by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Pigs have many virtues, but smelling good isn’t one of them. If fact, they—or, more accurately, their waste products—smell bad. As a result, pigs have played—and in North Carolina, they continue to play—a starring role in the development of the law of nuisance.
In a recent article in the North Carolina Law Review, Corden M. Smart begins a historical review of nuisance law with William Aldred’s Case. He calls it, “A seminal case … dating back to 1611 that helped form the foundation of nuisance law.” In it, the King’s Bench found, “An action on the case lies for erecting a hogstye so near the house of the plaintiff that the air thereof was corrupted,” and in a passage that has been quoted in countless subsequent judicial opinions, the court went on to explain that:
A man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants.
More than a century later, William Blackstone affirmed the principle in his Commentaries on the Laws of England, and he used pigs to do so:
If a person keeps hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house.
In our own era, the American Law Institute has reaffirmed the principle in its Restatement of Torts (though, sadly, without any references to pigs):
(1) If one is entitled to a judgement for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as an occupant.
Surprisingly, despite the fact that this principle has been accepted for more than 400 years, in North Carolina, there is still some uncertainty about how it is to be applied. And that uncertainty was revealed by a group of cases involving—you guessed it—pigs!
More than 500 North Carolina landowners have sued Smithfield Foods and other swine farmers for nuisance. They claim that noxious dust and odors from the defendants’ farms have “substantially impaired [their] use and enjoyment of their property.”
Smithfield and the other defendants asked the U.S. District Court for the Eastern District of North Carolina to dismiss the case, claiming that “annoyance damages” are not available for temporary nuisances under North Carolina law. Judge Britt, however, denied their motion. He found that:
North Carolina law is not clear on the availability of annoyance and discomfort damages in temporary nuisance actions. From the cases cited by the parties, it does not appear that any North Carolina court has been confronted with or decided the precise issue at hand. Because annoyance and discomfort damages may be available, the court finds that dismissal of plaintiffs’ “claims” for such damages would be premature at this early stage in litigation.
This decision cleared the way for the case to proceed in the usual way: for the parties to provide fully developed arguments in their briefs and at hearings; for the Court to render a decision on the basis of those arguments; and, if need be, for that decision to be reviewed by higher courts. That’s the normal process through which the Common Law “works its way clear.”
Rather than wait for the normal process to play itself out, however, farmers’ advocates in the North Carolina House of Representatives filed a bill “to clarify the remedies available in private nuisance actions against agricultural and forestry operations.” The bill imposes limits on compensatory damages in nuisance actions. In the case of a permanent nuisance, damages are limited to “the reduction in the fair market value of the plaintiff’s property.” In the case of a temporary nuisance, they are limited to “the diminution of the fair market rental value.” And, as originally drafted, the bill states that those limits apply to “actions filed, arising, or pending on or after” the date of passage.
Many people, including me, questioned the constitutionality of this sort of legislative intervention in pending litigation. As I put it:
Our courts have sometimes permitted clarifying legislation to have a retroactive effect over pending litigation. However, in such cases the legislature has typically been clarifying its own past legislation, not the common law as it has existed for centuries. Moreover, in such cases the legislature has typically been acting to protect plaintiffs and make them whole, not limit their right to restitution. Permitting the legislature to intervene in pending litigation in a way that clearly favors one party while harming the other is a dangerous precedent that threatens not only the right to due process of law, but also the separation of powers.
In response to such criticism, the language of the bill was changed. In the final version, the liability limits apply only to actions filed after the date of passage.
This change probably makes the liability limits constitutional, but it doesn’t necessarily make them wise or just. There’s a lot to dislike about the swine farm nuisance cases. Indeed, there’s a lot to dislike about mass tort litigation in general. It’s not just unseemly for trial lawyers to troll for unsophisticated plaintiffs with doubtful claims in order to extort vast sums from businesses; it’s bad for the country. But that doesn’t justify overturning an ancient principle of Anglo-American common law that has, for more than 400 years, protected property owners’ right to the quiet enjoyment of their property. North Carolina should defend that right, not take it away.