Plaintiffs Still Can't Come to a Nuisance in Illinois


In Toftoy v. Rosenwinkel [pdf], the 2nd District of the Illinois Appellate Court held that Illinois' "Right to Farm Act," 740 ILCS 70/1, didn't bar the plaintiff's nuisance suit against the defendants and their cattle farm. Today -- as we predicted in our pre-argument preview here -- the Illinois Supreme Court unanimously reversed in an opinion by Justice Burke [pdf].

The defendants in Toftoy started a cattle farm in March 1992. The farmhouse across the street had been occupied by a tenant since 1985, but the tenant had left four months earlier, and the house was vacant.

The plaintiffs acquired part of the plot across the street by family gift in 1998. Plaintiffs began construction of a new farmhouse, which they finally occupied in 2004. In August 2007, plaintiffs sued the defendants, alleging that the flies attracted by the defendants' cattle farm made the farm a nuisance. The defendants moved to dismiss, citing the Right to Farm Act, but the Circuit Court denied the motion. A divided panel of the Second District affirmed, holding that to satisfy the statute and bar the action, a "changed condition" had to be the reason that the farm was now a nuisance.

The Supreme Court's opinion begins by considering Section 3 of the Right to Farm Act, which the Court wrote was "intended to reduce the cost of farming and help prevent the loss of farmland":

No farm or any of its appurtenances shall be or become a private or public nuisance because of any changed conditions in the surrounding area occurring after the farm has been in operation for more than one year, when such farm was not a nuisance at the time it began operation.

As we wrote in our pre-argument preview, the Act codifies the common law concept we're all familiar with from law school of "coming to the nuisance." The Court agreed, noting that under the doctrine, the fact that a plaintiff acquired or improved land after the nuisance generating activity began affected whether or not the plaintiff could sue.

According to the Court, the plaintiffs contended that they had not "come to the nuisance" because the property across the street from the defendants had always been a farmhouse. But the statutory term "nuisance" was broader than that, the Court held; the change in ownership was the "changed condition" which had given rise to the action. Since the plaintiffs had not acquired their property rights until 1998 -- six years after the defendants' cattle farm began operation -- the action was plainly barred by the Right to Farm Act, and the Appellate Court and the Circuit Court were reversed.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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