Citation. 22 Ill.108 Ariz. 178, 494 P.2d 700, 4 ERC 1052 (1972)
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Brief Fact Summary.
In 1956, Spur Industries, Inc.’s (Defendant’s) predecessor established cattle feed lots in a rural area outside of Phoenix. In 1959, Webb Development Co. (Plaintiff) established a residential development called Sun City. Both the feed lot and the development has since expanded. Plaintiff has sued Defendant for an injunction arising from the nuisance created by the feed lot due to flies and odor, which drifts into Sun City with the wind.
Synopsis of Rule of Law.
“Coming to the nuisance” acts to bar relief when a plaintiff has knowingly entered into an area reserved for industry or agriculture.
The lower court ruled in favor of the Plaintiff and permanently enjoined the Defendant’s feed lot operation. The Defendant appealed.
Can the Plaintiff enjoin the operation of Defendant’s feed lot?
Yes. However, the Plaintiff must indemnify Defendant for the cost of moving the operation. Affirmed in part, reversed in part.
A private nuisance is one affecting a single individual or a definite small number of individuals in the enjoyment of private rights not common to the public. A public nuisance is one affecting the rights enjoyed by citizens as a part of the public. The Court agreed with the trial court’s determination that Defendant’s operations were enjoinable as a public nuisance, as far as the people in the southern area of Sun City were concerned.
Since any of the people residing in the southern part of Sun City could have brought the action for nuisance under the statutory definition of public nuisance, the Plaintiff, as developer, has shown a special injury due to Defendant’s operations as a result of damage to sales.
“Coming to the nuisance” is defined as when a residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby. The court did not apply this doctrine to deny Plaintiff relief, because the Defendant did not, and could not have known, that a city would spring up alongside its operations. The court upheld the injunction, however, because of the concern for public health.
Although the Plaintiff is entitled to an injunction, the Plaintiff may be held liable in indemnification for costs incurred by Defendant in moving their operations. The harm from the Defendant’s feed lot (which pre-dated the development) was foreseeable. Thus Plaintiff must share the cost burden of relocating the Defendant’s feed lot.
This court was clearly concerned with protecting the citizens of Sun City from a public nuisance, but it also balanced that concern with the rights of the Defendant. When a plaintiff has knowingly entered into an area reserved for industry or agriculture, he or she is “coming to the nuisance,” i.e., this will act as a bar to an action for nuisance.