Swine farmer guilty of trespass, nuisance violations goes 0-3 in state courts

TOPEKA — Northwest Kansas hog farmer Terry Nelson’s campaign to convince the judicial system he had a legal right to install a livestock sewage pipeline along a public road in the right-of-way on neighbors’ property without government or landowner permission has come to an end in state courts.

The Kansas Supreme Court, in a unanimous opinion, affirmed previous decisions of the Kansas Court of Appeals and the Phillips County District Court that Nelson engaged in trespass in 2017 by building an unauthorized pipeline on property owned by neighbors Rodney Ross and Laura Field. Nelson began using the pipeline in 2019. The state’s highest court agreed Nelson created a nuisance by spraying foul-smelling hog feces through a pivot irrigation system onto fields near Ross’ home.

Ross and Field filed a lawsuit based on claims of trespass and nuisance. In 2021, the district court ordered Nelson to pay Ross and Field a combined $178,000 for thumbing his nose at state laws and infringing on the plaintiffs’ private property rights.

Justice Keynen “K.J.” Wall,  a native of Scott City and an appointee of Democratic Gov. Laura Kelly, wrote in the opinion that Nelson installed a permanent pipeline for private use within the framework of a public highway. The line was improper because it exceeded scope of the highway easement and didn’t meet quality standards. In the view of Supreme Court justices, Nelson build the pipeline “for his private and exclusive use, rather than a public one.”

During the case, the prominent Kansas hog producer claimed the public benefit of his pipeline was it contributed to operation of a company that raised hogs eventually sold to consumers as pork products.

The Supreme Court opinion says Nelson also contended he had a right to “transport” property in the form of sewage along the road as a member of the public.

“Nelson did not have Ross’ permission to install the pipelines. Nor did he have permission from any other body with authority to permit the installation. Thus, Nelson committed trespass as a matter of law,” Wall concluded. “Nelson’s pipelines thus infringed on the private property rights of Ross — the fee owner who retained all rights in the subsurface not included within the easement.”

On appeal, Nelson’s attorneys unsuccessfully argued his conduct was protected by the Right to Farm law designed to curtail anti-agricultural lawsuits. That law was designed to immunize agricultural activities that came into conflict with encroachment by population expansion. Nelson’s problem, however, was that he was guilty of trespass and therefore precluded from leaning on the right-to-farm statute to defend the pipeline.

“We agree with the district court and (Court of Appeals) panel that Nelson’s agricultural activity failed to conform to state law,” Wall’s opinion said. “He is not entitled to … presumption that he was engaging in good agricultural practices.”

In Phillips County District Court, a judge granted Ross and Field summary judgment and $63,000 each on trespass claims because the pipeline along the public road ran across their land and Nelson never had permission from them to proceed. Ross was awarded $52,000 in actual and punitive damages based on his nuisance claim because Nelson’s fertilizer spray drifted to Ross’ farmhouse and created unbearable fly infestations.

“This arrangement has ruffled more than a few feathers,” Wall’s opinion says. “Or, should we say wrinkled more than a few noses?”

In September 2023, the Court of Appeals affirmed the district court’s decisions and financial judgments. The Supreme Court conducted oral argument in the case during May and issued Wall’s written opinion last week, which echoed both lower courts.

Agricultural lobby organizations and a handful of Kansas House members were unsuccessful during the 2022 legislative session with their attempt to pass a bill that would have helped farmers such as Nelson who sought to install pipelines in right-of-way on property owned by someone else.

In 2018, the Kansas Department of Health and Environment fined Nelson about $150,000 for constructing hog barns and waste storage facilities in Phillips and Norton counties without required state permits and for ignoring cease-and-desist orders issued by KDHE lawyers. Nelson negotiated the KDHE penalty down to $34,000.

The Kansas Sierra Club, which had filed a lawsuit against Nelson challenging a separate hog facility issue, complained the penalty was “not even a slap on the wrist. More like a gentle tap.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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