August 5, 2024 – Wisconsin’s “right to farm” law does not bar a lawsuit over the alleged failure to repair an agricultural drainage tile system, the Wisconsin Court of Appeals (District IV) has ruled in Buchholz v. Schmidt, 2023AP1400 (July 18, 2024)

Ben Buchholz and Steven Schmidt owned farmland in Dodge County.

A road separated the Buchholz and Schmidt properties. A culvert running beneath the road carried stormwater from Buchholz’s property over Smith’s property and into a drainage way.

Buchholz and Smith relied on a drainage tile, located on Smith’s land, to drain stormwater that collected on their respective properties.

Two Contracts

In 2017, Buchholz and Schmidt executed a farm lease agreement (Farm Lease).

Under the Farm Lease, Buchholz agreed to rent “90+/- tillable acres” of his farm to Schmidt, and Schmidt agreed to pay Buchholz $19,000 in three payments of $6,500.

After it became apparent that the drainage tile was damaged, Bucholz and Schmidt executed an agreement to repair the tile (Tile Contract) in January 2019.

Under the Tile Contract, Buchholz agreed to take $2,000 off the third payment of $6,500 in 2018 that Schmidt was obligated to make to Buchholz under the Farm Lease.

Additionally, under the Tile Contract, Schmidt agreed to replace the tile within one year or he would owe Buchholz $2,000, and Buchholz agreed to pay for one 12” line and “$2,000 is down payment.”

Flooding Prompts Lawsuit

Buchholz sued Schmidt in Dodge County Circuit Court in February 2020, because Schmidt hadn’t replaced the drain tile. Both the Buchholz and Schmidt properties had flooded and become clogged with debris.

Schmidt filed a series of counterclaims.

Beginning in August 2021, the circuit court issued three orders and ruled as follows:

• the Wisconsin right-to-farm law, Wis. Stat. section 823.08, didn’t bar Buchholz’s nuisance claims;

• Schmidt’s remaining counterclaims were dismissed as a sanction for failing to comply with a prior order; and

• Buchholz was entitled to a prescriptive easement over, under, and across the part of Schmidt’s land where the new drainage tile was to be located.

Schmidt appealed.

Right-to-Farm Law Doesn’t Apply

Judge JoAnne Kloppenburg began her opinion for a three-judge panel by explaining that a defendant seeking to use section 823.08(3)(a) to defeat a nuisance claim must show each of the following:

• the nuisance claim is for an agricultural use or practice;

• the land on which the use or practice occurs was in use for agriculture, without substantial interruption, before the plaintiff began the use that he or she claims the defendant’s agricultural use or practice interfered with; and

• the agricultural use or practice that’s alleged to be a nuisance doesn’t pose substantial threat to public safety or health.

The circuit court concluded that the right-to-farm law didn’t apply because Schmidt’s farmland drainage was not an agricultural use under section 823.08(3)(a).

Buchholz argued that under Timm v. Portage County Drainage District, 145 Wis. 2d 743, 429 N.W.2d 512 (Ct. App. 1988), Schmidt’s farmland drainage was not an agricultural use under the right to farm law.

But Kloppenburg reasoned that Timm was distinguishable.

“This court did not rule that the activity of draining farmland in and of itself could not be an agricultural practice that could be subject to protection under the Right to Farm law,” Judge Kloppenburg wrote.

“Instead, it ruled only that drainage activity by drainage districts was not protected in the context of the cost issue in that case.”

Kloppenburg concluded that Schmidt’s farmland drainage was an agricultural use under the right-to-farm law.

However, Judge KIoppenburg concluded that Schmidt failed to meet the second requirement of the right-to-farm law: that his land was used (by anyone) for agriculture before Buchholz began farming his own property.

Summary Judgment Was Proper

The panel concluded that the circuit court was correct to grant summary judgment to Buchholz on his claim that Schmidt had breached the Tile Contract.

Schmidt argued that Buchholz wasn’t entitled to summary judgment because: 1) the Tile Contract was ambiguous; and 2) material disputes of fact existed regarding whether Buchholz had fulfilled his obligations under the Farm Lease, to the extent that the Farm Lease referred the Tile Contract, such that Schmidt was excused from his obligations under the Tile Contract.

Specifically, Schmidt argued the Tile Contract was ambiguous because it didn’t make clear whether the $2,000 down payment mentioned in the second paragraph was: 1) the same $2,000 which, under the first paragraph, was to be deducted from the rent payment mentioned in the first paragraph; or 2) was a down payment for a tile system different to the one mentioned in the first paragraph.

But Kloppenburg concluded that the wording of the first paragraph was unambiguous.

“Moreover, Schmidt fails to explain, with citations to supporting legal authority, why he would be entitled to keep the benefit of his failure to perform under that unambiguous language,” Judge Kloppenburg wrote.

Schmidt argued that a material dispute of fact existed regarding whether Buchholz leased him “90 +/-” acres of land as required under the Farm Lease, because while certified reports showed that he’d planted more than 90 acres of Buchholz’s land, he testified at trial that he’d planted less than 90 acres.

But Kloppenburg concluded that on appeal, Schmidt hadn’t shown why the jury would have credited his oral testimony over the certified reports.

Dismissal as Sanction Was Proper

The panel also concluded that the circuit court hadn’t erred by dismissing Schmidt’s counterclaims as a sanction for his failure to comply with an order that he pay Buchholz’s costs related to a continuance or file a motion within 30 days.

Schmidt argued that the circuit court erred by not making a finding of egregiousness as required under section 805.03 before dismissing his counterclaims.

But Judge Kloppenburg concluded that the circuit court had made such a finding, even if it didn’t use the word “egregious,” because itfound that: 1) Schmidt had no good cause for failing to act; and 2) to allow Schmidt to keep delaying the lawsuit without penalty would be unfair to Buchholz.