## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

Toftoy v . Rosenwinkel

, 2012 IL 113569

Caption in S upreme Court: R OG E R TOF TOY et al.
, Appellee s, v. KEN ROSENWI NKEL et a l

. , Appellants.

Docke t No. 113569

Filed Rehea ringdenied November 29, 2012
J anuar y 28, 2013

Held ( Note : Thi s syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiffs who acquir ed an historic but unoccupie d far mhouse, demolished it, and built a new home wer e not entitled to a nuisance injunction wher e they complained of flies from a cattle far m acr oss the road which had b ee n in operation since six y ear s befor e their acquisition—Fa

rm Nuisance Suit Act.

Dec ision Under Review Appea l from the Appellate Court for the Second Di s trict; hear d in that
court on appea l from the Circuit Court of Kenda ll County
, the Hon. L inda S. Abrahamson, J udg e, pre siding.

J udg ment Appellate c ourt judg ment reve rsed. Circuit court judg ment reve rsed.
Cause re manded.Counsel on

Appea l Kevin Quinn Butler
, Cornelius E. McKnight, Stanley A. Kitzi ng er, Be rnar d A. Pravdic and Courtney A. Adair, of McKnig ht, Kitzi ng er & Pravdic, L .L .C., of Chicag o, for a ppellants.

Fr eder ick E. Roth, of Nape rville, for a ppellees.

J ustices J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
Chief J ustice Kilbride and J u s ti c e s F r e e ma n , T h o ma s , Gar

man, Kar meier, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 At issue in this case is whether the Fa rm Nuisance Suit Act (740 I L CS 70/1 et seq. (West 2006)) bars the plaintiffs’ nuisa n ce l awsuit ag ainst a neig hboring cattle far m wher e the plaintiffs acquir ed their proper ty afte r the cattle far

m had been in opera

tion f or more than a y ear

. The appellate court held that the suit was not barr ed. 2011 I L App (2d) 100565. For the

rea sons that follow, we re verse the judg ment of the a ppellate c ourt.

¶ 2 Ba ckg round ¶ 3 I n Marc h of 199 1
, t h e d ef en d an t s , Ken Rosenwinkel and the Rosenwinkel Fa mily Partnership, L .L .C., purcha sed 160 acr es of far mland in rura l Kenda ll County

. Acr oss the
street from defe ndants’ far m, on a 120-ac re plot of far mland owned by Clarenc e Toftoy
, was a farmhouse that was at least 100 y ear s old. The farmhouse was occupie d b y a tenant who had bee n in the home since 1985. ¶ 4 I n Dec ember of 1991, the tenant left the far mhouse. No other tenant moved in. In Marc h of the followingy ear , defe ndants beg an using their prope rty as a c attle fa

rm. ¶ 5 I n 1998, Clarenc e Toftoy divided his p ro p er t y an d gav e 1

. 8 3 acr es to his son and daug hter-in- law, plaintiffs Roge r and Bobbie Toftoy

. The 1.83 acr es included the land wher e the old far

mhouse was located. Prior to the transfe r, plaintiffs tore down the far mhouse and beg an const ru ct ion of a new home on the same spot. Construction was then delayed for

sever al y ear s, in part, beca use Bobbie was not cer

tain she wanted to live acr oss the street from a c attle fa

rm. Plaintiffs eventually

moved into their completed home in 2004. ¶ 6 I n Au gu s t o f 2 0 0 7 p l ai n t i ff s fi l ed the instant lawsuit ag ainst defe ndants. In their complaint, plaintiffs alleged that defe ndants’ cattle far m was g ener ating larg e numbers of flies that wer e interf

eringwith plaintiffs’ use a nd enjoy ment of t heir property
, and that the flies constituted a nuisance for which defendants wer e leg ally liable. Plaintiffs soug ht injunctive relief to abate the flies. Plaintiffs did not alleg e that defe ndants wer e neg lige nt in the oper ation of their f

arm. ¶ 7 Def

endants moved for summary judgme nt, arguing that section 3 of the Fa rm Nuisance

-2-S uit Act (Ac t) (740 I L CS 70/3 (West 2006)) barr ed plaintiffs’ nuisance suit. That s ec t i o n

states that no far

m “shall be or become a private or public nuisance beca use of any chang ed conditions in the surrounding are a” when the far m has been in exis tence for one y ear and was not a nuisance at the time it beg an operations. Def endants argued that plaintiffs’ acquisition and occupa

tion of their proper

ty wer e “cha

ng ed conditions in the surrounding are a” that g ave rise to plaintiffs’ nuisance suit, that these chang es occur red afte r defe ndants’ cattle operation had been in exis tence for more than a y ear and, thus, that defe ndant s we re exempt from nuisance liability

under the Act. ¶ 8 The circ uit court of Kenda ll County d is a g r e e d a n d denied defe ndants’ motion. The c ircuit
court noted that the manner in which plaintiffs’ land was used had not chang ed since the time of the old far

mhouse, stating “ther e is a new house wher e there al way s was a far mhouse—only

with a new owner .” Be cause the way in which plaintiffs’ land wa s being used had not c hang ed, the trial court c oncluded that ther e was no “cha ng ed condition” that had g iven rise to plaintiff’s nuisance action and, thus, defe ndants wer e not entitled to r elief under the Act as a

matter of la

w. ¶ 9 At trial, plaintiffs prese nted expert testimony that there wer e an excessive number of flies

on plaintiffs’ proper t y and that they wer e emanating from defe ndants’ proper ty

. Plaintiffs also testified that the flies substantially interfe red with the use and enjoy ment of their home, making it impossibl e at times to eng ag e in outdoor activities. At the conclusion of the trial, the circ uit co u rt en t ered judgme nt in favor of plaintiffs and order ed defe ndants to take

reme dial measure s, including remova l of moist bedding and manure , to r educe the number of flies. ¶ 10 The appellate court, with one jus tice dis sent i n g, af fi rmed. W ith respe ct t o section 3 of the Act, the appellate court held that the phrase “shall be or become a *** nuisance beca use of any chang ed conditions” indicates that, for the Act to apply
, the chang ed conditions must be the rea son the far

m become s a nuisance

. Thus, acc ording to the appellate court, “sec tion 3 may not be invoked mere ly for ‘any chang ed conditions.’ Rather, the conditions must alter the cha rac ter of the surrounding are a such that, where the fa rm was not a nuisa

nce when it beg an opera

tion, it is transfor

med into a nuisance by the chang ed conditions.” 2011 I L App (2d) 100565, ¶ 36. Applying that rule, the appellate court held that plaintiffs’ acquisition and
occupation of their land “did not alter the char acte r of the are a such that the cattle operation, which previously had not been a nuisance
, there by beca me a nuisance .” Id. ¶ 37. There fore
, the Act did not bar

plaintiffs’ suit. ¶ 11 Wit h respe ct to the merits of plaintiffs’ nuisance claim, the appellate court aff irmed the judgme nt of the circ uit court. Howeve r, the app el l ate court vacated the circ uit court’s

reme dy
, holding that the injunctive relief awa rded by the circ uit court was vague and overly broad. ¶ 12 We allowed defe ndants’ petition for l ea v e t o appeal. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010).

¶ 13 Analy sis ¶ 14 Def

endants’ sole argument on appea l is that the appellate court misconstrued section 3

-3-of the Ac t. Our re view of this issue is de novo

. Gaffney v . Board of Trust ees of the O rland

Fire Protection District , 2012 I L110012, ¶ 50. ¶ 15 The Act is a “rig ht-to-fa rm” law. Wit h variations, such laws exis t in all 50 states. Shore

v. Maple Lane Farms, LLC
, 2012 WL 1245606, *10 (Tenn. Ct. App. Apr. 11, 2012) (collec ting statutes) . The leg islative policy behind the Ac t is stated in section 1: “§ 1. I t is the decla

red policy of the state to c onserve and protec t and encour ag e the development and improvement of its ag ricultural land for the production of food and other ag ricultural products. When nonag ricultural land uses exte n d into
ag ricultural areas, far

ms often become the subject of nuisance suits. As a result, far ms a re sometimes f

orce d to c ease operations. Many others are discourag ed fr om making investments in far m improvements. It is the purpose of this Act to reduc e the los s t o t he State of its ag ricultural resour ces by limit ing the circ umstances under which farming operations may be deemed to be a nuisance .” 740 I L CS 70/1 (West 2006). By reduc ing th e i ncidenc e of nuisance suits, section 3 of the Act is intended to reduc e the cost of fa rmingand help pr event the loss of f armland. Sec tion 3 provides: “§ 3. No far

m or any of its appurte nance s shall be or become a private or public nuisance beca

use of any chang ed conditions in the surrounding are a occur ring afte r the fa rm h as been in operation for more than one y ear , when such far m was not a nuisance at the time it beg an operation, provided, that the provisions of this Section shall not apply whene ver a nuisance results from the neg lige nt or improper operation of any far m or its appurtena

nces.” 740 I L CS 70/ 3 (West 2006). ¶ 16 As they did i n t h e l ower courts, defe ndants emphasize that section 3 ref ers to “any” chang ed conditio n s t h at m ay g ive rise to a nuis ance action. This, acc ording to defe ndants, indicates that the statute should be g iven a broad interpre tation that encompa sses the chang es that occur red he re a nd, thus, bars plaintiffs’ suit. ¶ 17 Plaintiffs, in contra st, focus on the fac t that section 3 applies only if the alleg ed cha ng ed conditions are ones that cause the far m “to be or b ec o m e a private or public nuisance .” Acc ordingto plaintiffs, the word “ nuisance ” in sec tion 3 ref ers sim ply

to a nontrespa ssory invasion of another ’s interest in the private use and en j o y ment of land. See Restatement (Second) of Torts § 821D (1979). Plaintiffs maintain that, in this case , there was an invasion and interfe renc e with the private use of land from the t i m e defe ndants beg an their cattle
operation beca

use there was alway s a house on the proper ty at issue. The exis tence of the old far mhouse, even when unoccupie d, meant that a nuisance action was alway s possible. I n this
sense, acc ording to plaintiffs, defe ndants’ cattle far m did not “bec ome a nuisance ” beca use of “any chang ed conditions” in the surrounding are a broug ht about by plaintiffs. Rather, the flies wer e a nuisa

nce f rom the onset of the cattle ope rations. ¶ 18 Although plaintiffs themselves do not do so, their argument may be expressed in terms of the common law doctrine of coming to the nuisance

. The term “coming to the nuisance ” ref ers to those instances wher e a plai n t i ff ei t h er acquir es his land or improves it afte r the defe ndant has alre ady begun the nuisance g ener ating activity

. Restatement (Second) of Torts § 840D (1979). A t common la w, a plaintiff who came to the nuisance would not be bar red

-4-from pursuing a nuisance action, but the fac t that the land was acquir ed or improved afte r the

nuisance g ener ating activity beg an would b e a fac tor in deter mining whether the nuisance

was a ctionable. See Oehler v . Levy , 234 I ll. 595 (1908). ¶ 19 Plaintiffs maintain, in essence , that section of 3 the Act is ref err ing to only

one ty pe of coming to the nuisance —wher e the plaintiff’s land is develope d or altere d afte r the nuisance

g ener ating activity has begun. Thus, for example, if a cattle far m opens acr oss the street from

a plot of land containing crops, there is no nuisance beca use the use and enjoy

ment of a field of crops is not aff

ecte d by flies. I f, howeve r, the owner of the crops remove s them and develops the l an d wi t h a home, a nuisance is cre ated. In the words of section 3, the cattle far m “bec ome s a nuisance beca use of a chang ed condition in the surrounding are a.” Plaintiffs contend, in eff

ect, that they never came to the nui sance for purposes o f s ec t i o n 3 beca use, while their land chang ed owner ship, it was alway s develope d with a home. There fore
, acc ordingto plaintiffs, section 3 does not apply . We disag ree

. ¶ 20 I n leg al usag e, the wor d “nuisanc e” ha s been e mploy ed in three differ ent senses:

“(1)

. It is often used to denote human activity or a phy sical co n d i t i o n that is harmful or annoying to others. Thus it is often said that indece nt conduct or a rubbish heap or the smoking c himney

of a f actor y is a nuisance

. (2). I t is often used to denote the harm cause d by the human conduct or phy sical condition descr ibed in the first m ea n i n g

. Thus it may be said that the annoy ance

cause d by loud noises or by objectionable odors is a nuisance to the person aff ecte d by them.
W hen the word is used in either of these two senses it does not n ec es s ar i l y connote tort liability

. The courts that use the word in either sense will often proce ed
to discuss whether the particula r ‘nuisance ’ is actionable and may conclude that it is
not. (3). Of

t en, howeve r, the term has been used to denote both the conduct or condition and the resulting harm with the addition of the leg al liability that arises from the combination of the two. Thus t h e co u rt s m ay say that a person is maintainin g a nuisance
, meaning that he is eng ag ed in an activity or is cre ating a condition that is harmful or annoy ing to others an d fo r wh ich he is leg ally liable ***.” Restateme nt (Second) of Torts § 821A cmt. b, at 85-86 ( 1979). Section 3 of the Act bars cer tain nuisance lawsuits. As used in that provision, the word “nuisanc e” neces s ar i l y is being used in the third sense descr ibed above, i.e.
, an action for which a far

m owner would fac e leg al liability

. L iability for a private nuisance
, in turn, exis ts “only to those who have proper ty rig hts and privileg es in respe ct t o the use a nd enjoy ment of the land aff

ecte d.” Restatement (Second) of Torts § 821E (1979). Cf. City of Chicago v. Beretta U.S.A. Corp.
, 213 I ll. 2d 351, 366 (2004) (noting that an action for public nuisance
may lie even though neither t h e plaintiff nor the defe ndant acts in the exercise of private
proper ty rig hts). ¶ 21 I n this case , plaintiffs’ acquisition of owner ship cre ated the leg ally protec ted interest in which the plaintiffs are cl ai m i ng interfe renc e. In other words, defe ndants’ far m could not “bec ome a nuisance ” to pla intiffs until they acquir ed their proper ty in 1998. The chang e in

-5-owner ship was a “cha ng ed condition” that g ave rise to plaintiffs’ nuisance action. In this
way , section 3 codifies, and makes a bar to suit, the ent irety of t he coming to the nui sance doctrine. See, e.g. , Swedenbe rg v. Phillips
, 562 So. 2d 170, 172 (Ala. 1990) (noting that “the plaintiffs’ coming to the land next d oor” would constitute a “cha ng e in the surrounding locality ” for purposes of the state’s rig ht to far m act) ; Guth v. T

a z ew ell County
, ___ F.3d

___, ___, 2012 WL 4901159, *2 (7th Cir. Oct. 17, 2012) (the Act “alter s the common law’s reje ction of the defe nse of ‘coming to the nuisance ’ by insulating fa

rmers a g ainst nuisance suits afte r a far

m h as b ee n i n operation for a y ear —but with exceptions”); Shore v. Maple Lane Farms, LLC , 2012 WL 1245606, *10 (Tenn. Ct. App. Apr. 11, 2012) (“ rig ht-to-fa rm laws are essentially a codification of the common law defe nse of ‘coming to the nuisance ’ ”); Neil D. Hamilton, Right-to-Farm Laws Rec onsidered: Ten Reasons W hy Legislati ve Efforts
to Resolve Agricultural Nuisances May Be Ineffec tive
, 3 Drake J

. Ag ric. L

. 103, 104 (1998); Marg are t Rosso Grossman & Thomas G. Fischer, Protecting t he Right to Farm: Stat utory Limits on Nuisance Actions Against the Farmer
, 1983 Wis

. L

. Rev. 95, 97; Randall Way ne Hanna
, “Right to Farm” Statutes—The Newest Tool in Agricultural Land Preserv ation
, 10 Fla. St. U. L . Rev. 415, 430 (1982). ¶ 22 Plaintiffs in this case did not acquir e their proper ty rig hts in their land u n t i l 1998, six
y ear s afte r defe ndants’ cattle far m beg an operating, and well beyond the one-year limit ation contained in section 3. Plaintiffs came to the nui sance and, u n d er s ec t ion 3 of t he Act, are barr ed fr om filing a

nuisance suit.

¶ 23 Conclusion ¶ 24 For the fore g oing rea sons, the judgme nts of the appellate court and ci rc u i t co u rts are

reve rsed. The cause is rema nded to the circ uit court for further proce eding s consistent with this opini on.

¶ 25 Appellate c ourt judg ment reve rsed. ¶ 26 Circuit court judg ment reve rsed. ¶ 27 Cause re manded.

-6-