One of the interesting things I’ve discovered because of being in the certified seed wheat business is the large number of phone calls I get during this time of the year from farmers who are extremely mad at their neighbors who are doing nothing about controlling their volunteer wheat.

And because of this, their neighbors are projecting very large and very unwanted risks of crop failure on them.

These farmers have been burned very badly, in large part, by irresponsible neighbors who fail to do their part in controlling wheat streak mosaic – a viral disease that is transmitted from volunteer wheat to the newly planted wheat by way of microscopic wind-blown wheat curl mites. And it’s a simple disease to control – just kill the volunteer wheat so the disease no longer has a host plant to live on.

I have seen incredibly severe yield losses from wheat streak mosaic – running from near 100 percent of the yield on acreage adjoining infected volunteer wheat to 25 percent on parts of the field over a half mile away.

In my observation, many of the farmers who fail to control volunteer wheat and employ other good farming practices are simply low-end farmers. In every population, there is a bottom 25 percentile. That’s where many of these guys live.

Then there’s the guys who see volunteer wheat as a cheap source of cattle feed. It may be cheap to them. But it’s very expensive to their neighbors who get to pay the bill through their reduced wheat yield. I have seen actual losses and damages easily running over $200 an acre. These farmers are being economically injured by the negligence of their neighbors.

The farmers who call me are looking for wheat varieties that have a good level of resistance to the virus.

Historically that was TAM 112, but now K-State’s new Oakley provides the best protection. Even then, though, if you’re right up next to a bad problem, you’ll still have loss.

Some of these farmers have told me they’ve offered to spray their neighbor’s volunteer to protect their own crop. Some have simply just done it without asking. And sometimes actions like these have led to some pretty interesting conversations afterwards at the local PTA meeting.

Honestly, I’m giving up on the enlightenment thing. I’ve lost all hope that we’re ever going to be able to educate all the farmers out there about the importance of doing such things as controlling volunteer wheat. So what does the law have to say about the issue?

This is an absolutely fascinating topic. Where do the landowner’s right to use his property the way he wants to end when he starts casting a burden on surrounding properties? And right off the bat, you’ve got another interesting twist in that a lot of this land is rented. Do the landowners have any legal or moral responsibility for the actions of their renters?

Attorney Bob Coykendall, with Morris Laing in Wichita, says the law has developed a number of legal premises to help in deciding where one owner’s rights end and the other owner’s rights start.

The most general of these has to do with the doctrine of nuisance. A nuisance is an annoyance and use of property which offends or endangers life or health, violates laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke or obstructs the reasonable and comfortable use and enjoyment of the property of another.

Coykendall says this definition does not draw a bright line between permitted and prohibited use of property, though interference with neighboring land must be substantial and unreasonable.

He adds another way of drawing the line is through legislation like zoning laws. By imposing limitations on the use of land, everyone can benefit. “Thus, a person who builds a home in a zoned neighborhood can rest assured that someone next to him is not going to put in a junkyard.”

A second type of legislation for ag land takes the form of noxious weed statutes. Various Kansas state statutes over the years require people to control such noxious weeds as Russian and Canada thistle, Johnson grass, field bindweed and many others.

“With respect to these weeds, a county weed supervisor can notify private property owners of an infestation and can require the landowner to eradicate the weeds. If no action is taken, the county can enter the private land and take care of the problem and charge the cost to the landowner,” Coykendall says.

He explains that the problem with wheat streak mosaic and volunteer wheat is quite similar to other court cases. “Volunteer wheat may have some value but pales in comparison with the harm it can inflict on neighboring well-tended fields.

“In a Kansas case, volunteer wheat caused harm to neighboring farmers who sued claiming damages. The defendant admitted he had volunteer wheat but claimed there was volunteer wheat on every other parcel of land in the area. The court noted that the volunteer wheat was not tested for the mosaic virus because it had been plowed under in early spring.”

Coykendall says the court noted that volunteer wheat was not listed as a noxious weed, then considered whether other legal theories provided a basis for liability. Those theories included nuisance, negligence and trespass. The court said the problem of the plaintiffs was that each of those theories required there be some duty on the part of the defendant to control the volunteer wheat.

The court said that the plaintiff failed to present any statutory or regulatory scheme or case law which requires a farmer to control volunteer wheat.

“We acknowledge, as does the defendant, the evidence from the KSU Extension Service that volunteer wheat is a major host for the mite containing the wheat streak mosaic virus and that good neighbors control their volunteer wheat. Defendant contends a possible moral duty to control volunteer wheat does not rise to the level of a legal duty in the absence of a statute, regulation or case holding otherwise,” the court said.

Thus, the court refused to hold there was a duty to control volunteer wheat.

Coykendall says nearly 20 years have passed since this case appeared in the Kansas court system. The court did suggest that any requirement of this nature should come from a legislative body as part of the state’s comprehensive regulation of farming procedures.

Coykendall says as it sits, the recourse of a farmer harmed by volunteer wheat is to enlighten others as to their recognized moral duty to control their land. Or it may be an economically wise decision for you to pay your bad neighbor to adopt good farming practices.

In short, there is no legal stick to use. So try the carrot? Good grief!