IS REMOVING A PUBLIC NUISANCE CONSIDERED CRIMINAL DAMAGE TO PROPERTY?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Deines, 997 P.2d 705 (Kan. 2000).

This case addresses the following issue:

Is removing a public nuisance considered criminal damage to property?

This case explored the issue of whether removing a public nuisance was considered criminal damage to property. According to the court, a public nuisance was unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property. Id. at 705. In exploring this case, the court held the defendant’s mowing of another’s wheat growing upon the public right-of-way did not constitute the crime of criminal damage to property. Id. at 706.

In this case, the defendant was charged with two counts of misdemeanor criminal damage to property. Id. The plaintiff’s complaint alleged that the defendant damaged the wheat fields of two individual landowners whose properties bordered a county road right-of-way. Id. The damage resulted when the defendant, without authorization from the landowners, mowed the right-of-way to clear wheat that they had planted. Id. Prior to trial, the defendant moved to dismiss the case and asserted that because all the wheat mowed was within the county road right-of-way, the wheat was an unlawful obstruction upon the right-of-way (public nuisance) and the mowing was a lawful act. Id. At trial, the judge stated that an essential element of the crime of criminal damage to property was that another person had a property interest in the property damaged. Id. With that said, the judge held that an individual does not have a property interest in a crop grown on a public right-of-way; therefore, the defendant’s mowing of the wheat did not constitute the crime of criminal damage to property. Id. In response to the trial court’s decision, the plaintiff appealed to the Supreme Court of Kansas. Id.

On appeal, the Supreme Court of Kansas determined that the main issue was whether a private individual who reduces an obstruction upon a public right-of-way may be convicted of criminal damage to property. Id. at 710. In explaining the court’s decision, the judge referred to the wheat fields on the public road right-of-way as being a “nuisance per se.” Id. According to the court, where there was an obstruction across a public right-of-way which obstructed the travel of an individual, the obstruction was a “nuisance per se” and the affected individual may remove the obstruction by way of reduction. Id. at 705. Additionally, in addressing the plaintiff’s appeal, the Supreme Court of Kansas referenced two cases, Eble v. State and City of Emporia v. Humphrey. Id. at 710. In Eble, the court concluded that an obstruction to the public use of a highway was a continuing nuisance. Id. Further, in Humphrey, the court held that the city had authority and a duty to reduce an encroachment on a street. Id.

In the present case, the court held that Kansas case law dating back to the late 1800’s established a clear principle of law that where there was an obstruction across a public right-of-way which obstructs the travel of an individual, the obstruction was a nuisance per se, and the affected individual could remove the obstruction by way of reduction. Id. Therefore, in this case, the defendant was not guilty of criminal damage to property by mowing the wheat. Id.