where one did not exist before. 2012 IL 113569 at ¶10.

The Illinois Supreme Court reversed, holding that the Act barred the plaintiffs’ claims. Because the plaintiffs acquired the property after the cattle farm had been operational for six years, the Supreme Court described the plaintiffs’ claim under the common-law doctrine of “coming to the nuisance.” 2012 IL 113569 at ¶18. This common-law doctrine “refers to those instances where a plaintiff either acquires his land or improves it after the defendant has already begun the nuisance generating activity.” Id., citing RESTATEMENT (SECOND) OF TORTS §840d (1979). While this doctrine is not an absolute bar to a claim under common law, the Supreme Court held that the Act “codifies, and makes a bar to suit, the entirety of the coming to the nuisance doctrine.” 2012 IL 113569 at ¶21.

Furthermore, the Supreme Court recognized that the Act bars claims arising because of “any changed conditions in the surrounding area” of the farm. 2012 IL 113569 at ¶15, quoting 740 ILCS 70/3. The Court found that the act of changing the ownership of the property in favor of the plaintiffs, six years after the cattle farm began operating, was a “changed condition” under the Act. 2012 IL 113569 at ¶21. The court explained that the cattle farm could not become a nuisance to the plaintiffs until they acquired the property. Therefore, the change of ownership was the “changed condition,” bringing the nuisance claim squarely within the purview of the Act. As a result, the plaintiffs’ claim was barred.

The Supreme Court’s unanimous decision in this case gives farmers clear protection from nuisance claims of this type. Indeed, it appears from the decision that as long as a farm has been in existence for a period of one year and was not a nuisance at the time it began operating, and the farm is not operated negligently, nuisance claims against farms will fail. Since it is often urban and suburban growth that encroaches on farmland and not the other way around, developers and potential homebuyers should be aware that nearby farms, and their flies, could be there to stay.