## Facts

- More than forty Kansas farmland owners and lessees relied on a fresh-water aquifer for irrigation.
- A salt plant’s operations discharged saline waste, creating a plume of chloride-contaminated groundwater that migrated beneath plaintiffs’ land.
- Elevated chloride levels made irrigation water unusable and damaged crop production.
- Plaintiffs shifted from higher-value irrigated crops (primarily corn) to less profitable dryland crops.
- The contamination was technically abatable if operations ceased or were substantially altered.
- After a lengthy bench trial, the district court treated the condition as a continuing, abatable nuisance and calculated damages primarily by comparing net returns from actual dryland farming to projected net returns from irrigation farming absent contamination.

## Issues

1. Whether the claims were time-barred under Kansas’ two-year statute of limitations on a theory that the contamination was a permanent injury to property.
2. Whether the pollution was properly classified as a continuing, abatable nuisance causing temporary (rather than permanent) damages under Kansas law.
3. Whether temporary damages for injury to land are capped by the property’s diminution in fair market value.
4. Whether the evidence supported the actual damages award based on lost use/lost crop profits.
5. Whether a $10 million punitive damages award was permissible under Kansas law given defendants’ conduct.
6. Whether expert witness fees could be taxed as costs beyond the limits set by 28 U.S.C. §§ 1821 and 1920 for non-court-appointed experts.

## Decision

- Affirmed that the pollution constituted a continuing, abatable nuisance causing temporary damages, so the statute of limitations did not bar recovery for timely damages.
- Affirmed the measure of temporary damages, holding diminution in fair market value is not a cap on temporary damages under Kansas law.
- Affirmed approximately $3.06 million in actual damages based on the difference in net value between crops actually grown and those that could have been grown with usable irrigation water.
- Affirmed $10 million in punitive damages based on findings that defendants persistently maintained the nuisance in reckless disregard of others’ rights.
- Reversed the taxation of expert witness fees to the extent they exceeded statutory limits, and remanded for recalculation of costs.
- Declined to reach a corporate-parent-liability issue because it was not timely raised at trial.

## Legal Principles

- Under Kansas law, an abatable condition causing recurring harm may be treated as a continuing nuisance, permitting recovery for damages incurred within the limitations period even if the condition began earlier.
- Permanent injury to real property is typically measured by diminution in market value; temporary, repairable injury may be compensated by reasonable repair cost and value of lost use.
- For temporary injury, diminution in market value does not operate as a cap on recoverable damages.
- Lost-use damages may be proven through a comparison of net returns from actual land use against the net returns that would have occurred absent the contamination, where supported by agronomic, economic, and causation evidence.
- Punitive damages may be awarded under Kansas law where defendants knowingly and persistently maintain a nuisance with reckless disregard for others’ rights.
- In federal court, expert witness fees for non-court-appointed experts are generally limited to the amounts allowed by 28 U.S.C. §§ 1821 and 1920 unless a separate statute authorizes more.

## Conclusion

The court treated ongoing groundwater salinization as a continuing, abatable nuisance, allowed substantial temporary damages measured by lost use without a diminution-in-value ceiling, upheld a large punitive award for reckless maintenance of the nuisance, and limited taxable expert fees to the federal statutory schedule.


Miller v. Cudahy Co., 858 F.2d 1449 (10th Cir. 1988)