Can a lawful cattle feedlot that becomes a public nuisance because of a nearby residential development be enjoined at the suit of the developer, and, if so, must the developer indemnify the feedlot operator for the cost of moving or shutting down?

Spur Industries (Spur) and its predecessors operated cattle feedlots in a rural agricultural area of Maricopa County, Arizona, about 14 to 15 miles west of Phoenix. Feedlot operations began in 1956, and by 1959 some 25 feeding or dairy operations existed within a seven-mile radius. In 1959, Del E. Webb Development Co. (Webb) bought roughly 20,000 acres of farmland at about $750 per acre, far less than land near Phoenix, to build Sun City, a retirement community aimed at senior citizens. Homes were offered for sale beginning in January 1960. Spur expanded its operation from about 35 acres to 114 acres by 1962 and was feeding 20,000 to 30,000 head of cattle by the time of suit.

As Sun City expanded south toward the feedlots, Webb's property reached within 500 feet of Spur by December 1967. Feedlot odors and flies, carried by the prevailing south-to-north wind, annoyed residents and made outdoor living difficult. Webb's sales in the southern portion met resistance, and over 1,300 lots became difficult or impossible to sell. Webb sued, alleging the feedlot was a public nuisance. Neither the residents of Sun City nor of nearby Youngtown were parties.

Webb filed suit against Spur seeking to enjoin the feedlot as a public nuisance. The matter was tried to the court with an advisory jury, which was later discharged, and the trial continued before the court alone. The trial court made findings of fact and conclusions of law, found the feedlot to be a nuisance, and permanently enjoined Spur's operation. During the litigation, special actions were brought in the Arizona Supreme Court, and in one of them Spur agreed to shut down its operation without prejudice to a determination on appeal. Spur appealed the permanent injunction, and Webb cross-appealed. The Arizona Supreme Court, sitting en banc, affirmed in part, reversed in part, and remanded for a hearing on Spur's damages.

(Cameron, J.)

Yes, the feedlot may be enjoined, and Webb must indemnify Spur for a reasonable amount of the cost of moving or shutting down.

A lawful business may become a public nuisance when a populous area grows around it. A.R.S. § 36-601(A) declares conditions that breed flies in populous areas to be public nuisances dangerous to public health, and locality and surroundings are of first importance in determining nuisance. MacDonald v. Perry, 32 Ariz. 39, 255 P. 494 (1927). The odor and flies from 20,000 to 30,000 head of cattle injured the residents of southern Sun City, making the feedlot both a public and private nuisance as to them. Webb, having suffered special injury through lost sales, had standing to sue. Engle v. Clark, 53 Ariz. 472, 90 P.2d 994 (1939); City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30 (1938). The injunction is affirmed.

Courts of equity have a special responsibility to the public interest and may grant or withhold relief in furtherance of it. The injunction rests on protecting the people who were encouraged to buy homes in Sun City, not on any wrongdoing by Spur. Spur was in the area first, and nothing suggested a new city would spring up beside it.

The "coming to the nuisance" doctrine would have barred Webb's relief had Webb alone been injured, and it would ordinarily require an operator to bear the cost of abatement where a city grows toward an existing business. The law of nuisance is elastic, however, requiring only what is fair and reasonable under all the circumstances. Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371 (1914). A developer who exploits cheap rural land to build a new town, and thereby foreseeably brings people to the nuisance, must indemnify the operator forced to leave. The indemnity remedy is limited to a developer who foreseeably brings a population into a previously agricultural or industrial area, making an injunction necessary against a lawful business. The case is remanded to determine Spur's damages, and each side bears its own costs.