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¶ … constitute a public nuisance a landowner must engage in an activity that significantly interferes with the use or enjoyment of the property by others or the activity must affect the health, safety, welfare, or comfort of the public at large (Schwartz, 2006). In the instant case, the judge must examine the facts in the case and perform a balancing test between the interests of the dairy farm owner and the adjacent property owners and then weigh the extent and severity of the harm caused by the operation of the defendant's dairy farm in proportion to the social value provided by the activity. If the harm resulting from limiting the activity is greater than the harm caused by allowing it to continue a court will ordinarily deny a nuisance action. In the instant case, this is precisely what the court determined.
The defendant dairy farm owner in the instant case was operating a very large commercial enterprise that was using non-conventional means for milking and housing his cows. The plaintiff's argument was that the methods being used by the defendant were causing a level of aroma in the area that was unacceptable and unreasonable. The plaintiff argued that if the defendant were...
Additionally, the plaintiff argued that during certain periods of intense rain the area waterways were being contaminated by the conditions present on the defendant's property. The defendant, needless to say, takes a position contrary to the one espoused by the plaintiff. The defendant argues that his dairy operation is state of the art and that every reasonable attempt is made to minimize the aroma and to dispose of the waste products appropriately (Miner, 1997). The defendant did admit that there are periods when there has been excessive rain that runoff into adjacent properties and waterways has been a problem but that this is the price must be paid in ordinary farming procedures.
The judge's ruling in the case is consistent with the traditional approach in such matters (Achieving The Proper Balance Between the Public and Private Property Interests: Closely Tailored Legislation as a Remedy, 1995). Nuisances must be determined on a case by case basis. Circumstances vary…
References
Achieving The Proper Balance Between the Public and Private Property Interests: Closely Tailored Legislation as a Remedy. (1995). William & Mary Environmental Law and Policy Review, 317-344.
Miner, J.R. (1997). Nuisance Concerns and Odor Control. Journal of Dairy Science, 2667-2672.
Schwartz, V.E. (2006). The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort. Washburn Law Journal, 541-583.
Public Nuisances
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