Atkinson v. Herington Cattle Co.

• Decision Date: 27 January 1968
• Docket Number: No. 44891,44891
• Citation: 200 Kan. 298,436 P.2d 816
• Parties: Cecil ATKINSON and Lolita Atkinson, Appellees, v. THE HERINGTON CATTLE COMPANY, Inc., a Corporation, and Swift & Company, a Corporation, Appellants.
• Court: Kansas Supreme Court

Page 816

436 P.2d 816

200 Kan. 298

Cecil ATKINSON and Lolita Atkinson, Appellees, v. THE HERINGTON CATTLE COMPANY, Inc., a Corporation, and Swift & Company, a Corporation, Appellants.

No. 44891.

Supreme Court of Kansas.

Jan. 27, 1968.

Syllabus by the Court

1. When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the power of this court begins and ends in determining whether there is any competent substantial evidence to support the findings and when so supported they are accepted as true and will not be disturbed on appeal.

2. When two or more persons, by their concerted action, pollute a stream, to the injury of another through whose land the stream flows, they are jointly and severally liable for the wrongdoing, and the injured party may, at his option, institute an action, and recover against one or all of those contributing to his injury.

3. In an action to recover damages, for the pollution of a dairy farm water supply by run off from cattle feedlots, the record is examined and it is held: (1) There is sufficient competent evidence to support the trial court's judgment for actual damages, and (2) there is no evidence to support a judgment for punitive damages.

Charles S. Arthur, Manhattan, argued the cause and Charles D. Green, Manhattan, was with him on the briefs for appellant, Herington Cattle Co., Inc.

Elvin D. Perkins, emporia, argued the cause and Everett E. Steerman, and Keith A. Greiner, Emporia, were with him on the briefs for appellant, Swift & Co.

David H. Heilman, Council Grove, argued the cause and was on the briefs for appellees.

KAUL, Justice.

This is an action by plaintiffs-appellees for damages for pollution of their dairy farm water supply resulting from a cattle feeding operation of defendants-appellants. For convenience the appellees will be referred to hereafter as Atkinsons and the appellants as Herington and Swift.

In 1961 Herington leased a tract of land, formerly a part of the Herington Air Base, from the City of Herington and constructed facilities for the commercial feeding of cattle. The cattle feeding operations were commenced in December of 1961. In the fall of 1962 Herington commenced feeding cattle for Swift and early in 1963 the Herington operation became exclusively feeding cattle for Swift. An agreement was entered into between Herington and Swift under which Herington agreed to feed and care for cattle (and calves) owned by Swift up to a maximum of 7500 head at any time.

Atkinsons owned and operated a 160 acre Grade A dairy farm located about one and one-half miles north and east of Herington's feed yards. A small stream identified as Level Creek is formed by headwaters near the Herington feedlots. The course of the stream is in a northeasterly direction and proceeds through the Atkinsons' farm in a northeasterly direction about 400 feet northwest of the improvements thereon.

Level Creek runs intermittently and in dry seasons consists only of pools. The run off from rainfall on the Herington feedlots drains into Level Creek. The land lying between Herington and Atkinsons consists of pasture land and cattle are pastured thereon during the season. The drainage from Atkinsons' feedlot also runs into Level Creek, and Atkinsons' livestock have access to it and wade therein. Atkinsons' water supply consisted of Level Creek and a well near their farm improvements. The well was about 400 feet from and considerably higher than the stream bed of Level Creek. There was also an unused old dug well on the Atkinsons' property close to the bank of Level Creek. The mouth of the dug well was two or three feet higher than the base of Level Creek.

Atkinsons claim the waters of Level Creek became polluted on June 13, 1963, and as a result the water in their well also became polluted, unusable for human consumption, detrimental to livestock consumption, and unfit in their dairy operation, and has remained so since that date. Atkinsons claim the pollution was caused by Herington and Swift in the operation of their feedlots; that they refused to attempt to abate such pollution, and that as a result the source of water on Atkinsons' land was destroyed.

Atkinsons pleaded three causes of action in their petition. They alleged the concurrent action of both defendants polluted the water resources on their farm in their first cause of action and prayed for injunctive relief. The first cause of action was dismissed prior to trial.

For their second cause of action, Atkinsons alleged the acts of defendants constituted a nuisance, a trespass, and gross and wanton negligence. Atkinsons claimed damages to their real estate resulting from the loss of water supply, damages for loss of and injury to livestock, and for incurred and future expenses in attempting to mitigate damages.

For their third cause of action, Atkinsons alleged the acts of defendants constituted gross and wanton negligence, a reckless disregard for the rights of others, and prayed for punitive damages.

The defendants denied that either of them caused or contributed to the pollution of a stream or source of water of Atkinsons, and Swift further specifically denied that if operated or controlled any feedlots in Morris County.

Issues were joined, and the cause was tried to the court without a jury. The trial was commenced on May 11 and continued through May 18, 1965. The evidence consisted of the testimony of 31 witnesses, many of whom were experts, and some 100 exhibits. The trial court found generally for Atkinsons and against Herington and Swift jointly and severally in the amounts of $21,560.53 actual and $7,500 punitive damages. The trial court filed extensive findings of fact and arrived at conclusions of law based thereon.

We believe a recitation of some findings of fact of the trial court will enable a better understanding of our discussion. Therefore, we quote pertinent portions as follows:

'5. The defendants, The Herington Cattle Company, Inc., and Swift & Company, a corporation, entered into a contract whereby Swift & Company provided the livestock and feed for the livestock and The Herington Cattle Company, Inc., was to provide feeding of the animals and provide the premises therefor and all other conditions as set forth in the contract.

'The contract that Swift & Company had with The Herington Cattle Company, Inc., was so artfully and skillfully drawn that it reduced the status of The Herington Cattle Company, Inc., to that of a hired man, Swift & Company being in complete dominance of authority and control and in essence established a joint venture of the defendants.

'6. That The Herington Cattle Company, Inc., commenced extensive feedlot operations consisting of full feeding of livestock in small pens, and the feeding relationship with Swift & Company commenced in the fall of 1962.

'7. That The Herington Cattle Company, Inc., is now feeding livestock exclusively for Swift & Company, and the exclusive feeding of livestock for Swift & Company commenced early in 1963.

'8. That the feedlot operations conducted upon the property previously referred to herein drains exclusively into a stream known as Level Creek.

'9. That the pens and feedlot operations conducted by The Herington Cattle Company, Inc., and Swift & Company consist of pens, as follows:

'29 pens-200 feet wide by 215 to 265 feet long;

'12 pens-100 feet wide by 165 feet long;

'1 pen-120 feet wide by 165 feet long; and numerous holding and sorting pens.'

In finding No. 10 the trial court enumerated the number of cattle in the Herington pens for each month, commencing with October 1962 and running through September 1964. The numbers vary from 554 in October 1962 and 839 in June 1965 to a high of over 7000 head in December 1963.

Further findings of the trial court are as follows:

'11. That the plaintiffs live and reside upon real estate previously described and are engaged in the business of general farming and have been operating a Grade A dairy, and have lived on the property since 1958.

'12. That the plaintiffs' property has a stream going through it which is known as Level Creek.

'13. That the first noticeable water contamination of Level Creek first flowed through the plaintiff's property on or about June 13, 1963, as a result of moisture and rainfall, and at that time the water in Level Creek flowing through the plaintiffs' property had a very foul and strong odor of manure, and the water contained a color of yellow or brown. That this stream had at no time prior to this occasion ever had such an odor or color prior to the flowing of the stream on or about June 13, 1963.

'14. That the farm was improved for Grade A dairy purposes, consisting of a milking parlor with a water system, stanchions, heat, electricity, and water presure; also a modern home, a large barn, silo, hog parlor, garage, granary, steel bin, chicken house and calf shed.

'15. All of the drainage from the feedlot operations of the Herington Cattle Company, Inc., and Swift & Company flow into Level Creek, which is approximately one and one-quarter mile upstream from the plaintiffs' property. The feedlot drainage is near the beginning or head of Level Creek drainage.

'16. The well upon the plaintiffs' property was being used for the watering of livestock, their Grade A dairy operations, and also used for their own home use. Prior to June 13, 1963, the water had always been clear, and there had never been any odor of manure, or any other odor, in the water derived from the well upon their property.

'17. That the conditions existing concerning the condition and pollution of the water in the well and Level Creek had been called to the attention of The Herington Cattle Company, Inc., on repeated and frequent occasions; however, such complaints were ignored.

'18. The efforts made by The Herington Cattle Company, Inc., to correct the situation and to handle the drainage from the feedlots were practically nil to date regardless of...