Crandall v. Biergans

No. 844 (Mich. Cir. Ct. February 14, 1972)

Plaintiffs sought to enjoin the operation of defendants' swine finishing barn on the grounds that the odors emanting from the barn constituted a private nuisance and that they violated the Michigan Environmental Protection Act of 1970. On balance, the swine raising operation is carried on in a modern fashion with every effort made to reduce the unavoidable odors, while the actual damage to the plaintiffs is small. Therefore, no private nuisance exists. The Environmental Protection Act also provides no relief. Given the manner in which the defendants carry on their operation, they have established the affirmative defense that there is no alternative to their conduct. Moreover, it would be an unconstitutional delegation of powers for the court to undertake determination of odor standards when none have been set by the legislature or an authorized agency. Judgment for the defendants.

Counsel for Plaintiffs.
Wilfred Dupuis
220 Albert Street
East Lansing, Michigan 48823

Counsel for Defendants
Timothy M. Green
210 North Clinton
St Johns, Michigan 48879

[2 ELR 20238]

Corkin, J.

At the trial of this action Howard E. Brunette and Sally E. Brunette withdrew as parties plaintiff.

The remaining plaintiffs ground their action on two counts. In Count I plaintiffs claim that a swine finishing barn constructed by defendants on their premises in 1965 constitutes a private nuisance as to plaintiffs because noxious odors and toxic gases emanating from defendants' barn are carried to plaintiffs' property by reason of prevailing winds from the southwest and exhaust fans in the barn. In Count II plaintiffs cite Act 127 PA 1970, MSA 14.528 effective October 1, 1970 known as the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970 and on the basis of the factual allegations of Count I claim a violation of this act. Under both counts plaintiffs seek injunctive relief.

Defendants deny the existence of a nuisance as far as Count I is concerned and as to Count II claim Act 127 is unconstitutional as applied to defendants' operation in that this Court has no authority to determine the qualifications nor to prescribe limitations on the type of activity in which defendants are engaged and that this Court has no authority to adopt or enforce standards, safeguards, rules and regulatioins which would be applicable to or effective upon the defendants.

To put this case in its proper perspective it would appear to the Court that certain facts should be recognized. The area involved is zoned agricultural and is a farming area. Agriculture is in a period of change, and the farmer like any other business man is forced to change his methods of operation in order to keep his operating costs in line with what he can realize from the sale of his products. Not only are efficient farming methods important to the farmer, but if a rapidly growing population is to be supplied with food the methods of yesteryear are simply not adequate. It would appear that the swine raising operation carried on by defendant has replaced the old method of feeding small groups of hogs on pasture. Thus we are not dealing with a method of swine raising unique to defendants, but rather a method, as modified in some respects, used by farmers engaged in the commercial production of swine.

Basically plaintiffs complain of the odors emanating from the finishing barn. Further, plaintiffs claim that the odors consist of certain toxic gases, including carbon dioxide, methane, ammonia and hydrogen sulfide, that cause plaintiffs nausea, loss of appetite and enjoyment of their property, as well as causing a depreciation in the value of their property. No serious complaint is made nor did plaintiffs produce any substantial proof that defendants' operation caused infestation of their premises by insects or rodents or caused contamination of their land or any water or water courses. Plaintiffs direct their complaint to noxious odors.

It should also be noted that this case does not involve the feeding of garbage to swine as do so many cases. Thus any noxious odors complained of involve the excrement produced by the swine uncomplicated by any other factors contributing additidnal and comingled noxious odors.

Further, the Court would conclude from the evidence that defendants conduct their operation in a husbandlike manner and are not negligent in their maintenance. However, from the very nature of things, the raising of swine in substantial numbers can't be done in an odorless manner as a poractical matter.

Plaintiff, Burtriece Crandall's home is approximately 500 feet northeast of defendants' hog finishing barn, the nuisance complained of.

The finishing barn is a structure 32 feet wide by 120 feet long on which 100 feet is devoted to the feeding of hogs. In the feeding portion of the structure pens extend along both sides and a slotted floor arrangement provides the means for collecting the swines' excrement in a pit running through the center of the building. The pit is 8 feet wide and 6 feet deep and as contained in the pit the excrement is substantially in a liquid state.Periodically the pit is emptied by means of a vacuum tank wagon and is ultimately spread on defendants' land as fertilizer. On the east side of the barn are 4 exhuast fans 18 inches in diameter and powered by 1/4 horsepower electric motors. It is plaintiffs' claim that these fans combined with the fact that the prevailing wind is from the southwest carry the noxious odor from the barn to properties occupeid by Burtriece Crandall, the Thomas Crandalls and the Babbitts.

It is noted at this point that the plaintiff Bonnie D. Nourse is the daughter of Mrs. Burtriece Crandall and lives with her husband Robert a mile north and then west from defendants' premises. The Court is not persuaded that they are or their property is affected to any noticeable extent by defendants' operation. They operate an open cattle feeding lot and apparently are not concerned with an open lot swine operation carried on across the road from them.

On the other hand the Babbitts live across the road from defendants and their home is about 825 feet northeasterly of the finishing barn. The Thomas Crandalls (son of Burtriece Crandall) live on the same side of the road and east of defendants approximately 1200 feet from the finishing barn.

There is apparently a non-commercial machine shop located on the Burtriece Crandall property that is used rather extensively and is claimed to be frequently subject to odor from the finishing barn. Thomas Crandall's complaint centers around times when he is working at the shop as there is apparently no problem as far as his dwelling is concerned although on occasion he has detected odor when in his yard.

The Babbitts claim to experience a strong odor in their yard and can't have bedroom windows open when the wind is from the southwest.

Defendants constructed their barn in 1965 according to plans and specifications prepared by the College of Agricultural Engineering of M.S.U. and about 400 feet south of their residence. The barn is properly drained and no effluent enters any watercourse on plaintiffs' property nor is it claimed that there is any insect or rodent infestation of surrounding property.

Mr. Paul Shutt, an engineer employed by the Air Pollution [2 ELR 20239] Control Section of the Michigan Department of Health following complaint made several investigations of the area.In the course of 7 visits he detected hog odor on 2 occasions and finally concluded his investigation by writing to defendants stating that he was unable to substantiate complaints but would reopen the matter if further complaints were made.

According to Mr. Shutt the Air Pollution Control Section has for its purpose the enforcement of standards regulating air pollution set by the Air Pollution Control Commission pursuant to provisions of the Air Pollution Control Act of 1965; Act 348 PA 1965, effective July 23, 1965. No standards or regulations relative to pollution control of agriculture have been promulgated by the Commission so that any action to abate would have to be by persuasion rather than by enforcement of regulations. Such standards or regulations as are in effect relate to industry.

The Court finds from the testimony that on occasion the plaintiffs Crandall and Babbitt have been subjected to odors emanating from defendants' barn. The Court is also persuaded particularly in regards the testimony of Prof. Edward Miller of the Michigan State University Cooperative Extension Service, John B. Gerrish an Instructor in the Department of Agricultural Engineering at M.S.U., and Arthur J. Muehling of the Agricultural Engineering Department, University of Illinois that at the present time there is no fully effective means of handling and disposing of livestock wastes. It is a subject that is receiving much attention and while progress is being made the problem remains unsolved. In a monograph entitled Swine Waste Management prepared by Mr. Muehling the present state of affairs is stated as follows:

"Swine producers seem to be at a cross-roads in development of future production systems. Much progress has been made in the areas of nutrition, mechanization, genetics, and environmental control to help develop profitable production systems for the average farmer. As the public concern over pollution continues and new and more restricting regulations covering the handling and disposal of livestock wastes are enacted, new methods of adequately and economically disposing of livestock wastes must be developed to help the producer. Either the producer will have to increase size to justify the costly handling and treatment facilities, which will force the closing of smaller units, or the public's cost for pork must be raised to cover these increased production costs."

This statement fairly presents the practical aspects of the issue in this case.

The court does not question plaintiffs' right to seek injunctive relief and damages. It is also clear that contamination or pollution of the atmosphere with offensive matter or odors may constitute a nuisance. However, as pointed out in the annotation Keeping Pigs As A Nuisance, 2 ALR 3d, page 931 at page 933 the question is governed by the general rules of the law of nuisances; thus it is necessary to establish that this particular nuisance arose from the creation and maintenance of a condition whereby the defendants were using their property in a wrongful or unreasonable manner or place causing substantial injury to the persons or property of plaintiffs including a material annoyance, disturbance or discomfort to, or a material interference with the reasonable enjoyment of plaintiffs' property.

Plaintiffs concede that the keeping of hogs is not a nuisance per se and recognize that defendants are conducting a lawful business. In their brief they disclaim any intent to close down defendants' operation but ask that the Court order its being rebuilt at some other location on defendants' premises so that plaintiffs would not be subjected to the offensive odors. In plaintiffs' view, the crucial issue is a balancing of the equities between the opposing parties, and with this the Court agrees.

The Court is not persuaded that plaintiffs proved, by a preponderance of the evidence, any diminution in the value of their premises or any other money damages, nor did they prove any health hazard due to the odor they experienced from time to time.The most that plaintiffs proved was that on fairly frequent occasions when the wind was coming out of the southwest they experienced an odor from hog waste that they found to be unpleasant, particularly if they wished to be out in their yards.Defendants' witnesses tended to prove that plaintiffs were overstating the problem and that plaintiffs did not experience the odors with any high degree of frequency.

A factor of importance was that in January, 1970 the defendant commenced using a product of the Hercules Chemical Company marketed under the trade name "Wham" when defendants found that such a product was available. The Court agrees with defendants that considering the testimony of all witnesses it would appear that as defendants made use of this product as directed there was a substantial diminution in the odor emanating from defendants' barn. No claims was made that the use of this product will completely eliminate all odor, but research continues.

It would further appear from the evidence that if the defendants were to move their barn to some other location, assuming they could find a location that would assure an odorless atmosphere for all neighboring residences, it would cost at least $20,000.00 exclusive of water and electrical work.

While the Court might think that defendants would have been well advised to have built the barn somewhat south of its present location there is really no way this Court could say, with any degree of certainty, that by moving far enough south to free plaintiffs from odors defendants would not be subjecting some other neighbor to the odor. In this particular case it is a close question.

Although it would probably be accepted as fact by most humans that the odor of swine and other animal wastes are disagreeable, it should be recognized that they are what might be termed 'natural' odors in an agricultural area as distinguished from man created odors of a disagreeable nature. Further, that if the animal wastes are handled and disposed of in accordance with good farming practice then such odors as may enter the atmosphere could well be considered the result of normal farm operations and not a nuisance.

The Court would conclude that on the basis of the evidence presented the injury suffered by plaintiffs was not of such a substantial nature as to warrant the Court in issuing an injunction against defendants' operation of the swine business or the relocation of the barn so long as defendants continue their operation in a careful and husbandlike manner and use such odor control products or devices as are from time to time available and developed and are economically feasible. In short, it is the opinion of the Court that on balance the equities are in favor of defendants and that they are not maintaining a nuisance.

The question of whether the Environmental Protection Act would be applicable to the factual situation of this case is apparently one of first impression in this state.

The pertinent provisions of the act are as follows:

"§ 14.528(202) Action in circuit court; granting of relief.] SEC. 2. (1) The Attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction.

(2) In granting relief provided by subsection (1) where there is involved a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by an instrumentality or agency of the state or a political subdivision thereof, the court may:

(a) Determine the validity, applicability and reasonableness of the standard.

(b) When a court finds a standard to be deficient, direct the adoption of a standard approved and specific by the court.

(CL '48, § 691.1202.)

* * *

[2 ELR 20240]

"§ 14.528(203) Evidentiary showing; principles applicable; master or referee; costs.] SEC. 3. (1) When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water or other natural resources of the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the countrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act.

(2) The court may appoint a master or referee, who shall be a disinterested person and technically qualified, to take testimony and make a record and a report of his findings to the court in the action.

(3) Costs may be apportioned to the parties if the interests of justice require.

(CL '48, § 691.1203.)

"§ 14.528(204) Granting of relief; imposition of conditions.] SEC. 4.(1) The court may grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment or destruction.

Remission of parties to other proceedings.]

(2) If administrative, licensing or other proceedings are required or available to determine the legality of the defendant's conduct, the court may remit the parties to such proceedings, which proceedings shall be conducted in accordance with and subject to the provisions of Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.313 of the Compiled Laws of 1948. In so remitting the court may grant temporary equitable relief where necessary for the protection of the air, water, and other natural resources or the public trust therein from pollution, impairment or destruction. In so remitting the court shall retain jurisdiction of the action pending completion thereof for the purpose of determining whether adequate protection from pollution, impairment or destruction has been afforded.

Adjudication; order.] (3) Upon completion of such proceedings, the court shall adjudicate the impact of the defendant's conduct on the air, water or other natural resources and on the public trust therein in accordance with this act. In such adjudication the court may order that additional evidence be taken to the extent necessary to protect the rights recognized in this act.

Judicial review.] (4) Where, as to any administrative, licensing or other proceeding, judicial review thereof is available, notwithstanding the provisions to the contrary of Act No. 306 of the Public Acts of 1969, pertaining to judicial review, the court originally taking jurisdiction shall maintain jurisdiction for pourposes of judicial review.

(CL' 48, § 691.1204.)

"§ 14.528(205) Administrative or other proceedings; intervention; matters for determination; authorization or approval of conduct; collateral estoppel and res judicata.] SEC. 5. (1) Whenever administrative, licensing or other proceedings, and judicial review thereof are available by law, the agency or the court may permit the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity to intervene as a party on the filing of a pleading asserting that the proceeding or action for judicial review involved conduct which has, or which is likely to have, the effect of polluting, impairing or destroying the air, water or other natural resources or the public trust therein.

(2) In any such administrative, licensing or other proceedings, and in any judicial review thereof, any alleged pollution, impairment or destruction of the air, water or other natural resources or the public trust therein, shall be determined, and no conduct shall be authorized or approved which does, or is likely to have such effect so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.

(3) The doctrines of collateral estoppel and res judicata may be applied by the court to prevent multiplicity of suits.

(CL '48, § 691.1205.)

"§ 14.528(206) Act supplementary to existing procedures.] SEC. 6. This act shall be supplementary to existing administrative and regulatory procedures provided by law." (Emphasis added)

(CL '48 § 691.1206.)

Admittedly there is no standard for the control of odors resulting from animal waste in an agricultural area. Thus there is no ground for this Court to determine the validity, applicability or reasonableness of a standard. Nor are we concerned with a deficient standard. It is apparently plaintiffs' view that this Court should start from scratch and set standards for the conduct of a swine operation such as this. Not only does the Court lack knowledge or competence in this field, but in view of the testimony of the experts in swine raising that there is at present no known and economically feasible means of eliminating the odor of swine waste the Court is somewhat at a loss as to what, if any, standard it could adopt short of allowing the raising of livestock only in such sparsely settled areas as would allow a dissipation of animal odors into the atmosphere before reaching human habitation. It is apparently a field that the Air Pollution Control Commission has not entered.

There is no question but what the Environmental Protection Act is broad in scope and does not exclude agricultural pursuits from its operation. However, as the Court interprets Sec 3 of the Act the legislature is in effect saying that some balance has to be maintained between absolutely no pollution and the carrying on of activities necessary to human existence. The raising of livestock to provide meat for human consumption is a lawful and necessary occupation that of necessity will result in the production of animal waste and in turn odor. It would be the opinion of the Court that if the livestock operation is carried on in an area zoned for that purpose in a generally accepted manner, and that the operation is carefully carried on so that waste products are handled with reasonable efficiency and dispatch so that the odor entering the atmosphere is held to a practical minimum, it could very well be said that a defendant has established an affirmative defense "that there is no feasible and prudent alternative to defendants' conduct and that such conduct is consistent with the promotion of the public health, safety and welfare."

This is not to say that the raising of livestock is free from all restraint so far as the Environmental Control Act is concerned, as it now stands. Unless there are definite standards set there would appear to be a balancing of interests on a case by case basis required with the livestock raiser having the burden of the affirmative defense.

In passing, the Court notes that the Air Pollution Control Act of 1965, in Sec. 2 sets forth the following definitions:

"Air pollution means the presence in the outdoor atmosphere of air contaminants in quantities, of characteristics and under conditions and circumstances and of a duration which are injurious to human life or property or which reasonably interfere with the enjoyment of life and property, and which are reasonably detrimental to plant and animal life in this state and excludes all aspects of employer-employee relationships as to health and safety hazards. With respect to motor vehicles, nothing in this act or in the rules and regulations promulgated under the authority of this act shall be inconsistent with the federal regulations, emission limits, standards or requirements on motor vehicles."

[2 ELR 20241]

As applied to this case there is no doubt that an odor is an air contaminant, but in the opinion of the Court the odor in this particular case would not be sufficiently serious to constitute "air pollution."

The defendants take the position that the Environmental Protection Act is unconstitutional as applied to them as it purports to delegate legislative authority and responsibility to the Court. Calling attention to Article IV, Section 52 of the Michigan Constitution which provides:

"The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."

defendants contend that this mandates the Legislature to provide the necessary protection and courts should not usurp the preregative of the Legislature.

While the Court recognizes that the legislature can lawfully delegate powers to be exercised in accordance with guidelines established by the legislature, and that certain delegations of power as to the execution of laws has been upheld this is not the situation in this case. Here the Court, of necessity, must determine that standards because none exist. It is being asked to create standards, direct their adoption and proceed to enforcement. The Court would regard this as making law and thus an unconstitutional delegation of legislative power so far as the raising of livestock is concerned. The Court does not think the Environmental Protection Act, as it now stands can serve as a basis for any relief to plaintiffs.

Judgment may enter for defendants with costs to be taxed.