Pestey v. Cushman

788 A.2d 496 (2002)

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Nature of the Case

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Facts

Ds own and conduct farming operations on a large tract of land on the opposite side of Route 87 from P's home approximately one-third of one-mile north of P's property. In 1990, Ds constructed a 42,000-square foot free stall barn and milking parlor on their land to house a herd of dairy cows and a pit in which to store the manure generated by the herd. P first noticed objectionable odors emanating from D's farm in early 1991. The odors became substantially more pungent, and their character changed as they took on a sharp, burnt smell. In 1997, the defendants installed an anaerobic digestion system on their farm to process the manure generated by the dairy herd. Following the installation of the digester, the character of the odors affecting P's property changed again, becoming more acrid and evincing the smells of sulphur and sewage. This change was caused by the digester being either undersized or overloaded. At times, the odors were so strong that the smell would awaken Ps during the night, forcing them to close the windows of their home. Pestey (P) sued Cushman (D) seeking money damages and injunctive and declaratory relief. P got the verdict and D appealed. D claims that the trial court improperly instructed the jury with regard to the unreasonableness element of the nuisance claim; it failed to instruct the jury adequately with respect to the balancing of interests that must be performed in deciding whether a use of property is unreasonable.