Miller v. Cudahy Co.

858 F.2d 1449 (10th Cir. 1988)

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Nature of the Case

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Facts

Ps are owners and lessees of real property located in Rice County, Kansas. The land is used primarily for agricultural production. D has operated a salt manufacturing plant near Lyons, Kansas since 1908. Below Cow Creek is the Cow Creek Valley Aquifer (the aquifer), an underground fresh-water stratum which occupies a width of one to two miles and lies at depths of between approximately ten and seventy feet. The aquifer also flows in a southeasterly direction, at a rate of between one-and-a-half and five feet per day. The water in the aquifer passes under the land owned or leased by Ps after it has passed under D's brine fields and plant. Salt concentrations of over 30,000 ppm have been recorded in water samples drawn from the aquifer. At 250 ppm the water is unfit for domestic or irrigation use. The salt present in the aquifer escaped from the property and control of D. The majority of the salt escaped through subsurface leaks, while the remainder percolated downward from surface spills. Ps alleged are unable to irrigate and therefore can grow only dryland crops such as wheat and milo, which do not produce the revenues generated by corn crops. On May 31, 1977, Ps filed their complaint seeking injunctive relief and actual and punitive damages. D moved for summary judgment, claiming Ps were barred by the statute of limitations. The court concluded that D was a continuing, abatable nuisance causing temporary damages and giving rise to a continuing series of causes of action and that Ps were entitled to 2-years damages. The court awarded Ps $3.06 million in actual damages. The court also awarded $10 million in punitive damages subject to abatement. The court rejected D’s clean-up plan and declined to remit the punitive damages. D appealed.