New hog

odor trial

denied

Wendingers

ordered to

pay costs

By FRITZ BUSCH

Journal Staff Writer

MANKATO -- A precedent-setting hog feedlot nuisance lawsuit against a Nicollet County hog farmer took another turn June 16 when District Court Judge Norbert Smith denied a new trial in the Gerald and Julie Wendinger vs. Forst Farms, Inc.

The Wendingers were ordered to pay costs and disbursements of nearly $40,000 in favor of Wakefield Pork, Inc. and $8,000 in favor of Forst Farms, Inc.

A June 7 hearing addressed the Wendingers' motions for judgment notwithstanding the verdict or new trial plus their objections to the Forsts' costs and disbursements.

Two months earlier, a jury decided the Forst farm was not a nuisance and dismissed the lawsuit against the Forsts.

The Wendingers attempted to recover damages to their property, which they said was caused by the Forsts' 2,400 hogs and liquid manure stored in a 1.6-acre open-air lagoon with an effluent treatment unit that began operation a decade ago.

The Wendingers began complaining about foul odors to the Minnesota Pollution Control Agency in 1995. They claimed obnoxious odors forced them to sell their farm located near St. George for $50,000 less than they thought it was worth.

In a sworn affidavit, Julie Wendinger said she marked 475 days when the smell was bad on their property. The couple made 100 nuisance complaints to the Forsts, local and state authorities between 1995 and 2000.

Minneapolis attorney Thomas Dunnwald, who represented the Wendingers in the trial, said the case was an impact situation about extreme irritation and property rights.

During the trial, James Sullivan of the MPCA said the Forst farm was tested more than any other in the state during that period and that it was a modern, state-of-the-art facility.

The Forsts and Wakefield Pork filed papers about an odor measurement done by Dr. Charles Gantzer on the Forst farm. The documents claimed odors were only strong enough to waft beyond the Forst property 2.2 percent of the time.

Although Gantzer provided pre-trial assistance, he did not testify at the trial because doing so would have added another day or two to the trial. According to court documents,Gantzer submitted bills of $24,212.92 for his services. It was ruled that Gantzer's pre-trial assistance was necessary and his billed expenses were reasonable.

In his findings of fact, Smith ruled that the Wendingers received an exceptionally fair trial and that jury instructions were favorable to them, especially the first special verdict question regarding nuisance.

"Upon review of the laundry list of complaints, none remotely rise to the level mandated by applicable rule to compel the relief they request," Smith said.

The Wendinger case was initially dismissed in Nicollet County District Court when Minnesota's Right to Farm Act was interpreted as exempting the Forsts from a nuisance suit.

The Minnesota Appellate Court reversed the ruling, stating that the lower court's interpretation of the Right to Farm Act was overly broad and that the Wendingers' claim should go to trial.