Supreme Court Summaries

Opinions filed November 29, 2012


Toftoy v. Rosenwinkel, 2012 IL 113569

Appellate citation: 2011 IL App (2d) 100565.


      JUSTICE BURKE delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.


      This dispute over flies from a cattle farm comes from Kendall County. Defendants, members of the Rosenwinkel family, began cattle operations in 1992 on 160 rural acres which they had purchased the previous year.

      Across the road from the cattle operation was a farm house that was at least 100 years old. In 1991, a few months after defendants’ purchase, the tenant who had occupied it moved out and no one else moved in.

      In 1998, ownership of the land on which the old farm house stood passed to the Toftoy plaintiffs here, who demolished the house and built a new home that was completed in 2004. A nuisance action complaining about flies and seeking injunctive relief was filed by them in 2007.

      The Rosenwinkel defendants argued that they were protected by the Farm Nuisance Suit Act (740 ILCS 70/1 et seq.), which they theorized barred the suit. They sought a summary judgment, which the circuit court denied, noting that the plaintiffs’ land had long been a residential site. After a bench trial, the circuit court entered judgment in favor of the plaintiffs and ordered the defendants to take remedial measures, including removal of moist bedding and manure to reduce the number of flies. The appellate court affirmed, although it disagreed as to the remedy, which it viewed as vague and overly broad. The defendants appealed.

      In this decision, the Illinois Supreme Court explained the Farm Nuisance Suit Act is a “right-to-farm” law designed to limit nuisance actions such as this, in order to preserve use of farmland. The statute provides that no farm “shall be or become a private or public nuisance because of any changed conditions in the surrounding area” when the farm has been in existence for one year and was not a nuisance when it began operations.

      The supreme court said that the plaintiffs did not acquire their property rights until six years after the cattle farm began operating and well beyond the one-year limitation set by the Act. By “coming to the nuisance,” the plaintiffs were barred from their action, and the circuit and appellate courts were reversed.

      The cause was remanded to the circuit court for further proceedings.