Effective 28 Aug 2011

537.296. Private nuisance — definitions — exclusive compensatory damages for agricultural nuisances, subsequent actions, effect of — standing — action in excess of one million dollars, court or jury shall visit property — copy of final judgment to be filed. — 1. As used in this section, the following terms mean:

(1) "Claimant", a person who asserts a claim of private nuisance;

(2) "Fair market value", the price that a buyer who is willing but not compelled to buy would pay and a seller who is willing but not compelled to sell would accept for property;

(3) "Fair rental value", the price a lessee who is willing but not compelled to lease would pay and a lessor who is willing but not compelled to lease would accept;

(4) "Ownership interest", holding legal or equitable title to property in fee or, in a life, or in a leasehold interest;

(5) "Possessory interest", lawfully possessing property but does not include mere occupancy;

(6) "Property", real property.

2. The exclusive compensatory damages that may be awarded to a claimant for a private nuisance where the alleged nuisance emanates from property primarily used for crop or animal production purposes shall be as follows:

(1) If the nuisance is a permanent nuisance, compensatory damages shall be measured by the reduction in the fair market value of the claimant's property caused by the nuisance, but not to exceed the fair market value of the property;

(2) If the nuisance is a temporary nuisance, compensatory damages shall be measured by the diminution in the fair rental value of the claimant's property caused by the nuisance;

(3) If the nuisance is shown by objective and documented medical evidence to have caused a medical condition to claimant, compensatory damages arising from that medical condition may be awarded in addition to the exclusive damages permitted under subdivisions (1) and (2) of this subsection.

3. Concerning a private nuisance where the alleged nuisance emanates from property primarily used for crop or animal production purposes, if any claimant or claimant's successor with ownership interest brings any subsequent claim against the same defendant or defendant's successors for temporary nuisance related to a similar activity or use of the defendant's property, and such activity or use of property is deemed a nuisance, the activity or use of property at issue shall be considered a permanent nuisance and such claimant and claimant's successors shall be limited to and bound by the remedies available for a permanent nuisance.

4. If a defendant in a private nuisance case where the nuisance is alleged to emanate from property used for crop or animal production purposes demonstrates a good faith effort to abate a condition that is determined to constitute a nuisance, the nuisance shall be deemed to be not capable of abatement. Substantial compliance with a court order regarding such property shall constitute such a good faith effort as a matter of law.

5. Concerning a private nuisance where the alleged nuisance emanates from property primarily used for crop or animal production purposes, no person shall have standing to bring an action for private nuisance unless the person has an ownership interest in the property alleged to be affected by the nuisance.

6. Nothing in this section shall:

(1) Prohibit a person from recovering damages for annoyance, discomfort, sickness, or emotional distress; provided that such damages are awarded on the basis of other causes of action independent of a claim of nuisance; or

(2) Prohibit the recovery of any damages, direct, consequential, or otherwise, resulting from or relating to crop destruction, crop damage, contamination of the seed supply, or a diminution of crop value resulting from contamination of the seed or grain supply, herbicide drift, or other diminution of crop value.

7. If any party requests the court or jury visit the property alleged to be affected by the nuisance in an action for private nuisance where the amount in controversy exceeds one million dollars, the court or jury shall visit the property.

8. A copy of the final judgment in any action alleging a private nuisance shall be filed with the recorder of deeds in the county in which the final judgment was issued and shall operate as notice to any purchaser of the claimant's property that the property was related to a previous claim for nuisance.

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(L. 2009 H.B. 481, A.L. 2010 H.B. 1692, et al., A.L. 2011 S.B. 187)

(2015) Section does not authorize a private taking nor a taking for public use without just compensation, does not deny equal protection, does not involve a suspect classification or fundamental rights, is rationally related to a legitimate state purpose, does not violate the separation of powers, does not violate the open courts provision, and is not an unconstitutional special law. Labrayere v. Bohr Farms, LLC, 458 S.W.3d 319 (Mo.banc).