Ross v. Nelson

• Docket Number: 125,274
• Decision Date: 25 August 2023
• Citation: Ross v. Nelson, 63 Kan.App.2d 634, 534 P.3d 634 (Kan. App. 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

63 Kan.App.2d 634

534 P.3d 634

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.

Opinion filed August 25, 2023.

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 right-of-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. That meeting left the issue unresolved—Nelson asserted that he did not need the landowners’ permission, while the county counselor asserted that he did. Nelson continued to lobby the commissioners, but there is no evidence that the commission granted his request to install the pipes.

Nelson nevertheless went forward with the pipe installation. In September 2017—as the back-and-forth between Nelson and the county commissioners was ongoing—the county counselor called the sheriff and stated that someone was installing pipes in the disputed right-of-way. The sheriff went to the scene, believing the installation violated local resolutions. See Norton County Resolution 13-1999 (no person may construct an underground pipeline without county inspection). The sheriff also contacted someone at the Kansas Department of Health and Environment, who explained that although KDHE regulates the disposal of hog waste, it does not oversee piping installation between hog operations and disposal sites.

Following the county counselor's instructions, the sheriff told Nelson's team to stop the work until they sorted out the legal issues and determined whether they had the necessary permission. But Nelson's employees apparently resumed and completed the work shortly after. Given these events, the parties dispute whether Nelson ever obtained the County's permission. Regardless, Nelson has maintained that this point is immaterial because he did not need the County's permission.

Nelson's use of the waste as fertilizer at the NTN cropland

In April 2019, Nelson started transporting waste through the pipes and spraying the effluent through the pivots next to the Rosses’ property. This created a strong, unpleasant stench at the Rosses’ home and in the surrounding area. When Nelson began applying the effluent, the Rosses filed a report with the sheriff. The sheriff came to their house and noted that the odor was just as bad inside the house as outside. The smell would linger for up to 10 days.

Along with the smell, the Rosses stated that the effluent mist sprayed by the pivots would drift onto their property when the wind blew north. One day, it sprayed Tonda Ross. Another time, it drifted onto a local resident as she was passing through the area. The effluent mist would also hit the Rosses’ house, which would become covered in flies. The Rosses could not entertain at their house and ultimately began spending most of their time at their second home in Nebraska. At the time of trial, Tonda had not stayed at their Norton County house in a year.

Before Nelson began his operation, the Rosses had planned to sell their land to one of their farming tenants. That potential sale fell through because of the effluent's smell and other effects. The pivots did not spray the cropland with effluent every day; it was applied for a total of 96 hours in 2019. Nelson later testified that when he did spray the effluent, he tried to reduce drift and odor on the Rosses’ property, such as tracking the winds to avoid running the pivot nearest their house when the winds blew north.

Nelson had a permit from KDHE for the waste-disposal operation. But KDHE only had authority over the Stillwater Swine site and the disposal site—not how Nelson transported the waste from one site to the other. The parties disputed whether the effluent transport and application violated other legal requirements. Nelson admitted that the pipes he installed did not comply with thickness requirements in a 1999 county resolution. And the Rosses contended that the pivots sprayed effluent closer to the Rosses than KDHE allowed. They also asserted that Nelson improperly sprayed effluent through the pivot's end gun and that he did not report all the days he applied it. Nelson and his son disputed these allegations.

The lawsuit

In July 2019, the Rosses and Field sued Nelson and his affiliated businesses. (We refer to these defendants collectively as Nelson.) The Rosses and Field brought trespass claims for the underground piping; the Rosses also brought a nuisance claim related to the effluent application.

The case progressed, and both sides moved for summary judgment on the trespass claim—specifically, whether Nelson trespassed when he installed pipelines in the right-of-way abutting the...