dissenting.
We have before us today a most remarkable event: two appellate courts, each obviously unaware of its true appellate function. The Court of Appeals, in reviewing the instant case, acted as a court of law, while the Idaho Supreme Court functioned as a court of error correction. In my mind, the roles have been reversed — I always understood that the Court of Appeals was a court of error correction, and it was our function to act as a court of law. I applaud the efforts of the Court of Appeals to modernize the law of nuisance in this state. I am not in the least persuaded to join the majority with its narrow view of nuisance law as expressed in the majority opinion.
The majority today continues to adhere to ideas on the law of nuisance that should have gone out with the use of buffalo chips as fuel. We have before us today homeowners complaining of a nearby feedlot— not a small operation, but rather a feedlot which accommodates 9,000 cattle. The homeowners advanced the theory that after the expansion of the feedlot in 1977, the odor, manure, dust, insect infestation and increased concentration of birds which accompanied all of the foregoing, constituted a nuisance. If the odoriferous quagmire created by 9,000 head of cattle is not a nuisance, it is difficult for me to imagine what is. However, the real question for us today is the legal basis on which a finding of nuisance can be made.
The Court of Appeals adopted subsection (b) of § 826 of the Restatement (Second) of Torts.1 The majority today rejects this Restatement section, reasoning that the Court of Appeals improperly relied upon dictum in Koseris v. J.R. Simplot Co., 82 Idaho 263, 352 P.2d 235 (1960). See infra, at 227. Instead, the majority holds that the 1953 case of McNichols v. J.R. Simplot
*609Co., 74 Idaho 321, 262 P.2d 1012 (1953) espoused the correct rule of law for Idaho: in a nuisance action seeking damages, the interests of the community, which includes the utility of the conduct, should be considered in determining the existence of a nuisance. I find . nothing immediately wrong with this statement of the law and agree wholeheartedly that the interests of the community should be considered in determining the existence of a nuisance. However, where this primitive rule of law fails is in recognizing that in our society, while it may be desirable to have a serious nuisance continue because the utility of the operation causing the nuisance is great, at the same time, those directly impacted by the serious nuisance deserve some compensation for the invasion they suffer as a result of the continuation of the nuisance. This is exactly what the more progressive provisions of § 826(b) of the Restatement (Second) of Torts addresses. Clearly, § 826(b) recognizes that the continuation of the serious harm must remain feasible. See especially comment on clause (b), sub-part f of § 826 of the Restatement. What § 826(b) adds is a method of compensating those who must suffer the invasion without putting out of business the source or cause of the invasion. This does not strike me as a particularly adventuresome or far-reaching rule of law. In fact, the fairness of it is overwhelming.
The majority’s rule today overlooks the option of compensating those who suffer a nuisance because the interests of the community outweigh the interests of those afflicted by the nuisance. This unsophisticated balancing overlooks the possibility that it is not necessary that one interest be ignored when the community interest is strong. We should not be adopting a rule of preference which suggests that if the community interest is preferred any other interest must be disregarded. Instead, § 826(b) accommodates adverse interests by contemplating continuation of the facility which creates the nuisance while compensating those who suffer the direct impact of the nuisance — in the instant case the homeowners who live in the vicinity of the feedlot.
The majority’s rule today suggests that part of the cost of industry, agriculture or development must be borne by those unfortunate few who have the fortuitous luck to live in the immediate vicinity of a nuisance producing facility. Frankly, I think this naive economic view is ridiculous in both its simplicity and its outdated view of modern economic society. The “cost” of a product includes not only the amount it takes to produce such a product but also includes the external costs: the damage done to the environment through pollution of air or water is an example of an external cost. In the instant case, the nuisance suffered by the homeowners should be considered an external cost of operating a feedlot and producing beef for public consumption. I do not believe that a few should be required to pay this extra cost of doing business by going uncompensated for a nuisance of this sort. If a feedlot wants to continue, I say fine, providing compensation is paid for the serious invasion (the odors, flies, dust, etc.) of the homeowner’s interest. My only qualification is that the financial burden of compensating for this harm should not be such as to force the feedlot (or any other industry) out of business. The true cost can then be shifted to the consumer who rightfully should pay for the entire cost of producing the product he desires to obtain.
The majority today blithely suggests that because the State of Idaho is sparsely populated and because our economy is largely dependent on agriculture, lumber, mining and industrial development, we should fore-go compensating those who suffer a serious invasion. If humans are such a rare item in this state, maybe there is all the more reason to protect them from the discharge of, industry. At a minimum, we should compensate those who suffer a nuisance at the hands of industry and agriculture. What the majority overlooks is that the cost of development should not be absorbed by few, but rather should be spread out and paid by all. I am not convinced that agriculture or industry will be put out of business by requiring compensation for *610the nuisance they generate. Let us look at the case before us. The owners of the feedlot will not find themselves looking for new jobs if they are required to compensate the homeowners for the stench and dust and flies attendant with 9,000 head of cattle. Rather, meat prices at the grocery store will undoubtedly go up. But, in my view it is far better that the cost of the nuisance be carried by the consumer of a product than by the unfortunate homeowners currently suffering under adverse conditions. Some compensation should be paid the homeowners for suffering the burden from which we all benefit.
The decision of the Court of Appeals is an outstanding example of a judicial opinion which comes from a truly exhaustive and analytical review. See 105 Idaho 320, 669 P.2d 643 (1983). I see no need to reiterate the authority cited therein. The Court of Appeals clarified the standard for determining the existence of a nuisance. Because the jury instructions were inconsistent with this Idaho law, the Court of Appeals properly vacated the lower court judgment.
The majority today cites Rutter v. McLaughlin, 101 Idaho 292, 612 P.2d 135 (1980), for the rule that this Court must presume that substantial and competent evidence existed to support the lower court’s finding when the appellant has failed to supply this Court with a complete record. See infra, at 226. In Rutter we stated:
On appeal the appellant must carry the burden of showing that the district court committed error. Error will not be presumed on appeal but must be affirmatively shown on the record by appellant. Dawson v. Mead, 98 Idaho 1, 557 P.2d 595 (1976); Glenn Dick Equip. Co. v. Galey Construction, Inc., 97 Idaho 216, 541 P.2d 1184 (1975). Where an incomplete record is presented to this Court, the missing portions of that record are to be presumed to support the action of the trial court. See Stewart v. Arrington Constr. Co., 92 Idaho 526, 446 P.2d 895 (1968); Cullison v. City of Peoria, 120 Ariz. 165, 584 P.2d 1156 (1978).
This correct statement of the law has no bearing on the appeal before us today wherein the appellants are challenging the law as set forth in the jury instructions. They are not suggesting that substantial and competent evidence did not support the findings of the lower court. In this regard, I find the majority’s argument and citation of Rutter inapposite and without merit. Clearly the majority’s statements about an incomplete record have less weight thán dictum because the issue on appeal is the statement of the law as found in the jury instructions, not whether the evidence supported the findings of the lower court.
. § 826. Unreasonableness of Intentional Invasion. An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if
(a) the gravity of the harm outweighs the utility of the actor’s conduct, or
(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.