PESTEY V. CUSHMAN
788 A.2d 496 (2002)
NATURE OF THE CASE: Cushman (D) appealed a verdict in favor of Pestey (P) in a private
nuisance suit.
FACTS: Ds own and conduct farming operations on a large tract of land on the opposite
side of Route 87 from P's home approximately one third of one-mile north of P's property. In
1990, Ds constructed a 42,000 square foot free stall barn and milking parlor on their land
to house a herd of dairy cows and a pit in which to store the manure generated by the herd.
P first noticed objectionable odors emanating from D's farm in early 1991. The odors became
substantially more pungent and their character changed as they took on a sharp, burnt smell.
In 1997, the defendants installed an anaerobic digestion system on their farm to process the
manure generated by the dairy herd. Following the installation of the digester, the
character of the odors affecting P's property changed again, becoming more acrid and
evincing the smells of sulphur and sewage. This change was caused by the digester being
either undersized or overloaded. At times, the odors were so strong that the smell would
awaken Ps during the night, forcing them to close the windows of their home. Pestey (P) sued
Cushman (D) seeking money damages and injunctive and declaratory relief. P got the verdict
and D appealed. D claims that the trial court improperly instructed the jury with regard to
the unreasonableness element of the nuisance claim; it failed to instruct the jury
adequately with respect to the balancing of interests that must be performed in deciding
whether a use of property is unreasonable.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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