Botsch v. Leigh Land Co.

313 N.W.2d 696, 210 Neb. 290, 1981 Neb. LEXIS 1051
CourtNebraska Supreme Court
DecidedDecember 28, 1981
DocketNo. 44021
StatusPublished
Cited by1 cases

This text of 313 N.W.2d 696 (Botsch v. Leigh Land Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Botsch v. Leigh Land Co., 313 N.W.2d 696, 210 Neb. 290, 1981 Neb. LEXIS 1051 (Neb. 1981).

Opinion

McCown, J.

The defendants appeal from an order denying defendants’ motion and application for vacation of an injunction enjoining them from operating a feedlot designated as the Leigh Land Company feedlot “in any manner until and unless they can demonstrate, upon proper application and showing, that the same can be done without injury and harm to the plaintiffs as it now exists.”

This is the third appearance of this matter in this court. In the first case, which appears at 195 Neb. 509, 239 N.W.2d 481 (1976), under the same title, the background facts are set forth in detail. The trial court in the first case sustained defendants’ motion to dismiss plaintiffs’ petition at the close of plaintiffs’ case on the theory that as a matter of law a nuisance did not exist. This court found that the trial court was in error and reversed and remanded for further proceedings.

In the second case, which appears at 205 Neb. 401, 288 N.W.2d 31 (1980), again under the same title, the plaintiffs’ evidence was submitted to the trial court on the bill of exceptions from the first case. The trial court restricted the evidence to the years 1969 to 1974. The defendants did not present evidence to demonstrate how the nuisance-creating factors of feedlot operations shown by the record could be dispensed with. So far as the evidence in this court indicated, however, there had been no change in the operation of the feedlot [292]*292since the first case, except that the ponds had been partially drained. The trial court found there was a nuisance, and entered a mandatory injunction requiring the defendants to drain the four waste disposal ponds and prohibiting them from ever using the ponds to hold any “mix of cattle manure and water,” and awarded plaintiffs a judgment for $4,800 damages to date of trial. The plaintiffs again appealed. On appeal this court found that the record clearly established that the defendants’ feeding operations, conducted and operated as shown by the evidence in the first case and introduced in the second case, constituted a nuisance, and the defendants’ failure to introduce evidence that the nuisance-creating factors had been or could be dispensed with by any other means made it necessary to enjoin the conduct of the feedlot enterprise rather than to enjoin only the maintenance of the ponds. Accordingly, this court directed the trial court to enter an order enjoining the defendants “from operating the feedlot in any manner until and unless they can demonstrate, upon proper application and showing, that the same can be done without injury and harm to the plaintiffs as it now exists.” The judgment for damages. was affirmed. Upon remand the trial court entered the permanent injunction as directed by this court.

Thereafter, the defendants filed their application for an evidentiary hearing and motion for temporary and permanent vacation of the injunction. The third trial followed, and the defendants have appealed from the order of the District Court denying defendants’ motion and application for vacation of the injunction.

The evidence shows that there were four waste disposal lagoons across the road to the south of the plaintiffs’ residence and that the most objectionable odors referred to in the first case emanated from these lagoons. They are the lagoons or ponds referred to in the trial court’s injunction in the second case. The evidence in the case now before us shows that in June of 1977 three of the four lagoons were removed, the [293]*293area leveled and graded, and that area, together with a portion of the north part of defendants’ feedlot, was converted from feedlot use to pasture. The fourth lagoon farthest away from the plaintiffs’ residence was converted into a debris basin and a terrace installed so that drainage from the north portion of defendants’ feedlot and the adjacent Folken feedlots to the east would flow around a hill to the south or backside of a hill away from the plaintiffs’ residence into the debris basin. A perforated tube was installed in the debris basin to permit the water to drain out of the debris basin in a regular flow and into a drainway which carried it away. These changes provided an additional 382 feet of spacing between the south right-of-way line of the road south of plaintiffs’ residence to the closest area of defendants’ feedlot. The reconstruction was done under the supervision of the Department of Environmental Control, and when it was completed the livestock waste control facility for the defendants’ feedlot and the Folken lots to the east was approved and certified by the department in the summer of 1977.

The evidence also shows that thereafter manure was scraped up and bladed periodically and put into mounds. In the spring of each year mounding was done, using heavy equipment, and a mixture of dirt and manure was scraped and mounded. Mounding was also done in the fall as well. Periodically, the lots were scraped and bladed and manure was pulled up into the mound and smoothed and the lots leveled so they would drain properly.

Prior to the cattle being removed in April of 1980 after the entry of the injunction by the trial court on the mandate of this court in the second case, the lots had been scraped and leveled on five occasions that year. The Folken lots immediately to the east were maintained and operated in the same fashion. Several witnesses who had testified to the strong odors that were present at the time of the first trial testified that after the changes had been made, they no longer noticed [294]*294odors coming from the lots when they drove by on the road south of plaintiffs’ house.

The defendants called a number of expert witnesses who had examined the defendants’ feedlots and the Folken feedlots immediately to the east at a time shortly prior to the trial in this case. Dr. Miner, whose background training and experience was in odor control work related to livestock production, testified that in the area of the former ponds he found no indication of sufficient organic matter to support odor production, even if saturated, and that on the date of his inspection when the debris basin was actually draining water, no odor was perceptible from it until he was within 10 feet of it. It should be noted here that the debris basin is used for the Folken lots to the east as well as for the defendants’ lot, and that at the time of trial the Folken lots had approximately 1,000 cattle but had contained as many as 1,200 cattle within a few months prior to trial. Dr. Miner testified that the manure management aspects and the surface water management of the defendants’ lot and the adjacent Folken lots were of high quality, designed and managed in such a way as to produce a minimal quantity of odor for a cattle feedlot surface. In his opinion, taking into account the prevailing winds, plaintiffs would be able to detect feedlot odor at a perceptible level at their residence approximately 15 percent of the time.

Dr. Campbell, a research entomologist and an expert in the study and control of feedlot flies, also examined the defendants’ and the Folken feedlots. He examined the cattle in the Folken lots and found very few flies on the cattle and no indications of the presence of stable flies. He examined the area of the former holding ponds, the debris basin, the mounds, and the lots for fly breeding areas and found very few. Dr.

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Bluebook (online)
313 N.W.2d 696, 210 Neb. 290, 1981 Neb. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/botsch-v-leigh-land-co-neb-1981.