Tolling the statute of limitations

[NeilTheCop]

What is the name of your state? New Mexico

Not so much a question but more of a request for opinions

I live next to an agricultural field that had been used and still is used to grow corn. In late 2016 the field was sold and the new owners decided to store animal manure on it. When I say animal manure it was a pile taking up about 10 acres in area, but the problem was twofold, the trucks 'delivering' this manure ran 10 hours a day 6 days a week and the second problem was they were taking a short cut across my property to get there. Sent them a letter and they stopped the trucks almost instantly. Over the course of the next few months they built a road and the trucks started again. these trucks have the loads uncovered and so were covering my house and property with a layer of dried cow manure 10 hours a day 6 days a week. Sent a cease and desist letter, got a reply from the field owners attorney citing the right to farm act, but the trucks did stop.
Now the NM right to farm act restricts bringing any action for a private nuisance to a 1 year statute of limitations.
Here's the thing, almost one year to the day from my cease and desist letter the trucks started again.
So would the equitable estoppal of tolling of the statute of limitations apply? The reasoning being that as the trucks had stopped there was no action to take and it does not seem that the spirit or intent of the law was to allow someone to 'hide' behind the right to farm act by simply waiting for the statute of limitaions to expire.
Just wondering

 

[Whoops2u]

It's not quite a statute of limitations issue although the statute limits things. The hard part is, there seems a lot of definitional things in the statute that would need some court guidance upon to really know the answer and I don't see any cases that addresses that. (Or the statute itself for that matter.)

§ 47-9-3. Agricultural operations deemed not a nuisance
A. Any agricultural operation or agricultural facility is not, nor shall it become, a private or public nuisance by any changed condition in or about the locality of the agricultural operation or agricultural facility if the operation was not a nuisance at the time the operation began and has been in existence for more than one year; except that the provisions of this section shall not apply whenever an agricultural operation or agricultural facility is operated negligently or illegally such that the operation or facility is a nuisance.

B. Any ordinance or resolution of any unit of local government that makes the operation of any agricultural operation or agricultural facility a nuisance or provides for abatement of it as a nuisance under the circumstances set forth in this section shall not apply when an agricultural operation is located within the corporate limits of any municipality as of April 8, 1981.

C. The established date of operation is the date on which an agricultural operation commenced or an agricultural facility was originally constructed. If an agricultural operation or agricultural facility is subsequently expanded or a new technology is adopted, the established date of operation does not change.

D. No cause of action based upon nuisance may be brought by a person whose claim arose following the purchase, lease, rental, or occupancy of property proximate to a previously established agricultural operation or agricultural facility, except when such previously established agricultural operation or agricultural facility has substantially changed in the nature and scope of its operations.

 

[justalayman]

I think you should research as to whether a manure storage area even falls under the act. I don’t see a waste disposal site as being agricultural in itself.

 

[PayrollHRGuy]

Manure storage area could easliy be written as Fertilizer storage area.

 

[laurakaye]

I'm wondering the same thing as "justalayman" ...

The intention of the Farm Act seems to be to protect existing farmers from being sued when new neighbors move in. ["Now, where there used to be open fields, the dairy finds itself surrounded by housing developments. The new neighbors, who do not appreciate the smell of dairy cattle and the manure that comes with them, file suit for nuisance and seek an injunction to shut down the dairy operation. It was this type of scenario that led to the passage of Right to Farm Acts." (https://agrilife.org/texasaglaw/2016/03/14/new-mexico-amends-right-to-farm-act/)]

From what you describe, it seems like the operation has changed from a farm to a manure storage site. Yet you also write "had been used and still is used to grow corn." Do they grow as much corn as they used to or has it significantly changed?

 

[adjusterjack]

were covering my house and property with a layer of dried cow manure 10 hours a day 6 days a week.

That's property damage if you ask me.

You have four years to file suit for damage to your property.

See:

https://law.justia.com/codes/new-mexico/2017/chapter-37/article-1/section-37-1-4/

Think about that as I doubt that you will get anywhere with the nuisance thing.

 

[NeilTheCop]

I'm wondering the same thing as "justalayman" ...

The intention of the Farm Act seems to be to protect existing farmers from being sued when new neighbors move in. ["Now, where there used to be open fields, the dairy finds itself surrounded by housing developments. The new neighbors, who do not appreciate the smell of dairy cattle and the manure that comes with them, file suit for nuisance and seek an injunction to shut down the dairy operation. It was this type of scenario that led to the passage of Right to Farm Acts." (https://agrilife.org/texasaglaw/2016/03/14/new-mexico-amends-right-to-farm-act/)]

From what you describe, it seems like the operation has changed from a farm to a manure storage site. Yet you also write "had been used and still is used to grow corn." Do they grow as much corn as they used to or has it significantly changed?

No it's still the same amount but I have videos showing them taking the manure in and also taking it out, so it's not just for application to that field.
As I said I was just looking for some input on the delaying tactics they used so they could cite the statute of limitations.
A bit of digging gave me:
"The Supreme Court of New Mexico has held that equitable tolling normally applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control" Martinez v. Orr, 738 F. 2d 1107 - Court of Appeals, 10th Circuit 1984

"Equitable estoppel applies when a defendant actively prevents a plaintiff from suing."
Opinion Number: 2016-NMSC-018 in the New Mexico Supreme Court (2016). Estate of Alice C. Brice v. Toyota Motor Corporation.

"Equitable estoppel-sometimes referred to as fraudulent concealment-“comes into play if the defendant takes active steps to prevent the plaintiff from suing in time,” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1990)

And as the nuisance moved to me it may also be unconstitutional
It has been decided by the Supreme Court of Iowa that the Right to Farm act was unconstitutional under not only the Iowa Constitution but the Constitution of the United States, as it amounted to unlawful taking. This only applies to a nuisance from a farm that interfered with the free use of property if the property was in existence before the nuisance commenced, as is Plaintiffs claim. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 179 (Iowa 2004).

Just nice to get some input from others.
Have a nice safe weekend everyone.

 

[NeilTheCop]

I think you should research as to whether a manure storage area even falls under the act. I don’t see a waste disposal site as being agricultural in itself.

The list of definitions makes no mention of animal waste.

 

[NeilTheCop]

That's property damage if you ask me.

You have four years to file suit for damage to your property.

See:

https://law.justia.com/codes/new-mexico/2017/chapter-37/article-1/section-37-1-4/

Think about that as I doubt that you will get anywhere with the nuisance thing.

all I want is the truck traffic to stop, nothing else. 6 days a week, 10 hours a day starting at 7.45 AM and ending about 17.30 PM is wearing thin.

 

[NeilTheCop]

To give you an idea of what I'm unhappy about:
[removed]

 

[adjusterjack]

"The Supreme Court of New Mexico has held that equitable tolling normally applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control" Martinez v. Orr, 738 F. 2d 1107 - Court of Appeals, 10th Circuit 1984

"Equitable estoppel applies when a defendant actively prevents a plaintiff from suing."
Opinion Number: 2016-NMSC-018 in the New Mexico Supreme Court (2016). Estate of Alice C. Brice v. Toyota Motor Corporation.

"Equitable estoppel-sometimes referred to as fraudulent concealment-“comes into play if the defendant takes active steps to prevent the plaintiff from suing in time,” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1990)

Nobody prevented you from suing. You could have sued at any time and sought an injunction against the activity. That you didn't is on you.

And as the nuisance moved to me it may also be unconstitutional
It has been decided by the Supreme Court of Iowa that the Right to Farm act was unconstitutional under not only the Iowa Constitution but the Constitution of the United States, as it amounted to unlawful taking. This only applies to a nuisance from a farm that interfered with the free use of property if the property was in existence before the nuisance commenced, as is Plaintiffs claim. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 179 (Iowa 2004).

New Mexico is not binding on Iowa. The Iowa statute is still on the books and was even amended to add a paragraph a couple of years ago.

I hope you understand that nothing will change unless you get this into court. Be prepared to spend a lot of money to do that.

 

[justalayman]

Nobody prevented you from suing. You could have sued at any time and sought an injunction against the activity. That you didn't is on you.



New Mexico is not binding on Iowa. The Iowa statute is still on the books and was even amended to add a paragraph a couple of years ago.

I hope you understand that nothing will change unless you get this into court. Be prepared to spend a lot of money to do that.

The point is the activity ceased so there would be no reason to sue. Do you sue people to get an injunction against them after they have voluntarily stopped the unwanted behavior?

 

[NeilTheCop]

Nobody prevented you from suing. You could have sued at any time and sought an injunction against the activity. That you didn't is on you.



New Mexico is not binding on Iowa. The Iowa statute is still on the books and was even amended to add a paragraph a couple of years ago.

I hope you understand that nothing will change unless you get this into court. Be prepared to spend a lot of money to do that.

It will be worth every penny to stop it. My house is unsaleable and my health is fast deteriorating even after closing my house up when they start at 7.45 in the morning.
Check out the video, would you want that happening to you 6 days a week 10 hours a day with no end in sight?

 

[NeilTheCop]

The point is the activity ceased so there would be no reason to sue. Do you sue people to get an injunction against them after they have voluntarily stopped the unwanted behavior?

That's the point, they stopped until the statute of limitations expired then within about 6 weeks of that date started up again. I can't sue someone to stop them doing something that they are not doing, it makes no sense and would be laughed out of court with possibly a counter claim for filing a frivolous lawsuit.

 

[HighwayMan]

Why don't you contact your local law enforcement agency or the state police about the trucks that are in violation:



2011 New Mexico Statutes
Chapter 66: Motor Vehicles
Article 7: Traffic Laws; Signs, Signals and Markings; Accidents; Weight and Size; Traffic Safety, 66-7-1 through 66-7-513
Section 66-7-407: Loads on vehicles.

Universal Citation: NM Stat § 66-7-407 (1996 through 1st Sess 50th Legis)
66-7-407. Loads on vehicles.
A. No vehicle shall be driven or moved on any highway unless the vehicle is so constructed, loaded, secured or covered as to prevent any of its load from dropping, sifting, leaking or otherwise escaping, except that sand may be dropped for the purpose of securing traction or water or other substance may be sprinkled on a roadway in cleaning or maintaining the roadway.
B. No person shall operate on any highway any vehicle or combination of vehicles with any load unless the load and any covering thereon are securely fastened so as to prevent the covering or load from becoming loose, detached or in any manner a hazard to other users of the highway.