concurring specially.
I write separately to caution that the conclusion set forth in the majority opinion should not, and I believe does not, require or even encourage a reexamination of accepted farming practices used to control weeds in order to determine whether or not they might constitute negligence. Nor, in a state so dependent on agriculture as North Dakota, should we discourage innovative but as yet unproven practices to control weeds. I hope this opinion is not read to discourage experimentation and innovation.
My recollection is that the farmer who had the blackest summer fallow was considered to be the better farmer because that farmer left no weeds to use the moisture. But such a practice left the land exposed to soil erosion, particularly from the wind, as we later understood. The farmer who cultivated so as to leave the most “trash” whether stubble, weeds, or both, on the surface was considered to be the better farmer, for doing so prevented the soil erosion which causes substantial permanent damage to our greatest material resource. Could that practice, which involved more than simply letting weeds grow, be challenged because it involved an “independent act”? I do not believe so.
Today, with the “no-till” drills, cultivation to destroy weeds is considered unnecessary and even harmful. Chemical spray is used to destroy weeds. Is such a practice now subject to challenge under the majority opinion? I trust it is not.
Nevertheless, I agree with the majority opinion that Langer v. Goode, 21 N.D. 462, 131 N.W. 258 (1911), simply held, in accordance with common law, that “no ... duty devolves upon any person to destroy ... nuisance weeds upon the land he owns or occupies as will make him liable in damages for failure to destroy....” Langer, 131 N.W. at 258, syllabus by the Court. The decision does not, from the facts of the case, apply to affirmative acts of the defendant.
The action here alleged is for the affirmative act taken to destroy the kochia and thistle so as to cause them to blow onto Kukowski’s property in a quantity greater than would accrue if the weeds simply had been allowed to grow on Simonson’s land. The state of the record for purposes of summary judgment is that combining in November is not a method of weed control, recognized or unrecognized.
Despite my concern, I also agree that there is a duty not to cause weeds to spread to others land by an act of negligence independent of the natural growth and spread of weeds. I therefore concur with the majority that summary judgment was improper insofar as it was premised on a lack of duty.