## Facts

- James and Joan Pestey owned and lived on residential property in North Franklin, Connecticut, about one-third of a mile from the defendants’ dairy farm.
- The defendants operated a large dairy farm and in 1990 built a free-stall barn and milking parlor with a manure storage pit.
- After the 1990 construction, the plaintiffs began experiencing odors from the farm that later grew more pungent and developed a sharp, burnt character.
- In 1997, the defendants installed an anaerobic digester intended to process manure and produce gas for energy.
- After the digester’s installation, the plaintiffs experienced stronger, persistent odors described as sulfur and sewage, interfering with sleep and prompting them to close windows.
- The plaintiffs claimed the digester was improperly operated, including venting gases to the air instead of capturing and using them, contributing to the odors.
- The plaintiffs brought a common-law private nuisance action seeking damages and equitable relief; a jury awarded $100,000 in damages.
- The trial court denied post-trial motions and entered judgment; the defendants appealed to the Connecticut Supreme Court.

## Issues

1. Whether the jury was properly instructed on the “unreasonableness” element of common-law private nuisance.
2. Whether a property owner may testify that odors caused a diminution in the value of the owner’s property.
3. Whether excerpts from a livestock waste management handbook were properly admitted under the learned-treatise exception to the hearsay rule.
4. Whether the evidence was sufficient to support the jury’s finding that the defendants’ farm operations were the proximate cause of the offensive odors.
5. Whether claims concerning the right-to-farm statute and exclusion of certain expert testimony were reviewable on appeal.

## Decision

- The Connecticut Supreme Court affirmed the judgment for the plaintiffs.
- The Court held the private nuisance instruction properly directed the jury to assess the unreasonableness of the interference with the plaintiffs’ use and enjoyment of land, considering all circumstances.
- The Court held the trial court acted within its discretion in allowing the homeowner to testify about property value, diminution in value, and attribution of that diminution to the odors.
- The Court held the handbook excerpt was admissible as a learned treatise; the foundational testimony was sufficient to establish the handbook as a reliable authority.
- The Court held the evidence supported the jury’s findings on source and proximate cause despite competing explanations.
- The Court declined to reach certain right-to-farm and evidentiary claims because they were not properly preserved.

## Legal Principles

- A common-law private nuisance claim centers on whether the defendant’s conduct causes an unreasonable interference with the plaintiff’s use and enjoyment of land; the interference may be unreasonable even if the defendant’s underlying conduct is reasonable.
- Determining “unreasonableness” in private nuisance requires a fact-specific evaluation of multiple circumstances, including the character, duration, and severity of the interference.
- A property owner is generally competent to offer opinion testimony on the value of the owner’s property and its diminution in value, and a trial court may allow the owner to attribute the diminution to an asserted cause.
- Materials may be admitted under the learned-treatise hearsay exception when a sufficient foundation establishes the work as a reliable authority; the foundation need not be an unequivocal endorsement.
- Causation in nuisance is ordinarily for the factfinder; an appellate court will not disturb a verdict where the record contains evidence from which the jury could reasonably find source and proximate cause.
- Appellate review may be denied for claims not preserved in the trial court.

## Conclusion

The court affirmed a nuisance verdict against dairy farm operators, clarifying that Connecticut private nuisance law focuses on the unreasonableness of the interference with a neighbor’s use and enjoyment of property, while also approving homeowner valuation/causation testimony and the admission of technical guidance materials as a learned treatise when adequately founded.


Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496 (Conn. 2002)