Bizarre, Environment, Torts

Sound Nuisance: Propane Cannon Leads to Tort Action

In Kentucky, a farmer is being sued for nuisance of his propane cannon — used to scare away birds from his corn. This is becoming more common as residential homes move into former farming areas. The common law at one time would protect farmers from such law suits under the “coming to the nuisance” doctrine, which did not allow lawsuits for conditions that existed previous to the plaintiff buying the property. That doctrine has been eliminated and landowners may now sue for such nuisance. However, nuisance itself contains elements that consider the appropriateness of the actiivity to the area as well as a balancing of costs and benefits. The propane cannon is unlikely to survive such a test. For the story, click here

19 thoughts on “Sound Nuisance: Propane Cannon Leads to Tort Action”

  1. Did you ever think that you can actually have fun while playing with mud.
    In addition to the zoning regulations and land use requirements some jurisdictions may also have Boards or Committees to enforce local aesthetic or
    historical guidelines that were put in place to convey
    or preserve special character and value to a whole City or specific neighborhood.
    The birds are singing, and no traffic can yet be heard.

  3. @admin: I must say your blog is the first I’ve come across today that doesn’t have typos every other sentence.
    Thank you for taking the time to construct something that doesn’t look like a 6th grader put together. Sorry, just had to vent.

  4. To Irate Kate…Do some research into common decibel levels for noise. you’ll find propane cannons up there with jet planes. Harmful to living things. Next research the added effect of interval noise. That’s the noise you are experiencing that causes a person to startle. This has cardiac risks. Then see who came first…the residents or the cannon. Record the sound from the closest home. Measure the distance to the cannon. Take pictures of sound abatement things he uses along with a cannon, which you probably won’t find.

    Go to your town board and demand noise ordinances in residential areas. I think sleep can be comfortable around 30 decibels. If they don’t want to ban a cannon then they can agree on permitted decibel levels. If this is a fireworks then limit the time they can be used to special holidays like July 4.

    If you haven’t spoken to the farmer, do this first. Let him know what he is causing. See if he can use another deterrent like other farmers. See if he is using other kinds of scary things or is he only using cannons. He can buffer them, change direction, change intensity, reset timer… If he is mad at you, find out why and how you both can make things better. If you discover he is using the cannon to harass you, you have reason to take legal action. I am not an attorney but I know how helpless you feel when it seems there is no help. Try the ACLU. Keep a paper trail. Farming Law is federal but states can interpret it differently. Have you contacted your state Agri Office?

  5. My parents and their neighbors are being harrassed by an individual who uses 31 air cannons. I am all for agriculture and support farmers in their right to farm without undue regulation but this is over the top. This guy hides under the cloak of the “right to farm” law but his placement of the cannons (closest to homes rather than on other end of field) and the direction he points them (toward the homes) is blatant harrassment. He operates them sun-up to sunset and all summer through harvest, now October and they are still going strong (and leaves those fields closest to homes to be harvested last). It is downright bullying. No other farmer in surrounding townships or counties uses these things, they are old-fashioned and outdated. The township does not have an ordinance to deal with this issue. The township officials claim air cannons are classified as fireworks and they need to do more research and consult their atty, but have been dragging their feet for close to a year, taking no action to protect these poor citizens. What can be done to encourage them to take swift action?

  6. WHAT WAS THE OUTCOME OF THE KY LAWSUIT?? We have a neighbor who’s using a cannon in their vineyard. These people just moved here ten years ago, other families have been here for multiple generations. We’re just starting to fight it.

  7. I’m reading these and its very similar to what we are currently going through. very frightening!!
    Our neighbor sells Christmas trees but this is not his livelihood. the Canon is a retaliation for us providing deposition on behalf of the town. now they wont help us. its causing hearing issues for my children and no one will stop him.
    any info would be helpfull

  8. TO Elson and Scott from Florida. The agriculture law is a US law. Each state must protect farm practices. Individual states have authority to define what is allowable practice. These allowable practices are so broad that it is almost impossible to win in court. In NYS while the intent of the US law is followed, how a farmer protects his product can be reviewed by local agriculture boards who try to mediate between a farmer and an irritated neighbor. If the farmer can prove his practice is allowed under the NYS Agr-Mkt law, then he can can use the cannon no matter the hardship on a neighbor. The neighbor does not have equal protection under the law. The cannon is allowed.

    Please keep posting here. I think the farm law originated because neighbors were taking farmers to court over noise, dust, smells, lights…Defending their farm business was difficult and a financial burden.. So some legal group must have lobbied congress to get a farm bill passed that is very broad in interpretation. It trumps state and local laws. It is unfair because it gives more rights to one group over another. It values business rights over individual rights.

    You mentioned migratory birds cannot be shot. So there are some laws that can be used to limit farm practice. This is important because humans do not have the same level of protection as a bird. Poison can be used in fields but isn’t because some people might object to finding dead birds on their lawns. Also there are limits to trapping animals. These restrictions impact farming in the same way banning the propane cannons would. So I think the use of a propane cannon could be restricted in the same way. It’s just as in humane as cruel treatment of birds. Also there are laws restricting pesticides, etc.

  9. ELDONP
    We need to get together, I have a neighbor who is willing to spend the money to get a lawyer,and file a major lawsuit against the farmers around us and possibly the state to change the law to stop the harassment from them. We need more video and sound recordings. Also if he is shooting the Cider waxwing birds around the the fence we need more video of that happening. These are migratory birds and it’s against the law to shoot them. So far we have some video,sound recordings and bird bodies. Ziploc then freezer, Also if he is shooting over your fence line that is against the law. We also are looking for an out of state attorney that can practice if Florida so he has no intereste in this state or anyones hands in his pockets. Let me know how I can contact you to make this happen. I have a few neighbors that are helping now but we want more. The more we get then somthing can happen. I hope to talk to you soon.

  10. Thanks you Scott in Pasco, I am also in pasco, here we are 5 years after the article was written searching for answers to the inconsiderate imbeciles who try to make a living growing blueberries in residential neighborhoods, residential/agricultural in my neighborhood. My neighbor uses shotguns, guns, and fireworks, from sun up to sun down. Asking him to stop got him into a psychotic screaming fit and and the worst day ever of constant fireworks and gunshot as retribution for my request, then the firworks started at 7am and have gotten worse so I guess I should have just let him ruin the lives of everyone around him and kept quiet. Now a lawsuit seems the only thing left, but as you say 10k to get started will not happen, I spent 25 years developing the land and just finished my dream house, but am now sleep deprived for over a month. Bull—t is an understatement. I am at a loss, the crazed “farmer” seems unbalanced so there is no reasoning with him. I think an ordinance was passed for the propane cannons and may have been repealed, but these are guns and fireworks, loud fireworks. I will keep looking for leal recourse but it looks like the lunatics are winning as usual. Pity, I spent most of my life trying to mind my own business and work on my land only to have it ruined by a new blueberry farmer. Same thing here, about three years ago, so it might be the same guy. You would think the law would step up but so far nothing, no action by the county or sherriff. I will check back to this page to see if there is any progress. Thanks for all of your input, nice to know I am not the only one being ruined by this.

  11. I live in New York State and a propane cannon was fired in an acre of corn every 2 minutes from 8 am until 8 pm from June until September. This field was about 120 feet from my front door and the winds blew mostly in my direction. The sound was not only outside but reviberated inside my home and no amount of distracting sound could make the vibration, repetitious noise, startle response lessen. I discovered that agriculture laws are in affect in the USA that permits the use of these cannons. My rights as a homeowner were not equal in court and the penalties for losing a nuisance case were harsh.

    So…how come I no longer hear the noise? I found out the field is leased by the housing developer of my subdivision. He is not in the business of agriculture and receives no tax subsidies even though the land is in an agriculture protected area of my township. Found out other farmers do not use cannons near me. They told me there are other ways to protect crops that do not annoy close neighbors. The leasing farmer has a pond, stand of trees and provides habitat for the very birds he wants out of the field. The birds instinct to feed makes them learn the cannon blast is not dangerous and indeed becomes a call to dinner!

    I started to ask questions everywhere – police, sheriff, DEC, nurseries, farmers markets, town officials, and most important, contacted media about making people aware of agriculture law before they think of moving to subdivisions built next to active or inactive farm land. I also contacted state legislators about requiring disclosure of agriculture law and specific practices before the sale of property. I research noise, crop protection…

    I don’t know if someone talked to the builder or if my letter to him made him decide to tell the farmer to stop using the cannon. I never was threatening. The media did not write a story so there were no negative words about moving to rural utopia. There is a bill in the NYS legislature that hasn’t been signed into law yet requiring disclosure of farm practices. Some counties in NYS already do this by my county does not.

    I am thankful to the subdivision developer for taking away my pain. However, no one should be surprised by this cannon and find out there is nothing they can do to protect their homeownership or health. Restrictions on building dense housing developments on agricultural land with miles between farming and residents must be put into code. I understand the importance of farming and the need to produce crop. With more attention to the rights of all, we can live as neighbors.

    The cannon should not be permitted within 3 miles of homes. Berming and sound barriers can be used. Research into the effectiveness of this as a deterrant when used constantly needs to be made. Just because if is a “right” does not make it right!

    If I were the person with the blueberry farm I would make sure everyone knew about the situation. Yes…it would affect property value but it is honest. I would also go to the farmer and ask him to set the volume low and adjust the timer. I would ask him to berm the cannon with haybales and direct the sound away from the home. I would make sure the cannon was level and not freely swinging in the wind. I would suggest the use during sunrise and sunset only. I would ask him to net his fields and fly mylar balloons above. I would talk to other blueberry producers and ask what protection they use. Contact your state agriculture department and law universities. Some law professors might use this case as a class project or be able to refer you to another lawyer.

    If you are going the legal route make sure you can win. I am appreciative of Jonathan Turley and this site. Hope you find an answer.

  12. I live In Pasco County Florida, We have lived here fo 17 years on this land I now have a blueberry farmer behind me that bought the land behind me 3 years ago and blows off his propane cannon 3 blasts every 10 to 15 seconds do the math 720 blasts per hour 8 hours a day. He shoots the migratory birds the waxwing with a shot gun and has shot the birds on my property over the fence line to the point that I got hit in the shoulder with pellets, the shot came over the top of my house hitting me and hit the windshield or our new car cracking it. Our sheriffs department says there is no way to prov it even though we found pellets on the top of my shed tin roof. I’ve tried to get game & fish involved they have done nothing. I want to know what good are these agencys if they are not going to inforce the laws that are on the books. We even have several wittness ‘s that want to go to court and have dead birds to prove it. still the state does nothing.
    I also tried to get an attorney but they want ten grand to file a suit, were am I going to get that, I’m not working and my wife works we are just getting by. My dogs are a wreck and got into a fight from the stress, now I have to pay
    a 300 dollar vet bill because one got hurt bad and needed surgery.
    I need help. this really is bull sh-t…………..

  13. I just read an email from Jonathan Turley (WordPress?) regarding Right to Farm laws which allow the use of propane cannons on agricultural land. Thank you, Jonathan, for sending this to me.

    New York State approves the use of this device but allows for individual dispute settlement with a local agriculture board. Supposedly this is to allow for extreme circumstances. It is next to impossible to stop these cannons. The cannon, close to my home, was set to ignite every two minutes (30 times per hour) twelve hours daily and was torturing me to the point I had to leave my home. The percussion reverberated inside my house. Meant to deter birds, it was not effective. They still fed on the corn.

    After speaking to town and state officials, local sheriff office, and lawyers I discovered very few people had knowledge of this practice since the majority of farmers do not use it. But this farmer was protected by farm laws. His field is less than one acre in size and is located about 120 feet from the front of my house with nothing to absorb sound between us. (There is so much more to my story.)

    This spring I talked with the housing developer (and owner of land) who allows this farmer to farm fields around the growing subdivision. I think he realized that if word got out about this cannon other homebuyers might look elsewhere when considering building a home in his subdivision. He assured me the cannon would not be used this season. Instead, the farmer planted pumpkins and corn was planted elsewhere.

    I have no guarantee corn will not be planted next year and the cannon used again. I do not have a solution backed by law and property protection. I WANT TO BE CONNECTED WITH ANYONE PURSUING A FEDERAL OR STATE CHANGE IN THE RIGHT TO FARM LAW. I have done a lot of research, have corresponded with many officials who could not offer help. I want to legislate against the development of subdivisions within one mile of agriculture or at least the prohibition of propane cannons so close to homes. It doesn’t matter if a cannon is currently in use – what matters is the potential for its use.

    NYS real estate law requires disclosure of farming activities when selling homes within agriculture areas. These homes must be on three acres lots. However, when a PUD subdivision is built with homes on very small lots (to preserve land for farming) no such disclosure is given. It is up to counties to give expanded disclosure but my county (Livingston) does not. Currently there is a bill in the NYS legislature that would require expanded notification for real estate transactions within 500 feet of agriculture. This still would not give protection since the use of “nuisance practices” is not specific. Also “nuisance practices” are protected but no homebuyer is made aware of the ramification of Right to Farm protection that is greater than the right to enjoyment of property. Home sellers are not required to reveal specific farm practices.

    If you read this and would like to contact me, please email me at jfalzoi1@rochester.rr.com and we can exchange information. I want to be updated on legislative action since that is the only solution to this problem. I want to become involved in group actions to remove or restrict propane cannons from protected agriculture practice. I want potential buyers of homes to be notified of the meaning of farm law protections and the potential affect on their lives. I lived a nightmare during the summer of 2009. I have no assurance that nightmare will not reoccur.

  14. I too am going crazy in California because of the propane cannon noise.
    Our whole neighborhood has become helpless,hopeless and living in hell for several years now. We live in rural residendial/agracultural zoning .We are unincorperated and there are no regulations on the use of the cannons .
    Most of the neighbors have lived here around 25 yrs.The orchard using the cannon has a new owner .The previous owner planted the trees etc. ,but never used a cannon.
    The bad thing is the cannon goes dawn till dusk,about 2 shots every min. for several months ,but they do not harvest !
    We have been told they are in their rights .We have called,went to town meetings,talked to supervisors,State Reps on up.No one can enforce a non existing law.
    Other counties have guidelines .Ours does not .So we have to go thru Washington to get an addendum added to the right to use law.
    The noise is right on the other side of our fence.The cannon sounds like a shotgun .It has ruined our lives. 2 of our dogs suffered a stroke .My husband is a disabled vet.

  15. OR as me made aware, you moved to the Nuisance and two, it is a right to farm states.

  16. I bought a 6-year old home last year in a residential subdivision in NYS. The landowner/developer owns a small, one acre or less field that he allows a farmer to plant corn in – no rent. This field is 120 ft. from my home and the use of this land was not disclosed upon sale of the home. The propane cannon is used in the summer, from 8am-8pm, every two minutes daily. My home faces this field totally without anything to stop or absord the sound energy. Outside noise is bad enough but I can’t escape the sound inside even with all windows/doors shut. I feel the sound. I startle like the birds. My only relief is to leave my home.

    The farmer provides habitat for birds via thick tree growth, pond, and food source. He does nothing to prevent habitation. Just uses the cannon before harvest of corn over a seven week time. Takes his time to keep fresh corn in his roadside market. He farms many other fields, plants other crops, but continues planting corn in a field that is not ideal due to birds. He has had many complaints over the years but reverts to his Right-to-Farm protection and doesn’t care about the affect on neighbors.

    I seem to have unequal rights and no protection of law. I am going to try to get the landowner to stop the farmer’s use of this cannon. I don’t expect cooperation. Warning to anyone buying in agriculture land or near it – research the Right-to-Farm Law and find out the effect it has on you – now and in the future. Think before buying a home.

  17. My neighbor started his blasting after I was living in my neighborhood, however, California’s right to farm law is so general and broad that a very small property owner who happens to live in an agricultural zoned area has the right to drive his neighbors insane over his tiny farm. This person does not even have an acre planted and has the right to drive us crazy with cannons. This man earns his living with a regular job and not the small fraction of produce he grows. California law is so unfair to cover even those who don’t produce enough of anything to have any impact on the public interest in preserving farming. Big farms should be reasonably protected, because that is our food source. However, some tiny little farm owner that can use other methods to protect his crop should not have the same protections when it comes to very loud cannons or other audible devices that are so harmful to peoples health.

  18. Coming to the nuisance actions protected pre-existing enterprises like farming and industry from lawsuits based on normal characteristics of those activities. This really not that relevant to you since the doctrine has been eliminated. Moreover, even under the doctrine, atypical activities would not be included. The issue of pre-exsiting activities and the appropriateness of the activity to an area, however, are still often considered in either finding a nuisance or determining what relief is justified.

  19. Hello Jonathan,
    I am one of the Plaintiffs in this lawsuit and am interested in your statement that the common law “coming to the nuisance” doctrine has been eliminated. Can you give more information about this? When and how was it eliminated?

    I have heard the term “coming to the nuisance” referring to developments sprouting up around airports but we haven’t considered our particular case as “coming to the nuisance” because most of us bought our lots in 2003 and were moved in by 2004. This all-day cannon fire only started this spring (2007).

    Thank you!

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