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NIDA v. AMERICAN ROCK CRUSHER CO.6/16/1993
The opinion of the court was delivered by
The plaintiffs, Gary and Debbie Nida, appeal from an order of the district court entering summary judgment against the Nidas in an action for damages to their residence. The Nidas' residence was damaged when the surface of their land sank approximately 10 feet due to subsurface mining operations,
which had ceased 30 years before the subsidence occurred. Summary judgment was granted on the grounds that the Nidas' action, which was brought within two months of the collapse, was untimely under K.S.A. 1992 Supp. 60-513(b). The Court of Appeals affirmed in an unpublished opinion filed October 16, 1992, and this court granted the Nidas' petition for review.
The facts are not in dispute, and we adopt the Court of Appeals' statement of facts.
"American Rock [The American Rock Crusher Company] operated a limestone mine, commonly known as the Argentine mine, in the vicinity of 37th and Woodland in Kansas City, Wyandotte County, Kansas, which was underneath property owned by the Nidas and other individuals. The last quarrying operations occurred in June 1960. American Rock was dissolved in February of 1965.
"The first land collapse allegedly caused by the mining operations occurred in January 1965, resulting in the filing of several lawsuits that were subsequently consolidated, but did not involve the Nidas.
"On April 18, 1990, an area roughly 100 yards in diameter, located immediately north of the Nidas' home, collapsed a depth of approximately 10 feet into an abandoned rock quarry once mined by American Rock. This subsidence took with it a 60 x 20 foot garage on the north side of the Nidas' property and caused damage to their home.
"The Nidas filed suit on June 7, 1990, against American Rock, Tobin Construction [J.A. Tobin Construction Company, Inc.], Tobin [J.E. Tobin], and other individuals and corporations. Eventually only Tobin Construction and Tobin remained as defendants."
The sole issue is whether the Nidas' action is barred by the 10-year statute of repose, K.S.A. 1992 Supp. 60-513(b). The district court entered summary judgment against the Nidas on the ground that K.S.A. 1992 Supp. 60-513(b) "serves as an outside bar on the claims of the plaintiffs which have been raised in this case." The district court reasoned that the statute required the Nidas' claim to "be brought within ten (10) years of the last act of defendant from which such causes of action could be deemed to have arisen." (Emphasis added.) Because the suit was filed "at least twenty-five (25) years after the last activity" of defendants, the action was barred.
K.S.A. 1992 Supp. 60-513 provides in pertinent part as follows:
"(a) The following actions shall be brought within two years:
(1) An action for trespass upon real property.
. . .
"(b) . . . he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action."
The Court of Appeals "reluctantly agree with the trial court."
The Nidas urged that the time at which the cause of action based upon subsiden
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