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Roger Toftoy and Bobbie Toftoy v. Ken Rosenwinkel and Rosenwinkel

November 17, 2011

ROGER TOFTOY AND BOBBIE TOFTOY,
INDIVIDUALLY AND AS PARENTS OF NATALIE TOFTOY . AND HAYLIE TOFTOY, PLAINTIFFS-APPELLEES,
v.
KEN ROSENWINKEL AND ROSENWINKEL FAMILY PARTNERSHIP, L.L.C.,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Kendall County No. 07-CH-418 Honorable Linda S. Abrahamson, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice Hudson concurred in the judgment and opinion.

Justice Hutchinson specially concurred in part and dissented in part, with opinion.

OPINION

¶ 1 Plaintiffs, Roger and Bobbie Toftoy, sought a declaratory judgment and injunctive relief against defendants, Ken Rosenwinkel and Rosenwinkel Family Partnership, L.L.C., alleging that defendants' cattle operation created a nuisance as a result of excessive flies emanating from the farm and coming onto their property. The trial court denied defendants' motions for summary judgment and for a directed finding. Following a bench trial, the trial court entered an injunction against defendants, ordering them to take certain measures to prevent excessive flies from emanating from their cattle operation. Defendants appeal, arguing that the trial court erred in: (1) denying their motions for summary judgment and for a directed finding, where it found that the Farm Nuisance Suit Act (Act) (740 ILCS 70/1 et seq. (West 2006)) did not bar plaintiffs' suit; (2) finding that the flies constituted a nuisance; and (3) granting plaintiffs injunctive relief. For the following reasons, we affirm in part and vacate in part.

¶ 2 I. BACKGROUND

¶ 3 In March 1991, defendants purchased 160 acres of farmland on Hollenback Road in Newark with the intention of running a cattle operation thereon. The land had previously been used as a cattle farm. In 1992, defendants started their cattle operation on the property, purchasing 10 cattle at that time.

¶ 4 Plaintiffs own a parcel of land across the street from and to the west of defendants' farm. Their parcel was formerly part of a larger parcel owned by Clarence Toftoy (Roger Toftoy's father and not a party to this case), who purchased it in 1967. When defendants purchased their property, Clarence owned a 200-acre parcel of farmland across the street. Clarence had used the land for agricultural purposes. Aa nineteenth century farmhouse on Clarence's property was occupied by a tenant, Debbie Slatton, and her family from 1986 until December 1991 (Clarence never lived in the house). In 1989, plaintiffs began using the barn and fenced lots on Clarence's property to board horses. The old farmhouse was vacant from January 1992 to 1997. In 1998, Clarence gifted (by deed) 1.83 acres of his property, which included the old farmhouse, to plaintiffs. Prior to the transfer of ownership, Clarence demolished the old farmhouse and in 1997 plaintiffs began building in the same location a new house to be used as their primary residence. (Plaintiffs obtained a building permit in October 1997.) In 2002, Clarence gifted to plaintiffs an additional 58 acres of adjacent farmland.*fn1 Plaintiffs completed construction of and moved into their residence in 2004.

¶ 5 In 2007, plaintiffs sued defendants, alleging that excessive flies emanated from defendants' farm and that the excessive flies constituted a nuisance. They further asserted that the cattle operation could be modified to prevent excessive flies. This could be accomplished by implementing proper cattle-manure-handling procedures and limiting the number of cows and calves present on the farm. Plaintiffs asked the court to declare the fly invasion to be a nuisance and to order defendants to implement reasonable fly-prevention measures, or, alternatively, to enjoin defendants from using the farm as a cattle operation. In response, defendants denied plaintiffs' substantive allegations and raised the affirmative defenses that they had immunity under the Act and that the alleged nuisance was caused by plaintiffs' negligence and conditions outside of defendants' control.

¶ 6 On November 4, 2009, defendants moved for summary judgment, arguing, inter alia, that plaintiffs' suit was barred by the Act or, alternatively, that the record contained no evidence that the alleged nuisance was substantial. The trial court denied defendants' motion. The court found that plaintiffs were not the legal owners of the old farmhouse, but that the farmhouse existed when defendants commenced their cattle operation. The court also found that the cattle operation predated: the demolition of the old farmhouse, the subdivision of the 1.83-acre parcel and its conveyance to plaintiffs, the construction of plaintiffs' home, and plaintiffs' move into their home. As to the Act, the court found that the demolition, subdivision, conveyance, construction, and move did not constitute changed conditions as contemplated thereunder. The court also rejected defendants' argument that there was no factual issue as to whether the nuisance was substantial.

¶ 7 A bench trial commenced on January 11, 2010. Roger Toftoy, a heavy-equipment operator and farmer, testified that he and his family moved into their newly built house in 2004, at which point defendants' cattle operation had been in place for more than one year. He conceded that, when defendants purchased their farm, plaintiffs did not own the property where they currently live. Between 1992 and 1998, plaintiffs did not own any land on Hollenback Road and no one lived on the 1.83-acre parcel.

¶ 8 Roger had helped farm Clarence's land since 1967; however, he did not grow up on a farm. Plaintiffs considered remodeling the old farmhouse but decided that it would not be cost effective to do so. Addressing the fly invasion, Roger testified that, during "fly season" (May until the first hard frost or November), the flies were very bothersome outside plaintiffs' home. It was difficult for the children to play outside; they played inside the home and wore long pants outside to avoid fly bites.

¶ 9 Plaintiffs kept horses on their/Clarence's property since 1989. The fly invasion affected the horses. It became difficult for plaintiffs to use or train their horses, because the horses could not stand still when being attacked by flies. Beginning in 2008, Roger experienced "less flies" on his property and the flies were not bothersome every day.

¶ 10 Ken Rosenwinkel testified as an adverse witness. Rosenwinkel did not live at the cattle operation. He did not have a written manure-management plan or a fly- or pest-management program for his cattle operation. He never consulted an entomologist to develop such programs, because state law did not require him to do so. Rosenwinkel further testified that he hired a veterinarian to assist him in raising cattle, including the management of flies and other pests. Although he did not have a written manure-management procedure, he did follow a procedure that involved spreading manure in the field and working it into the soil. He also periodically sprayed with insecticides, inspected for breeding sites, and used fly tags that contain pesticide. Also, he used fly-control additive in the cattle feed.

¶ 11 Rosenwinkel conceded that, when he purchased his property, there was a house on plaintiff's property, occupied by Slatton and her family, and that the only change that had occurred on the property since then was the demolition of the old house and the construction of the new house at the same location, with plaintiffs residing in the new house. Also, when Rosenwinkel purchased his property, there were no cattle on it (as his operation began in 1992).

¶ 12 Bobbie Toftoy testified that her family acquired their property in 1998 and that no one lived on Clarence's/plaintiffs' property between 1992 and November 2004. Defendants' farm had been in operation for more than one year before her family came to own the property where they now resided. Bobbie had two horses on their property; she had used the barn on the property to pen horses before 1992. Bobbie did not have a written manure-management plan for her horses, because plaintiffs' farm did not "have flies."

¶ 13 Beginning in mid-June 2007, plaintiffs' property had "swarms" of flies on the house, including the gutters, siding, windows, garage doors, and transformer boxes. There was a fly about every inch or half inch. On Father's Day 2007, Bobbie saw Roger in the front yard and the entire back of his shirt was "covered solid with flies." There were times when Bobbie could not put her horses on the turnout because the horses were too bothered by the flies. She applied a fly wipe on the horses that allowed them to go out for two hours; Bobbie would have to wipe down "every inch of their bod[ies]" with the treatment. She could not put the children on the horses. Bobbie further testified that plaintiffs could not use their porch because it had too many flies and was marked up. The children did not like to play outside, because the flies would bite. Plaintiffs avoided opening their garage doors; Roger would wait until dark to pull his car into the garage. Plaintiffs did not have people over and tried not to use their outdoor space.

¶ 14 Ralph Williams, an entomologist, testified as an expert witness. In 2007, he was contacted by Bobbie, who wanted his input concerning an excessive fly problem from defendants' farm. After inspecting plaintiffs' farm, Williams concluded that the flies did not originate there and that the "most obvious" location from which the flies originated was defendants' cattle operation. Williams observed fly specks on the exterior of plaintiffs' home. He testified that most of the specks were on the home's east side, which is the side facing defendants' cattle barn.

¶ 15 Williams inspected defendants' farm in August 2008. He walked through barn areas and looked at sites where stable flies, which are blood-sucking flies, potentially would be found breeding, such as water tanks and stored hay. He testified that, based on his inspections, he believed that "the primary source of stable flies [was] from [defendants'] property." Williams stated that defendants could prevent stable flies by eliminating breeding sites or with proper waste management, which would include using insecticides. Williams found no violations of the standard of care in cattle operation.*fn2 He stated that stable-fly breeding sites are found in manure and decomposing vegetation. Stable flies usually travel only one-fourth to one-half mile from their preferred breeding sites. One trap he set at plaintiffs' property trapped 1,800 flies within 24 hours.

¶ 16 Williams further testified that you cannot "have 100 percent elimination of flies where you have livestock." However, even in an agricultural area, he would not expect over 5,700 stable flies to be collected in a fly trap in one week (as was done at plaintiffs' property). In Williams' view, that number is excessive. Williams also testified that research studies show that 20 or more stable flies per cow are a nuisance to the animal. They cause irritation and "contribute to weight gain losses and reduction in milk production."

¶ 17 On cross-examination, Williams conceded that, when he initially inspected plaintiffs' property, he did not inspect other potential sources of stable flies on surrounding properties or assess whether cattle were raised on other farms in the area. Williams further acknowledged that he did not inspect every aspect of plaintiffs' property and that he concluded that flies were emanating from defendants' cattle operation before he inspected defendants' property.

¶ 18 Todd Ayers, who was employed by defendants to manage their cattle operation and help with other activities, testified as an adverse witness. Ayers stated that he was responsible for pest control on defendants' farm and that defendants had no written pest-control program. However, they had an unwritten program, which included scraping manure, incorporating manure into nearby fields, pouring chemicals on animals, and using insecticides, oilers, fly tags, and cattle-feed supplements. Every day, Ayers visually inspected defendants' property for stable-fly breeding locations. Viewing two exhibits consisting of photographs taken by Williams of stable-fly breeding sites on defendants' property, Ayers testified that the sites were unacceptable and that, if he had observed them, he would have "cleaned [them] up."

ΒΆ 19 Ayers further testified that, in 2007 and 2008, he did not observe that the cattle on defendants' property were uncomfortable or unhealthy. Almost daily during the summer of 2007, Ayers observed plaintiffs working outside their house. Bobbie was typically dressed in long pants. Ayers also observed the children playing in the backyard or driving their golf cart. He also ...


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