Indiana farm business owners and Indiana lawyers should be aware that the Indiana Court of Appeals recently held that a farmer’s mycelium drying business constituted a nuisance.1 In Bonewitz, the farmer’s neighbors complained that the mycelium drying business caused foul odors, noise and vibrations from delivery trucks, sawdust particles blowing onto their property, and gas and sawdust ash emissions from the dryer.2 The neighbors sought monetary damages as well as a permanent injunction, but the trial court only ordered the farmer to discontinue unloading raw sawdust outside to mitigate the blowing sawdust.3

Under Indiana law, nuisance is defined as “whatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property.”4 Indiana courts have stated that the competing interests of landowners must be balanced in deciding whether an activity constitutes a nuisance.5 Indeed, “reasonable use of one’s property may be a defense to a nuisance action” if the activity only causes “incidental injury” to a neighboring landowner.6 However, even a lawful business may constitute a nuisance if it causes harm that is greater than the neighbor should bear under the circumstances.7

In Bonewitz, the appellate court held the undisputed evidence showed the neighbors suffered “unreasonable infringements on the use and enjoyment of their property” as a result of the mycelium drying business.8 The court cited the stench, dust, truck noise and vibrations, and the fact that the neighbors could not open their windows.9 The farmer argued that the neighbors “came to the nuisance” by moving into a rural, agricultural area and should not be heard to complain about agricultural sights, smells, and sounds. The court of appeals held the mycelium drying operation was not “agricultural”, but rather, an independent feed business of which only ten percent of the dried mycelium was consumed by the farmer’s own farming operation.10

The court of appeals remanded the case to the trial court with instructions to determine whether the neighbors could be compensated by money damages.11 The court instructed that the proper measure of money damages was difference between the market value of the neighbors’ home if the nuisance continued and value if the mycelium-drying operation ceased plus consequential damages such as moving expenses and damages to compensate the neighbors for the discomfort and annoyance they suffered and would continue to suffer as a result of the nuisance.12 If those money damages would not make the neighbors “whole”, the appellate court instructed the trial court to grant a permanent injunction.13

Erin Casper Borissov was an associate (now partner) at Parr Richey Frandsen Patterson Kruse LLP, with offices in Indianapolis and Lebanon practicing in the areas of energy and telecommunications law and corporate law.

The statements contained herein are matters of opinion only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.

1Bonewitz v. Parker, 912 N.E.2d 378,385 (Ind. Ct. App. 2009).
2Id. at 380.
3Id. at 380.
4Ind. Code § 32-60-6-6.
5Bonewitz, 912 N.E.2d at 381 (citing Sherk v. Indiana Waste Systems, Inc. 495 N.E.2d 815, 818 (Ind. Ct. App.
6 Id.
7 Id. at 382.
8 Id. at 382.
9 Id. at 832.
10Id. at 383-84.
11Id. at 385.

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