Citation. Spur Indus. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700, 4 ERC (BNA) 1052, 53 A.L.R.3d 861, 2 ELR 20390 (Ariz. Mar. 17, 1972)
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Brief Fact Summary.
The Plaintiff, Del E. Webb Development Co. (Plaintiff), brought suit for an injunction of the Defendant, Spur Industries, Inc.’s (Defendant), feedlot based on a public nuisance claim. Defendant had been established in the area long before Plaintiff built residential property nearby.
Synopsis of Rule of Law.
When a developer has brought into a previously agricultural or industrial area the population, which makes the granting of an injunction necessary, the developer must indemnify the enjoined business if the impending injunction was foreseeable by the developer.
The Defendant had operated a cattle feedlot in an urban area outside of Phoenix since before 1950. In 1959 the Plaintiff began to develop Sun City, a residential community, some distance from Defendant. The development expanded, until 1967, when Sun City was with 500 feet of Defendant. Plaintiff brought suit requesting a permanent injunction of Defendant’s operations, claiming that remaining lots were unfit for residential development because of the operation Defendant’s feedlot. The trial court granted Plaintiff’s injunction request. Defendant appealed and Plaintiff cross-appealed.
When the operation of a business is lawful in the first instance, but becomes a nuisance because of a nearby residential area, may the business be enjoined by an action brought by the developer of the residential area?
* If the nuisance may be enjoined, may the developer be required to indemnify the operated of the business, which must move or cease operation?
Yes. Judgment affirmed in part, reversed in part, and remanded.
* Plaintiff’s suit alleged that Defendant’s feedlot was a public nuisance because of flies and odor created by the feedlot. Some courts have held that in balancing of the conveniences cases such as this, damages are the only remedy. However, this Court has no difficulty in finding that the operation of Defendant’s feedlot is an enjoinable public nuisance. If Plaintiff were the only party injured, his claim would be barred by the doctrine of coming to the nuisance. However, Defendant’s operation is both a public and private nuisance for the citizen’s of Sun City. Therefore, the trial court was correct in permanently enjoining operation of Defendant’s feedlot.
* It follows neither equitably or legally that Plaintiff is free of liability if he is the cause of the damage that Defendant will sustain from the permanent injunction. Because Plaintiff brought people to the nuisance to the foreseeable detriment to Defendant, Plaintiff must indemnify Defendant for the reasonable cost of either moving the business or shutting down.
The majority rule is that a plaintiff is not barred from recovery in either public or private nuisance law because he comes to the nuisance. However, this is not an absolute law when other factors are more or less balan.