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Scheufler v. General Host Corp.

ELR Citation: 28 ELR 20164
Nos. 96-3011, -3031, 126 F.3d 1261/(10th Cir., 09/18/1997) Aff'd

The court holds that under Kansas law a group of landowners and tenant farmers may recover punitive damages in a trespass and private nuisance action brought against a corporation whose salt mining operations polluted a freshwater aquifer underlying the landowners' property, even though the landowners and tenants did not properly apply for, or receive, irrigation permits to pump water from the aquifer. The court first holds that the district court correctly treated the landowners' and tenants' lack of water appropriation rights as a potential intervening cause for their injuries rather than a complete bar to their continuing nuisance claim. Under Kansas case law, although the particular use allegedly infringed must be "reasonable," there is no requirement that it be actual. The court reasons that this is entirely logical in light of the fact that the market value of land is tied not to the actual use of the land but rather to any reasonable use to which the land may be appropriated.

The court next holds that it does not have a sufficient record to review the corporation's challenge to the sufficiency of the evidence underlying the jury's finding that the groundwater under the landowners' parcels of land was contaminated prior to 1990, rendering the landowners' pursuit of irrigation permits through the permit application process futile. The court also holds that there is no merit in the defendant's contentions that the district court failed to properly apply Kansas water law to the landowners' claims and thereby substantially interfered with the program for management and conservation of Kansas water resources. The court further holds that the district court did not abuse its discretion in joining the tenants as real parties in interest under Fed. R. Civ. P. 17(a). Failure to include the tenants as party plaintiff from the beginning was not the result of some tactic designed to prejudice defendant, but instead was the result of a mistake as to the legal effectiveness of the documents allegedly assigning the tenants' claims to their respective landlords. Moreover, there has been no tangible showing that defendant was prejudiced by the joinder. It appears joinder of the tenants was appropriate to avoid forfeiture of just claims.

The court further holds that the punitive damage award in this case was appropriate. Because the district court specifically found that the corporation continued to pollute the aquifer after 1984, when the district awarded damages to landowners upstream from the current plaintiffs, and because the court specifically concluded the additional pollution warranted punishment, the corporation's argument about being punished twice for the same conduct is baseless. The court also holds that the district court did not abuse its discretion in concluding that Kansas law prevented the tenants from ratifying the landlords' lawsuit. Ratification by the tenants in this case would have amounted to an assignment of their tort claims against defendant, a result that would have violated Kansas law.

[The district court's decision in this litigation is published at 26 ELR 20341. Decisions related to this litigation are published at 15 ELR 20050, 17 ELR 21242, and 19 ELR 20177.]

Counsel for Plaintiffs
Lee Turner
Law Offices of Lee Turner
3900 Broadway, Great Bend KS 67530
(316) 792-2441

Counsel for Defendant
William R. Sampson
Shook, Hardy & Bacon
40 Corporate Woods
9401 Indian Creek Pkwy, Overland Park KS 66225
(913) 451-6060

Before Ebel and Logan, JJ.