Annotations 01/2009

(trial court’s grant of summary judgment for horse owner in case involving injuries sustained by rider while on trail ride on one of owner’s horses reversed; issues of material fact remained as to whether risk of vine wrapping around horse’s flank was inherent risk in trail riding activity, and horse owner not necessarily well aware of rider’s knowledge of horse riding).

(recording of oil and gas lease, statement in late father's will and payment of property taxes on subject property did not establish ownership by adverse possession).

(defendant farmer liable to plaintiff for damage to plaintiff's broccoli crop caused by aerially applied pesticides; crop dusting held to be inherently dangerous activity which is an exception to the general rule of nonliability of an employer for an independent contractor's negligence).

(discount for built-in-gains tax for S corporation stock was 17.4 percent (farmland and marketable securities were primary assets); discount for built-in-gains tax on stock in second corporation containing marketable securities was 23.6 percent).

(taxpayer not entitled to offset realized long-term capital gain by negative taxable income before offsetting such gains by long-term capital loss carryovers).

(IRS properly used annuity tables under I.R.C.§ 7520 to value stream of lottery payments remaining as of time of decedent's death).

(defendant held to be actual purchaser of livestock and is liable for the purchase price as a "dealer" under the Packers and Stockyards Act).

(title to disputed tract acquired by adverse possession; statutory elements satisfied).

(I.R.C. Sec. 162(k)(1) bars deduction allowed by I.R.C. Sec. 404(k)(1) for corporate dividends paid in cash with respect to the corporation's securities).

(post-petition taxes triggered on sale of corn eligible for non-priority treatment under BAPCPA provision because corn sold to debtor’s custom cattle feeding operation and not to third party buyer).

(plaintiff failed to prove that the parties owned adjacent properties, and that for a period in excess of 10 years, the parties mutually recognized, acknowledged and treated as the boundary, a line definitively marked by a fence or in some other manner).

(installment land contract did not create appurtenant easement for access and irrigation purposes; installment land contract not tantamount to conveyance and additional steps needed to create appurtenant easement).

(summary judgment properly granted to defendant, owner of century-old barn, for injuries sustained by plaintiff who fell through barn roof; while defendant classified as invitee, danger of roof collapsing was open and obvious danger).

(oil and gas lease containing implied covenant of exploration and development could not be cancelled for non-development without demand for compliance; neither abandonment nor forfeiture of lease present).

(defendants acquired title to one-acre tract via adverse possession; evidence showed that defendants mowed the tract, constructed gold fish ponds and water pumps and developed walking trails).

(denial of plaintiffs’ claim that 3/21 mineral interest was held in trust and should have been conveyed to them in 1950 by trustee instead of being passed down to defendants upheld on appeal; person through whom plaintiffs claimed title died before 1950 trust deed and defendants established clear chain of title to disputed 187.5 mineral acres).

(economic loss doctrine bars tort recovery for total loss of tractor which caught fire upon activation of tractor cab’s exterior lights).

(plaintiff consisted of milk producers who opposed USDA's regulatory changes to Mideast Milk Marketing Order involving "diversion limits"; plaintiff lacked standing to challenge regulatory changes because diversion limits only impacted conduct of handlers and plaintiff sued in capacity of producer).

(state Right-to-Farm law upheld as constitutional and defendant's dairy operation did not constitute a taking of plaintiff's property via creation of an easement to maintain a nuisance; Right-To-Farm law barred plaintiff's nuisance claim and plaintiff's failed to establish that dairy operated negligently).

(11 U.S.C. §1222(a)(2)(A) allows debtors to treat capital gain taxes as a general unsecured claim that is not entitled to priority, and the taxes entitled to non-priority treatment are to be calculated in accordance with the proportional method proposed by IRS).

(summary judgment granted for defendant in case involving individual who was attacked and injured by a cow allegedly owned by decedent; evidence insufficient to establish that defendant owned suspect cow).

(trial court decision ordering partition and sale of farmland upheld; evidence sufficient to support forced sale because land could not have been divided equally without impairing its value given the lack of uniformity in land quality, and sub-surface minerals not spread uniformly throughout the tract).

(EPA’s final rule providing that pesticides applied in accordance with FIFRA are exempt from the Clean Water Act’s permitting requirements held to be unreasonable interpretations of CWA because EPA exceeded its authority under CWA when it issued rule that excluded pesticides from definition of “pollutant”; plain language of “chemical waste” and “biological materials” was unambiguous as to pesticides; under CWA pesticide residue or excess pesticide was a pollutant discharged from a point source because the pollutant was introduced into a water from the outside world by the pesticide applicator from a point source).

(landfill operator sued defendant for expansion of landfill and landowner sued operator for injunctive relief barring expansion, nuisance and violation of defendant's Sunshine Law; nuisance claim time-barred and declaratory judgment claim barred; Sunshine Law claim dismissed).