ELR Citation: ELR 20341
No(s). 91-1053-FGT (D. Kan. Jul 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