Scheufler v. General Host Corp.

No. 91-1053-FGT (895 F. Supp. 1513) (D. Kan. July 27, 1995)

The court holds that under Kansas law, subsequent tenants and purchasers with knowledge of salt contamination of a creek aquifer may recover damages, because the actionable conduct constitutes a public nuisance and the tenants and purchasers seek only temporary damages. The court holds inapplicable Kansas case law limiting a tenant's recovery for lost crop profits to the time the tenant entered into a lease without knowledge of damage to the property. The court distinguishes this case from the case law in two ways. First the tenants seeks temporary damages. The rule requiring a purchaser to take lands as he finds it applies only when the injury to the land is permanent. Second, pollution of a creek aquifer is a public, as well as a private, nuisance. A "coming to the nuisance" defense is inapplicable in cases of public nuisance.

Counsel for Plaintiffs
Lee H. Turner
Turner & Boisseau
3900 Broadway, Great Bend KS 67530
(316) 792-2441

Counsel for Defendant
Paul W. Rebein
Shook, Hardy & Bacon
40 Corporate Woods
9401 Indian Creek Pkwy., 6th Fl., Overland Park KS 66225
(913) 451-6060

[26 ELR 20341]

THEIS, District Judge.

This is a nuisance action brought by several landowners who claim that the groundwater underlying their properties was polluted by salt which escaped from the American Salt plant in Lyons, Kansas, while it was owned by a wholly owned subsidiary of the defendant. The plaintiffs claim that because of the pollution, they are unable to grow irrigated corn on their properties. Trial of this matter commenced on June 27, 1995, and is nearing completion.

Most of the plaintiffs in this action are landowners who have tenants farm the land under sharecropping arrangements. The court, by its Memorandum and Order of July 18, 1995, granted leave to join the tenants as [26 ELR 20342] plaintiffs in order to comply with Kansas law as stated in Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973). Before the court is a motion to formally designate tenants Lee Scheufler and Coll-Mor Farm Inc., as tenants. The court grants the motion.

Defendant has moved for judgment as a matter of law as to some of the damages claimed by the tenants. Defendant, citing Binder, 213 Kan. at 365, syl. P 3, 516 P.2d 1012, argues that the tenants cannot recover for damages for any time after this lawsuit was filed because they entered into annual lease agreements with knowledge of the damage to the properties. The court denied the motion.

The court now holds that the law as stated in Binder does not apply in this case. The Kansas Supreme Court held in Binder that a tenant was able to recover for lost crop profits only for the time in which he entered into the lease without knowledge of the damage to the property. Id. at 370, 516 P.2d 1012. This case is distinguishable from Binder in two important ways. First, plaintiffs seek temporary damages. The rule that a purchaser takes the land as he finds it applies only where the injury to the land is permanent. Fischer v. Atlantic Richfield Co., 774 F. Supp. 616, 619 (W.D.Okla.1989). Second, as this court determined in Miller v. Cudahy, 592 F. Supp. 976, 1004 (D.Kan.1984), the defendant's conduct in polluting the Cow Creek aquifer constituted a public nuisance as well as a private nuisance. The "coming to the nuisance" defense is inapplicable to cases of public nuisance. Fischer, 774 F. Supp. at 620. The court's holding applies equally to subsequent tenants and subsequent purchasers.

IT IS BY THIS COURT THEREFORE ORDERED that plaintiffs' motion to formally designate tenants on the Scheufler and Colle parcels (Doc. 328) is hereby granted.

IT IS FURTHER ORDERED that plaintiffs' motion for judgment as a matter of law is granted in part, as to the defendant's affirmative defense of coming to the nuisance.