## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Toftoy v . Rosenwinkel

, 2011 IL App (2d) 100565

Appellate Court Caption ROGER TOF TOY and BO BB I E TOF TOY, I ndividually and as Parents of Natalie Toftoy and Hay lie Toftoy
, Plaintiffs-Appellees
, v

. KEN ROSENWI

NKEL and ROSENWI

NKEL FAMI L Y PARTNERSHI P, L .L .C., Defe ndants-Appe llants.

District & N o. Second District Docke t No. 2-10-0565

Filed November 17, 2011

Held (Note : Thi s syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt 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

. ) On appea l from the injunction enter ed ag ainst defe ndants order ing them
to take cer

tain measure s to preve nt excessive flies from emana ting from defe ndant’s cattle operation, the trial court did not err in finding that the Fa rm Nuisance Suit Act did not bar plaintiffs’ suit, and the finding s that the fly invasion from defe ndants’ proper ty was substantial and

unrea sonable wer e not ag ainst the manifest weig ht of th e evidenc e, but the injunctive relief g rante d by the trial court was vacated on the g round that it was vague and overly broad, and in the absen ce of a reque st that the cause be rema

nded for a hear ing so that a proper injunction could be
enter ed, no re mand was or dere d.

Dec ision Under Review Appea l from the Circuit Court of Kenda ll C ounty , No. 07-CH-418; the Hon. L inda S. Abraha

mson, J udg e, pre siding.

J udg ment Affir med in part a

nd vacated in part.Counsel on

Appea l Ke v i n Quinn Butler and Cornelius E. McKnig ht, both of McKnig ht, Kitzi ng er, Mc Carthy

& Pra vdic, L L C, of Chicag o, for a ppellants.

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

Panel PRES I DI NG J USTI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustice Hudson conc urre d in the judgme nt and opinion.
J ustice Hutchinson specia lly concur red in part and dissented in part, with opinion.

OP INION

¶ 1 Plaintiffs, Roge r and Bobbie Toftoy
, soug ht a decla ratory judgme nt and injunctive relief
ag ainst defe ndants, Ken Rosenwinkel and Rosenwinkel Family Partnership, L .L .C., alleg ing that defe ndants’ cattle operation cre ated a nuisance as a result of excessive flies emanating from the far

m and coming onto their proper ty

. The trial court denied defe ndants’ motions for
summary judgme nt and for a direc ted finding

. Following a bench trial, the trial court enter ed

an injunction ag ainst defe ndants, order ing them to take cer tain measure s to preve nt e x cessive flies from emanating from their cattle operation. Def endants appea l, arg

uing that the trial
court e rre d in: (1) deny

ing their motions for summary judgme nt and for a direc ted finding
, wher e it f ound that the Fa

rm Nuisance Suit Act (Act) ( 740 I L CS 70/1 et seq. (West 2006) ) did not bar plaintiffs’ suit; (2) finding that the flies constituted a nuisance ; a nd (3) g ranting plaintiffs injunctive relief . For the following rea sons, we af firm in part a

nd vacate in part.

¶ 2 I . BA CKGROUND ¶ 3 I n Marc h 1991, defe ndants purcha sed 1 6 0 ac re s o f far mland on Hollenbac k Road in Newa rk with the intention of running a ca t t l e operation there on. The land had previously been used as a cattle far

m. I n 1992, defe ndants started their cattle operation on the proper ty , purcha sing 10 c attle at that time. ¶ 4 Plaintiffs own a parc el of land acr oss the street from and to the west of defe ndants’ fa rm. Their parc el was former ly part of a larg er parc el owned by Clarenc e Toftoy (Rog er Toftoy ’s fathe r and not a party to this case ), who purcha sed i t in 1967. When defe ndants purcha sed their proper

ty , Clarenc e owned a 200-ac re parc el of far mland acr oss the street. Clarenc e had used the land for ag ricultural purposes. A nineteenth ce n t u ry far mhouse on Clarenc e’s
proper ty was occupie d by a tenant, Debbie Slatton, and her family from 1986 until Dec ember 1991 (Clare nce never lived in the house). I n 1989, plaintiffs beg an using the barn and fenc ed

-2-lots on Clarenc e’s proper ty to board horses. Th e o l d fa rm house was vaca nt from J anuar

y 1992 to 1997. I n 1998, Clarenc e g ifted (by deed) 1.83 acr es of his proper ty , which included the old far

mhouse, to plaintiffs. Prior to the transfe r of owner ship, Clarenc e demolished the old far mhouse and in 1997 plaintiffs beg an building in the same location a new house to be used as their primary residenc e. (Plaintiffs obtained a building pe rmit in October 1997.) I n 2002, Clarenc e g ifted to plaintiffs an additional 58 acr es of adjac ent fa rm land. Plaintiffs 1 completed c onstruction of and move d into their residenc e in 2004. ¶ 5 I n 2007, plaintiffs sued defe ndants, al l egi n g t h at ex ce s s i v e fl i es emanated from defe ndants’ farm and that the excessive flies constituted a nuisance

. They further asser ted that the cattle operation could be modified t o p re v en t excessive flies. This could be

acc omplished by implementing proper cattle- manure -handling proce dures and limit ing the number of cows and calve s prese nt on the far m. Plaintiffs asked the court to de clar e the fly invasion to be a nuisance and to order defe n d an t s to implement rea sonable fly -pre vention

measure s, or, alternatively
, to enjoin defe ndants from using the far m as a cattle operation. I n response , defe ndants denied pl ai n t i ff s’ substantive alleg ations and raised the aff irmative defe nses that they had immunit y under the Act and that the alleg ed nuisance was cause d by plaintiffs’ neg lige nce a

nd conditions outside of defe ndants’ contr ol. ¶ 6 O n N o v e mbe r 4, 2009, defe ndants moved for summary judgme nt, arguing, inter alia
, th a t plaintiffs’ suit was barr ed by the Act or, alternatively
, that the rec ord contained no evidenc e that the alleg ed nuisance was substantial. The trial court d en i ed defe ndants’ motion. The
court found that plaintiffs wer e not the l ega l o wners of the old far mhouse, but that the far mhouse exis ted when defe ndants commence d their cattle opera tion. The court also found that the cattle operation predated: the demolition of the old far mhouse, the subdivision of the 1.83-ac re parc el and its conveyan ce t o plaintiffs, the construction of plaintiffs’ home, and plaintiffs’ move into their home. As to the Act, the co u rt fo u n d that the demolition, subdivision, conveyance , construction, and move di d not constitute chang ed conditions as contemplated there under. The court also reje cted defe ndants’ argument that there was no fac tual issue as to whethe r the nuisanc e wa s substantial. ¶ 7 A bench trial commence d on J anuar y 11, 2010. Roge r T o ft o y , a h ea v y -e q u ipment

o p erator and far

mer, testified that he and his family moved i nto their newly built h o u s e i n 2004, at which point defe ndants’ cattle operation had been in place for more than one y ear

. He conce ded that, when defe ndants purcha sed their far m, plaintiffs did not own the proper ty wher e they curr ently live. Be tween 1992 and 1998, plaintiffs did n o t own any land on Hollenbac k Road and no one lived on the 1.83-a cre parc el. ¶ 8 Roge r h ad h el ped far m Clarenc e’s land since 1967; howeve r, he did not g row up on a far m. Plaintiffs considere d remodel i n g t h e old far mhouse but decide d that it would not be
cost eff ective to do so. Addre ssing the fly invasion, Roge r testified that, during “fly season” (May un t i l t h e fi rst hard frost or November), the flies wer e very bothersome outside plaintiffs’ home. I t was difficult for the children to play outside; they play ed inside the home

Both th e 1. 83- acr e a nd 5 8- acr e pa rc el s a re zoned f or agric ult ura l u se. However, th e 1 1.83

- acr e pa rc el is not ta xed as fa rmland.

-3-and wor e longpants outside to avoid fly bites. ¶ 9 P l aint iffs had kept horses on their/Clarenc e’s proper ty since 1989. The fly i n v as i o n aff ecte d the horses. I t beca

me difficult for plaintiffs to use or train their horses, beca use the horses could not stand still when being attacke d by flies. Be g i n n i n g i n 2 0 08, Roge r experience d “less flies” on his property and the f lies were not bothersome eve ry day

. ¶ 10 Ken Rosenwinkel testified as an adver se witness. Rosenwinkel did not live at the cattle
operation. He did not have a written manure -mana g ement plan or a fly - or pest-mana g ement prog ram for his cattle operation

. He n ever consulted an entomologist to develop such
prog rams, beca

use state law did not require him to do so. Rosenwinkel further testified that he hired a veter inarian to assist him in raising cattle, including the manag ement of flies and

o t h er p es ts. Although he did not have a written manure -mana g ement proce dure, he did follow a proce dure that involved sprea ding manure in the field and working it into the soil. He also periodica lly spray ed with insecticides, inspected for bree ding sites, and used fly tag s that contain pesticide . Also, he used f ly -control a dditive in the cattle fe ed. ¶ 11 Rosenwinkel conce ded that, when he purcha sed his proper t y , t h er e wa s a h o u s e o n plaintiff’s proper

ty , occupie d by Slatton and her family
, and that t h e o n l y chang e that had

occur red on the proper

ty since then was the demolition of the old house and the construction of the new house at the same location, with plaintiffs residing in the new house. Also, when Rosenwinkel purcha sed his proper ty , there wer e no ca ttle on it (as his operation beg an in 1992). ¶ 12 Bobbie Toftoy testified t hat her family acquir ed their pr operty

in 1998 and that no one li v e d o n Cl a

r e n c e ’ s/plaintiffs’ proper

ty betwee n 1992 and November 2004. D e f e n d a nts ’ f a r m had been in operation fo r more than one y ear befor e her family came to own the proper ty wher e they now resided. Bobbie had two horses on their proper ty ; she had used the barn on the proper

ty to pen horses befor e 1992. Bobbie did not have a written manure -mana g ement plan for he r horse s, beca

use plaintiffs’ f

arm did not “have flies.” ¶ 13 Be g inning in mid-J une 2007, plaintiffs’ proper ty had “swa

rm s ” o f fl i es o n the house, including the g utters, siding, windows, g ara g e doors, and transfor mer box es. There was a fly about ever

y inch or half inch. On Father’s Day 2007, Bobbie saw Roge r in the front y ard and the entire back of his shirt was “cove red solid with flies.” T h er e wer e times when Bobbie could not put her horses on the turnout beca use the horses wer e too bothere d by the flies. She
app l i ed a fl y wi p e on the horses that allowed them to g o out for two hours; Bobbie would have to w ipe down “eve ry inch of their bod[ies]” with the treatment. She could not put the children on the horses. Bob b i e further testified that plaintiffs could not use their porch beca use it had too many flies and was marke d up. The children did not like to play outside, beca use the flies would bite. Plaintiffs avoided opening their g ara g e doors; Roge r would wait until dark to pull his car into the g ara g e. Plaintiffs did not have people over and tried not to use their outdoor spa ce. ¶ 14 Ralph W i l l i am s , an en t o m o l o gi s t , testified as an expert witness. In 2007, he wa s contac ted by Bobbie
, who wanted his input conce rning an excessive fly problem from defe ndants’ far

m. After inspecting plaintiffs’ far m, Wil liams conclude d that the flies did not orig inate there and that the “most obvious” location from which the flies orig inated was

-4-d efendants’ cattle operation. Wil liams observe d fly specks on the exterior of plai n t i ff s ’ hom e. He t es t i fi ed that most of t he specks wer e on the hom e’s east side, which is the s ide fac ing de fenda

nts’ cattle ba

rn. ¶ 15 Wil liams inspected defe ndants’ far m in Aug ust 2008. He walked throug h barn are as and looked at sites wher e stable flies, which are blood-sucking flies, potentially would be found bree ding, such as water tanks and stored hay

. He testified that, based on his inspec tions, he believed that “the primary source of stable flies [was] from [defendan ts ’ ] p r o p e r ty

. ” Wi lliams stated that defe ndants could preve nt stable flies by eliminating bree ding sites or with proper waste ma nag ement, which would include using insecticides. Williams found no violations of the standard of car e in cattle operation. He stated that stable-f ly bree ding sites are found 2 in manur e a

n d d e c o mp o s ing veg etation. Stable flies usually trave l only one-f ourth to one-ha lf mile from their pref

err ed bree ding sites. One trap he set at plaintiffs’ proper ty trappe d 1,800 flies within 24 hours. ¶ 16 Wil liams further te stified that y ou cannot “ have 100 perc ent elimination of flies wher e y ou have livestock.” Howeve r, even in an ag ricultural are a, he would not expect over 5,700 stable flies to be c ollected in a f ly trap in one wee k (as was done at plaintiffs’ proper ty). I n Wil liams’ view, that number is excessive. Wil liams also testified that rese arc h studies show that 20 or m ore stable flies per cow a re a nuisance to the animal. They cause irritation and “contr ibute to weig ht ga in losses and reduc tion in mi lk production.” ¶ 17 On cross-e x amination, Wil liams conce ded that, when he initially inspected pla int i ff s’
proper ty , he did not inspect other potential source s of stable flies on surrounding proper ties

or assess whe t her cattle wer e raised on other far ms in the are a. Wil liams further acknow ledg ed that he did not inspect ever y aspec t of plaintiffs’ proper ty and that he conclude d that flies were emanating from defenda nts’ cattle operation bef

ore he inspected defe ndants’ prope rty

. ¶ 18 Todd Ay ers, who was employ ed by defe ndants to manag e their cattle operation and help with other activities, testified as an adver se witness. Ay ers stated that he was responsible for pest control on defendants’ farm and that defe ndants had no written pest-control prog ram. Howeve r, they had an unwritten prog ram, which included scra ping manure , incorpora

ting

manure into near

by fields, pouring chemica ls on animals, and using insecticides, oilers, fly tag s, and cattle- fee d supplements. Every day
, Ay ers visually inspected defe ndants’ proper ty for stable-f

ly bree ding locations. Viewingtwo exhibi ts consisting of photog raphs take n by Wil liams of st able- fly bree ding sites on defe ndants’ property
, Ay ers te s t i fi ed that the s ites

wer e unac cepta

ble and that, if he had obser ved them, he w ould have “ clea ned [them] up.” ¶ 19 Ay ers fu rt h er t es t i fi ed t h at, in 2007 and 2008, he did not observe that the cattle on defe ndants’ proper

ty wer e uncomforta

ble or unhealthy

. Almost daily during the summer of 2007, Ay ers obse rved pla intiffs workingoutside their house. B obbie was ty pically dresse d in long pants. Ay ers also observe d the children playing in the backyard or driving their g olf

car t. He also observ ed Bo b b i e’s horses outsi de “most day s.” Flies wer e never bothersome

Pur sua nt to a motio n in li mine , th e t ri al cou rt bar re d t est imony con cer nin g defe nda nts ’ 2 al le ged negli gence i n t he o per at ion of th ei r c at tl e f

ar m

.

-5-at def endants’ pr operty

. ¶ 20 Plaintiffs rested, and defe ndants moved for a direc ted finding

. The trial court denied the motion. ¶ 21 T h omas McKe nna, a veter inarian, testified on defe ndants’ behalf. I n 2002, defe nd an t s hired him to consult and provide veter inary service s. McKe nna testified that defe ndants used the most up-to-date technolog y for pests and took additional measure s to preve nt t h em, including limit ing animal confine ment, using fee d bunks and silag e bag s, and testing soil to deter mine wher e manure neede d to be sprea d. I n McKe nna’s view, defe ndants operated a “g ood clea

n outfit.” Howeve r, he never inspected the proper ty for stable-f

ly bree ding sites. ¶ 22 Rosenwinkel testified that he owned 160 acr es and that he boug ht the proper ty beca use it was well suited for his cattle operation. He purcha sed differ ent ty pes of minerals and fly

control additives. ¶ 23 On Fe bruar

y 17, 2010, the trial court enter ed a decla ratory judgme nt in plaintiffs’ favor
, finding that, althoug h there wer e chang es to plaintiffs’ proper ty –namely
, the old far

mhouse

was demolished and a new h o m e wa s b u i lt in its place –those chang es did not constitute “cha ng ed conditions” as contemplated by the Act. The court noted that plaintiffs’ home was not a business such as a bed and brea kfast. “The re is a house wher e there was a house. There is now a family wher e there once was a family .” The trial court further found that plaintiffs proved that defe ndants’ farm was the s ourc e o f s table flies on plaintiffs’ property and that the fly invasion constituted a subs tantial annoy ance to a reasonable person. The court also deter min e d th a t d e f e n d a nts had knowledg e that plaintiffs wer e alleg ing harm to their interests in their proper

ty and that the invasion was unrea sonable and that it would have been prac tical for defe ndants to reduc e t h e n umber of flies emanating from their far m. After the court enter ed judgme nt in plaintiffs’ favor it stated that it wanted to hear additional ev i d en ce

conce rning the reque st for injunctive relief

. Def endants object ed, noting that the evidenc e

was closed and arguing that n o evidenc e was offe red conce rning potential solutions. The court then state d that it “could proba bly g rant some injunctive r elief.” ¶ 24 The injunction order was e ntere d on April 30, 2010. The court order ed that, from May 1 until November 1, defe ndants conduct wee kly visual inspections of their ca t t l econfine ment and hay -bale -storag e area s and remove all active an d p otential bree ding sites (including bedding and manure from the cattle- confine ment and hay -storag e are as and with
att en t i o n to are as around fee ders, tanks, hay bales, fenc es, g ates, and “all other are as inacc essible to machine scra ping” ). The court also order ed that, on a monthly basis from J une 1 u n t i l October 1, defe ndants (at their own ex pense) have the cattle- confine ment and hay

bale- storag e are as profe ssionally inspected for potential and active bree ding sites. The court further order ed that the inspector prepa re a wr i t t en re p ort of his or her finding s within 10 day s of the inspection and provide copies to plaintiffs and the court. The court also order ed that, for the y ear 2010, upon a finding of active sites, defe ndants direc t the inspector to prepa re a written plan to eliminate active and potential sites; in the event of no discovery of active sites in 2010, inspections could occur ever y 60 day s. The court also order ed that, afte r 2010, defe ndants have a continui ng obligation to maintain their operation fr ee f rom active and potential stable-f

ly bree ding sites, and it reta ined jurisdiction for enfor ceme nt purposes.

-6-Def endants a ppeal.

¶ 25 I I . ANALYSI S ¶ 26 A. Fa rm Nuisance Suit Act ¶ 27 Def

endants ar gu e fi rs t t h at the trial court err ed in denying their summary judgme nt motion and subsequent motion for a direc ted finding

. They contend that t h e ch an g es on plaintiffs’ proper

ty constitute chang ed conditions as contemplated by the Ac t

. For the following rea sons, we disag ree

. ¶ 28 Gene rally
, the denial of “a motion for summary judgme nt is not revie wable following an evidentiar y tri al
, beca

use the result of any err or in such denial is merg ed by law in the subsequent trial.” Valentino v. Hilquist
, 337 I ll. App. 3d 461, 467 (2003). Howeve r, wher e the fac t f inder did not assess the issues a ddresse d in the motion, “any err or in the denia l of
summary judgme nt based on these iss ues was not m erg ed in the s ubsequent trial.” Id. ; see also Battles v. La Salle National Bank
, 240 I ll. App. 3d 550, 558 (1992) (whe re a summary judgme nt motion prese nted a leg al i s s u e ra ther than a fac tual one, revie w of the denial of
summary judgme nt is appropr iate). We revie w de novo the denial of a motion for summary judgme nt and a motion for a direc ted finding or ver dict. Valentino , 337 I ll. App. 3d at 468 (summary judgme nt); Buck holtz v. MacNeal Hospital
, 337 I ll. App. 3 d 163, 167 (2003) (direc ted ver dict). ¶ 29 The first issue prese nts a statutory interpre tation question, which is a question of law we

re v i ew de novo

. Hossfeld v. Illinois State Board of Elections
, 238 I ll. 2d 418, 423 (2010). When interpre t i n g a s t atute, our primary g oal is to asce rtain and g ive eff ect to the leg islature’s intent, and the most reliable indication of the leg islature’s intent is the plain lang uag e of the statute. Metzger v. DaRosa
, 209 I ll. 2d 30, 34-35 (2004). Where the lang uag e is clea r and unambig uous, we must apply it as written, without resort t o extrinsi c aids of statutory construction. Blum v. Koster , 235 I ll. 2d 21, 29 (2009). ¶ 30 T h e Ac t is a rig ht-to-fa rm statute. Such statutes wer e enac ted as a respons e t o t h e urbanization of ag ricultural lands and they seek to protec t ag ricultural produce rs and
operations from nuisance actions. Har rison M. Pitt man, Annotation, Validity, Construction, and Application of Ri

g h t -t o -F arm Acts
, 8 A.L .R.6th 465 (2005); see also Marg are t Rosso Grossman & Thomas G. Fische r, Protecting the Right to Farm: Statutory Limits on Nuisance Actions Against the Farmer
, 1983 Wis

. L

. Rev. 95, 98 (these enac tments attempt to preve nt

a “pig from becoming a nuisance mere ly bec au s e s o meone has built a parlor near the barnyard” ). ¶ 31 The Ac t states:

“§ 1. It is the decla

red policy of the [S ]t ate to conser ve and protec t and encour ag e the development and improvement of its ag ricultural land for the p ro d u ct ion of food and other ag ricultural products. When nonag ricultural land uses extend into ag ricultural

are as, far ms often become the subject of nuisance suits. As a result, far ms are sometimes fo rc ed to cea se operations. Many others are discourag ed from making investments i n far m improvements. I t is the purpose of this Act to reduc e the l o s s to the State of its
ag ricult u r a l r e source s by limit ing the circ umstances under which far ming operations may

-7-be dee med to be a nuisa nce.” 740 I L CS 70/ 1 (West 2006). The Act define s a “fa

rm” as “any parc el of land used for the g rowing and harve sting of crops; for th e feeding
, bree ding and manag ement of livestock; for dairy ing or for any other
ag ricultural or

horticultural use or

combination there of.” 740 I L CS 70/ 2 (West 2006). ¶ 32 Section 3 of the Act provides far mers immunit y from nuisance suits in case s of chang ed conditions (with the exception of ca ses of ne g lige nt or improper ope ration). It provides: “§ 3

. No farm or any of its appurte nance s shall be or becom e a private or publ i c nuisance because of any changed conditions in the surrounding are a occur ring afte r the far m has bee n in opera

tion for more than one y ear , when such far m w as not a nuisanc e 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 appurte nance s.” (Empha sis added.) 740 I L CS 70/ 3 (West 2006). Only the cha ng ed-c onditions provisi on in section 3 is at issue in this appeal. ¶ 33 I n deny

ing defe ndants’ summary judgme nt m o t i o n , t h e trial court found that the old far mhouse ex i s t ed when defe ndants purcha sed their proper ty in 1991 and that the cattle
operation predated: the demolition of the old far mhouse, the subdivision and conveyance to plaintiffs of the 1.83-ac re parc el, the construction of pla intiffs’ home, and pla intiffs’ move into their home. The court found that these chang es did not constitute chang ed conditions as contemplated by

section 3. ¶ 34 Def

endants argue that the court’s construction of the Act is err oneous. They urg e that the
court i gn o re d the word “any” befor e the term “cha ng ed conditions” and, as a result, too

narr owly interpre ted the term. I n defe ndants’ view, the following chang es constitute chang ed conditions on the proper

ty : (1) on the date the cattle far m be g an operations, the land acr oss the street was unoccupie d; curr ently
, it is occupie d; (2) on the date the cattle fa rm b ega n operations, the land acr oss the street was desig nated as ag ricultural land; now it is being used for nona g ricultural pur

poses; and (3) on the date the cattle far m be g an operations, the la nd

acr oss the street spanned 200 acr es; now it has been subdivided and includes a 1.83-ac re plot used for residential p u rposes. Def endants argue that the term must be construed in the
context of t he subjec t the Act addr esses, namely , the prevention of nonagr icultural uses of land from extending into ag ricultural are as. They contend that this is prec isely what occur red in this case : plaintiffs obtained 1.83 acr es of agricult u ra l l an d that had been unused and unoccupie d for seven y ear s and built a house on it, moved in, and then beca me disturbed by the far m operation acr oss the street. Def endants contend that the plain meaning of “cha ng ed conditions” is broad a

nd encompa sses cha

ng es in land use a

nd occupa

ncy status. ¶ 35 Plaintiffs respond that the Act’s purpose was never to thwart a family ’s succe ssion plan. They note that the deed convey ing the 1.8 3 -ac re parc el contains numerous restric tions, including a right of first re fu s al
, d esig ned to maintain family owner ship in the l and and to continue the f

amily far m operation. ¶ 36 The interpre tation of section 3 prese nts a question of first impression. Ag ain, the rele vant p o rt i o n o f t hat immunit y provision states that “No far m *** shall be or become a *** nuisance beca

use of any chang ed conditions in the surrounding are a occur ring afte r the far

m has been in operation for more than one y ear , when such far m was not a nuisance at the time

-8-it beg an oper ation ***.” 740 I L CS 70/ 3 (West 2006). The foreg oing lang uag e reflec ts that

the chang ed condition must be the rea son the far m become s a nuisance : “shall be or become

a *** nuisance beca

use of any chang ed conditions.” Thus, it is c lear that section 3 may not be invoked mere ly for “any chang ed conditions.” Rather, the conditions must alter the char acte r of the surrounding are a such that, wher e the far m was not a nuisance when it beg an operation, it i s transfor

med into a nuisance by

the cha ng ed conditions. ¶ 37 Applying this rea ding to the undisputed fac ts in this case , the question become s whether the subdivision of the Toftoy proper t y an d t h e building of plaintiffs’ home there on transfor med the cattle operation into a nuisance

. We conclude that they did not and that, there fore
, the Act’s immunit y provision is not trig g ere d. These chang es in and of themselves did not alter the char acte r of the are a such that the cattle operation, which previously had not been a nuisa n ce , there by beca me a nuisance

. Contrary to defe ndants’ asser tion on appea l, when defe n d an t s purcha sed their proper ty with the intention of running a cattle operation th er eo n , a t enant and her family resided in the ol d far mhouse on the porti on of C lare nce’ s proper ty that was subsequently deede d to plaintiffs. (Even in 1992, when defe ndants

commence d their cattle operation with the purcha se of sever al cattle, defe ndants wer e awa re that the unoccupied ol d far mhouse could conceivably be occupied agai n

. ) The subsequent subdivision of Clarenc e’s proper ty and transfe r of owner ship to plaintiffs does not alter the fac t that, as in 1991, a family now resides in a home at the same location. These chang es did
not cause the cattle operation to become a nuisa nce. ¶ 38 Souza v. Lauppe
, 69 Cal. Rptr. 2d 494 (Cal. Ct. App. 1997), does not compel a diffe rent conclusion. I n Souza
, the plaintiffs and the defe ndants far med neig hboring commerc ial far ms. Fo r ab o u t five y ear s, the parties far med rice on their lands. Howeve r, the plaintiffs switched to g rowing row crops and, afte r the chang e, they noticed that, when the defe ndants flooded their rice fields, the portion of their proper ty cl o s es t to the defe ndants’ land was flooding
, making it difficult to g row the row crops. The plaintiffs sued the defe ndants, alleg ing that the water from the defe ndants’ ri ce- g rowing operation was intruding on the plaintiffs’ proper

ty and there by causing a nuisance

. The trial court g rante d the defe ndants
summary judgme nt. ¶ 39 On appea l, the court aff irmed, holding that the plaintiffs’ substitut ion of row crops was

a chang ed condition wi t hin the meaning of the California rig ht-to-fa rm statute, which provides in rele vant part that no far m “shall be or become a nuisance
, private or public, due
to any chang ed condition in or about the locality
, afte r it has been in operation for more than three y ear s if it was not a nuisance at the time it beg an” (Cal. Civ. Code § 3482.5(a) (1) (West 1996)). Souza
, 69 Cal. Rptr. 2d at 500-01. Specifica lly
, the court held t h at t h e claim of nuisance arose “due to” the chang ed condition in or about the locality

. Id. The court reje cted the plaintiffs’ argument that the condition of their proper ty had not chang ed, concluding that the substitut ion of row-c rop far ming for the differ ent proce ss of rice far ming was a chang ed condition within the meaning of the statute. Id. Be cause the damag es alleg ed by the plaintiffs

occur red only afte r they chang ed the condition of their ag ricultural activity
, the alleg ed harm

arose due to a c hang ed condition within the meaningof the statute. Id. at 501. ¶ 40 Her e, the subdivision
, t ra n s fe r o f o wn ership, and building of a new residenc e on the Toftoy proper

ty is not akin to the chang ed condition–a chang e from rice far ming, which

-9-involved th e flooding of the fields, to row-c rop far ming, which suffe red if subjected to flooding–at i ssue i n S

o u z a

. Again, as in 1991, a family now resides in a home at t he same location. ¶ 41 Section 3 of the Act does not ba r plaintiffs’ suit. Acc ording ly
, the trial court did not e rr in denying de fenda

nts’ motions for summary judgme nt and for a

direc ted finding

.

¶ 42 B. Common-law Private Nuisance ¶ 43 Next, defe ndants argue that the trial court’s finding s conce rning plaintiffs’ common-la w private nuisance claim wer e ag ainst the manifest weight of the evidenc e. For the following

rea sons, we disag ree

. ¶ 44 A common-law private nuisance is the substantial inva sion of a person’ s interest in the use and enjoy

ment of hi s or her land. In r e C hicago Fl ood Liti

gation
, 176 I ll. 2d 179, 204 (1997). The i nvasion must be substantial, intentional or neg lige nt, and unrea sonable. Id. Whether particula

r conduct constitutes a nuisance is de termined by the conduct’ s eff ect on

a rea sonable person. Id. A “nuisanc e must be phy sically offe nsive to the senses to the extent that it make s life uncomfortable.” Dobbs v. W iggins
, 401 I ll. App. 3d 367, 375-76 (2010). I n an action t o en

j oin a private nuisance
, the t rial court must balanc e the harm done to the plaintiff aga inst the benefit cause d by the defendant’s use of the land a nd the s uitability of the use in that particula

r location. Carroll v. Hurs t , 1 03 I ll. App. 3d 984, 990 (1982). Whether a complained- of activity constitutes a nuisance is g ener ally a fac tual ques t ion. Pasulka v. Koob
, 170 I ll. App. 3d 191, 209 (1988). We revie w the court’s finding s under the manifest-w eig ht-of-the -evide nce sta ndard. Dobbs , 401 I ll. App. 3d at 377-78. ¶ 45 First, defe ndants argue that the trial court’s finding that the fly invasion was substantial

was err oneous. “A substantial and intentional [odor and fly ] invasion must be sever e enoug h
t o constitute a materia l annoyance to the adjoining landowner s and be fore seen as t o i t s conseque nces by the offe nding landowner .” W oods v. Khan
, 95 I ll. App. 3d 1087, 1089-90 (1981). Defe ndants seize on the fact that plaintiffs’ u s e o f t heir land ( i.e.
, a residence on a small subdivision of land) is a nonconfor ming use under state law and local ordinanc es and
argue that the nonconfor ming use prec ludes a finding that the invasion was substa n t i al

. Def endants note that Bobbie testified that plaintiffs wer e using their land for nonag ricultural
p u rp oses althoug h the land is located in an ag ricultural are a. Def endants also note t h at plaintiffs are using the land as a location for a family residenc e, rathe r than for a far mhouse. They argue that the locality ’s char acte r is ag ricultural. We reje ct defe ndants’ argument b ecause they ignor e, first, that plaintiffs’ use of their proper ty is never

theless l aw fu l an d
, second, that pl ai n t i ff

s complain that the amount of flies is substantial. Def endants do not addre ss how the flies are not a materi al annoy ance

. See id. at 1090 (evide nce supported

co u rt ’s fi nding that “odors and flies wer e sufficie ntly bothersome to justify injunctive relief ”). The evidenc e her e supported the court’s finding that the i nvasion was subst antial. Both Roge r and Bobbie testified t h at , d u ring fly season, it was difficult for them to enjoy their outdoor space

. They testified that their horses wer e disturbed by the flies and that their children avoided playing outside. Fur ther, Bobbie testified that the fly conce ntration on their home was ever

y inch or half-inc h and that, on one occa sion, Roge r’s shirt was “cove red solid

-10-with flies.” Wil liams’ testimony that the flies wer e excessive confirme d pla in ti f f s ’ te s ti mo ny

. Although Ay ers testified that the flies had ne ver be en bothersome at defendants’ property
, this discrepa

ncy was for the trial court to resolve. We cannot conclude that its resolution in plaintiffs’ favor was unrea sonable, and we note th at plaintiffs’ testimony that the family wore long pa nts outside to avoid fly

bites was conf

irmed by Ay ers. ¶ 46 Def

endants’ second argument is that the trial court’s findi n g t h at t h e i n v as i o n wa s

unrea sonable was ag ainst the manifest weig ht of the evidenc e. Th ey argue that the court misapplied the rele vant fac tors. I n assessing whether an invasion is unrea sonable, a court must, in balanc ing the interests, answe r the following questions: (1) is the defe ndant eng ag ed in a useful enter

prise? (2) is the are a well suited for the defe ndant’s business? (3) what/who

came first, the defe ndant’s operation or plaintiffs? (4) can the invasion be reduc ed? and (5) is modification of defe ndant’s operation prac tical? See id. The trial court answe red the first
two questions in defe ndants’ favor and answe red the rema ining questions in plaintiffs’ favor

. On appea l, defe ndants arg ue that, as to the third fac tor, it is undisputed that they started their cattle operation in 1992 and that plaintiffs acquir ed their land in 1998 and moved into their residenc e in 2004. The trial court found that Clarenc e had p u rc h as ed the original property in 1967; that Roge r had been far min g with his fathe r since that time; that plaintiffs had boarde d horses at the property since 1989; and that plaintiffs now own t he surrounding 58

acr es. W e cannot conclude that the t rial court’s finding was unreasona ble as to this fac tor,

as Roge r’s testimony conce rning his fa m i ly ’s connec tion to the land, particula rly his assistance in far

ming and plaintiffs’ boarding the horses, showed that the proper ty was part of a f amily operation. ¶ 47 As to the fourth and fifth questions, defe ndants asser t that there was very littl e evide nce prese nted as to whether the flies could be reduc ed and no evidenc e at all conce rning whether modification of their operation would be prac tical. Relying on Ay er s ’ testimony
, the trial
court found that the flies could be reduc ed. Ay ers testified that he could have controlled the flies (if they had been a bother to him). We c onclude that the trial court’s finding s as to the fourth, but not the fifth, question wer e reas o n ab l e. T hus, we have no quarr el wit h the t rial court’s assessment of four out of the five fac tors an d co nclude that its finding that the invasion was unre asonable was not er roneous. ¶ 48 I n summary , the trial court’s finding s that t h e fl y i n v as i o n wa s s u b s t an t i al and

unrea sonable wer e not ag ainst the manifest weig ht of t h e evidenc e. We thus aff irm the decla ratory judgme nt.

¶ 49 C. I njunction ¶ 50 Def

endants’ final argum en t is that the trial court’s injunction was improper beca use it

was vague and overly broad. We ag ree

. “The mere exis tence of a n u i s an ce does not automatically entitle the plaintiffs to injunctive relief ag ainst the nuisance .” Dobbs
, 401 I ll. App. 3d at 379. The g ranting of an injunction is within a trial court’s discretion; on appea l,

we will reve rse the g ranting of an injunction only if the t ri al co u rt manifestly abused its discretion. Id. ¶ 51 Al t h o u gh t h e trial court here initially expressed conce rn that no evidenc e had be en

-11-prese nted conce rning injunctive relief
, the court subsequently g rante d such relief

. This, in itself is problematic. The court’s April 3 0
, 2 010, order focuse s not on any ultimate fly
popu l at i o n g oal, but on measure s defe ndants must take to eliminate potential (which the order define s as “locations containing decomposing manure a n d v e g e ta ti o n (ce llulose) which

are often ignor ed over time during confinement are a clea nup/scraping ”) and active (“loc ations containing live stable fly pupae and/or live stable flies”) stable-f ly bree ding sites. I t limit s defe ndants’ activities to the cattle- confine ment and hay -bale -storage ar eas and expli citly excludes pastures. ¶ 52 We conclude that the trial court abused its discretion in g ranting injunctive relief beca use there was n o evidenc e prese nted that the measure s set forth in the injunction order would abate the fly nuisance

. See id. at 379 -8 0

. At trial, the court sustained an objection to any testimony by Wil liams concer n i n g wh ether the fly problem could be abate d (bec ause the topic was beyond the scope of his disclosed expertise). Fur ther, the court’s o rder that def en d ants have, afte r 2010, a “continuing obligation to maintain their cattle confine ment and hay bale st o ra ge ar eas fre e from potential and active bree ding sites for stable flies” is overly broad and, as defe ndants note, likely impossibl e to achie ve. (Emphasis added.) “ ‘The
restra int imposed by an injunction should not be more extensive than is rea sonably require d
to protec t the interests of the party in whose favor it is g rante d[ ] and should not be so broad

as t o preve nt defe ndant from exercising his rig hts.’ ” Id. at 380 (quoting People ex rel. Trait eur v. Abbott
, 27 I ll. App. 3d 27 7
, 2 8 2 -83 (1975))

. So, too, is the court’s order that defe ndants in 2010 (on a wee kly basis from May 1 to November 1) “re move all moist bedding and manure from cattle confine ment and hay bale storag e are as ( potential bree ding sites)–to disrupt the s table fly bree ding c y cle, a

nd with particular

attention to are as ar ound fee ders, tanks, hay bales, fenc es and g ates (moving them if n ec es s ar y t o acc ess the moist debris), and all other are as inacc essible to machine scra ping.” (Emphasis in orig inal.) Fur ther, the order does not t ake into consideration (bec ause no evidenc e was prese nted on the i ssue) the e conomic fe asibility of comply ing with the i njunction (including the weekly clea nings and the employ

ment of a “prof

essional inspector,” a term that the court did n ot define ). ¶ 53 I n summary , we vacate the i njunct ion. The parties do not reque st that we remand for a hear ing so that a prope r injunction may be ente red a

nd, so, we do not orde r a r emand.

¶ 54 I I I . CONCL USI ON ¶ 55 T h e judgment of the circuit court of Kenda ll County is aff irmed i n part and vacated i n part.

¶ 56 Affir

med in part a

nd vacated in part.

¶ 57 J USTI CE HUTCHI NSON, spec ially

concur ring in part and dissentingin part: ¶ 58 Whil e I ag ree with the majority ’s decision to vacate the injunction, I believe that the Act applies t o plaintiffs’ lawsuit; as a result, defendants’ cattle oper ation in a rural are a during

-12-“fly season” wo u l d n o t constitute a nuisance without an alleg ation that the fly invasion

resulted from defe ndants’ improper or negli gent operation of the cattle far m. There fore
, defe ndants’ cattle operation is not subject to an injunction. I n declining to apply the Act, the majority fails to adher e to the statute’s clea r intent of providing far

ms broad protec tion from nuisance suits. Moreover, despite the majority ’s citation to a Wisconsin law revie w ar ticle stating that a pig cannot become a nuisance mere ly beca use a p ar l o r i s b u ilt near the barnyard, the same majority fails to r ecognize that this is prec isely what occur red here

. See Grossman, supra , at 98. ¶ 59 As the majority notes, the purpose o f t h e Ac t i s to “re duce the loss to the State of its
ag ricultural resour ces by limit ing the circ umstances under which far ming operations may be deeme d a nuisance .” 740 I L C S 7 0 / 1 (W es t 2006). Towar d that end, section 3 of the Act provides that a far

m shall not become a nuisance as the result of “any chang ed conditions in the surrounding are a” so long as the far m has been in operation for more than one y ear

. 740 I L CS 70/ 3 (West 2006). Section 3 fur ther provide s that the protec tion provided by the Act is not applicable if the alleg ed nuisance results from the neg lige nt or improper operation of the far m. Id. By using the word “any ” to modify the term “cha ng ed con d i t i o n s t o the surrounding are a,” the leg islature clea rly intended for the Act to be broadly applied to protec t far ms from nuisance suits. See Gardner v. Mullins
, 234 I ll. 2d 503, 511 (2009) (noting that the primary objective of statutory interpre tat i o n i s t o give eff ect to the intent of the leg islature, and the most reliable indicator of such intent is the lang uag e of the statute g iven its plain, ordinary
, an d p o p ularly understood meaning ); Webster’s Ninth New Collegiate Dictionary 93 (1990) (def ining the word “any” as “unmea sured or u nlimit ed in amount, number, or e x tent” and “ appre ciably larg e or e x tended” ). ¶ 60 I n declining to apply the Act, the majority conclude s that the Act should not be invoked for mere ly “any chang ed conditions.” Supra ¶ 36. I nste ad, the majority focuse s on the lang uag e in section 3 that provides that no far m shall become a nuisance when the far m has been in operation for

more than a

y ear and wa s not a nuisance when it beg an its operation. The majority co ncludes that, for a defe ndant to invoke immunit y under the Act, “the conditions must alter the char acte r of the surrounding are a such that, wher e the far m was not

a nuisance when it beg an o p eration, it is transfor med into a nuisance by the chang ed conditions.” Supra ¶ 36. ¶ 61 Whil e I ag ree that there must be some nexus betwee n the “cha ng ed co n d i t i o n s ” in the surrounding are a and the far m becoming a nuisance
, the majority ’s restric tive interpre tation of section 3 is inconsistent with the statute’s plain languag e. The Act expressly provides that

a far m shall be protec ted from nuisance suits resulting from “any” chang ed conditions in the surrounding are a, reg ardle ss of whether the char acte r of the surrounding are a also chang es. I f the leg islature intended to condition the Act’s qualified immunit y on alterations in the “cha rac ter” of the surrounding are a, and not on “any” chang ed conditions in the surrounding

are a, it could have expressed such an intent in the plain lang uag e of the Act. I t did not do so. I n my view, the majority is rea ding into the Act a condit i o n t h at was not expressed by our leg islature. See Town & Country U tilit ies, Inc. v. Illinois Pollution Control Board , 225 I ll. 2d 103, 117 (2007) (“[A court] must not depar t from the plain lang uag e of the Act by rea ding into it exceptions, li mi ta

ti o n s , o r c o n d itions that conflict with the express leg islative intent.”).

-13-¶ 62 A b road application of the Act to protec t far ms from nuisance suits is consi s t en t wi t h interpre tations that courts in other jurisdictions have aff o rded rig ht-to-fa

rm statutes containing simil ar lang uag e. Although the majority briefly discusses Souza
, 69 Cal. Rptr. 2d 494, I believe that it is highly persua sive in the curr ent matter. I n Souza
, the California Court of Appea ls addre ssed whether a n u i s ance suit should be barr ed by a California statute providing that an entity eng ag ed in ag ricultural activity for more than t hree y ear s shall not become a nuisance “due to any chang ed cond i t i o n in the locality if the activity did not constitute a nuisance when it beg an.” Id. at 496 (citing Cal. Civ. Code § 3482.5(a) (1) (West 1996)). In that case , the plaintiffs owne d a par cel of land that had been f

arme d since 1945. The plaintiffs plan t ed row crops prior to the 1970s and there afte r planted rice until 1988, when they shifted back to planting row crops. Id. at 496-97. The defe ndants far med rice on

an adjac ent parc el of land since as ear ly as 1983, when the plaintiffs wer e still far ming rice

. Sometime afte r t he plainti ffs switched back to far ming row crops, they not i ce d that, when
t he defe ndants’ rice fields wer e flooded, the portion of the plaintiffs’ far m closest to the defe ndants’ land beca

me so wet that it could not be proper ly far m ed fo r ro w crops. The plaintiffs attributed reduc ed yields from their sug ar beet and saff lower crops to excessi v e seepa g e of water from the defe ndants’ rice -fa rming activities. Id. at 496. The plaintiffs filed suit ag ainst the defe ndants, and the tria l court dee med the plaintiffs’ c laims to be based on a theor y of nuisance beca

use the plaintiffs a lleg ed a violation of a sing le primary rig ht–the plaintiffs ’ unimpaired owner ship and undisturbed enjoy ment of their premises. Id. at 497. The trial c ourt g rante d summary judgme nt in favor of t he defenda nts afte r concluding that section 3482.5 barr ed the plaintiffs’ lawsuit beca use they had chang ed the use of their land in 1989 by

g rowingcrops other

than rice

. Id. ¶ 63 I n aff

irming the trial court, the California Court of Appea ls rende red its a naly sis in two parts. First, the revie wing court conclude d that the statute coul d b ar a nuisance suit

commence d by one far

m ag ainst another far

m. Id. at 499. I n addre ssing that issue, the court reje cted the plaintiffs’ a ssertion that the statutory phrase s “any chang ed condition” and “in or about the loc ality ” we re a mbiguous. Spec ifically , the cour t stated:
“We discern no such ambig uity in the phrase s ‘any change d condition’ and ‘in or about the locality .’ That the phrase s encompa ss countless varie ties of chang e in all

manner of conditions in the g ener al are a surrounding the alleg ed nuisance does not mean the l anguag e of the s tatute i s am b i gu o u s

. T o the contrary
, the word ‘any ’ ex presse s an unambig uous leg islative intent to broadly apply the statute.” Id. ¶ 64 Second, the C al i fo rn i a C o u rt o f Appeals reje cted the plaintiffs’ asser tion that their lawsuit was not barr ed beca use the defe ndants failed to satisfy the statute’s require ment that the nuisance resulted from any chang ed condition in or about the locality

. Acc ording to the plaintiffs, no cha

ng e occ urre d, beca

use their pr operty

had bee n used as a commerc ial far m since 1945, was being used as a co m m er ci al far m when they noticed that their crops wer e being harme d by the water seep i n g fr o m the defe ndants’ far m, and the “cha

ng e from row

cr o p s to rice and back to row crops” did not chang e the condition of the pro p er t y as a

commerc ial agricultural activity

. T h er efor e, the plaintiffs maintained, their chang e in
ag ricultural activity should not be considere d a “cha ng ed condition” within the meaning of the statute. Id. at 500. The r eviewingcourt disag ree d, stating:

-14-“[T] he statute applies to ‘any ’ chang ed condition, and the definition of ‘cha ng e’ includes ‘to make substitut ion for or among .’ (Webster’s New I nterna tional Dict. (3rd ed. 1993) p. 373.) Applying this common usag e as we must, we conclude [t he] plaintiffs’ ‘substituti on’ of row crops for the ‘di ffe rent’ proce ss of rice far ming was a ‘cha

ng ed condition’ within the meaning of section 3482.5, subdivision (a) (1). [C itations.] ” Id. At 500-01. ¶ 65 Given the signific ant simil arities betwee n California’s rig ht-to-fa rm statute and the Act, Souza is highly persua sive. The langua ge i n t h e Act is substantively equivalent to the lang uag e present i n the C alifornia statute. As the court in Souza noted, t he st atute’s use of the word “any” expressed a clea r leg isla t i v e i ntent that the statute be broadly applied. Simi larly here
, our leg islature’s use of the word “any” to modify the phrase “chang ed conditions in the surrounding are a” repre sents an ex press int ent t hat t he st atute be broadly applied. This interpre tation is consistent with the purpose of the Act outlined in section 1–to reduc e the loss to the state of its ag ricultural r esourc es. ¶ 66 I furt h er agree with the court in Souza that the word “cha ng e” has a commonly

used definition, which is “[a]n alteration; a modification or addition; substitut ion of one thing for another ” (B lack’ s L aw Dictionary 231 (6th ed. 1990). “Condition” is also commonly define d

as “[ m ] o de or state of being ; state or situation; essential quality ; proper ty ; attribute; status

or rank” (B lack’ s L aw Dictionary 293-94 (6th ed. 1990)). That the leg islature used the word “any” to modify the phrase “cha ng ed conditions” without expressing any other limit ation or condition on what constitutes a chang ed condition is indicative of the leg islature’s intent to have the Act be broadly applied. The majority swats awa y the rationale and holding in Souza

mere ly beca

use, in the curr ent matter, a family had lived in the far mhouse befor e defe ndants beg an operating their cattle far m–although not when defe ndants beg an operating their cattle far m–without addre ssing th e h o ld in g in S o u za that the word “any” expresses an unambig uous leg islative intent to have the statute broadly applied. Distinguishing Souza from the curr ent matter, ther efor e, mer ely

beca me a pe rfunc tory

exercise. ¶ 67 The future implications of the majority ’s deci s i o n wi l l l eave far ms with no defe nses ag ainst basele ss nuisance suits. When defe ndants beg an operating their cattle far m in 1992, it was adjac ent to a parc el of land owned by Clarenc e consisting of 200 ac re s

. As t he majority acknow ledg es, the far mhouse acr oss the street from defe ndants’ ca t t l e far m was unoccupie d. The recor d is devoid of any indication that defe ndants’ cattle operation was a nuisance when it beg an operating. For at least the next five y ear s, until 1997, the far mhouse

rema ined unocc upied and unchang ed until Clare nce beg an the proc ess of tea ring down the old far mhouse and plaintiffs built a new home to be used as their primary residenc e. Clarenc e deede d to plaintiffs 1.83 acr es of land in 1998 and 58 additional acr es in 2002; those actions constituted a distinct subdivision of the land and amounted to a chang e. Plaintiffs moved into the new residenc e in 2004. At some point a fter plaintiffs beg an re siding in their ne w home in 2004 and befor e filing suit, defe ndants’ 12-y ear cattle operation alleg edly beca me a nuisance

. ¶ 68 Pursuant to the Act’s plain and unambig uous lang u age , t h e ab ove sequenc e of eve nts unquestionably demonstrates that the are a surrounding defe ndants’ cattle far m experience d “cha ng ed conditions.” As noted above, when defe ndants beg an their cattle operation, it was

-15-l o ca t ed n ex t to a parc el of land consisting of 200 acr es that included an unoccupied

far mhouse and rema ined unchang ed for at least the nex t fi v e y ear s. Conversely
, when plaintiffs broug ht this nuisance suit in 2007, the are a surrounding defe ndants’ cattle far m included (1) an independe nt 1.83-ac re parc el of land, which was not taxed as far mland, that contained a newly built house being used as a primary residenc e; (2) an independe nt 58-ac re parc el of land; and (3) the re m ai n i ng part of Clarenc e’s far m. These chang es in the surrounding are a clea

rly fall within the broad statutory phrase “any chang ed conditions to the surroundingare a,” a s exempli fied in Souza

. ¶ 69 Moreove r, the majority ’s emphasis on what defe n d an t s k n ew when they started their cattle operation is antithetical to an analy sis of a nuisance action. Acc ording to the majority
, beca use there was an unoccupie d far mhouse acr oss the street when defe ndants started their cattle operation, t hey wer e aware that the farmhouse could be occupi ed aga in. Supra ¶ 37. For what it is worth, though, the majority ’s rea soning is also applicable to plaintiffs, wh o must have known that a cattle operati o n wa s located acr oss the s tree t from the land where the unoccupie d far

mhouse was located and wher e they chose to build a new house to use as their primary residenc e. But more important, the Act is premised on the theory that
, as ag ricultural prac tices often yield unsavory condi t i o n s , and as nonagricultural uses of land incre asing ly sprea d to ag ricultural ar ea s , farms are incre asing ly subject to nuisance suits. Thus, by limit ing the circ umstances under which a plaintiff can bring a nuisance action, the Act place s potential plaintiffs on constructive notice that, when they move into a rura l or an ag ricultural are a, they might encounte r odors or flies. That is wh y p u rs u ant to the Act, to defe at a defe ndant’s immunit y , the burden is on the plaintiff to demonstrate that a nuisance comi ng from an ag ricultural entity results from improper or neg lige nt operatio n

. S ee 7 4 0 I L CS 70/3 (West 2006). There fore
, defe ndants wer e not require d to defe nd themselves with
respe ct to what they knew or should have known reg arding potenti al u rbanization in the surrounding are a when they commence d their cattle operation 12 y ear s befor e plaintiffs moved i n acr oss the s tree t, and such an inqui ry bear s no releva

ncy on the i ssue of whether the Act should provide de fenda nts’ immunit y

in this action. ¶ 70 Finally , the majority ’s conc lusion that the chang ed conditions that occ urre d in the are a surrounding defe ndants’ farm “did not cause the cattle operation to become a nuis ance ” is equally misplaced. Supra ¶ 37. Def endants beg an operating t h ei r ca ttle far m in 1992. Natura lly
, g iven the nature of their ag ricultural activities, some amount of flies would have been prese nt near d ef

en d ants’ far

m. Roge r Toftoy testified that plaintiffs had experience d “fly season” befor e they moved into their home. Nonethele ss, defe ndants’ far m was not alleg ed to have constituted a nuisance during t h e sever al y ear s the far m was in operation when the far

mhouse acr oss the st ree t was unoccupie d. Only afte r plaintiffs–despite presumably being awa

re that a cattle operation was located acr oss the street–volunt arily

acc epted title to the land on which the unoccupie d far mhouse was located, built a new house

more suitable for use as their primary residenc e, and then moved into the new residenc e did d ef en dants’ farm s uddenly beca me a nuisance

. I n other words, the record is devoid of an y indication that, had plaintiffs not acquir ed the land and decid ed t o b u ild a new house and then move into the new house, d ef en d an t s ’ far

m would be causing an alleg ed nuisance

. I believe that defe ndants’ cattle far m, i.e.
, the pig, beca

me a nuis an ce only afte r plaintiffs

-16-acquir ed the land and decide d to build and move into a new residenc e, i.e.
, the parlor, despite

knowing that a ca

ttle farm ha d been in ope ration ac ross the stree t for more than a y ear

. ¶ 71 Be cause I believe that defe ndants cattle operation is not subject to an injunction, I would

vacate the injunction and I would have r ever sed the de clar atory judgme nt.

-17-