Wisconsin Lawyer
Vol. 75, No. 12, December 2002

Brewing Land Use Conflicts:
Wisconsin's Right to Farm Law

by Andrew C. Hanson

Practitioners who find time to read newspapers know that there are land use conflicts brewing in Wisconsin between growing dairy operations and their residential neighbors. Many of those conflicts center around Wisconsin's law of nuisance and the application of Wisconsin's Right to Farm Law, Wis. Stat. section 823.08.¹

Wisconsin's Right to Farm Law is part of a national trend by states toward changing the common law prima facie case for filing nuisance claims against agricultural operations. Almost every state has a right to farm law. Although the laws differ in their specifics, they all seek to legislatively lift the threat of nuisance lawsuits by neighbors if the agricultural operation produces odor, noise, water pollution, or other nuisance-type conditions,² as can be true with large livestock operations such as hog, dairy, and poultry confinements.

This article explores Wisconsin's Right to Farm Law, how it has changed nuisance law in Wisconsin, and consequently, how it may have altered the constitutionally protected property rights of large livestock operations and their neighboring landowners.

Wisconsin's Changing Livestock Industry

Since the early 1980s, Wisconsin has seen an increase in the scale of its agricultural operations, particularly livestock operations, along with a decrease in the total number of livestock farms. Between 1992 and 1997, the number of dairy farms with herd sizes of from 20 to 99 milk cows decreased by 28 percent.³ Conversely, since 1992 the number of dairy farms with herd sizes of more than 1,000 milk cows increased by 87 percent.⁴

The larger livestock operations represent a shift in the structure of the dairy industry and a noticeable departure from Wisconsin's history of small family farms. Rather than pasturing their dairy cows, larger operations permanently house thousands of cows in large freestall barns that can span several acres.

Neighbors of these large operations have complained of odor, noise, water pollution, and other nuisance-type conditions. On the other hand, the increased scale of animal confinements has been welcomed by some as the savior of Wisconsin's dairy industry. These observors argue that laws to encourage dairy expansion and discourage opposition to those expansions are essential to ensuring Wisconsin's continued growth as a dairy leader. Whatever the merits of those arguments, the trend toward increasing scale has brought similar changes in nuisance law, in the form of Wisconsin's Right to Farm Law.

Wisconsin's Right to Farm Law: The Legislative Backdrop

The context in which Wisconsin's Right to Farm Law was introduced is instructive. The first legal battle over an agricultural expansion was fought between a large poultry operation and its neighbors in the late 1970s. Against the recommendations of state and local officials, a large egg company, known as Quality Egg Farm, placed approximately 140,000 chickens in seven egg-laying houses near a grade school and several residences.⁵ Not surprisingly, the neighbors complained that the odors emanating from the chicken houses and manure-covered fields were nauseating, pungent, and unbearable, and "that [they] made one sick or ill or gave one a headache."⁶ Moreover, most of those neighbors were either farmers or had farm backgrounds, and most of them had lived in the vicinity of Quality Egg at least five years before the egg farm moved to the area.⁷ In response to the neighbors' complaints, the state of Wisconsin filed a lawsuit against Quality Egg for causing a nuisance. In State v. Quality Egg Farm, the Wisconsin Supreme Court held that the state could proceed against Quality Egg on a public, rather than private, nuisance theory on behalf of the neighbors surrounding the facility.⁸

The Wisconsin Supreme Court decided Quality Egg Farm on Nov. 3, 1981. The legislature enacted Wisconsin's first Right to Farm statute only four months later, on March 13, 1982.

The 1982 Right to Farm Law

In its statement of legislative purpose, the Right to Farm Law, as enacted in 1982, stated that "changes in agricultural technology, practices, and scale of operation have, on occasion, tended to create conflicts between agricultural and other activities," and advised local governments to use their zoning power to prevent land use conflicts.⁹ The law also placed considerable emphasis on local zoning to guide the resolution of nuisance lawsuits. Rather than limiting the scope of the cause of action available to plaintiffs filing nuisance lawsuits against agricultural operations, the law merely limited the remedies available based on whether the livestock operation was operating within an agricultural land use zone.¹⁰ If the agricultural use was conducted on lands subject to an exclusive agricultural zoning ordinance, then the statute broadly required that the relief granted "shall not substantially restrict or regulate such uses or practices, unless such relief is necessary to protect public health or safety."¹¹ If the use was not conducted on lands subject to an agricultural zoning ordinance, then the court could order adoption of practices that had the potential to mitigate the nuisance. However, the court could assess only nominal damages if the agricultural use existed in substantially the same manner and in the same location before the plaintiff began using his or her property. Moreover, the court could not order closure in such an instance.¹²

The 1995 Amendments: Today's Right to Farm Law

The Right to Farm Law was substantially amended in 1995, though its legislative purpose largely remained the same: to encourage agricultural production and discourage land use conflicts between expanding livestock operations and their neighbors.¹³ As before, the legislature encouraged local governments to use their zoning powers to prevent such conflicts.¹⁴

The 1995 amendments made several key changes. First, while the 1982 law merely focused on limiting the remedies available in a nuisance case, the 1995 amendments also limited the scope of the cause of action. For example, the Right to Farm Law prevents a court from finding that an agricultural use or practice, as defined in the statute, is a nuisance if two conditions are met: 1) the plaintiff "came to the nuisance," and 2) the agricultural use or practice does not pose a threat to public health and safety.

The agricultural use or practice is not a nuisance if it is "conducted on ... land that was in agricultural use without substantial interruption" before the plaintiff began using the neighboring land affected by the alleged nuisance.¹⁵ This requirement essentially codifies the "coming to the nuisance" defense, which defendants often raise when a plaintiff moves to the area after the alleged nuisance arose. Although "coming to the nuisance" is not a complete defense, a court may balance the equities in the defendant's favor based on this factor in a suit for equitable relief.¹⁶ The "coming to the nuisance" defense in the Right to Farm Law applies regardless of whether a change in agricultural use or agricultural practice is alleged to have contributed to the nuisance.¹⁷

The agricultural use is not a nuisance if it "does not present a substantial threat to public health or safety."¹⁸ This formulation is a departure from the law of private nuisance, which allows recovery for an unreasonable and substantial interference with the use and enjoyment of one's property,¹⁹ and therefore substantially raises the bar for proving a private nuisance and possibly eliminates nuisance as a cause of action.

Additionally, when a court finds that a livestock operation is a nuisance under the two conditions cited above, the 1995, 1997, and 1999 amendments further limit the remedies available to plaintiffs. Even if a plaintiff is able to prove that an agricultural use presents a substantial threat to public health and safety, and that the plaintiff did not come to the nuisance, Wisconsin's Right to Farm Law restricts the remedies available to the plaintiff in four ways:

1) The relief awarded by the court may not substantially restrict the agricultural use or practice.²⁰

2) If the court orders an agricultural operation to mitigate the nuisance, it must consult the Department of Natural Resources (DNR) or the Department of Agriculture, Trade, and Consumer Protection (DATCP) for suggested mitigation measures.²¹

3) The court must provide the agricultural defendant with at least one year to install the measures.²²

4) Most significantly, any action that the court orders cannot substantially or adversely affect the economic viability of the agricultural use.

Somewhat confusingly, the Right to Farm Law then states that the limits do not apply if the agricultural use or practice is a threat to public health or safety.²³ This is in spite of the fact that, under the Right to Farm Law, there can be no nuisance unless there is a "substantial threat to public health and safety" and the plaintiff did not come to the nuisance. One way to reconcile this confusion would be to interpret the Right to Farm Law to mean that the court can order relief in such an instance, but only to the extent necessary to prevent a substantial threat to public health and safety. If a plaintiff suffers injury short of a threat to public health and safety, such as an inability to sell a home or discomfort, stress, or anxiety, the Right to Farm Law appears to give the court little or no power to redress the injury.

Perhaps the most powerful element of the Right to Farm Law is that the statute requires that a plaintiff pay the defendant's litigation expenses if the court finds that the agricultural use or practice did not constitute a nuisance.²⁴ "Litigation expenses" are defined broadly to include "the sum of the costs, disbursements and expenses, including reasonable attorney, expert witness, and engineering fees necessary to prepare for or participate in" the nuisance action.²⁵ If the higher legal standard for proving a nuisance and the limited remedies available are not enough to deter a lawsuit under the Right to Farm Law, arguably a legal bill of tens of thousands of dollars is sufficient deterrent.

Issues in Applying Wisconsin's Right to Farm Law Today

The changing livestock industry today has raised several issues in applying Wisconsin's Right to Farm Law, including the role of local governments in land use planning, the scope of protection the statute provides defendant livestock operations, how Wisconsin's Right to Farm Law has changed Wisconsin nuisance law, and the extent to which it may infringe on the property rights of neighbors.

Raising the Bar for Proving a Private Nuisance. One of the most significant and obvious aspects of the Right to Farm Law is the extent to which it alters nuisance law in favor of agricultural defendants. While the original 1982 Right to Farm Law was silent on the scope of the nuisance cause of action, the 1995 law considerably raised the bar. In Wisconsin, plaintiffs can bring a prima facie case of private nuisance by submitting evidence of substantial and unreasonable interference with the use and enjoyment of their property.²⁶ However, the Right to Farm Law requires plaintiffs to prove more: that the agricultural use poses a substantial threat to public health and safety.²⁷ This is more akin to public, rather than private, nuisance,²⁸ and thus the Right to Farm Law appears to eliminate a cause of action for private nuisance against agricultural uses.

The Role of Local Zoning. Despite the 1982 Right to Farm Law's admonition to local governments to use their zoning authority to prevent land use conflicts between livestock operations and their rural neighbors, it appears that few local governments have heeded the advice. For example, according to a 2001 DATCP survey, only 10 percent of 558 responding towns in Wisconsin have developed authority to regulate large animal feeding operations.²⁹ Twelve towns have granted 17 conditional use permits for animal feeding operations, and only one town has denied a conditional use permit. According to the survey, 91 of nearly 500 towns responding to the question do not operate under either county or town zoning and therefore have no zoning at all.³⁰

In addition, the 1995 amendments, by raising the bar for bringing nuisance actions, appear to provide evidence that local land use planning has been ineffective at resolving conflicts between the two competing uses. One could suggest that if local zoning were effective at preventing land use conflicts, then severely restricting and possibly eliminating a cause of action for private nuisance in 1995 would have been unnecessary. Further, the Right to Farm Law actually may act as a deterrent to effective land use planning by predetermining the conflict in favor of the agricultural use, obviating the need for local zoning.

Change in Scale or Intensity of Use. Significantly, Wisconsin's Right to Farm Law disregards any changes in the scale or intensity of the agricultural use in determining nuisance liability. A court cannot find that an agricultural use or practice is a nuisance if the practice is "conducted on, or on a public right-of-way adjacent to, land that was in agricultural use without substantial interruption" before the plaintiff began using his or her neighboring property. The limitation applies regardless of whether a change in use contributed to the nuisance.³¹

By illustration, the Right to Farm Law appears to treat a 40-acre cornfield as equal to a 3,000-cow dairy confinement with a 20-million gallon manure lagoon.³² Arguably, a 40-acre cornfield that subsequently became a 3,000-cow dairy confinement constitutes an agricultural use that was "conducted on ... land that was in agricultural use without substantial interruption" before the plaintiff began using his or her property. In short, if a nuisance plaintiff came to a 40-acre cornfield, he or she also unwittingly came to a 3,000-cow dairy confinement. As the law stands today, that unwitting homeowner may have to suffer the nuisance and the loss of property value without the possibility of court-ordered relief. Although one could argue that the Right to Farm Law in this respect may help deter urban sprawl, one wonders what traditionally rural residents are to do when left in such a situation.

Availability of Damages as a Remedy Under Wisconsin's Right to Farm Law. Significantly, the Right to Farm Law does not expressly allow damages even if the court finds that a large animal confinement was a nuisance by virtue of a "substantial threat to public health or safety." Instead, the remedies under the Right to Farm Law appear to be expressly limited to injunctive relief. The injunctive relief is available only if state cost-sharing funds are available to help pay for nuisance abatement³³ and if the relief does not "substantially and adversely affect the economic viability of the agricultural use."³⁴ Moreover, the court must give the livestock operation at least one year to implement the injunctive relief, unless the operation is a substantial threat to public health and safety.³⁵

Although the Right to Farm Law's remedies appear to be primarily equitable in nature, it is possible that compensatory damages could be permitted when the court finds that a nuisance exists. If damages are permitted at all, however, they would be limited to an amount that does not "substantially and adversely affect the economic viability of the agricultural use," unless the operation presents a substantial threat to public health and safety.

The Right to Farm Law's disinclination toward allowing damage awards to plaintiffs that prevail on nuisance claims represents a substantial departure from supreme court precedent. Prior case law has upheld damage amounts for inconvenience, annoyance, and discomfort, as long as the interference with the use and enjoyment of the plaintiff's property is unreasonable and substantial.³⁶ Even if compensatory damages are permitted under the Right to Farm Law, they are severely limited.

Typical Right to Farm Defendants: Large Animal Confinements. In a brief survey of litigation surrounding right to farm statutes in other jurisdictions, more than half of the litigation around right to farm statutes has involved the nuisance conditions allegedly created by large livestock facilities, rather than nonlivestock commercial farms.³⁷ Some cases arose when neighborhood groups sought to invalidate local livestock ordinances containing mini-right to farm provisions, or when livestock operations raised a right to farm law as an affirmative defense to a nuisance claim.³⁸

Of the cases in which livestock operations sought the protection of a state right to farm law, roughly two-thirds related to alleged nuisance conditions by large confinements.³⁹ There were relatively few lawsuits against small confinements or other types of livestock facilities.⁴⁰

Approximately 85 percent of the nuisance cases related to large-scale confinements were brought by neighboring landowners alleging odor, dust, noise, and other nuisance conditions.⁴¹ When the defendants raised a right to farm as an affirmative defense, plaintiffs prevailed three quarters of the time.⁴² This typically was because the state right to farm laws at issue in those cases did not apply when an expansion at the facility caused or contributed to the nuisance. Significantly, Wisconsin's Right to Farm Law does not include a "changed conditions" clause that would allow plaintiffs to proceed unimpeded with proving the merits of their case.

Right to Farm Laws: Infringing on Neighbors' Property Rights? Courts in Iowa and Washington have sent a message that some right to farm laws have gone too far in protecting large livestock operations from nuisance liability at the expense of their neighbors' property rights. The most notable example of a court's rejection of a right to farm law took place in Iowa in Bormann v. Kossuth County Board.⁴³ In Bormann, the Kossuth County Board granted the defendants' application for an "agricultural area" designation under the Iowa Right to Farm statute, which allowed the raising of livestock and the creation of noise, odor, dust, or fumes, among other activities.⁴⁴ Livestock operations within the "agricultural area" were protected from nuisance suits by their neighbors unless the operation acted negligently.⁴⁵

The Iowa Supreme Court held that the agricultural area designation resulted in an unconstitutional taking, reasoning that the nuisance immunity provision created an easement in the property affected by the nuisance.⁴⁶ The court cited an Iowa case holding that the right to maintain a nuisance constituted an easement.⁴⁷ Moreover, the court relied on the Restatement of Property, which states that an easement can entitle its "owner to do acts on his own land which, were it not for the easement, would constitute a nuisance."⁴⁸ According to the Iowa Supreme Court, the nuisance immunity provision in the Iowa statute created an easement because it would allow the applicants to generate offensive odors on their property that otherwise would provide a nuisance cause of action for neighboring landowners.⁴⁹

The Washington Supreme Court in Buchanan v. Simplot Feeders⁵⁰ articulated a similar legal theory shortly before the Iowa Supreme Court decided Bormann. A small farm filed a nuisance suit in federal court against Simplot Feeders regarding the odor and flies emanating from the defendant's 40,000 cows on neighboring property. In an opinion addressing a certified question from the Federal Court for the Eastern District of Washington, the Washington Supreme Court narrowly interpreted the state's Right to Farm Act to limit nuisance protection to farms facing encroaching urbanization rather than to allow nuisance protection in all situations.⁵¹ The court further stated that the Washington Right to Farm law may grant a quasi-easement in favor of an agricultural operation that causes a nuisance by protecting that operation from nuisance liability.⁵² The court reasoned that this narrow interpretation was justified by the fact that the nuisance protection afforded under the Act was similar to a quasi-easement or prescriptive easement allowing the farm to continue its nuisance-causing activities even in the face of encroaching urban development.⁵³

Both of the above cases indicate that right to farm laws can go too far in protecting livestock operations from nuisance liability, particularly when the protection is so strong that the law effectively grants rights in neighboring property to the livestock operation.

Has Wisconsin's Right to Farm Law similarly gone too far in encroaching on and "taking" rural neighbors' property rights? Before the Right to Farm Law was enacted, Wisconsin law recognized that the right to maintain a private nuisance could amount to a taking of private property if the nuisance rose to the level of substantial interference and went uncompensated.⁵⁴ If the plaintiff is substantially damaged, either by physical damage to property or by a sustained, continued annoyance, the plaintiff could recover for his or her loss.⁵⁵ Likewise, in the absence of the Right to Farm Law, a rural plaintiff claiming that a livestock operation has caused a nuisance also would be able to recover damages or obtain equitable relief for the odors or decline in property value the plaintiff may experience. However, Wisconsin's Right to Farm Law may conflict with this precedent by tipping the scales too much in favor of the large animal confinements.

Conclusion

As Wisconsin's dairy industry changes, Wisconsin's Right to Farm Law poses new challenges for practitioners on both sides of nuisance litigation related to large animal confinements. For those on the plaintiffs' side, the Right to Farm Law substantially raises the bar for bringing a private nuisance action and may even eliminate the action; expands the "coming to the nuisance" defense; and may preclude meaningful compensatory damages if the plaintiff can prove his or her case. For practitioners defending those confinements, the Right to Farm Law provides a disincentive to local land use planning and the exercise of basic principles of neighborliness by large confinements. Whatever the outcome of litigation under Wisconsin's Right to Farm Law or the constitutional viability of the statute itself, it is clear that the law is likely to see judicial interpretation in the near future.

Endnotes

¹One such conflict has developed into litigation against a large dairy confinement in Shawano County. See Nelson v. Matsche Farms Inc., Case No. 02-CV-120, filed in Shawano County Circuit Court on April 24, 2002. The conflict exemplifies several smaller conflicts in Wisconsin that have not reached the judicial system, arguably due in part to barriers presented by Wisconsin's Right to Farm law.

²Alexander A. Reinert, Note: The Right to Farm: Hog-Tied and Nuisance-Bound, 73 N.Y.U. L. Rev. 1694, 1695 (1998).

³U.S. Dept. of Agriculture, National Agricultural Statistics Service, 1997 Census of Agriculture - State Data, Wisconsin, Table 24. In 1992, Wisconsin was home to 25,090 farms with 20 to 90 dairy cows. In 1997, that number dropped to 17,995.

⁴Id. In 1992 Wisconsin had only two livestock operations with 1,000 or more milk cows. In 1997 that number rose to 15 operations. Today, Wisconsin has more than 79 dairy operations with more than 700 cows or 1,000 animal units, with six more DNR permit applications pending. See Wis. Dept. of Natural Resources, Statistics on Wisconsin Concentrated Animal Feeding Operations, www.dnr.state.wi.us/org/water/wm/nps/stats.htm#types (last revised May 2001).

⁵State v. Quality Egg Farm Inc., 104 Wis. 2d 506, 508, 311 N.W.2d 650 (1981).

⁶Id. at 509.

⁷Id.

⁸Id. at 520-21.

⁹Wis. Stat. § 823.08(1) (1982), repealed & recreated by 1995 Act 149.

¹⁰Id.

¹¹Wis. Stat. § 823.08(3) (1982), repealed & recreated by 1995 Act 149.

¹²Id.

¹³Wis. Stat. § 823.08(1).

¹⁴Id.

¹⁵Wis. Stat. § 823.08(3)(a)1.

¹⁶Kellogg v. Viola, 67 Wis. 2d 345, 349, 227 N.W.2d 55 (1975) (citing Dolata v. Berthelet Fuel & Supply Co., 254 Wis. 194, 36 N.W.2d 97 (1949), and other cases).

¹⁷Wis. Stat. § 823.08(3)(am).

¹⁸Wis. Stat. § 823.08(3)(a)2.

¹⁹See Quality Egg, 104 Wis. 2d at 518.

²⁰Wis. Stat. § 823.08(3)(b)2.

²¹Wis. Stat. § 823.08(3)(c)1.

²²Wis. Stat. § 823.08(3)(b)2.

²³Wis. Stat. § 823.08(3)(b)3.

²⁴Wis. Stat. § 823.08(4)(b).

²⁵Wis. Stat. § 823.08(4)(a). See also Zink v. Kwaja, 2000 WI App 58, 233 Wis. 2d 691, 608 N.W.2d 394 (allowing fee recovery in agricultural nuisance action, regardless whether plaintiff is agricultural user).

²⁶See Quality Egg, 104 Wis. 2d at 518.

²⁷Wis. Stat. § 823.08(3)(a)2.

²⁸Quality Egg, 104 Wis. 2d at 516-17.

²⁹Dep't of Agriculture, Trade, & Consumer Protection Model Ordinance Guidelines, Second Draft, County and Town Surveys of Livestock Regulation (2001).

³⁰Id.

³¹See Quality Egg, 104 Wis. 2d at 516 (quoting Milwaukee v. Milbrew, 240 Wis. 527, 3 N.W.2d 386 (1942)). See also Krueger v. Mitchell, 112 Wis. 2d 88, 105, 332 N.W.2d 733 (1983); Sramek v. Korth, No. 96-1667, *4-5 (Wis. Ct. App. Dec. 18, 1996).

³²The broad definition of "agricultural use" in Wis. Stat. section 91.01, incorporated by reference in the Right to Farm Law, Wis. Stat. section 823.02, includes both "crop production" and "livestock raising." Wis. Stat. § 91.01.

³³Wis. Stat. § 823.08(3)(c)2.

³⁴Wis. Stat. § 823.08(3)(b)3.

³⁵Wis. Stat. § 823.08(3)(b)2.b.

³⁶Krueger, 112 Wis. 2d at 108. See also Jost v. Dairyland Power Coop., 45 Wis. 2d 164, 172, 172 N.W.2d 647 (1969).

³⁷Of the 41 cases surveyed, approximately 56 percent related in some fashion to livestock operations rather than other agricultural uses, such as crop production. Cases addressing nuisance conditions allegedly caused by large confinements included: Petsey v. Cushman, 788 A.2d 496 (Conn. 2002); Ad Hoc Committee for Clean Water v. Sonoma County, 2002 WL 1454105 (Cal. Ct. App.); Belvidere Township v. Heinze, 615 N.W.2d 250 (Mich. Ct. App. 2000); Forner v. Allendale Township, 2000 Mich. App. LEXIS 2202 (2000); Horne v. Haladay, 728 A.2d 954 (Pa. 1999); Texas Natural Res. Conservation Comm'n v. Accord Agric., 1999 WL 699825 (Tex. App. 1999); Pure Air & Water Inc. v. Davidsen, 668 N.Y.S.2d 248 (N.Y. App. Div. 1998); Bormann v. Kossuth County Bd., 584 N.W.2d 309 (Iowa 1998); Buchanan v. Simplot Feeders, 1998 U.S. Dist. LEXIS 21780 (Wash. 1998) citing state court decision on certified question 952 P.2d 610 (Wash. 1998); Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996); Payne v. Skaar, 900 P.2d 1352 (Idaho 1995); Villari v. Deptford Township, 649 A.2d 98 (N.J. 1994); Pasco County v. Tampa Farm, 573 So. 2d 909 (Fla. Dist. Ct. App. 1991); Laux v. Chopin, 550 N.E.2d 100 (Ind. Ct. App. 1990); and Flansburgh v. Coffey, 370 N.W.2d 127 (Neb. 1985).

Cases in which the size of the confinement was not clear include: Travis v. Preston, 643 N.W.2d 235 (Mich. Ct. App. 2002); Durham v. Britt, 451 S.E.2d 1 (N.C. Ct. App. 1994); Wendt v. Kerkhof, 594 N.E.2d 795 (Ind. Ct. App. 1992); and Cline v. Franklin Pork Inc., 361 N.W.2d 566 (Neb. 1985).

³⁸See, e.g., Ad Hoc Committee for Clean Water v. Sonoma County, 2002 WL 1454105 (Cal. Ct. App.); Buchanan v. Simplot Feeders, 1998 U.S. Dist. LEXIS 21780 (Wash. 1998) citing state court decision on certified question 952 P.2d 610 (Wash. 1998).

³⁹Of the cases in which livestock operations sought the protection of a state right to farm law, approximately 58 to 75 percent (14 to 18 of 24) related to alleged nuisance conditions by large scale confinements. The variation arises from the fact that some cases did not explicitly state the number of animals in the confinements but indicated that the facilities were larger rather than smaller confinements.

⁴⁰Only 17 to 33 percent (4 to 8 of 24) of lawsuits were against small confinements or other types of livestock facilities. These included: Crea v. Crea, 16 P.3d 922 (Idaho 2000); Finlay v. Finlay, 856 P.2d 183 (Kan. Ct. App. 1993); Steffens v. Keeler, 503 N.W.2d 675 (Mich. Ct. App. 1992); and Weida v. Ferry, 493 A.2d 824 (R.I. 1985).

⁴¹The 85 percent represents 12 of 14 cases. These included: Laux, 550 N.E.2d 100; Buchanan, 952 P.2d 610; Payne, 900 P.2d 1352; Bormann, 584 N.W.2d 309; Weinhold, 555 N.W.2d 454; Forner, 2000 Mich. App. LEXIS 2202; Pure Air & Water Inc., 668 N.Y.S.2d 248; Flansburgh, 370 N.W.2d 127; Belvidere Township, 615 N.W.2d 250; Petsey, 788 A.2d 496; Pasco County, 573 So. 2d 909; Horne, 728 A.2d 954; and Buchanan, 1998 U.S. Dist. LEXIS 21780.

⁴²See Buchanan, 1998 U.S. Dist. LEXIS 21780; Payne, 900 P.2d 1352; Bormann, 584 N.W.2d 309; Weinhold, 555 N.W.2d 454; Forner, 2000 Mich. App. LEXIS 2202; Flansburgh, 370 N.W.2d 127; Belvidere Township, 615 N.W.2d 250; Petsey, 788 A.2d 496; Pasco County, 573 So. 2d 909.

⁴³584 N.W.2d 309 (Iowa 1998).

⁴⁴Iowa Code § 352.2(6).

⁴⁵Bormann, 584 N.W.2d at 309.

⁴⁶Id. at 315.

⁴⁷See Churchill v. Burlington Water Co., 62 N.W. 646, 647 (Iowa 1895).

⁴⁸Bormann, 584 N.W.2d at 316 (quoting Restatement of Property § 451 comment a, at 2911-12 (1944)).

⁴⁹Id.

⁵⁰952 P.2d 610 (Wash. 1998).

⁵¹Id. at 615.

⁵²Id.

⁵³Id.

⁵⁴Jost, 45 Wis. 2d at 177. Specifically, the court stated: "To contend that a public utility, in the pursuit of its praiseworthy and legitimate enterprise, can, in effect, deprive others of the full use of their property without compensation, poses a theory unknown to the law of Wisconsin, and in our opinion would constitute the taking of property without due process of law." Id.

⁵⁵Id. at 172.

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