Kansas farmer loses appeal in bizarre trespass, nuisance case tied to disposal of hog effluent
TOPEKA — The Kansas Court of Appeals rejected arguments of a Kansas hog producer who challenged trespassing and nuisance verdicts as well as $178,000 in damage awards against him for defiantly installing without permission 2 miles of underground pipe in the right-of-way of his neighbors’ property.
A Phillips County District Court jury and judge found farmer Terry Nelson, who has a history of contesting environmental orders of state regulators, built the pipeline despite objections of property owners, the sheriff and a county attorney. The pipes were installed by Nelson to move effluent generated at confined feeding facilities to farm fields where it would be applied as a fertilizer with a pivot irrigation system.
Plaintiff Rodney Ross said that when he confronted Nelson in 2017 about the yet-unfinished pipeline, Nelson made it clear he wouldn’t be deterred. Ross said Nelson scolded him: “I have done this before. I will do this again. And, you can’t stop me.”
Nelson began using his pipeline in 2019. In certain wind conditions, sewage pumped through irrigation gear would drift to the Ross home and leave the exterior covered with flies. It made the house’s inside so foul smelling it was uninhabitable. In response to a lawsuit filed by Ross and the second lead plaintiff Laura Field, Nelson allegedly increased the amount of hog waste applied to fields via the pipeline.
After a seven-day trial in 2021, the district court ordered Nelson to pay Ross and Field $63,360 each for trespassing on their property to install the pipe. Ross separately sought relief under state nuisance law in response to Nelson allowing watered-down animal feces to infiltrate his property. Ross was awarded $2,000 in actual damages and $50,000 in punitive damages due to errant spraying of sewage.
“After carefully reviewing the record and the parties’ arguments, we find that Nelson has not shown any error in the proceedings before the district court,” said Kansas Court of Appeals Judge Sarah Warner, who wrote for Judges Angela Coble, Rachel Pickering and herself. “We thus affirm the judgment against the defendants.”
The three-judge appellate panel, all appointees of Gov. Laura Kelly, issued a 40-page opinion in August affirming the district court’s findings and rejecting the entirety of Nelson’s legal arguments. Nelson ceased using the pipes to get rid of liquified hog manure.
Nelson, who filed a countersuit seeking $75,000, sought reversal of the district court through the Court of Appeals. His attorneys claimed District Court Judge Preston Pratt incorrectly interpretated a series of state laws. In part, Nelson’s counsel alleged the judge improperly assessed the intersection of property rights, criminal statute and the Kansas Right to Farm Act.
In 2022, Kansas House members and agriculture lobbying groups were unsuccessful in an attempt to build support for legislation that would have helped farmers such as Nelson who sought installation of pipelines in right-of-way of property owned by someone else.
Advocates of the reform bill said the district court decision threatened application of the Right to Farm law enacted decades ago to limit the reach of agricultural lawsuits.
Meanwhile, Nelson has been a known commodity to the Kansas Department of Health and Environment. The agency wrestled with Nelson after he built hog feeding facilities in Norton and Phillips counties without state permits and ignored cease-and-desist orders to pause work until properly authorized. In 2018, Nelson managed to negotiate the original $147,000 fine issued by KDHE down to $34,000.
Ross, Field v. Nelson
In the hog-waste legal dispute, the district and appellate courts concluded evidence showed Nelson didn’t follow county permitting practices on installation of a pipeline. The courts said neither Ross or Field nor government officials gave Nelson approval to lay pipe on that right-of-way.
Nelson also admitted the pipe he put in the ground didn’t comply with thickness requirements adopted in 1999, the Court of Appeals said.
The Court of Appeals didn’t endorse Nelson’s claim he had a legitimate public purpose for accessing right-of-way to bury pipe on property owned by neighbors. Nelson contended the public benefit was that he raised pigs that would eventually be sold to the public as pork products.
Of significance to farmers across Kansas, Nelson lost arguments in both courts that the Right to Farm Act should have derailed the suit brought by Ross and Field. The law was designed to immunize agricultural activities initiated prior to encroachment by urban and suburban populations into traditionally rural areas. However, Ross lived on his property for many years before the pipeline was constructed.
The courts said legal protection under the Right to Far Act sought by Nelson didn’t apply when farming practices in question failed to meet federal, state or local laws, rules and regulations. In the Nelson case, the district court concluded Nelson broke state law.
“The district court’s decision accurately and ably synthesized the caselaw on trespass,” the Court of Appeals said. “If a private person wants to install a pipeline in the right-of-way of a public highway, that pipeline must serve a public purpose — like providing a utility to the community.”
“Without a public purpose, the person must have permission to install the pipeline,” the appellate judges said. “Depending on the nature of the installation and the property, this permission may be granted by the abutting landowners or the Legislature. Nelson installed pipes for a private purpose and had no permission from the landowners or the Legislature.”
In addition, the Court of Appeals said the lower court’s assessment of $50,000 in punitive damages against Nelson on Ross’ nuisance claim “was not inappropriate or constitutionally excessive.”