• October 28, 2011

Update (October 28, 2011):  Rob Shainess’ Turfwars, commentary on legal battles concerning real state in Minnesota and beyond, notes that the Minnesota Supreme Court has granted a petition to review the Minnesota Court of Appeals’ reversal, noted below.

Original Post (July 26, 2011):  Oluf and Debra Johnson’s organic farm produce was apparently rendered ineligible for sale labeled as “organic” due to “overspray” of pesticide spray from neighboring cultivated property.   The fact that they could not sell their produce as “organic” resulted in a substantial economic impact to them.  The Johnsons’ problem appears to have been persistent over several years with repeated clashes with the Paynesville Farmers Union Cooperative Oil Company (and, apparently, violations by the Coop of rules as to maximum permissible windspeed at spray-time).

The trial court, Stearns County Judge Kris Davick-Halfen, granted judgment for the Farmers Co-op, relying on Minnesota Court of Appeals decisions in which that court held that bad smells wafting onto one’s property cannot constitute “trespass” as a matter of law.

In a published decision that issued yesterday, the trial court was reversed the judgment in the Co-op’s favor.

Judicial decision-making is often about subtle distinctions between past case law and current decisions.  This case seems to highlight the hair-splitting down to the molecular level.

[W]afting odors will not affect the composition of the land, a liquid chemical pesticide or herbicide being sprayed for agricultural purposes will;  by design, it descends and clings to soil or plants, killing organisms.
What appeared the important distinction in this case over the previous “Minnesota odor trespass cases:”
[T]he dispersion of substances that entered into and settled onto land in discernable and allegedly damaging deposits.  [The case] involve[s] a substantive invasion in which the deposited thing – not merely vaporous and dissipating odors – are the source of the injury arising out of the alleged trespass.

In short, teeny tiny molecules that waft onto one’s property and land on one’s receptor cells in one’s olfactory epithelium resulting in the experience of a “bad smell” are apparently not large or persistent enough to constitute trespass onto property under Minnesota law.  The molecules that constitute pesticides, on the other hand, are of sufficient size and persistence so that their unwelcome arrival on one’s property is sufficient for a claim of trespass under Minnesota law.

Query whether the real distinction is not particle size or how ephemeral the molecules are but, rather, the difference is in the kind and degree of harm caused?

Query: Why does it matter anyhow?  If one cannot sue for trespass, can’t one sue for “nuisance”?  What can one get from a trespass claim that one cannot get from a claim for “nuisance,” another claim available under Minnesota law? (For one thing, there could be a statute of limitations bar to a nuisance claim where there is none for a trespass claim and there could be other specific statutes applicable to nuisance claims.  (Perhaps also there are different measures of damages though that question is beyond the scope of this post.))

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