When most of us think of a trespass, we think of a person going onto someone else’s property. But is it possible to have a trespass involving a chemical substance that strays from one landowners’ land to another’s?

The issue was raised in a recent Minnesota case involving pesticide sprayed by farmers. A pair of organic farmers, Oluf and Debra Johnson, sued the Paynesville Farmers Union Cooperative Oil Company, alleging that pesticides sprayed by the co-op had drifted onto their land.

The Johnsons argued that the repeated spraying by the neighboring landowner, and the resulting drift, prevented them from selling their crops as organic.

The case went to the Minnesota Supreme Court. On August 1, the court held that the drifting chemicals were not a trespass under Minnesota law.

But the litigation is not over. The Supreme Court sent the case back to the district court for consideration of the Johnsons’ nuisance and negligence claims.

In her written opinion for the court, Chief Justice Lorie Skjerven Gildea sought to explain the difference between trespass claims and nuisance claims. “Trespass claims address tangible invasions of the right to exclusive possession of land,” she wrote. “[A]nd nuisance claims address invasions of the right to use and enjoyment of land.”

Because the Johnsons’ land was not invaded by a tangible object, their claim is really one for nuisance, not negligence, the court reasoned.

Justice Alan Page dissented from the court’s ruling. He contended that, under certain circumstances, particulate matter could potentially cause a trespass.

As it stands, the court’s decision could make it harder for organic farmers to challenge pesticide drifts. The nuisance claims, however, remain pending.

Source: “Minnesota Supreme Court: “Pesticide drift is not trespassing, but organic farmer can sue neighbor,” Pioneer Press, Amy Lorliti, 8-1-12

Our firm handles situations similar to those discussed in this post. To learn more about our practice, please visit our real estate page.