Illinois Bar Journal

April 2013Volume 101Number 4Page 170

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Suit barred for plaintiffs who ‘came to the nuisance’ of fly-infested cattle farm

The Illinois Supreme Court held that the Farm Nuisance Suit Act barred recovery for plaintiffs who acquired a house across the road from a fly-infested cattle farm.

In a case that reads a bit like a law school final, the Illinois Supreme Court held for farmers in a nuisance suit by plaintiffs who built a house across the road.

Raising cattle and flies

In early 1991, the Rosenwinkel Family Partnership bought 160 acres of farmland in rural Kendall County. The following spring, they went into business raising cattle. And flies. "[L]arge numbers of flies," according to the supreme court's unanimous decision.

Across the road on a 120-acre plot of farmland owned by Clarence Toftoy was "a farmhouse that was at least 100 years old." The farmhouse was occupied by a tenant who had lived there since 1985, but who moved out in December of 1991, just a few months before the Rosenwinkels commenced their cattle-farming operation. The farmhouse remained empty thereafter.

Some six years later, Clarence divided his property and gave to his son and daughter-in-law, plaintiffs Roger and Bobbie Toftoy, a 1.83-acre parcel that included the old, vacant farmhouse. Prior to the transfer, Roger and Bobbie demolished the old farmhouse and began construction of a new home on the site.

According to the court's opinion, "[c]onstruction was then delayed for several years, in part, because Bobbie was not certain she wanted to live across the street from a cattle farm." Nonetheless, the couple moved into their newly completed home in 2004.

Three years later, the Toftoys filed a lawsuit against the Rosenwinkels seeking court action to relieve them of the overwhelming number of flies visiting their home and property from the cattle farm across the road.

"[P]laintiffs alleged that defendants' cattle farm was generating large numbers of flies that were interfering with plaintiffs' use and enjoyment of their property, and that the flies constituted a nuisance for which the defendants were legally liable," the court wrote. "Plaintiffs sought injunctive relief to abate the flies," but there were no allegations the Rosenwinkels were negligent in the operation of their farm.

The Rosenwinkels filed a motion for summary judgment, arguing that section 3 of the Farm Nuisance Suit Act barred the Toftoy's suit. Section 3 states that no farm "shall be or become a private or public nuisance because of any changed conditions in the surrounding area" when the farm has been in existence for at least a year and was not a nuisance at the time it commenced operations. 740 ILCS 70/3.

The Toftoys claimed that because there was a 100-year-old house across the road from the Rosenwinkel's farm at the time they began operations, there were no "changed conditions in the surrounding area" that caused the nuisance. The judge denied the Rosenwinkels' motion and, according to the supreme court, at the conclusion of the trial "the circuit court entered judgment in favor of the plaintiffs and ordered defendants to take remedial measures, including removal of moist bedding and manure, to reduce the number of flies."

The appellate court affirmed, holding that under section 3 of the Act, the changed conditions must be the reason the farm became a nuisance for defendants to be liable. The Toftoys' acquisition and occupation of their land "did not alter the character of the area such that the cattle operation, which previously had not been a nuisance, thereby became a nuisance," the appellate court held.

An 'extremely important' win for farmers

In Toftoy v. Rosenwinkel, 2012 IL 113569, the supreme court reversed, holding that the 1998 transfer in ownership was a "changed condition" that gave rise to the Toftoys' nuisance suit. "In this way, section 3 codifies, and makes a bar to suit, the entirety of the coming to the nuisance doctrine."

Citing to the Restatement (Second) of Torts, the court held that the term "coming to the nuisance" refers to those instances where "a plaintiff either acquires land or improves it after the defendant has already begun the nuisance generating activity." At common law, such a plaintiff would not be barred from pursuing a nuisance action, although coming to the nuisance can be a mitigating factor.

The supreme court held, however, that the Farm Nuisance Suit Act statutorily prohibits most coming-to-the-nuisance actions against farmers as an effort to reduce farming costs and to preserve land in an agricultural state.

According to Laura Harmon, who is assistant general counsel with the Illinois Farm Bureau and a member of the ISBA Agricultural Law Section Council, the Rosenwinkel case is an "extremely important" decision for farmers, in addition to being a clear indication that sometimes urban people don't quite know what they've bargained for when they move to a rural setting.

"In many cases we've seen old farmsteads where houses haven't been lived in for years," Harmon said. "Lots of people these days want to remodel an old farmhouse, or build a new home in the country, so a coming-to-the-nuisance case is going to become a more and more common occurrence."

Harmon said the court's decision will bring peace of mind to farmers who have been operating in a non-negligent manner for a year or more, because it now is clear that farmers are immune from liability to those who acquire and develop recently divided portions of neighboring farms.

Adam W. Lasker <> is a lawyer in the Chicago office of Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer.

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