Factual Summary the Case Brought by the

Factual Summary The case brought by the plaintiff alleges that the actions of the defendant constituted both a public and private nuisance. In bringing the action the plaintiff claims that the defendant in operating his large commercial dairy farm produces an inordinate amount of manure. The plaintiff claims that because the defendant improperly disposes of this manure the manure spreads onto not only the plaintiff's property but also into a nearby river.

Additionally, the plaintiff alleges that the odor from the manure affects his ability to enjoy his property and negatively impacts on the enjoyment of an adjoining park area. The defendant counters the plaintiff's arguments by stating that he has done everything that he can to minimize the effect of the manure including installing storage lagoons and spreading the manure across his land. He acknowledges that such measures are more difficult during heavy rainfalls but that he does the best that he can.

As to the odor, the defendant points out that the plaintiff should have expected the presence of such when he purchased his property and that the his dairy farm operation was in existence before the plaintiff decided to move next to him (Spur Industries v. Del E. Webb Development Co., 1972). Finally, as to the possible polluting of the nearby river, the defendant points out that he has never received any complaints regarding such pollution and is not aware of there being any problems related to the alleged pollution. II.

Issue The issue before the court is whether or not the defendant's actions or inactions constitute an actionable case of either public or private nuisance. III. Legal Concepts This case involves both types of nuisances: private and public. A private nuisance involves the loss of the use or enjoyment of one's property without an actual physical invasion of the property. A public nuisance usually has far more reaching effects. It involves the ability or capacity to affect the health, safety, welfare, or comfort of the public in general.

Whether public or private, in order for a nuisance to be actionable the interference must be substantial and continuous (Concerned Area Residents for the Environment, 1994). IV. Analysis/Conclusion The decision by the judge in this case, based on the evidence presented, seems to be reasonable and a proper application of the law. The judge acknowledges that the aroma created by the defendant's farm operation is reasonable and that the defendant has taken the proper steps to minimize its effects (Pestey v. Cushman, 2002).

As to the runoff effects, however, the court ruled that the defendant's actions are actionable. Under the court's injunctive powers, the judge offered the defendant the opportunity to correct the situation but set forth a specific timetable for him to do so. The court found that the defendant needed to take additional steps to avoid runoff affecting the river, the adjoining park, and the plaintiff's property.

He also ruled that the defendant had trespassed upon the plaintiff's property by virtue of the runoff and ordered that the defendant properly compensate the plaintiff. The court ordered this relief in spite of the fact that the plaintiff.