Long Island Advance, 24 May 1945
Judge Steinbrink Finds Duck Ranch Is Not Nuisance
Turns Down Michelsen Move Against Leskowiczs
Agrees Proximity To Summer Home, Brookhaven, May Be Annoying—Cites Zone Rule, Known Conditions
A decision handed down by Supreme Court Justice Meier Steinbrink in special term, Riverhead, last week in the action of Michelsen vs. Leskowicz, holds that a duck ranch is not a legal nuisance, even though its sounds or smell may annoy some neighbor and reduce the value of neighboring property for residential purposes.
The judge dismissed the injunction and damage action brought by Rolf T. Michelsen and City Bank-Farmers Trust company, trustees under the will of the late Rasmus Michelsen, and Mrs. Bernadine Michelsen, the widow, against John Leskowicz and Egnats Leskowicz, operators of a large duck farm at Brookhaven.
The Michelsen summer home occupies a site on lower Little Neck creek and Carman's or Connecticut river, above the foot of Beaver Dam road. The duck farm lies nearby to the northwest, along Little Neck run, east of Railroad avenue. The decision emphasizes the fact that the area has been zoned for such purposes since 1937. The Michelsen and Leskowicz families have both been residents of Brookhaven for a long time.
The plaintiffs had sought a permanent injunction against the operation of the duck farm, and $100,000 damages. It was argued by the plaintiffs that the duck farmers had polluted and diverted Little Neck run, and had trespassed on the Michelsen property by erecting of posts and wire fences.
Some excerpts from the decision follow:
"On the evidence and a view of the property, it is quite convincing that for residence purposes plaintiffs properties have no great value. The local authorities of the Town of Brookhaven in 1937 zoned the property along Little Neck Creek so that the business of duck farms might lawfully be conducted there. This business, conducted as it is, is a lawful one, lawfully and reasonably carried on ....
"To destroy the defendants' business would not only inflict great loss upon them, but would neither add to the value of plaintiffs' property nor make the building and property at the southerly end of the creek more desirable for residential purposes. Equity will not aid doubtful rights.
"When the plaintiff selected her home or her property, which is not claimed to be occupied the year around, she might well expect the incidents of country life. She might not expect that the circumambient air would be altogether free from either the quacking of ducks or the occasional odors therefrom. She had to recognize that she could quiet the occasional duck sounds, or purify the air or the stream by holding defendants' business within the radius of her absolute comfort.
"When, as in this case, she came to this quarter of the Town of Brookhaven where duck business had long been maintained, she was bound to recognize the conditions and the incidents thereof, for there is a recognized distinction between that which annoys and that that which injures. The unreasonable use that constitutes, a nuisance cannot be declared as by a hard and fast rule. What would be a nuisance in one place might afford no just ground for complaint in another."