Kellogg v. Village of Viola

The Village of Viola (the village) (defendant) purchased land in lot 27 for the operation of a dump. Both private citizens and village employees burned trash at the dump site. After several years of operations at lot 27, the village purchased lots 15 and 16, which were adjacent to lot 27, with the intent of creating a new dump site. Before dump operations began on lots 15 and 16, the village sold a portion of these lots to Kellogg (plaintiff). The village then issued a permit to Kellogg for the operation of a mink ranch on his portions of lots 15 and 16. At this time, Kellogg knew of the village’s plan to relocate the dump site and told the village he did not expect this to cause a problem with his mink ranch. Shortly after Kellogg began his mink ranch operation, the village moved the dump site from lot 27 to lot 16. The dump and mink ranch peacefully coexisted for the first two years, but on the third year, smoke from the dump site allegedly caused a loss of 600 mink kits. The following year, Kellogg requested both verbally and in writing that the burning cease during the mink breeding season. The dump complied for three days. Several weeks later, smoke from the dump site caused the loss of 2,500 mink kits and stunted the growth of another 3,000. Kellogg filed a lawsuit against the village alleging that the smoke from the dump site was a nuisance and sought damages for the harm caused to his mink herd. The jury awarded Kellogg damages in the amount of $10,153. The village appealed, arguing that Kellogg was barred from recovery because (1) he came to the nuisance; (2) he made representations to the village that equitably estopped him from suing; and (3) mink are sensitive animals.