Our preview of the September term of the Illinois Supreme Court continues with Toftoy v. Rosenwinkel [pdf].

We all learned about it in law school, and few of us have probably thought of the phrase since: “coming to a nuisance.” The notion is basically this: if you’re the last to move in, you’re stuck with your neighbors. You can’t file a nuisance suit if you knew what you were getting into.

Which brings us to a relatively common legislative manifestation of this old warhorse of a property law principle: “Right to Farm Laws.” The Illinois version is the Farm Nuisance Suit Act, 740 ILCS 70/1. According to Section 3 of the Act, no farm can be, or become, a private or public nuisance “because of any changed conditions in the surrounding area” as long as the farm has been in operation for a year.   The only exception to this blanket immunity is where the nuisance results from the negligent or improper operation of the farm.

Toftoy arises from a cattle farming operation. Defendants bought farmland in a rural area in 1991. The land had historically been used as a cattle operation, and the following year, the defendants opened their own cattle farm on the property. Three years earlier, plaintiffs had started using the barn and fenced lots on the property across the street to board horses. In 1997 – five years after the defendants started their cattle operation – plaintiffs demolished the old farmhouse which had stood vacant since 1992 and began building a new residence; they finally completed construction and moved into the house in 2004. In 2007, plaintiffs sued the defendants, alleging that the flies coming from their farm constituted a nuisance.

The defendants moved for summary judgment, arguing that Section 3 of the Farm Nuisance Suit Act clearly barred the suit. But the trial court denied the motion, holding that the changed conditions on the plaintiffs’ property across the street hadn’t caused the nuisance. After a bench trial, the court entered a declaratory judgment for plaintiffs and an injunction requiring various steps, supposedly to mitigate the fly problem.

On appeal, the defendants argued that contrary to the trial court’s ruling, there were “changed conditions” all over the place: (1) when they started their farm, the land across the street had been unoccupied; (2) the land across the street had originally been zoned for agricultural use, but was now being used for a private residence; (3) when defendants started their farm, the land across the street was a 200 acre plot; now plaintiffs held a 1.83 acre plot. According to the defendants, if their property was a nuisance at all, it was because the plaintiffs had moved into a farming area across from a working cattle farm and built a single-family residence on a small plot. And the defendants were there first.

The Appellate Court affirmed. Just any “changed condition” wasn’t good enough, the Court found; the condition must literally be the reason the farm was now a nuisance. Nothing the plaintiffs (or the previous landowner) had done had caused the nuisance, according to the Court, so the Illinois “Right to Farm” Act didn’t bar the suit. Justice Susan F. Hutchinson filed a detailed dissent, arguing that the Act clearly barred the suit. She concluded that the statute was clearly meant to be interpreted to give broad protection to Illinois farmers. Although there needed to be some nexus between the “changed condition” and the purported nuisance, Justice Hutchinson concluded that the necessary nexus was clearly present: the reason for the suit was that the plaintiffs had built a residence on a small plot in what had once been a large parcel of farmland. Justice Hutchinson worried about the future of Illinois’ farmers if the majority decision stood: “The future implications of the majority’s decision will leave farms with no defenses against baseless nuisance suits.”

In view of the dissent, and the Supreme Court’s allowance of the petition for leave to appeal on what the Appellate Court called an issue of first impression, don’t be surprised if the Supreme Court reverses. But if they don’t, an effort in the Illinois legislature to amend the statute seems likely.

Toftoy will be argued at the 9:30 am session of the Court on Wednesday, September 19, 2012. Join us back here tomorrow for a preview of the argument in In re Estate of Boyar.