494 P.2d 700 (Ariz. 1972)
In 1956, Spur’s predecessors in interest developed feedlots about ½ mile south of Olive Avenue in an area between the confluence of the usually dry Agua Fria and New Rivers, some 14 to 15 miles west of the urban area of Phoenix.1 By April and May of 1959, the Northside Hay Mill was feeding between 6,000 and 7,000 head of cattle and Welborn approximately 1,500 head on a combined area of 35 acres.2 In 1960, Spur purchased the property and expanded the feedlot operation from approximately thirty-five acres to one hundred fourteen acres by 1962, eventually maintaining between twenty thousand and thirty thousand head of cattle at the time of trial.3
Del E. Webb Development Co. began planning Sun City, a retirement community, in May 1959 after purchasing twenty thousand acres of farmland for fifteen million dollars.4 Construction of a golf course started that September.5 Homes were first offered in January 1960.6 The first residents moved in during 1960.7 By the time of trial, Sun City had a population of approximately fourteen thousand people, and the development had extended south to within five hundred feet of Spur's feedlot north of Olive Avenue.8
Residents of Sun City began complaining about odors and flies from the feedlot, which produced over a million pounds of wet manure per day, and Webb encountered sales resistance starting around 1963 in the southwestern portion of the development.9 Webb attempted to buy the feedlot from Spur but the parties could not agree on a price.10 Webb then filed suit alleging that the feedlot was a public nuisance because flies and odors drifted over the southern portion of Sun City, rendering in excess of one thousand three hundred lots unfit for residential development.11
The trial court, after proceedings that included an advisory jury later discharged and special actions in the Arizona Supreme Court, found the feedlot to be a nuisance, permanently enjoined its operation, and awarded damages to Webb.12 Spur appealed from the injunction and the damages award, while Webb cross-appealed from the trial court's refusal to award attorneys' fees.13 During the appeal process, Spur agreed to and did shut down its operation without prejudice to the final determination.14
Whether, where the operation of a business such as a cattle feedlot is lawful in the first instance but becomes a nuisance by reason of a nearby residential area, the feedlot operation may be enjoined in an action brought by the developer of the residential area?15
Yes. Spur Industries began its feedlot operations in an agricultural area in 1956 and expanded them lawfully through 1962.19 Del E. Webb Development Co. subsequently purchased twenty thousand acres in May 1959 and built Sun City, a retirement community whose population reached approximately fourteen thousand by trial, extending to within five hundred feet of the feedlot.20 The feedlot produced over a million pounds of wet manure daily, generating odors and flies that drifted northward and rendered more than one thousand three hundred lots unsalable.21 The trial court found these conditions constituted a public nuisance because they affected a populous area.22 Webb possessed standing to seek injunctive relief on the basis of its own special injury in the form of sales resistance that began around 1963.23 The Arizona Supreme Court therefore affirmed the permanent injunction against continued operation of the feedlot.24
The court first distinguished private from public nuisance, noting that a public nuisance affects a considerable number of persons or an entire community.25 Because Sun City residents could themselves have maintained an action to abate the nuisance, Webb's demonstration of special injury conferred standing to sue on their behalf.26 The injunction was therefore proper even though the feedlot had been lawful when first established.27
The feedlot operation may be enjoined in an action brought by the developer of the residential area.28
Whether, assuming that the nuisance may be enjoined, the developer of a completely new town or urban area in a previously agricultural area may be required to indemnify the operator of the feedlot who must move or cease operation because of the presence of the residential area created by the developer?29
Yes. Although Spur's feedlot predated Sun City and was conducted without wrongdoing, Webb's decision to develop a new retirement community immediately adjacent to the feedlot created the conditions that made the operation a nuisance to thousands of residents.32 The court recognized that Spur would suffer substantial loss if forced to relocate or close.33 The residents of Sun City would continue to suffer if the feedlot remained.34
Balancing these hardships and the public interest in orderly land use, the court held that Webb must indemnify Spur for the reasonable cost of moving its cattle operation.35 The case was remanded for a hearing to determine that amount.36
The court emphasized that the doctrine of coming to the nuisance would ordinarily bar relief to a party who knowingly locates near an existing agricultural use.37 Here, however, Webb had created the nuisance by attracting residents to the area.38 Equity therefore required Webb to bear the cost of abating the harm it had foreseeably caused.39 This remedy protects both the public and the operator of a lawful business that has been encircled by later development.40
The developer may be required to indemnify the operator of the feedlot who must move or cease operation.41