NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — Roger McEowen, the Professor of Agricultural Law and Taxation at Washburn University School of Law told Hutch Post about a holding by the Kansas Supreme Court regarding the state's right to farm law that came down earlier in August.
We're talking about the Kansas right to farm law, and one of the requirements to be able to use the right to farm law as a defense against a nuisance claim is that you have to be in compliance with all state and federal laws that would apply to your operation," McEowen said. "What happened in this instance was you had an individual that had put up a large-scale hog confinement operation and needed to deal with the massive amounts of manure produced by that. So his idea was to pipe it in the road ditch about two miles long across a couple of neighboring farmers to get to another field of his to tie it into his pivot irrigation and use an end gun hose on the end of the pivot to spray it on a field. Well, sprayed it close to one of the neighbor's crates of nuisance, he gets sued, and he'd use the right to farm statute as a defense. He said, well, you can't sue me for nuisance. I'm a farmer. I can use the right to farm statute. And the court said, no, you can't. The trial court, the court of appeals in the Supreme Court all said, no, you can't because you were trespassing to get that manure to your field down the road by appropriating the road ditch, which is owned by the individual owners. You own the road ditches to the center of the road in Kansas, and you had to have their permission, the court said, to be able to do that. And the county can't give you a permit, which would otherwise violate the public's easement to use the road as a public roadway. And so, because he was in violation of state law, and common law is part of the state law, he could not use the right to farm statute as a defense to his conduct."
This ultimately will cost that farmer a lot of money.
"He went to the county commissioners, and they told him no. He then went back to them and said, well, my neighbor, he led them to believe, he didn't say it explicitly, but he led them to believe that he had permission, and he didn't have permission. He went ahead and did it anyway. The sheriff tells him to stop. He ignores that, and that's how this whole thing blows up, and we get into the legal system and he took it all the way, as far as he could go. He lost all the way through. It ends up costing him, including actual impunitive damages and fines of close to $200,000."
Because the court held that there was no public purpose to the action, he couldn't use the road right of way to accomplish the goal.