Citation. 108 Ariz. 178, 494 P.2d 700, 1972 Ariz. 4 ERC (BNA) 1052
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Developer sued to permanently enjoin a cattle feedlot operation that was in close proximity to a residential development it was creating. The feedlot owner counterclaimed for indemnification from the developer if it was enjoined from operation.
Synopsis of Rule of Law.
In the proper circumstances, an owner of a lawful business that is enjoined from operating because his business is found to be a nuisance can seek indemnification from the individual successful in claiming the nuisance.
Facts.
Farming started in the area at issue as early as 1911. Later, the area developed into an urban area with several retirement communities being built. The Defendant, Spur Industries (Defendant), developed cattle feedlots in the area in 1956. The Plaintiff, Del E. Webb Development Co. (Plaintiff), began development of an urban area near the feedlots. Plaintiff filed a complaint in 1967 stating that the approximately 1,300 lots were unfit for residential development because of the feedlots proximity to the lots, therefore the feedlots constituted a public nuisance. The trial court permanently enjoined the defendant from operating the feedlots.
Issue.
Two issues were examined on appeal:
Where a business is being operated in a lawful manner, may the operation be enjoined as a nuisance?
If the operation is enjoined as a nuisance, may the developer who requested the enjoinment be required to indemnify the business owner.
Held.
Affirmed. The feedlots are both a private and public nuisance to the residents of the development. Reversed as to damages awarded to Defendant, Plaintiff must indemnify Defendant for a reasonable amount of the cost of moving or shutting down.
To be a public nuisance, the activity has to be one that must affect a considerable number of people or an entire community or neighborhood. To be a private nuisance, it must affect a single individual or a definite small number of persons in the enjoyment of private rights not common to the public.
By statute, Defendant’s feedlots could be deemed a public nuisance because of its potential to be dangerous to public health.
With respect to indemnity, if a residential owner knowingly came into an area reserved for industrial or agricultural endeavors, he may not be entitled to relief.
Discussion.
The court analyzed whether the operation was a private and/or public nuisance. Here, the court focused on the health concerns associated with the smell and mosquito population associated with the feedlots being near to residential lots. The health issues associated with the smell and mosquitoes were the deciding factors for the court. With respect to indemnity to the owner that the court was requiring to move, the court focused on the lack of knowledge Defendant possessed with respect to the possibility a town would be built around him versus Plaintiff’s knowledge that the feedlot was in operation prior to purchasing and selling the residential lots.
