Ross v. Nelson

554 P.3d 636

Rodney L. ROSS and Tonda R. Ross; Rodney L. Ross, as Trustee of Carol J. Ross Revocable Trust; Rodney L. Ross, as Trustee of Maynard O. Ross Revocable Trust; and Laura E. Field, as Trustee of Laura E. Field Trust No. 1, Appellees,

v.Norman Terry NELSON; Stillwater Swine, LLC; Husky Hogs, LLC; and NTN, L.P., Appellants.

No. 125,274

Supreme Court of Kansas.

Oral Argument Held May 8, 2024

Opinion Filed August 23, 2024

Syllabus by the Court

1. A person who owns the fee to land dedicated to a highway easement retains all rights in the land not included in the easement, including rights above, on, and under the surface of the ground within the limits of the highway. Such rights are subject only to the condition that the owner does not interfere with the public’s use of the easement. The owner has standing to sue for an alleged trespass based on uses outside the scope of the easement.

2. The scope of a public highway easement is limited to public uses that facilitate the highway’s purposes of travel, transportation, and communication.

3. The permanent occupation of a portion of a public highway easement for private and exclusive use is inconsistent with the public nature of the easement and thus falls outside the easement's scope.

4. K.S.A. 2-3202(a) creates a statutory presumption that agricultural activities do not constitute a nuisance when the statute's several requirements are met. To receive the benefit of that presumption, the nuisance must arise from an agricultural activity, the activity must be conducted on farmland, the activity must have been established prior to surrounding agricultural and nonagricultural activities, and the activity must be consistent with good agricultural practices.

5. K.S.A. 2-3202(a)’s statutory presumption is rebuttable. Even if the requirements for invoking the presumption are met, the presumption does not attach when the activity has a substantial adverse effect on public health and safety.

6. K.S.A. 2-3202(b) creates a presumption that an agricultural activity is consistent with good agricultural practices when it is undertaken in conformity with federal, state, and local laws and rules and regulations.

7. A statutory reference to Kansas law includes the Kansas common law.

Review of the judgment of the Court of Appeals in 63 Kan. App. 2d 634, 534 P.3d 634 (2023). Appeal from Phillips District Court; Preston A. Pratt, judge.

Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, argued the cause and was on the briefs for appellants.

Randall K. Rathbun, of Depew Gillen Rathbun & McInteer LC, of Wichita, argued the cause, and Braxton T. Moral, of the same firm, was with him on the brief for appellees.

Aaron M. Popelka, vice president of legal and governmental affairs, and Jackie Newland, associate counsel, Kansas Livestock Association, and Terry D. Holdren, general counsel, and Wendee D. Grady, assistant general counsel, Kansas Farm Bureau, were on the brief amici curiae.

The opinion of the court was delivered by Wall, J.:

Norman Terry Nelson runs an industrial hog-farming operation a few miles east of Almena, a small town in northwest Kansas near the Nebraska border. The hogs generate enormous volumes of waste. To manage that waste, Nelson decided to use it as fertilizer on his farmland. So he piped treated waste from his facilities to his nearby farmland, where he used a pivot irrigation system to spray it onto the fields.

But this arrangement has ruffled more than a few feathers—or should we say wrinkled more than a few noses. Two neighbors sued for trespass and nuisance. They prevailed in the district court and on appeal. Nelson now asks us to overturn these judgments, arguing that he needed no permission to install the pipelines and invoking Kansas’ right-to-farm statutes to shield him from nuisance liability. We decline.

Nelson exceeded the scope of the public easement by installing pipelines beneath a public road for his private and exclusive use. Because the landowners did not authorize this installation, Nelson committed a trespass. This trespass, in turn, precludes him from relying on the presumption of "good agricultural practice" under the right-to-farm statutes. To rely on that presumption, the statute requires conformity with all applicable laws, a condition Nelson’s trespass violates. The lower courts correctly applied these principles, and we affirm their judgments.

Facts and Procedural Background

Nelson’s neighbors, Rodney and Tonda Ross and Laura Field, sued Nelson and his corporate entities. They alleged that Nelson had trespassed on their land by installing pipes in the subsurface of the county road. Those pipes carry the treated pig waste (effluent) from his facilities to his farmland, and water from the farmland to the facilities. According to their petition, the plaintiffs owned the land the road was located on, and they had not given Nelson permission. The petition also alleged that Nelson had created a nuisance for the Rosses. They own a farmhouse that sits just across the road from the cropland where Nelson sprays the effluent. They alleged that the resulting odors and fly infestations had unreasonably interfered with their use and enjoyment of that property. To simplify matters, we follow the lead of the district court and use "Ross" to denote all the plaintiffs and "Nelson" to denote all the defendants.

Nelson moved for partial summary judgment on both the trespass and nuisance claims. On the trespass claim, Nelson argued he needed no permission to lay pipelines along the county road. And if he did, he had the implied consent of the county. Ross insisted that only public utilities could install pipelines in the highway easement without permission from the landowner. And he filed his own motion for summary judgment on the trespass claim. On the nuisance claim, Nelson argued that the right-to-farm statutes shielded his conduct from nuisance liability. Ross maintained that the statutory right-to-farm protections did not apply because Nelson’s agricultural activity violated the applicable laws and regulations.

The district court granted Ross summary judgment on the trespass claim after concluding that Nelson needed Ross’ permission to install the pipelines. The court also denied Nelson’s motion for summary judgment on the nuisance claim after ruling that he was not entitled to the statutory presumption under K.S.A. 2-3202(b). Under that provision, conduct is presumed to be a "good agricultural practice"—which is one of the conditions for invoking the right-to-farm protections—if the conduct is "undertaken in conformity with federal, state, and local laws and rules and regulations." But since Nelson had trespassed on Ross’ land, the district court concluded that his conduct failed to conform to state law. Thus, he was not entitled to the statutory presumption.

After a four-day trial, the jury awarded Ross damages on the trespass claim, found in his favor and awarded him damages on the nuisance claim, and found that Nelson’s conduct warranted punitive damages, which the district court later awarded. On appeal to the Court of Appeals, Nelson challenged "several aspects of the district court’s summary-judgment rulings on the trespass and nuisance claims, the jury verdicts on each, and the $50,000 punitive-damage award." Ross v. Nelson, 63 Kan. App. 2d 634, 643, 534 P.3d 634 (2023). The Court of Appeals panel held that Nelson had failed to show error, so it affirmed the district court’s judgment. 63 Kan. App. 2d at 643, 534 P.3d 634.

Nelson petitioned our court for review of the panel’s trespass and nuisance rulings, but he did not renew his challenge to the punitive-damages award. We granted Nelson’s petition and heard oral arguments on Wednesday, May 8, 2024. Jurisdiction is proper. See K.S.A. 60-2101(b) (providing for Kansas Supreme Court review of Court of Appeals decisions).

Analysis

I. Ross Was Entitled to Summary Judgment on the Trespass Claim

[1] We first address whether Nelson trespassed by installing pipelines in the subsurface of several county roads without Ross’ permission. Ross owns the land on which the county roads are located. Both parties acknowledge the roads at issue are public highways. See L. 1874, ch. 111, § 1 (declaring all section lines in Norton County to be "public highways"). In Kansas, owners of real property containing a public highway generally retain fee title to the land. But the public obtains an easement over the land for travel and transportation. Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603, 607-08, 1873 WL 699 (1873). Thus, Ross owns the fee to the land. But the public has a right to use the portion of Ross’ land dedicated to the road for travel and transportation.

Nelson asserts he did not trespass on Ross’ land. He argues that his use of the road—installing and operating a pipeline system—falls within the permissible scope of the highway easement. And such uses do not require landowner permission. But both the district court and the Court of Appeals disagreed. They concluded that Nelson exceeded the scope of the public highway easement by installing a pipeline in the road exclusively for his private use. Thus, Nelson needed Ross’ permission, which he did not have. Ross, 63 Kan. App. 2d at 644, 651, 534 P.3d 634.

On review, Nelson challenges the lower courts’ holdings on several grounds. First, he argues Ross lacks standing to bring a trespass claim because Ross does not have a possessory interest in the highway easement. Second, Nelson renews his argument that installing pipelines below the road’s surface is a permissible use of a highway easement because it facilitates transportation. Nelson believes this to be true even if the pipelines were not a public use. And even if his use exceeds the scope of the easement, Nelson argues he had the implied consent of the county to install the pipelines. To resolve these issues, we first discuss the facts that frame the legal challenges. Then, we outline the...