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Roger Toftoy et al., Appellees v. Ken Rosenwinkel et al.

November 29, 2012

ROGER TOFTOY ET AL., APPELLEES,
v.
KEN ROSENWINKEL ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.

OPINION

¶ 1 At issue in this case is whether the Farm Nuisance Suit Act (740 ILCS 70/1 et seq. (West 2006)) bars the plaintiffs' nuisance lawsuit against a neighboring cattle farm where the plaintiffs acquired their property after the cattle farm had been in operation for more than a year. The appellate court held that the suit was not barred. 2011 IL App (2d) 100565. For the reasons that follow, we reverse the judgment of the appellate court.

¶ 2 Background

¶ 3 In March of 1991, the defendants, Ken Rosenwinkel and the Rosenwinkel Family Partnership, L.L.C., purchased 160 acres of farmland in rural Kendall County. Across the street from defendants' farm, 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 been in the home since 1985.

¶ 4 In December of 1991, the tenant left the farmhouse. No other tenant moved in. In March of the following year, defendants began using their property as a cattle farm.

¶ 5 In 1998, Clarence Toftoy divided his property and gave 1.83 acres to his son and daughter-in-law, plaintiffs Roger and Bobbie Toftoy. The 1.83 acres included the land where the old farmhouse was located. Prior to the transfer, plaintiffs tore down the farmhouse and began construction of a new home on the same spot. Construction was then delayed for several years, in part, because Bobbie was not certain she wanted to live across the street from a cattle farm. Plaintiffs eventually moved into their completed home in 2004.

¶ 6 In August of 2007 plaintiffs filed the instant lawsuit against defendants. In their complaint, plaintiffs 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 defendants were legally liable. Plaintiffs sought injunctive relief to abate the flies. Plaintiffs did not allege that defendants were negligent in the operation of their farm.

¶ 7 Defendants moved for summary judgment, arguing that section 3 of the Farm Nuisance Suit Act (Act) (740 ILCS 70/3 (West 2006)) barred plaintiffs' nuisance suit. That section 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 one year and was not a nuisance at the time it began operations. Defendants argued that plaintiffs' acquisition and occupation of their property were "changed conditions in the surrounding area" that gave rise to plaintiffs' nuisance suit, that these changes occurred after defendants' cattle operation had been in existence for more than a year and, thus, that defendants were exempt from nuisance liability under the Act.

¶ 8 The circuit court of Kendall County disagreed and denied defendants' motion. The circuit court noted that the manner in which plaintiffs' land was used had not changed since the time of the old farmhouse, stating "there is a new house where there always was a farmhouse-only with a new owner." Because the way in which plaintiffs' land was being used had not changed, the trial court concluded that there was no "changed condition" that had given rise to plaintiff's nuisance action and, thus, defendants were not entitled to relief under the Act as a matter of law.

¶ 9 At trial, plaintiffs presented expert testimony that there were an excessive number of flies on plaintiffs' property and that they were emanating from defendants' property. Plaintiffs also testified that the flies substantially interfered with the use and enjoyment of their home, making it impossible at times to engage in outdoor activities. At the conclusion of the trial, the circuit court entered judgment in favor of plaintiffs and ordered defendants to take remedial measures, including removal of moist bedding and manure, to reduce the number of flies.

¶ 10 The appellate court, with one justice dissenting, affirmed. With respect to section 3 of the Act, the appellate court held that the phrase "shall be or become a *** nuisance because of any changed conditions" indicates that, for the Act to apply, the changed conditions must be the reason the farm becomes a nuisance. Thus, according to the appellate court, "section 3 may not be invoked merely for 'any changed conditions.' Rather, the conditions must alter the character of the surrounding area such that, where the farm was not a nuisance when it began operation, it is transformed into a nuisance by the changed conditions." 2011 IL App (2d) 100565, ¶ 36. Applying that rule, the appellate court held that plaintiffs' 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." Id. ¶ 37. Therefore, the Act did not bar plaintiffs' suit.

ΒΆ 11 With respect to the merits of plaintiffs' nuisance claim, the appellate court affirmed the judgment of the circuit court. However, the appellate court vacated the circuit court's remedy, holding that the injunctive ...


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