A nuisance is the substantial interference, either by act or omission, with a person's right to use and enjoy their property.1 The invasion of another's property must be intentional or negligent, and unreasonable.2 A nuisance may be a strong smell, loud noise, unsightly object, or some other condition causing substantial discomfort. Direct farm businesses must be aware of conditions they create that rise to the level of actionable nuisance, particularly those businesses in close proximity to land used for non-agricultural purposes.
There are two types of nuisance claims: private and public. Private nuisance usually affects a single party or a definite, small number of individuals in the use or enjoyment of private rights.3 Public nuisance is generally a condition affecting a substantial number of people or an entire neighborhood or community.4
Whether or not a nuisance exists is a question of fact. Courts frequently balance both sides' interest in determining liability for nuisance.5 Courts also will consider whether the complaining party came to the nuisance--that is, whether the condition existed when the complaining party acquired the property. While coming to the nuisance does not bar a nuisance action, it does determine what, if any, damages are appropriate.
If a nuisance action is successful, the court may issue a temporary or permanent injunction, including an order shutting down the offending operation. In the alternative, a court may allow the nuisance to continue, but with compensation to the complaining party. Parties may also seek to permanently enjoin a potential or anticipated nuisance when it clearly appears that a real and immediate nuisance would occur if the facility began operation.6
Some farming operations may be protected from nuisance actions by the Illinois Farm Nuisance Suit Act (740 ILCS 70). Any farm that has been operating for more than one year, and was not a nuisance when it commenced operations, generally is immune from nuisance liability that results from changed circumstances in the surrounding area. The Act does not protect farmers from liability, however, when they act negligently or operate the farm improperly.
The Illinois Farm Nuisance Act is a type of "right-to-farm" statute. Although the issue has not been litigated in Illinois, some doubt exists as to the validity of right-to-farm statutes. Professor Terry Centner has written an article discussing the controversy surrounding right to farm statutes. The validity of the statute aside, the best defense for direct farm businesses is to operate in a reasonable, non-negligent manner. This should minimize potential interference with neighboring property.
1 In re Chicago Flood Litigation, 176 Ill.2d 179, 204 (1997).
2 Schiller v. Mitchell, 357 Ill.App.3d435, 441 (2005).
3 Willmschen v. Trinity Lakes Improvement Ass'n, 362 Ill.App.3d 546, 553 (2005).
4 City of Chicago v. American Cyanamid, Co., 355 Ill.App.3d 209, 214 (2005).
5 Gardner v. Int'l Shoe Co., 486 Ill. 418, 429 (1944).
6 Nickels v. Burnett, 343 Ill.App.3d 654, 663 (2003).