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Today, I want to highlight a recent right-to-farm decision out of Kansas involving a hog farm. Although Kansas’s law is different than Maryland’s, features of the law are the same, and this decision provides sound guidance to Maryland producers on what not to do when hit with a similar lawsuit. In the Kansas decision, because the producer had committed trespass, the right-to-farm law defense no longer applied because the producer was no longer complying with all state laws. At the same time, punitive damages were allowed because of the producer's actions after the lawsuit had been filed (and after a decision in the dispute was announced). This decision is in Ross v. Nelson (Kan. Ct. App.).
Background
In developing a new hog operation, Nelson planned to run three pipes (two to carry water and one to carry effluent) along the road right-to-way along the Rosses’ and Field’s properties. The pipes would carry the water and the effluent to a neighboring field near the Rosses’ house. Neither the Rosses nor the Fields gave their permission for this to happen. When Ross was told of this plan, he objected to spraying effluent so close to his house.
Nelson attempted to follow the permitting process with the county to get approval to utilize the right-to-way for the pipes, but that process was never completed. He tried to get the Norton Board of County Commissioners to approve the plan, which included removing Ross’s fence, something Nelson had never talked to Ross about. The County Commissioners approved a plan for elevating the existing road to create ditches but never approved the installation of the pipes. The Commissioners later learned that the Rosses had never consented to their fence being removed. The commissioners were advised they needed that before Nelson’s application could be approved.
Nelson began installing the pipe without permission, and the county sheriff was called out to advise Nelson to stop work until final approval was obtained. Nelson continued to install the pipelines. After the pipelines became operational, the Rosses noticed an unpleasant smell near their home and the surrounding area. The smell could linger for up to 10 days.
At the same time, the Rosses noticed that mist from the center pivots applying the nutrients would mist onto their property when the wind blew out of the north. The center pivot sprayed one of the Rosses, and a passerby was sprayed another time. The mist from the pivots hit the Rosses’ house and became covered in flies. The Rosses began to spend more time at another home they owned out of state. They had planned to sell the house to a tenant farming the property, but that deal fell through because of the smell. Although Nelson had the appropriate permits from the Kansas Department of Health and the Environment, the Rosses claimed he violated the permits by spraying too close to their home.
Nelson was sued by the Rosses and other neighbors, claiming trespass for the underground piping and a nuisance claim for applying effluent. The district court ruled in favor of the plaintiffs, finding that Nelson did not have free use of the right-of-way to bury pipes and had committed trespass. The court also ruled that the state’s right-to-farm law did not apply because Nelson did not meet all the law’s requirements and did not bar the nuisance claims. A jury ultimately found in favor of the plaintiffs for actual and punitive damages. Nelson appealed.
Court of Appeals Decision
On appeal, Nelson argued that the court erred when ruling he had committed trespass in putting in the pipelines, that the state’s right-to-farm did apply, and the awarding of punitive damages. Turning to the trespassing claim, Nelson argues he laid the pipelines in the right-to-way next to the road and could not do so without neighboring landowners' permission. In Kansas, property owners who own real property containing a public roadway still retain customary property rights to their property so long as it does not interfere with the public’s right to use the road. For example, if you own a roadway along one side of your property, you would still retain the right to prevent others from using that property as long as it did not impact drivers’ ability to use the road.
To use the right-of-way, Nelson would need a public purpose. The district court found, and the court of appeals agreed he had no public purpose. He installed the pipelines for a private purpose to use on his farmland. Nelson never got the neighboring landowners’ permission to install the pipelines across their properties. The court affirms the trespass finding and agrees that the damages amount found by the jury is appropriate to use in this decision, the cost of removing the pipeline.
Next, the court turns to the nuisance claim and the issue of applying the state’s right-to-farm law. The Kansas law requires an agricultural operation to be “undertaken in conformity with federal, state, and local laws and rules and regulations.” (Kan. Stat. §2-3202(b)). To determine if the defense applies to Nelson, the court must decide if “state laws” include common law torts, such as trespass. The court agrees with the district court that conformity of state law includes common law tort claims. This means because Nelson committed a trespass to install the pipelines, he no longer has the protection of the right-to-farm law. The court does agree with Nelson that the defense would protect his activities if he met the requirements to gain the defense's protections. For these reasons, the court leaves alone the district court’s decision to exclude the law from preventing the nuisance suit.
Next, the court agrees that there was enough evidence to support the jury’s finding that the activities were a nuisance. The jury heard evidence on the impact of the nutrient applications on the Rosses and that they had not used their home in over a year due to the activities. There was enough evidence to support the jury's verdict.
Finally, the court turns to whether was there enough evidence to show wilful and wanton actions by Nelson in spraying the hog waste near the Rosses’ house. Wilful and wanton actions are typically used to determine if punitive damages (those beyond the actual damages) should be awarded. The court agrees there was enough evidence to show Nelson was wilful and wanton in his nutrient applications. Evidence shows he sprayed twice as many hours in the year after the suit was filed than before. The Rosses had expressed concern about Nelson's plan before the pipelines were installed, but he continued to do it. Based on the evidence, the court also agreed that the $50,000 awarded in punitive damages was appropriate.
Why Care?
This decision highlights a lot of things that ag operations should take into consideration. For example, Maryland’s law also requires a process to comply with applicable federal, state, and local health environmental, zoning, and permit requirements. This wording is less broad than the Kansas language. So, potentially committing a similar type of trespass in Maryland would not effectively rule out the right-to-farm defense, but that has not been challenged in a Maryland court yet.
The more significant issue is just the bad facts for the hog farm operator, Nelson. His actions do not portray him in a positive light. The court of appeals even highlighted evidence that after the verdicts and while under appeal, he stored truckloads of manure across from the Rosses’ house for several days. His actions at times portray him as being petty over the lawsuit. His actions provide a good idea of how not to act when involved in litigation or when attempting to show you are being reasonable with your neighbors over concerns about a potential nuisance.
Reference
Ross v. Nelson, No. 125,274, 2023 WL 5491862 (Kan. Ct. App., Aug. 25, 2023).