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Liability for Spread of Noxious Weeds
Excerpts from Kukowski v. Simonson Farm, Inc., 507 N.W.2d 68 (N.D. 1993)
… The Kukowskis allege their property was damaged by the Simonsons' use of a combine to control weeds on the Simonsons' property. The district court granted the Simonsons' second motion for summary judgment, holding the Simonsons owed no duty to the Kukowskis concerning the spread of naturally occurring weeds, and that the Kukowskis failed to present competent evidence of damages to support their claim. We reverse, concluding the Simonsons owed the Kukowskis a duty not to combine the weeds on their property in a negligent manner, and the Kukowskis presented enough evidence to create a fact issue as to damages.
The Kukowskis and Simonsons are farmers in Golden Valley County. In 1989, John Simonson leased two quarters of land from Simonson Farm, Inc. John Simonson placed the two quarters of land into the Conservation Reserve Program. The land was seeded to grass and a weed control chemical was applied. Over the course of the growing season, a stand of kochia and Russian thistle grew on the Conservation Reserve Program acreage. In late October of 1989, after freeze-up, Ervin Simonson, at the request of John Simonson, combined the kochia and Russian thistle in an attempt to control the weeds.
The Kukowskis began this action, alleging the Simonsons' combine broke-off the weeds in an unnatural manner, allowing them to blow onto their property, causing damage. Further, the Kukowskis allege the use of the combine "branded" the weeds, making them readily identifiable as emanating from the Simonsons' land. The Kukowskis claim damages in the amount of $80,000 for clean-up costs, reduced crop yields, and costs for present and future weed control.
The district court granted the Simonsons' second motion for summary judgment, holding:
At common law, landowners were not liable for the natural spread of weeds from their property to their neighbors' property. Landowners, however, could be held liable if the spread of weeds resulted from some independent act of negligence. See 2 Harl, Agricultural Law, 1102. This rule is partially reflected in this Court's opinion in Langer v. Goode.
In Langer, the plaintiff sought recovery for damages caused by the defendant's alleged failure to destroy wild mustard growing on his farm. Recognizing the common law rule barred his recovery, the plaintiff claimed the defendant had a statutory duty to destroy the noxious mustard weeds. This Court held, based on Section 2086, Revised Codes of 1905, the defendant had no statutory duty to destroy the wild mustard because the county commission had not set the time and manner of destroying the weeds, as required by the statute. Langer, 21 N.D. at 464, 131 N.W. at 260-61. Langer also reiterated the common law rule that there is no duty "as between adjoining occupiers to cut the thistles which are the natural growth of the soil." Langer, 21 N.D. at 467, 131 N.W. at 260 (citations omitted).
The district court misapplied Langer to the facts of this case. Here the legal issue is not whether the Simonsons were under a duty to cut the weeds, but rather, whether the Simonsons, after deciding to attempt to destroy the weeds, owed the Kukowskis a duty of care. We hold there is a duty to use ordinary care when attempting to control or remove weeds [emphasis added]. The Simonsons owed the Kukowskis this duty when attempting to control the weeds growing on their property.
This result is consistent with the common law rule partially announced in Langer, and which was fully explained in Vance v. Southern Kansas Ry. Co. of Texas, 152 S.W. 743, 745 (Texas App. 1912):
Our decision does not create a new duty for farmers to control the spread of weeds. It recognizes farmers must exercise ordinary care when actively working the land. Ordinary care is the care an ordinary, prudent, and careful person would use in similar circumstances. Thomas v. City of Devils Lake, 143 N.W.2d 718, 720 (N.D. 1966); Sheets v. Pendergrast, 106 N.W.2d 1, 4 (N.D. 1960).
The Simonsons owed a duty of ordinary care in their weed control efforts. Genuine issues of material fact exist as to the breach of that duty, causation and damages. The judgment of the district court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
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