TOPEKA — A Phillips County jury awarded two landowners a total of $134,000 in actual damages after a prominent Kansas hog producer illegally installed pipe on their property to transfer a mixture of urine and manure from a confined-animal facility so it could be sprayed on fields from irrigation pivots.
The judge has not determined punitive damages against defendant Terry Nelson, who has operated a far-flung hog operation based in Phillips County and suffered a colossal barn fire four years ago that killed thousands of pigs.
The Nelson family also has been at the center of years of legal conflict involving the Kansas Department of Health and Environment, Kansas Livestock Association and the Sierra Club regarding construction and operation of confined animal feeding operations, or CAFOs, in northcentral Kansas along the border with Nebraska.
Plaintiffs Laura Field as well as Rodney and Tonda Ross, who raise corn and soybeans on their farm, were awarded $65,000 each from Nelson for trespassing. That portion of the July 22 judgment was based on unauthorized placement of miles of underground pipe on the plaintiffs’ land.
In addition, the jury awarded plaintiffs $2,000 after concluding Nelson created a nuisance by allowing liquified waste sprayed on fields to drift onto neighboring property.
In an interview Wednesday, Rodney Ross said Nelson installed the pipe in early 2019 without permission of landowners and Nelson warned people there was nothing anyone could do about it. Nelson misled KDHE to conceal spraying of waste when the wind blew fluid and odor at the Ross home located about 180 feet away, Rodney Ross said.
The spraying was so intrusive the smell was as strong inside the home as it was outside, he said. The waste lured an army of flies to exterior siding of the house, Rodney Ross said.
He said Nelson had ceased spraying waste on that ground and removed hogs from barns about 1 mile from the Ross homestead.
“The air is fresh. You can stand to be in your own yard,” said Rodney Ross, who welcomed the jury verdict. “I like the outcome. It’s exactly what we wanted.” The peaceful and quiet enjoyment of their home has been ruined by hog waste drifting onto them and their property from south winds. At times, the horrible stench of hog manure is as bad in their house as it is in their front yard.Randy Rathbun, attorney representing Laura Field and Rodney and Tonda Ross
Wichita attorney David Traster, of the Foulston Siefkin firm, said in court filings Nelson operated his agricultural businesses lawfully under KDHE approval. Traster argued the 2019 lawsuit should have been dismissed due to the statute of limitations.
Nelson agreed his business produced hog waste, Traster said, but denied the operation involved a “civil conspiracy” to outwit KDHE and damage property values of neighboring farmers.
Traster filed a counterclaim seeking more than $75,000 because the plaintiffs undermined profitability of Nelson’s hog business. In other words, the defense lawyer said, the plaintiffs caused “economic injury, including but not limited to, additional costs and expenses, loss of profit, loss of time responding to frivolous and malicious complaints and damage to the counterclaim plaintiffs goodwill and reputation.” That counterclaim was voluntarily withdrawn.
Randy Rathbun, a Wichita attorney representing the Ross family and Field, said Nelson’s hog business caused loss of property value and peace of mind for his clients by unilaterally deciding to transport liquid waste and apply it to fields. He specifically addressed the Ross property.
“The peaceful and quiet enjoyment of their home has been ruined by hog waste drifting onto them and their property from south winds,” Rathbun said in court documents. “At times, the horrible stench of hog manure is as bad in their house as it is in their front yard.”
