"One ought not have so delicate a nose": CAFOs, agricultural nuisance, and the rise of the right to farm.

• Author: Morris, Jonathan
• Position: Concentrated animal feeding operations

The origins of agricultural nuisance can be traced back more than four hundred years to William Aldred's Case in 1610. There, William Aldred brought an action against Thomas Benton for housing livestock in a manner that resulted in unpleasant odors reaching his property. In deciding in favor of Aldred, the Court of Common Pleas ultimately set in motion more than four hundred years of agricultural nuisance suits. This Article, which begins by exploring the roots of agricultural nuisance in early English and American law, ultimately focuses on the trend toward the statutory and constitutional protection of agriculture. The Article's discussion of those protections begins with the passage of right-to-farm laws. These laws, which now exist in some form in every state, have had inconsistent effects upon the success of agricultural nuisance suits. Finally, this Article discusses the potential trend toward the amendment of state constitutions to include a right to farm. Currently, only North Dakota and Missouri have amended their constitutions to include this right. A similar measure was proposed in Oklahoma in 2016 but was easily defeated.

1. INTRODUCTION 262 II. NUISANCE AND EARLY ENGLISH COMMON LAW 263 A. The Public Health Act 1848 266 B. The Nuisance Removal and Disease Prevention Act 1848 267 C. English Nuisance Cases 268 D. American Nuisance Cases 270 III. THE RISE OF INDUSTRIALIZED AGRICULTURE AND THE ANIMAL FEEDING OPERATION 272 A. What is an Animal Feeding Operation (AFO)? 272 B. Health Effects Attributable to Animal Feeding Operations 273 C. CAFO Animal Waste and NeighbOling Properties 274 IV. NUISANCE AND MODERN AMERICAN COMMON LAW 276 A. Right-to-Farm Statutes 276 B. Modem American Nuisance Cases 279 1. When Right-to-Farm Statutes Apply: Coming to the Nuisance 279 2. When Right-to-Farm Statutes Are Inapplicable: Anticipatozy Injunctions 281 C. The Right to Farm as an Amendment to State Constitutions 283 V. CONCLUSION 286 I. INTRODUCTION

   This Article explores the contours of the nuisance doctrine from early English common law to its modern application in the United States, including a number of laws enacted to expand, supplement, or narrow its application.

   Part II discusses the origins of nuisance in the common law of England and its later application in early American common law. Nuisance doctrine has been applied to a variety of agricultural activities for centuries. The earliest case seems to have been William Aldred's Case, 1 which is often cited as the foundation for modern environmental law. Typically, private entities filed suit to enjoin the activities constituting a nuisance on a neighboring property or acquire damages for past harms resulting from the nuisance. In the late 19th century, the Parliament of the United Kingdom enacted two Acts to mitigate the harm caused by a lack of sanitation. Both pieces of legislation had a significant impact on the procedures that were followed in the bringing and settling of nuisance claims in English courts. In the United States, as is illustrated below by a selection of early American cases, the nuisance doctrine operated in much the same fashion.

   Part III focuses on the rise of modern methods of raising livestock. The first major shift in the operation of the nuisance doctrine was caused by a trend toward industrialization of animal agriculture practices in the first half of the 20th century. This trend culminated in the ubiquity of concentrated animal feeding operations (CAFOs), which solidified as the standard method of farming in the second half of the 20th century. This transition was marked by a decrease in the number of livestock farms in the United States during a major population spike. The result is seen in the type of suits that are brought by plaintiffs today--they are often against livestock operations housing large numbers of animals.

   Part IV focuses on the modern application of nuisance doctrine and the shift toward protection of agricultural interests. This shift took place in the 1970s when states began enacting right-to-farm statutes, which essentially limited the effectiveness of nuisance claims brought by private individuals. All fifty states now have some form of these laws. Although they are often criticized, many commentators explain that right-to-farm laws are nothing more than a codification of the common law coming to the nuisance affirmative defense.

   Although common law nuisance and statutory supplementation of the doctrine vary from state to state, the doctrine of nuisance remains a viable option for those who are harmed by the agricultural activities taking place on neighboring properties. However, the recent, introduction of right-to-farm amendments to state constitutions presents uncertainty in the future of state regulation of agriculture. It seems apparent that the trend toward protecting agricultural interests is on the rise, particularly in states with large agricultural industries.

2. Nuisance and Early English Common Law

   The application of nuisance doctrine to sources of deleterious odors is nothing new. Aldred's Case is often cited as one of, if not the, earliest environmental law cases. (2) In 1610, William Aldred brought action against Thomas Benton for building a pigsty that emitted fetid and unwholesome odors near Aldred's house. (3) The defendant pleaded not guilty, and in his defense, he argued that "one ought not have so delicate a nose, that he cannot bear the smell of hogs." (4) The Court of Common Pleas determined that the plaintiff should be able to recover damages. (5) In making that determination, the court relied on a decision in 1587 by the King's Bench in Bland v. Moseley. (6) As the Aldred's Case court characterized it, the Bland case involved the plaintiff's dwelling which contained seven windows that allowed air and light to enter the structure. (7) The defendant built a structure so close to the plaintiff's house "that the said seven windows were stopped." (8) The King's Bench determined "that for stopping as well of the wholesome air... as of light, an action lies, and damages shall be recovered for them, for both are necessary." (9) However, as the Aldred's Case court noted, the court in Bland went further and held that a cause of action only lies in what is necessary and not what is considered only to be "a matter of delight." (10) As mentioned above, the court determined that "wholesome" air and light were necessary." However, the court noted "that for... prospect, which is a matter only of delight, and not of necessity, no action lies for stopping thereof, and yet it is a great commendation of a house if it has a long and large prospect.... But the law does not give an action for things of delight." (12) Although it is unclear where the line was to be drawn between a "necessity" and a "delight," it seems apparent that the court in Aldred's Case, and subsequent courts making nuisance determinations, considered air free of noxious odors to be a necessity.

   The underlying framework of Aldred's Case was perpetuated in numerous cases for centuries. For example, a similar determination can be found in Hex v. White. (13) There, the defendants erected buildings used to manufacture several substances which created smoke and odors. (14) According to the plaintiff, "the air was impregnated with noisome and offensive stinks and smells." (15) In determining that the defendants' operations constituted a nuisance, the court explained, "it is not necessary that the smell should be unwholesome: it is enough, if it renders the enjoyment of life and property uncomfortable." (16) Again, it is unclear from the court's opinion whether it thought air that is free of "offensive stinks and smells" is considered a necessity, or if the court was attempting to expand the general application of nuisance to what the court in Aldred's Case would have considered a mere delight. After determining that the defendants had discontinued operation of the manufacturing facility, the court issued a stipulated order requiring the defendants not to resume operations that would result in a nuisance. (17) Additionally, the court fined the defendants in the amount of six shillings and eight pence. (18)

   The existence of the potential negative health effects of the types of nuisances in both Aldred's Case and Rex v. White was clear to at least one notable commentator. William Chadwick authored the Report on the Sanitary Condition of the Labouring Population of Great Britain. (19) Chadwick's Report--published in 1842--thoroughly discussed, among other concerns, health problems that occurred in Great Britain from odors and airborne diseases due to a lack of sanitation. (20) The Report explained how gases and particles present in the air affected the general public's health. He explained that, "[w]hen diffused in the air, these noxious particles are conveyed into the system through the thin and delicate walls... of the lungs in the act of respiration." (21) The Report also discussed at length Chadwick's thorough understanding of the potential effects of such airborne pollutants in densely populated areas:

   It is equally well known that, when the air is infected by particles of decomposing vegetable and animal matter, fevers are produced of various types...; that the exhalations arising from marshes, bogs, and other uncultivated and undrained places, constitute a poison...; and that exhalations accumulated in... densely-populated cities, where little attention is paid to the removal of putrefying and excrementitious matters, constitute a poison chiefly of an animal nature, which produces continued fever of the typhoid character. (22)

   In fact, Chadwick's Report was so influential that the United Kingdom's Parliament responded with two significant pieces of legislation: the Public Health Act 1848, (23) and the Nuisance Removal and Disease Prevention Act 1848. (24)

   1. The Public Health Act 1848

      The Public Health Act did several notable...