Question:Recently, new houses were constructed on what used to be farmland behind my barn. One of my new neighbors mentioned his fear that the dust, smell and flies that come with horses will prevent his family from using their yard as much as they would like. I have always practiced good stable management for my horses’ sake as well as for my own family’s comfort. I have had horses on my property for years. Warm weather is coming soon, and people, horses and flies will be outside more. Is this going to be a problem for me?
Answer: You are right to ask this question and try to head off the problem before it occurs. Many horse owners are affected by “nuisance” claims these days as farmland is subdivided and developed, and new neighbors who thought they wanted to live in a small town or country atmosphere discover that livestock give off more atmosphere than they want. Stable owners often take the position that since they were there first and the new people knew what they were moving next to, it is not their problem. Unfortunately, the problem becomes theirs when legal claims of nuisance are made. These claims may be made between neighbors or through town building, zoning or health officials.
A private nuisance arises from the unreasonable or unlawful use of a person’s property that significantly interferes with a neighbor’s physical comfort or the neighbor’s use of his own land. The neighbor must own or possess the affected land. Temporary occupancy of land, such as staying overnight in a motel, is insufficient to bring a private nuisance claim. But your neighbors, who presumably own or rent the house behind yours, do have the legal interest in land necessary to bring a nuisance claim.
To prove a private nuisance exists, a claimant (the new neighbor) must show several things. These things may vary from state to state, since the laws may be different in each, but many states have common principles. For example, in Massachusetts, Rhode Island and Connecticut, the claimant must prove that (1) the offensive condition, such as a stable’s dust and manure smell, substantially interferes with his physical comfort or use of his own land, (2) the offensive condition is a continuing, long-term one, (3) the stable’s use of its land is unreasonable or unlawful and (4) the existence of the offensive condition is the cause of the neighbor’s complaints and losses. In past lawsuits in these states, judges and juries have found that offensive conditions include barking and odors from a 46-dog kennel in a residential area, occasional but persistent flooding in the neighbor’s house, chemicals leaking underground and their odors from a waste dump, odors from a nearby sewage treatment plant, noise of night truck deliveries and odors or pollution on the neighbor’s land caused by horses stabled next door.
Courts weigh the interests of all parties (in our example, the stable and its neighbor) to decide whether the offender’s (stable’s) use of its land is reasonable in the particular locality under the circumstances of the case. What may be considered an unreasonable use in the suburbs may be considered acceptable in a more rural community. Although these cases did not address the question of penalties other than money damages, you should know that judges can order, in some cases, that the offensive condition be stopped or removed. For horse owners that could mean removing one or more horses from the property, restricted riding times or locations, different or more expensive waste removal systems and the like.
A big mistake stable owners make is a thinking they are protected from a nuisance claim because they received the proper building, zoning and other permits to have horses on their land. Not so. A person may be using his land within the law, but still create a nuisance when his use “unreasonably” or unlawful interferes with his neighbor’s use of his own land. For example, the Connecticut Supreme Court upheld a jury verdict where a town’s sewer plant was spewing obnoxious odors onto the neighbor’s land. The town could not claim immunity from liability even though it was required by law to build the sewage treatment plant and had received all the proper permits to do so.
In another case, the court found that a properly licensed 46-dog kennel was a nuisance because of the barking and odors. As the court said, “There can be no doubt that a use which does not violate zoning restrictions may nonetheless create a …nuisance.”
Similarly, the Massachusetts Supreme Judicial Court decided that a license from the state Department of Public Works and the United States Army Engineer Division to build a stone jetty into the sea did not protect a landowner from his neighbor’s claim of nuisance where it caused his neighbor?’s beach sand to wash away.
The Rhode Island Supreme Court reached the same type of conclusion in a dairy farm case. There, some new neighbors sued a dairy farm for nuisance due to the stench of cow manure and numerous stable flies that invaded their home during warm weather. The dairy farm had complied with all zoning requirements but, as the court said, “No one is required to suffer a neighbor’s [the dairy farmer’s] unreasonable use of his property even though that use may be permitted by a zoning ordinance.
This case is also helpful for its discussion of “coming to the nuisance,” that is, your type of situation where the new neighbors knew that they were moving next to a barn. This concept used to be a complete defense to a nuisance claim; however, in more modern times, it is just one factor the courts consider.
A nuisance claim brought through town building, zoning or health officials is basically the same type of claim. One difference is that the neighbors ask the officials, rather than judges, to enforce a town ordinance, instead of enforcing the neighbor’s general rights. Like a nuisance claim brought between neighbors, the penalty for violation may include shutting down the operation and incurring a fine. Each town has different ordinances on health, zoning, building and nuisances. The appropriate town official can provide you with copies of the applicable ordinances.
In view of the state of the law, the best way to combat a nuisance claim is prevention. Be neighborly. Get to know the people who live around you. Be sensitive to their concerns, even if you don’t agree with them. Invite your neighbors to meet your horses and feed them some treats (under your close supervision, of course) so that they will see the horses as living beings with personalities instead of objects of annoyance. Think of planting bushes or leafy trees between their property and yours, to help ensure your neighbors’ privacy, beautify your property and decrease flies and blowing dust. Consider relocating your manure pile, if possible, so that it is less visible or farther from your neighbors. Keep your barn well-maintained. Don’t give your neighbors an excuse to shut down your operation. Check your state’s Right to Farm law. Of course, it never hurts to consult a knowledgeable attorney.
This response does not constitute legal advice. The facts of any particular case may vary in important ways, and exceptions exist to the general legal principles discussed above. In addition, new written laws may be passed or amended and new cases decided. All of these may affect the outcome of a case.
Ruth Beardsley has been active in equestrian organizations, such as the United States Dressage Federation (USDF) and USA Equestrian for many years. Admitted to the Connecticut bar in 1984 and in private practice since, she currently serves as Arbitrator and Special Master for the State of Connecticut Judicial Department. She lives in Bethany, Connecticut.
ISSUE DATE: Dressage Today, September 2001
