Almost one year ago, I reported in this blog, that the Minnesota Court of Appeals ruled “unwanted pesticide drift…can constitute a trespass” in favor of organic producer, Oluf Johnson.  The defendant, Paynesville Farmers Union Cooperative, tossed the red flag and requested an instant replay review.  After review, the Minnesota Supreme Court ruled pesticide drift cannot, as a matter of law, constitute a trespass.  The Minnesota Supreme Court didn’t exactly overturn a touchdown.  The Court emphasized pesticide drift cases are nuisance or negligence cases rather than trespass cases.

Trespass, nuisance, negligence?  In the end, who cares what you call it?  In reality, how you bring your lawsuit to the courthouse can make all the difference in the world.  Just ask Oluf Johnson, whose trespass claim for pesticide drift against Paynesville was kicked out by the lower court.  So why would a producer care whether a pesticide drift claim cannot be brought as a trespass claims?

In almost all cases you have to prove you suffered some sort of loss (damage) in order to prevail.  However, in Minnesota, you don’t have to prove actual loss to win a trespass claim.  Rather, you merely have to prove a person or some tangible object entered your land and interfered with your possession of your land.  Consequently, pesticide drift cases would be easier if they could be brought as trespass claims.  Oluf argued the tangible object, pesticide, entered his land and destroyed the “organic nature” of his crop, thereby interfering with his exclusive possession of such crop.  The Minnesota Court disagreed for two reasons:

First, the Court ruled pesticides were intangible objects rather than a person or tangible object.

Second, the Court ruled the pesticide drift may have interfered with Oluf’s use or enjoyment of his property but did not interfere with the possession of his property.  The Court explained the pesticide drift prevented Oluf from using his land as an organic farm rather than preventing Oluf from possessing his farm.  A close but important distinction for sure.

In sum, claims addressing loss of use or enjoyment of your land are nuisance claims.  Claims addressing loss of possession of your land are trespass claims; at least in Minnesota.  Luckily for Oluf Johnson, he gets to replay the down and proceed under his original nuisance and negligence claims.

Oluf Johnson vs. Paynesville Farmers Union Cooperative