Ross v. Nelson
| Docket Number | 125,274 |
| Decision Date | 25 August 2023 |
| Parties | Rodney L. Ross, et al., Appellees, v. Norman Terry Nelson, Stillwater Swine LLC, Husky Hogs, LLC, and NTN, L.P., Appellants. |
| Court | Kansas Court of Appeals |
1
Rodney L. Ross, et al., Appellees,
v.
Norman Terry Nelson, Stillwater Swine LLC, Husky Hogs, LLC, and NTN, L.P., Appellants.
No. 125,274
Court of Appeals of Kansas
August 25, 2023
SYLLABUS BY THE COURT
1. A trespass claim arises when a person intentionally enters another's property without any right, lawful authority, or express or implied invitation or license.
2. Fee owners of real property containing a public roadway have a possessory right to use, control, and exclude others from the land, as long as they do not interfere with the public's use of the road. In contrast, the public has an easement over the property to use the road for transportation purposes-that is, to use the road as a road-but no other rights beyond those purposes. Any further use by members of the public may be authorized through state action, provided the landowner is compensated for the diminished property rights, or through the landowner's consent.
3. 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. Without a public purpose, the person must have permission to install the pipeline. Depending on the nature of the installation
and the property, this permission may be granted by the abutting landowners or the legislature.
4. When calculating damages for a trespass, the general rule is that a plaintiff can recover for any loss sustained. The wrongdoer should compensate for all the injury naturally and fairly resulting from the wrong.
5. A nuisance is any use of property by one which gives offense to or endangers life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of another person's property.
6. The Kansas Right to Farm Act, K.S.A. 2-3201 et seq., recognizes that agricultural activities conducted on farmland in areas in which nonagricultural uses have moved into agricultural areas are often subjected to nuisance lawsuits and that such suits encourage and even force the premature removal of the lands from agricultural uses. The legislature adopted the Act to protect certain agricultural activities from this type of nuisance action.
7. Kansas courts have consistently recognized that general references to state "laws" include the Kansas Constitution, statutes, regulations, and caselaw unless the legislature has indicated a contrary intention. K.S.A. 2-3202(b) and (c)(1)'s references to Kansas "laws" include the common law governing torts like trespass, developed through Kansas cases.
8. The Kansas Right to Farm Act protects agricultural activities conducted on farmland if those activities are undertaken in conformity with federal, state, and local laws and rules and regulations.
9. Courts do not view agricultural activities under the right-to-farm laws in a vacuum. Rather, courts' review of agricultural activities under the Kansas Right to Farm Act-including whether those agricultural activities conform with state and federal laws-must necessarily consider related farming practices incidental to the challenged agricultural activities that make the challenged activities possible.
10. Appellate courts review a jury's finding that punitive damages are appropriate by asking whether, based on the evidence presented at trial, the jury could have found it highly probable that the defendant engaged in malicious, vindictive, willful, or wanton conduct.
11. The United States Supreme Court has explained that punitive damages may violate a party's constitutional right to due process of law in at least two ways. First, the Due Process Clause of the Fourteenth Amendment to the United States Constitution makes the Eighth Amendment's prohibition against excessive fines and cruel and unusual punishments applicable to the States. Second, the Due Process Clause itself prohibits the States from imposing grossly excessive punishments on tortfeasors.
12. Courts assess three considerations when determining whether a punitive-damage award shocks the conscience and thus violates a party's due-process rights: the
reprehensibility of the defendant's conduct; the ratio of punitive damages to actual damages for the injury; and comparable awards for similar conduct.
Appeal from Phillips District Court; PRESTON PRATT, judge.
Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, for appellants.
Randall K. Rathbun and Braxton T. Moral, of Depew Gillen Rathbun &McInteer LC, of Wichita, for appellees.
Aaron M. Popelka, vice president of legal and governmental affairs, and Jackie Newland, associate counsel, of the Kansas Livestock Association, and Terry D. Holdren, general counsel, and Wendee D. Grady, assistant general counsel, of the Kansas Farm Bureau, amici curiae.
Before WARNER, P.J., COBLE and PICKERING, JJ.
WARNER, J.
This case arises at the intersection of property rights, public roadways, and the Kansas Right to Farm Act. Norman Terry Nelson, who owns several farming operations in rural Norton County, installed about two miles of pipeline in the right-of-way next to a public road so he could transport liquified hog waste to fertilize his cropland. He installed the pipes without the consent of the landowners who owned the property and for his own private farming needs. The landowners sued him for trespass, as well as nuisance when the hog waste was sprayed from an irrigation pivot system across the road from their home. The plaintiffs prevailed on both claims after a trial.
Nelson now appeals, challenging the jury's damages findings for both nuisance and trespass, as well as several legal rulings the district court rendered before and after trial. After carefully reviewing the record and the parties' arguments, we affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Rodney and Tonda Ross have lived in a house in rural Norton County, where Rodney has been a farmer for decades. Laura Field owns nearby property. Nelson is a local farmer and businessperson who owns and operates crop and hog farms, among other ventures.
Rodney Ross and Nelson have known each other since childhood. One of Nelson's entities, NTN, L.P., owned farmland and grew crops directly south of the Rosses' home. The cropland was irrigated by a pivot system. When the north pivot swept across the land, its spray came within 200 feet from the Rosses' home. The issues in this case arose when Nelson sought to transport effluent-liquified hog manure-from one of his hog farms to the NTN pivot to dispose of the waste and fertilize the NTN cropland.
Around 2017, Nelson began developing Stillwater Swine, a new hog operation in the area. Hogs generate significant waste, so Nelson needed a way to dispose of the hog manure. He planned to run water to the facility, liquify and treat the waste, then run the effluent to the NTN pivots for use as fertilizer. This required Nelson to install three underground pipes-two to carry the water and one to carry the effluent-in the right-of-way next to a road that ran along the Rosses' and Field's properties. Nelson planned to install a mile of pipe along each property.
Neither the Rosses nor Field gave permission for Nelson to lay pipes in the rightof-way. Before installation, Nelson contacted Rodney Ross but not Field. Nelson personally told Ross his plans, stating that he had nowhere else to put the hog waste. Ross objected to having pivots spray hog waste across the street from his house, and he asserted that Nelson had other nearby land-where nobody lived-that he could use to get rid of the effluent.
Nelson's permit attempts and pipe installation
According to the Norton County Road and Bridge Supervisor, the County does not typically grant a physical permit for underground roadwork. Rather, someone fills out a permit application, pays a fee, the county clerk signs it, and then the person begins work. The Road and Bridge Supervisor then inspects the work and eventually signs off on the permit. In other words, the County grants permits after the work has been completed and inspected. The signed application then becomes the permit.
Nelson did not follow this permitting practice in installing the pipeline. Nelson's daughter-in-law filled out a permit application and later paid the fee for the roadside pipe installation. But neither the county clerk nor the Road and Bridge Supervisor ever signed the permit application.
Instead, Nelson sought permission directly from the Norton County Board of Commissioners. In August 2017, Nelson began attending commission meetings to discuss his plan to install pipes in the road right-of-way. At the first meeting, Nelson explained his plan, which would require removing the Rosses' fence. According to the minutes from that meeting, the commissioners were under the impression that "[t]he land owner-tenant has been contacted." The commissioners thus approved "construction of the road"-that is, elevating the existing road to create ditches. According to Nelson, he took this to mean he had permission to install the pipes.
A week later, Rodney Ross found a county employee using Nelson's equipment to remove the Rosses' fence as part of the roadwork. Ross called his county commissioner, who arrived shortly after, as did Nelson. The county commissioner asked Nelson if he had a permit to do this work. Nelson replied that he did not need a permit-he had done
this before and would do it again. Nelson apparently then completed the roadwork to prepare for the pipe installation.
At a subsequent commission meeting, the Norton County Counselor advised the commissioners that they needed the landowners' consent to approve Nelson's application. The minutes reflect that Nelson had led the commissioners to believe he had the landowners' permission, but then the commissioners learned that was untrue....
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