McAlister v. Atlantic Richfield Co., Nos. 54357

CourtUnited States State Supreme Court of Kansas
Writing for the CourtLOCKETT
Citation233 Kan. 252,662 P.2d 1203
PartiesRoy E. McALISTER, Appellant, v. ATLANTIC RICHFIELD COMPANY, a corporation, successor to Sinclair Prairie Oil Company; Mobil Oil Corporation, successor to Magnolia Petroleum Corporation; Aladdin Petroleum Corporation; Westrans Petroleum, Inc., a corporation; J.S. Kantor, d/b/a Kantor Oil Company; and Southern States Oil Corporation, Appellees. Roy E. McALISTER, Appellant, v. MARATHON OIL COMPANY, INC., successor to Ohio Oil Company, Inc.; and Getty Oil Company, successor to Skelly Oil Company, Inc., Appellees.
Decision Date29 April 1983
Docket NumberNos. 54357,54358

Page 1203

662 P.2d 1203
233 Kan. 252
Roy E. McALISTER, Appellant,
v.
ATLANTIC RICHFIELD COMPANY, a corporation, successor to
Sinclair Prairie Oil Company; Mobil Oil Corporation,
successor to Magnolia Petroleum Corporation; Aladdin
Petroleum Corporation; Westrans Petroleum, Inc., a
corporation; J.S. Kantor, d/b/a Kantor Oil Company; and
Southern States Oil Corporation, Appellees.
Roy E. McALISTER, Appellant,
v.
MARATHON OIL COMPANY, INC., successor to Ohio Oil Company,
Inc.; and Getty Oil Company, successor to Skelly
Oil Company, Inc., Appellees.
Nos. 54357, 54358.
Supreme Court of Kansas.
April 29, 1983.

Page 1205

Syllabus by the Court

1. Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought.

2. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist.

3. When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing that party his day in court.

4. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Dugan v. First Nat'l Bank in Wichita, 227 Kan. 201, Syl. p 3, 606 P.2d 1009 (1980).

5. Temporary damages or continuing damages limit recovery for injury that is intermittent and occasional and the cause of damages remediable, removable, or abatable. Damages are awarded on the theory that cause of the injury may and will be terminated.

6. Temporary damages to real estate are defined as damages to real estate which are recoverable from time to time as they occur from injury.

7. Permanent damages are given on the theory that the cause of injury is fixed and that the property will always remain subject to that injury. Permanent damages are damages for the entire injury done--past, present and prospective--and generally speaking those which are practically irremediable.

8. If an [233 Kan. 253] injury is permanent in character, all the damages caused thereby, whether past, present, or prospective, must be recovered in a single action.

9. Water that has been polluted since 1974, and will be polluted for a period of time in the future of not less than 150 years nor more than 400 years, is for all practical purposes permanently polluted.

10. After a responsive pleading has been filed, a party may be allowed to amend his pleading by leave of the court or by written consent of the adverse party under K.S.A. 60-215(a ).

11. Even where leave of the court is required to amend under K.S.A. 60-215(a ), "leave shall be freely given when justice so requires." Weaver v. Frazee, 219 Kan. 42, Syl. p 7, 547 P.2d 1005 (1976).

12. A trial court is given wide latitude and discretion in permitting or refusing amendments of pleadings in the interests of justice. In the absence of a clear abuse of discretion, the order of the trial court should be approved.

13. A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served. A motion to dismiss is not a responsive pleading, and its service does not terminate a plaintiff's right to amend his petition. Weaver v. Frazee, 219 Kan. 42, Syl. p 6, 547 P.2d 1005 (1976).

14. If repleading could not possibly correct the defects in the party's claim, then the court was correct in sustaining the defendant's motion to dismiss and denying plaintiff's motion to file an amended petition.

Patrick L. Dougherty, Wichita, argued the cause and was on briefs for appellant.

T.J. Carney, of Turner & Boisseau, Chartered, Great Bend, argued the cause, and Joseph R. Ebbert, Great Bend, of the same firm, was on brief for Atlantic Richfield Co., appellee.

Page 1206

Evan J. Olson, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause, and Richard Jones, Wichita, of the same firm, was with him on the brief for Mobil Oil Corp., appellee.

William Sumner Scott, Pittsburgh, Pa., argued the cause and was on brief for Westrans Petroleum, Inc., appellee.

Carl L. Wettig, Wichita, argued the cause and was on brief for Aladdin Petroleum Corp. and J.S. Kantor, d/b/a Kantor Oil Co., appellees.

Robert M. Siefkin and Susan L. Smith, of Foulston, Siefkin, Powers & Eberhardt, [233 Kan. 254] Wichita, argued the cause, and Jerry G. Elliott, of the same firm, was with her on brief for Southern States Oil Corp., appellee.

Evan J. Olson, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause, and Jeffrey R. Akins, Casper, Wyo., was with him on the brief for Marathon Oil Co., Inc., appellee.

R. Douglas Reagan, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and was on the brief for Getty Oil Co., appellee.

LOCKETT, Justice:

This is an action for damages caused by alleged violations of the Oil Well Pollution Act, K.S.A. 55-121. The issues of liability and damages were bifurcated and the matter proceeded on the issue of liability only. Summary judgments were entered for each defendant; from the trial court's ruling this appeal results.

This is an appeal from an order granting summary judgment in case No. 54,357, and a motion to dismiss in case No. 54,358. Both cases arise out of the same factual situation and were filed by plaintiff, McAlister, against various oil companies who had conducted or were conducting oil operations on or near plaintiff's land.

McAlister is the owner of three tracts of land in Harvey County, Kansas. Plaintiff purchased a two acre tract of land in 1966 where the old Willis School is located; in 1967 he purchased an additional 80 acre tract adjacent to the Willis School tract; and in 1968 an additional 40 acres adjacent to the Willis School tract was purchased by the plaintiff. McAlister purchased the land to form a new agriculture business and to conduct experiments, knowing the area was situated in an oil producing area. When the land was purchased there was an existing fresh water well on the Willis School tract that produced good water. McAlister determined that the existing well did not produce the volume of fresh water to supply his increasing needs. In February of 1970, McAlister had a new well drilled to the depth of 120 feet outside the schoolhouse. In the early part of 1974, McAlister noticed that the water in this well suddenly had developed an "extremely high chloride and salt content" which rendered the water unfit for any use. Plaintiff filed his first action in case No. 54,357. During discovery, plaintiff determined that additional oil companies may have contributed to the pollution of his fresh water well; therefore, he filed the second action. At a hearing conducted by the district court, the judge sustained the defendants'[233 Kan. 255] motion for summary judgment in case No. 54,357 and motion to dismiss in case No. 54,358. Plaintiff has appealed both orders.

August 29, 1975, plaintiff filed his petition against five oil companies, Atlantic Richfield Company, successor to Sinclair Prairie Oil Company (Atlantic Richfield), Mobil Oil Corporation, successor to Magnolia Petroleum Corporation (Mobil), Aladdin Petroleum Corporation (Aladdin), Westrans Petroleum, Inc. (Westrans), J.S. Kantor d/b/a Kantor Oil Company (Kantor), and filed an amended petition on May 24, 1976, adding Southern States Oil Corporation (Southern). For some reason, plaintiff and his attorney had a parting of the way shortly after the petition was filed and plaintiff proceeded pro se. For the next several years, the parties conducted discovery. During 1981, each of the defendants filed motions for summary judgment which the trial court sustained. When sustaining each defendant's motion for summary judgment, the trial court found (1) there was no

Page 1207

genuine issue as to any material fact and the party was entitled to judgment as a matter of law (K.S.A. 60-256[c ]; (2) plaintiff had not established a causal connection to any of the defendants and the claims were based on nothing more than speculation and conjecture; and (3) K.S.A. 55-140 was not appropriate or applicable to the case. Other findings were made by the court in each order of summary judgment but will not be stated in the opinion since they are not material to the finding.

Plaintiff listed witnesses who were local residents that would testify to various salt water or oil tank leaks, leadline leaks, well leaks, tank battery leaks, breaks, surface spills, and various disposal ponds now existing or which had existed in the past and were now covered over. None of the local witnesses could testify which defendant or if any defendants' acts caused pollution to the plaintiff's water well.

Depositions were taken from four expert witnesses listed by the plaintiff.

(1) Ralph E. O'Connor, district geologist for the Kansas Department of Health and Environment: Mr. O'Connor had conducted extensive investigation of water wells within a several mile radius of plaintiff's Willis School well. From the investigation, O'Connor concluded that the salt water pollution was a result of the plaintiff's drilling his water well too deep, thereby [233 Kan. 256] penetrating the salt laden waters present in the Permian zone underlying the equus beds. Other wells less than 120 feet in depth in the area produced fresh water. O'Connor also stated chemical analysis of the water from plaintiff's well indicated that the pollution of the well water was oil field derived.

(2) Dr. Ronald L. Wells, a consulting engineer and Director of General Laboratories in Hutchinson, and a graduate engineer from Colorado School of Mines, with training and past experience in engineering, chemistry and physics, and having taken college courses in geology, historical geology, crystallography, and mineralogy, conducted two...

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46 practice notes
  • In re Methyl Tertiary Butyl Ether Products Liab., No. MDL 1358(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 20, 2005
    ...liable where they are similarly situated, benefit equally from the alleged torts and produced a single, indivisible injury). 280. 233 Kan. 252, 662 P.2d 1203 281. Id. at 1209. 282. Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953, 957 (1934). 283. Id. at 958. 284. See Restatement (Sec......
  • Beck v. Kansas Adult Authority, Nos. 58,452
    • United States
    • United States State Supreme Court of Kansas
    • March 27, 1987
    ...385-86, 729 P.2d 1205 (1986); Barnhart v. McKinney, 235 Kan. 511, Syl. pp 1, 2, 682 P.2d 112 (1984); McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. pp 1, 2, 3, 4, 662 P.2d 1203 (1983); Ebert v. Mussett, 214 Kan. 62, 65, 519 P.2d 687 (1974); Lawrence v. Deemy, 204 Kan. 299, 301-02, ......
  • Bolin v. Cessna Aircraft Co., Civ. A. No. 87-1338-T.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 6, 1991
    ...of § 60-513(b) if sufficient to support an action). The nature of permanent damages was explained in McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983): Permanent damages are given on the theory that the cause of injury is fixed and that the property will always remain ......
  • Stratton v. Garvey Intern., Inc., No. 55068
    • United States
    • Court of Appeals of Kansas
    • February 2, 1984
    ...issue of material fact remains in dispute, and a party is entitled to judgment as a matter of law. McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983); Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980); Every v. Jefferson Ins. Co. of N.Y., 4 Kan.App.2d 715, 610 P.2d ......
  • Request a trial to view additional results
46 cases
  • In re Methyl Tertiary Butyl Ether Products Liab., No. MDL 1358(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 20, 2005
    ...liable where they are similarly situated, benefit equally from the alleged torts and produced a single, indivisible injury). 280. 233 Kan. 252, 662 P.2d 1203 281. Id. at 1209. 282. Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953, 957 (1934). 283. Id. at 958. 284. See Restatement (Sec......
  • Beck v. Kansas Adult Authority, Nos. 58,452
    • United States
    • United States State Supreme Court of Kansas
    • March 27, 1987
    ...385-86, 729 P.2d 1205 (1986); Barnhart v. McKinney, 235 Kan. 511, Syl. pp 1, 2, 682 P.2d 112 (1984); McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. pp 1, 2, 3, 4, 662 P.2d 1203 (1983); Ebert v. Mussett, 214 Kan. 62, 65, 519 P.2d 687 (1974); Lawrence v. Deemy, 204 Kan. 299, 301-02, ......
  • Bolin v. Cessna Aircraft Co., Civ. A. No. 87-1338-T.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 6, 1991
    ...of § 60-513(b) if sufficient to support an action). The nature of permanent damages was explained in McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983): Permanent damages are given on the theory that the cause of injury is fixed and that the property will always remain ......
  • Stratton v. Garvey Intern., Inc., No. 55068
    • United States
    • Court of Appeals of Kansas
    • February 2, 1984
    ...issue of material fact remains in dispute, and a party is entitled to judgment as a matter of law. McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983); Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980); Every v. Jefferson Ins. Co. of N.Y., 4 Kan.App.2d 715, 610 P.2d ......
  • Request a trial to view additional results

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