NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — The Kansas Court of Appeals affirmed last week in Ross v. Nelson, a case from Philips County, that a Kansas farmer is not allowed to pipe manure past other landowners property without their permission and then spray it in such a way that it hits their land.
"I think it's the most horrific ag nuisance case I've ever seen in Kansas, or read about in Kansas," said Roger McEowen, the Kansas Farm Bureau Professor of Agricultural Law and Taxation at Washburn University School of Law. "The basic points of law coming out of this is that you cannot use a road right of way for your private purposes. The hog operation wanted to use the road right of way for two miles on the road frontage of his neighbors to run three pipelines, two to run water and one to run the hog effluent back to a field that he owned two miles down the road to tie into his pivot irrigation system so he could spread the manure."
A key is that the ditch is not adjacent to land the hog operator owns.
"That is a property right that is owned by the adjacent landowner," McEowen said. "Yes, public utilities have an easement over it. If you're a public utility or you are using the road right of way for a public purpose, you can do that. But, if you don't have the permission of the adjacent landowner, you can't just co-opt the road right of way for your private purpose. He tried to argue that he was producing pork and the public would ultimately consume pork products, and so it was a public purpose. The court was having nothing of that argument."
It was noted that the hog waste mist sprayed one of the plaintiffs personally and sprayed their home which then became covered in flies.
"He tried to argue that his conduct was protected by the Kansas right to farm law," McEowen said. "The Kansas right to farm law says that you only get the protection if you are already in compliance with all state and federal rules and regulations and laws. His argument was that the state nuisance law is based on court decisions, it's common law. The court said common law is part of the law of Kansas. You're not in compliance, because you were trespassing and it's the trespass that gave rise to the nuisance problem."
After the lawsuit was filed, the defendant sprayed twice as much fertilizer as he had the prior year. The jury returned a verdict of $126,720 in property damages for the plaintiffs, plus $2,000 in nuisance damages plus $50,000 of punitive damages.
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