Binder v. Perkins, No. 46994

CourtUnited States State Supreme Court of Kansas
Writing for the CourtOWSLEY
Citation213 Kan. 365,516 P.2d 1012
PartiesAlois BINDER and Robert Binder d/b/a Alois Binder and Son, Appellees, v. D. R. PERKINS, Appellant.
Docket NumberNo. 46994
Decision Date08 December 1973

Page 1012

516 P.2d 1012
213 Kan. 365
Alois BINDER and Robert Binder d/b/a Alois Binder and Son, Appellees,
v.
D. R. PERKINS, Appellant.
No. 46994.
Supreme Court of Kansas.
Dec. 8, 1973.

Page 1013

Syllabus by the Court

1. One who is engaged in the business of aerial crop-spraying has an obligation to use reasonable precautions to prevent injury to others. Reasonable precautions vary with the hazards of the business; the greater the risk, the more imperative the obligation.

2. A lessee cannot recover for injury to the land itself except insofar as it may have affected the value of lessee's use or possession of the land for the term of the lease, and the measure of lessee's recovery is the difference in the value of the lease immediately before and immediately after the injury to the land.

3. A third party who injures land is not liable for damages to one who subsequently leases that land with knowledge of the damage.

4. When interests of a landowner and his tenant or lessee have been injured by the wrongful act of a third party, each has a cause of action, but may recover only the damage to his own interest.

5. The record is examined and it is held: The trial court did not err under the circumstances disclosed by the record in concluding defendant was negligent in the application of herbicide, but the court erred in the measure of damages due to plaintiffs; and the case is reversed on the issue of damages, with directions to enter judgment for lessees' share of the crop loss for the term of the lease, all as set forth in the opinion.

Charles Boyle, Russell, argued the cause, and was on the brief for appellant.

Page 1014

Norbert R. Dreiling, of Dreiling & Bieker, Hays, argued the cause and Dennis L. Bieker, Hays, was with him on the brief for appellees.

OWSLEY, Justice:

Defendant Duane R. Perkins, operator of an aerial crop-spraying business, appeals from a judgment against him of $2,500 plus costs for loss of plaintiffs' leased five and one-half acre [213 Kan. 366] alfalfa field damaged by airborne 2-4D herbicide applied by defendant to a neighboring wheat field.

Carl and Alphonse Ruder contracted with defendant to spray their seventy-acre wheat crop south of Hays, Kansas, to kill weeds. The job was contracted on June 15, 1969, about a week before wheat harvest was to begin. It was determined by Ruders and Perkins that a heavy application of low volatile 2-4D Ester herbicide would be necessary to cause the weeds to wilt and droop below the heads of wheat and below the cutting bar by harvest time.

On June 19, 1969, defendant and his pilot, Harry Vann, determined the atmospheric conditions were suitable for aerial spraying of Ruders' wheat field. The wind was out of the southwest blowing toward the northeast and spray released over Ruders' wheat field would drift east and north over Ruders' land. Defendant's pilot had previously located Ruders' field from the air and informed Perkins of the existence of a small alfalfa field adjacent to the wheat field to the west. 2-4D is a selective herbicide which kills broad-leafed plants such as weeds, but does no harm to narrow-leafed plants like wheat. Unfortunately, alfalfa and other broad-leafed crops are also susceptible to the killing effects of this herbicide. Defendant was well aware of this danger and for that reason he testified he was careful to have his pilot apply the spray at such time and in such manner that it would not fall or drift westward onto the alfalfa field.

Defendant was not present during the spraying. Defendant's pilot, Vann, testified he applied one pound of 2-4D low volatility Ester mixed with one-half gallon diesel oil per acre to the seventy-acre wheat crop. He flew a north-south pattern beginning at the eastern edge of the wheat field and working west. Though no flagman was employed by defendant to signal the pilot when and where to begin and cease spraying, he testified he did not pass over the alfalfa field because to do so he would have had to maneuver the plane over or under a wire. The pilot testified he could see the boundaries of the wheat field clearly and did not need a flagman; that he applied the spray mixture from an average altitude of four to six feet; and that he periodically checked the wind direction and the spray did not drift over plaintiffs' alfalfa field.

The parties stipulated that federal government weather reports from Hays and Russell airport weather stations were proof of weather conditions during and subsequent to the spraying. The [213 Kan. 367] weather reports reflect the wind remained constant out of the southwest all of June 19, 1969, the day the spray was applied; and that by 7:00 a. m. June 20, 1969, the wind had shifted from southwest to northeast, continued to shift to the east, and by night was again blowing from a southerly direction. Wind blew across the newly sprayed wheat toward plaintiffs' alfalfa for at least part of that period. Experts testified the spray mixture on the wheat could reasonably be expected to give off fumes for two or three days after application of such a strong mixture of 2-4D. Plaintiffs contend fumes from the evaporating spray drifted on the wind from the wheat field onto the alfalfa field and killed the plants. They contend defendant was negligent in applying such a strong mixture of a violatile herbicide knowing the wind might shift before it was completely evaporated and blow fumes onto adjoining crops.

Plaintiff Alois Binder testified he noticed the alfalfa plants wilting on June 23, 1969, and suspected spray or chemical damage even though unaware the Ruders' field had been sprayed. After determining no one else had sprayed in the area, plaintiffs

Page 1015

notified defendant of the injury to their alfalfa on June 24, 1969. Plaintiffs cut the standing alfalfa on June 25, 1969, to attempt to mitigate the effects of the 2-4D on the roots of the plants. Agronomy experts testified the alfalfa had no blight or other disease which would have caused its...

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16 practice notes
  • Wing v. Martin, No. 14790
    • United States
    • United States State Supreme Court of Idaho
    • September 25, 1984
    ...with his possession, 12 A.L.R.2d 1192; Annotation: Liability for Interference with Lease, 96 A.L.R.3d 862. In Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973), plaintiffs' crop on leased property was damaged by chemical-spraying conducted by defendants on adjacent land. Plaintiffs soug......
  • Kell v. Appalachian Power Co., No. 15067
    • United States
    • Supreme Court of West Virginia
    • March 22, 1982
    ...toxic herbicides, including 2-4-D, can linger over the area sprayed for two to three days after their application. See Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973). The phenomenon of drift is largely responsible for most law suits that involve the aerial application Page 455 of her......
  • Anderson v. STATE, DNR, No. A03-679.
    • United States
    • Supreme Court of Minnesota (US)
    • March 3, 2005
    ...occupation must use reasonable precautions to prevent such business or occupation from working injury to others." Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012, 1016 (1973) (paraphrasing from Lobenstein v. McGraw, 11 Kan. 645, 649 (1873)). Here, we are asked to decide whether, upon di......
  • Scheufler v. General Host Corp., Nos. 96-3011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 18, 1997
    ...interests of a landowner and tenant are distinct, and one may not recover damages based upon the other's interests. Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012, 1017 (1973). Further, Kansas law prohibits the assignment of tort claims. E.g., Morsey v. Chevron, USA, Inc., 94 F.3d 1470, 147......
  • Request a trial to view additional results
16 cases
  • Wing v. Martin, No. 14790
    • United States
    • United States State Supreme Court of Idaho
    • September 25, 1984
    ...with his possession, 12 A.L.R.2d 1192; Annotation: Liability for Interference with Lease, 96 A.L.R.3d 862. In Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973), plaintiffs' crop on leased property was damaged by chemical-spraying conducted by defendants on adjacent land. Plaintiffs soug......
  • Kell v. Appalachian Power Co., No. 15067
    • United States
    • Supreme Court of West Virginia
    • March 22, 1982
    ...toxic herbicides, including 2-4-D, can linger over the area sprayed for two to three days after their application. See Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973). The phenomenon of drift is largely responsible for most law suits that involve the aerial application Page 455 of her......
  • Anderson v. STATE, DNR, No. A03-679.
    • United States
    • Supreme Court of Minnesota (US)
    • March 3, 2005
    ...or occupation must use reasonable precautions to prevent such business or occupation from working injury to others." Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012, 1016 (1973) (paraphrasing from Lobenstein v. McGraw, 11 Kan. 645, 649 (1873)). Here, we are asked to decide whether, upon disc......
  • Scheufler v. General Host Corp., Nos. 96-3011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 18, 1997
    ...interests of a landowner and tenant are distinct, and one may not recover damages based upon the other's interests. Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012, 1017 (1973). Further, Kansas law prohibits the assignment of tort claims. E.g., Morsey v. Chevron, USA, Inc., 94 F.3d 1470, 147......
  • Request a trial to view additional results

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