United States: Nuisance Law and Agricultural Operations in Indiana

Originally published July 2004

Blackstone taught "if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house." 3 William Blackstone, Commentaries, * 217. Blackstone wrote this statement in a day when "hogs" likely referred to three, four, or maybe a dozen swine. If Blackstone were alive today, he would likely be amazed by the size—and indeed the size of the smell—of a modern hog farm. Blackstone would also find that common law nuisance has evolved to protect those farmers who may be the subject of nuisance actions. In 1981, the Indiana legislature created a special exemption from nuisance actions for "agricultural operations." See I.C. 32-30-6-1 et seq. This article discusses that exemption and its potential application to modern Indiana agricultural producers.

Common law nuisance is codified by the Indiana Code: "Whatever is: (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property; so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance . . . " I.C. § 32-30-6-6. In determining whether or not the use of property meets this standard, Indiana courts balance the competing interests of the affected landowners, using a common sense approach. Wendt v. Kerkof, 594, N.E.2d 795, 797 (Ind. Ct. App. 1992). The inquiry is objective, examining whether the alleged nuisance produces "actual physical discomfort to persons of ordinary sensibility, tastes, and habits." Id. Indiana courts have repeatedly held that keeping of hogs (and presumably other livestock) is not a nuisance per se, but can become a nuisance per accidens by reason of the manner in which the hogs are kept, locality, or both. See Yeager and Sullivan, Inc. v. O’Neill, 324 N.E.2d 846, 852 (Ind. Ct. App. 1975) (citations omitted). Ultimately, it is for the trier of fact to determine whether a nuisance exists. Id.

The Yeager case provides an application of common law nuisance to a poorly run Indiana agricultural operation. In that case, the trier of fact determined that a hog farm adjacent to the plaintiff’s property constituted a nuisance. The court graphically described conditions on the hog farm:

Id. at 468-69. The court enjoined the hog farmer from "a hog raising business" until conditions creating the nuisance abated.

In 1981, the Indiana legislature made a dramatic move away from common law nuisance, at least to the extent it applies to agricultural operations, by passage of Indiana's "Right to Farm Act." See I.C. § 32-30-6-1 et seq. The Right to Farm Act applies to "any facility used for the production of crops, livestock, poultry, livestock products, poultry products, or horticultural products or for growing timber." I.C. § 32-30-6-1. It carves out an exception to common law nuisance for these "agricultural operations":

1. there is no significant change in the hours of operation;
2. there is no significant change in the type of operation; and
3. the operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.

I.C. § 32-30-6-9(d). The subtle effect of this exception is a one-year statute of limitations for bringing nuisance actions against expanding or otherwise changing agricultural operations.

In Shatto v. McNulty, 590 N.E.2d 897, 898-99 (Ind. Ct. App. 1987) Indiana’s Right to Farm Act received its first test. In that case, neighbors sued a hog farmer for nuisance because the neighbors' fifteen acres and residence were affected by "odors and flies" that made them "physically ill and embarrassed their guests." Shatto, 509 N.E.2d at 899. The court disagreed, and relying heavily on the Right to Farm Act, held there was no nuisance. The hog farm at issue was located in a rural area containing other hog farms and was zoned for agricultural use. Id. at 897. The hog farmer had raised hogs on the property beginning in 1956, and had done so consistently until the time of the litigation, with the exception of a few months where hog houses were torn down and rebuilt. Id. The court strongly worded the rationale behind its decision: "People may not move into an established agricultural area and then maintain an action for nuisance against farmers because their senses are offended by ordinary smell and activities which accompany agricultural pursuits. * * * We must observe that pork production generates odors which cannot be prevented, and so long as the human race consumes pork, someone must tolerate the smell." Id.

A few years later, the Right to Farm Act was put to the test again, but this time the issue was whether the nature of the farm operation had changed. See Laux v. Chopin Land Associates, Inc., 550 N.E.2d 100 (Ind. Ct. App. 1990). In 1986, an Indiana farmer placed 113 of his 123 acres up for sale. Later that same year the farmer began raising a small number of hogs (29) on the ten acres he did not intend on selling. Id. at 101. About the same time, the farmer sold the 113 acres to a developer who intended on building a residential subdivision. Id. The hog raising operation grew, and by mid-1987 the farmer was raising between 300-350 hogs. Id. Meanwhile, the developer continued its residential plans, but lost a sale to a physician because of "odors" produced by the adjacent hog raising operation. Id. The developer filed a nuisance suit in January 1988. Id. The farmer asserted the Right to Farm Act as a defense.

At issue was whether the farmer’s construction and expansion of the hog raising operation amounted to "significant change in the type of operation," making the Right to Farm Act inapplicable. See I.C. § 32-30-6-9(d)(2). The court determined that construction of a new hog operation constituted a "significant change" from the farm’s prior use. Id. at 102-03. However, merely increasing or decreasing the size or numbers of the operation did not serve to change the type of operation. Id. at 103. Thus, the increase from 29 to over 300 hogs was not a "significant change." Id. The Right to Farm Act applied, and because the nuisance action was filed approximately two years after hog raising operation began, the developer’s claim was barred.

The Shatto and Laux cases demonstrate the breadth of Indiana's Right to Farm Act. Undoubtedly, these cases presented their trial courts with fact patterns that did not involve the "obnoxious" scenario facing the Yeager court. Perhaps this is why the Right to Farm Act contains one exception—it does not apply "if a nuisance results from the negligent operation of an agricultural or industrial operation or its appurtenances." I.C. § 32-30-6-9. This language closely tracks what Indiana courts have held for years, that agricultural operations are not a nuisance per se, but may become a nuisance per accidens.

Right to farm laws have been passed in some form or another in all fifty states, but they are not without their critics. In June 2004, the Iowa Supreme Court declared Iowa’s right to farm law unconstitutional. See Gacke v. Pork, L.L.C., 2004 WL 1344973 (Iowa 2004). In that case, plaintiffs, who had lived on their farmstead since 1974, brought a nuisance action against a hog farmer who built two confinement building across the road in 1996, nearly 1300 feet away. After the hog farmer asserted the Iowa right to farm law as a defense, the plaintiffs challenged the law’s constitutionality. The court began by framing the issue with the language of the Iowa Constitution’s declaration of rights, which provides: "All men are, by nature, free and equal, and have certain inalienable rights—among which are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness." Id. (citing Iowa Const. art. I, § 1). The court noted that the right to use and enjoy property had long been recognized as an inalienable right, subject to reasonable exercise of police powers by the state. The court held that Iowa’s right to farm law, as it applied to the plaintiffs, was "unduly oppressive." The plaintiffs had lived on their property long before the construction of the hog farm and had spent considerable sums of money to improve their property. The court concluded the right to farm law was an unreasonable exercise of the state’s police powers in this case, but stopped short of holding the statute unconstitutional in every circumstance.

Indiana’s Right to Farm Act has had no such constitutional challenge. As a result, modern Indiana agricultural operations are armed with a strong defense to nuisance actions. Not only do they hold the protections of the Right to Farm Act, but they also have two cases upholding its policy. This policy is best expressed by the Act itself: "it is the policy of the state to conserve, protect and encourage the development and improvement of its agricultural, land for the production of food and other agricultural products…It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances by which agricultural operations may be deemed a nuisance." Blackstone would surely be intrigued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.