Williams v. Amoco Production Co.

• Decision Date: 27 March 1987
• Docket Number: 59278,Nos. 59277,s. 59277
• Citation: 734 P.2d 1113,241 Kan. 102
• Parties: Earl B. WILLIAMS and Loretta Williams, his wife, and Don Williams, Appellees, v. AMOCO PRODUCTION COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 1113

734 P.2d 1113

241 Kan. 102

Earl B. WILLIAMS and Loretta Williams, his wife, and Don Williams, Appellees, v. AMOCO PRODUCTION COMPANY, Appellant.

Nos. 59277, 59278.

Supreme Court of Kansas.

March 27, 1987.

Syllabus by the Court

1. Where an injury or wrong is classified not as original or permanent, but as temporary, transient, recurring, continuing, or consequential in nature, the limitation period starts to run only when the plaintiffs' land or crops are actually harmed, and for purposes of the statute of limitations, each injury causes a new cause of action to accrue, at least until the injury becomes permanent.

2. A trial court is given broad discretionary power under K.S.A. 60-215 to permit the amendment of pleadings, and its actions thereto will not constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party.

3. The measure of damages for permanent injury is the difference in the fair market value of the land before and after the injury.

4. In determining what is fair compensation for damaged land, the owner is generally entitled to show the best and most advantageous use to which the property may be put.

5. In determining what is fair compensation for land, the use to which plaintiff is putting his real estate will affect, but not place a limit on, its value. To the extent that other uses of the land in question would be more profitable, these other uses may be considered by the court to the extent that they affect the present value of that land. This may be true even though plaintiff has not taken advantage of that value. It is the present value of the land in its condition immediately prior to the tort which is important. The court will not require the defendant to pay damages based upon a value which assumes that the land had been changed (for example, from wild to cultivated land) to the most profitable use.

6. A trial court has wide discretion in allowing the testimony of expert witnesses and the use of such testimony goes to the weight of the evidence and not its admissibility.

7. Strict liability means liability imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of a duty to exercise reasonable care (i.e., actionable negligence).

8. The general rule imposing strict liability in tort for abnormally dangerous activities as set forth in the Restatement (Second) of Torts § 519 (1976) is stated and adopted: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm; and (2) this strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous.

9. In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) Existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520 (1976).

10. In an action for damages to real property resulting from the escape of natural gas into plaintiffs' irrigation water, the record is examined and it is held the drilling and operation of natural gas wells is not an abnormally dangerous activity in relation to the type of harm sustained by the landowners in this case. Further, such activity does not constitute a non-natural use of the land. Accordingly, the trial court committed reversible error in instructing the jury on the theory of strict liability.

11. The requirements for recovery on a private nuisance theory are: (1) The defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use; (2) there was some interference with the use and enjoyment of the land of the kind intended; (3) the interference that resulted, and the physical harm, if any, from that interference, proved to be substantial; and (4) the interference was of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.

12. The trial court did not err in failing to instruct on nuisance where no evidence was presented that the defendant intended for natural gas to leak from its wells and into plaintiffs' irrigation water, nor is there any evidence that defendant intended this condition to continue once discovered.

Steven D. Gough, of Kahrs, Nelson, Fanning, Hite & Kellogg, of Wichita, argued the cause, and Bradley W. Denison, of the same firm, and Charles T. Krol, Stephen F. Gates, and Mary S. Haskins, of Amoco Production Co., of Denver, Colo., were with him on the brief, for appellant.

John T. Conlee, of Fleeson, Gooing, Coulson & Kitch, of Wichita, argued the cause, and Rex G. Beasley, of the same firm, and Lee E. Nordling, of Kramer, Nordling, Nordling & Tate, of Hugoton, were with him on the brief, for appellees.

HERD, Justice:

This is an action for damages to real property resulting from the presence of natural gas in plaintiffs' irrigation water. The plaintiff landowners (hereafter plaintiffs or appellees) claim the natural gas escaped from two of the defendant's Hugoton gas wells. A jury returned a verdict in favor of the plaintiffs for $656,006.40, and the defendant, Amoco Production Company, appeals.

Irrigation water in southwest Kansas is derived primarily from water-bearing aquifers known as: (1) The Pleistocene deposits, located at a depth of approximately 275 feet; (2) the Ogalalla formation, found at a depth of between 275 and 350 feet; and (3) the Dakota and Cheyenne formations, located below the Ogalalla. The Pleistocene is the best aquifer, while the Ogalalla is better than the Dakota or Cheyenne formations. This is because the Dakota and Cheyenne formations are composed of fine-grained sandstone, while the Ogalalla is made up of coarse sand and gravel and thus has more porosity and permeability.

The appellees, Earl and Loretta Williams and their son Don Williams, own and farm approximately 2,500 acres of land located northwest of Ulysses. They operate five irrigation wells on this acreage: (1) A well completed in the Ogalalla on Section 29; (2) a well completed in the Ogalalla on Section 30; (3) a deep well drilled in 1968 through the Ogalalla and into the upper Dakota on Section 31; (4) a deep well drilled to 620 feet, through the Ogalalla, to the Dakota and Cheyenne on Section 32; and (5) a similar deep well drilled in 1971 to 576 feet on Section 34.

In the spring of 1968, appellees' irrigation well on Section 32 occasionally quit running. An irrigation supply company (Weber Supply) examined the well several times but was unable to pinpoint the problem until an employee lit a cigarette, threw his match down, and natural gas ignited near the wellhead.

Nearby gas well operators were notified of the problem and in July of 1968, Amoco discovered problems with two of its Hugoton gas wells: the E.B. Williams No. 1, located on Section 29, immediately north of Section 32; and the Redinger Gas Unit B No. 1 on Section 33, immediately east of Section 32.

Amoco's tests on the E.B. Williams well revealed 260 pounds of pressure between the 10 and 3/4-inch surface casing and the seven-inch production casing, indicating a leak in the production casing. The well was repaired on July 31, 1968. The repair consisted of the installation of a 4 and 1/2-inch production liner inside the production casing with a packer set at 2,329 feet. A packer is a device used to seal the space between the production casing and the repair liner. Amoco also installed a pressure gauge to monitor leaks in the space between the surface casing and production casing and between the production casing and the liner.

A leak was also discovered in the Redinger well on July 17, 1968. Unlike the E.B. Williams well, a pressure check on the Redinger well showed no pressure between the surface casing and production casing. Amoco concluded that corrosive fluids in the Glorietta formation at 1,300 feet had eaten through the production casing, permitting water and sand to fall inside the production casing to the bottom of the production liner, extinguishing the flow of gas. Thus, Amoco contends, no natural gas leaks ever occurred in this well. The same repair procedure was used on the Redinger well as was used on the E.B. Williams well and pressure gauges were installed to detect leakage.

In addition to repairing its own gas wells, Amoco attempted to restore production to plaintiffs' irrigation well on Section 32. By mid-1969, after a series of modifications to plaintiffs' equipment, steady production was restored at the rate of 1,300 to 1,400 gallons per minute. Prior to the natural gas leak, plaintiffs claim, the well could pump as much as 2,200 gallons per minute. Approximately one year after Amoco completed modification of appellees' well, Weber Supply tested the well at 1,420 gallons per minute.

In February 1970, appellees filed an action in the United States District Court for the District of Kansas, seeking the recovery of temporary damages for crop loss on Section 32, and incidental equipment expense. Prior to trial, appellees amended their claim to include temporary damages for crop loss in the years 1968 through 1973. Appellees declined to follow the trial court's suggestion that they amend their claims to seek permanent damages. A jury returned a verdict in favor of the appellees and...