Fortin v. Vitali , 28 Mich. App. 565 ( 1970 )

28 Mich. App. 565 (1970) 184 N.W.2d 609

FORTIN
v.
VITALI

Docket No. 9042.

Michigan Court of Appeals.

Decided December 8, 1970.

Mather, Glime & Daoust, for plaintiffs.

Robert E. Childs, for defendants.

Before: BRONSON, P.J., and FITZGERALD and CHURCHILL,^[*] JJ.

PER CURIAM.

The present case is a sequel to Fortin v. Vitali (1969), 15 Mich. App. 657. The defendants are mushroom farmers. To grow mushrooms it is necessary to use compost which defendants produce by fermenting a mixture of straw, grain and horse manure. This process produces highly offensive odors as a result of which a group of homeowners sought to have the composting operations enjoined.

When the case was first heard by this Court, we agreed with the trial court's conclusion that the composting operations constituted a nuisance. However, we reversed the trial court's order that all composting be discontinued and remanded the case in the hope that a way could be found to allow the farmers to continue composting without infringing on the rights of others in the neighborhood.

The case was remanded on January 31, 1969, the Court stating:

"[W]e remand here to the circuit court for continuing jurisdiction in order to work out an equitable solution to this problem of conflicting interests. If experience should show that no reasonable means can be worked out to enable this composting operation to continue without causing serious noxious effects constituting a private nuisance which invades the plaintiffs' interest in their land, then it may be necessary in the future for the circuit court to order the discontinuance of the composting operation."

On October 8, 1969, plaintiffs filed a motion in the trial court for an order to show cause why further composting should not be enjoined. Testimony was taken, plaintiffs producing 13 witnesses who stated that there were strong odors and flies. The motion was granted and the court entered an order on February 2, 1970, enjoining further composting.

On the basis of the evidence as set forth in the record, we must conclude that the efforts to control the odors, which included increased chemical spraying and reduced production, have been unsuccessful and that the defendants have not brought forth any plan that can reasonably be expected to solve the problem. As a result, the area still smells and defendants have not shown otherwise. In its earlier opinion, the trial court indicated that it had visited the area and was quite aware of noxious odors. Defendants have had considerable opportunity to devise methods for reduction of the nuisance, yet all have failed for the odor still persists. On these facts we must affirm the judgment of the circuit court. Trowbridge v. City of Lansing (1927), 237 Mich. 402.

Affirmed. Costs to plaintiffs.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.