C H A P T E R IX
Trespass and Nuisance
Trespass and nuisance are related doctrines that protect interests in, respectively,
the exclusive possession, and the use and enjoyment, of land. In an earlier era, trespass
came to be regarded primarily as a safeguard against physical intrusions on land. By
contrast, nuisance actions have a long history of affording protection against offensive
uses of neighboring land. As we shall see, however, in modern times the distinctions
between the situations in which the cases arise begin to blur.
Because of the special importance that the law traditionally placed on protection
of interests in land, strict liability has been a dominant feature of the law in this area. As
the mixed reception of Rylands v. Fletcher, p. ___, supra, indicated, however, great
confusion and debate exist over the "strictness" of liability for harms to interests in land.
The subject is given separate consideration here for two main reasons. Most
important, as this brief introduction suggests, the courts have long regarded interests in
land as a functionally distinct category. As a consequence, trespass and nuisance actions
cut across the boundaries of the intentional and unintentional tort categories that we have
been examining. In addition, the modern cases, in particular, provide the common-law
foundation for analyzing environmental disputes. For both of these reasons, the
judicially-fashioned liability rules in this area deserve special attention.
Our brief treatment of basic doctrine will place considerable emphasis on the
Restatement approach, which has brought some semblance of order to a confused body of
case law.
A. Trespass
At early common law, every unauthorized entry by a person or object onto
another's land that resulted from a voluntary act was subject to liability as a trespass.
Obviously, a person who was carried against his will onto the land of another would not
have satisfied the requirement of voluntary conduct, and could not therefore be held to
have committed a trespass. Such narrow instances aside, however, a person who
non-negligently but incorrectly believed that particular property was his own, or that he
was authorized to go upon it, would nonetheless be liable for trespass because he
intended to enter the property.
As the New York blasting cases, p. ___, supra, indicated, many courts required
actual physical entry by a tangible object, since the interest that plaintiff sought to protect
was the exclusive possession of his land. Once this requirement was satisfied, however,
any technical invasion could serve as the basis for an action, since trespass was the
principal method by which lawful possessors of land could vindicate their property rights
and ensure that a continuing trespass did not ripen into a prescriptive right. Because the
gist of the action was considered to be the intrusion or "breaking of the close,"
demonstrable harm was not required--at least nominal damages had to be assessed.
As plaintiffs came to allege trespassory invasions resulting from objects—such as
exploding boilers and flying debris—rather than people, many courts began to distinguish
between "direct" and "indirect," or trespassory and non-trespassory harms. This
distinction, borrowed from the common-law writ system, where it was not limited to
invasions of land, created great confusion. Again, the New York cases, considered
earlier, offer examples.
Modern trespass doctrine has largely obliterated the historical distinction between
direct and indirect trespassory invasions of land. But a distinction of another kind—a
present day differentiation between intentional and unintentional trespasses—has
continuing vitality. The Restatement (Second) of Torts § 165 states that unintended
intrusions—those resulting from reckless or negligent conduct or from abnormally
dangerous activities—will be subjected to liability only if the intrusion causes actual
harm.
By contrast, partly because actions for trespass remain an important means of
maintaining the integrity of a possessory interest in land, intentional trespasses retain
much of their common-law strict liability character. Section 158 states that one is liable
to another in trespass for an intentional intrusion, irrespective of harm caused. In this
context, "intent" refers to the intent to enter the land, not necessarily to invade another's
interest in the exclusive possession of land. Thus, a mistaken, non-negligent entry can
result in liability—as at earlier common law—even if no harm occurred.
The strictness of the intentional trespass action is mitigated to some extent
through a series of privileges that shield from liability activity that would otherwise
constitute a trespass. These privileges may arise out of the consent of the possessor (§§
167-175), or may be afforded as a matter of law because of the purposes for which the
actor enters the premises (§§ 176-211). The scope of these privileges, however, is in
general quite narrow and limited to specific types of situations. Thus, despite the
increased flexibility these privileges afford to defendants, no overarching principle of
reasonableness has yet developed in the area of intentional, as compared to unintentional,
trespasses.
With this background in mind, consider the following case.
MARTIN V. REYNOLDS METALS CO.
Supreme Court of Oregon, 1959.
221 Or. 86, 342 P.2d 790, cert. denied 362 U.S. 918 (1960).
[Plaintiffs sued for trespass, claiming damage to their farm land from the
operation of defendant's nearby aluminum reduction plant. The trial judge awarded
plaintiffs $71,500 for damages to their land, which could no longer be used to raise
livestock because the cattle were poisoned by ingesting the fluoride compounds that
became airborne from the plant and settled on the plaintiff's land. (The daily emanation
of fluorides from the plant averaged 800 pounds.) The judge also awarded $20,000 for
the deterioration of the land through growth of brush and weeds resulting from the lack of
grazing. The judge rejected punitive damages. The damages covered the period from
August 1951 through the end of 1955. If the action were properly brought in trespass,
with its six-year statute of limitations, the award was permissible. But if the action were
one of nuisance, then damages were recoverable for only 1954 and 1955, because of the
two-year statute of limitations.]
O'CONNELL, J.
...
The gist of the defendant's argument is as follows: a trespass arises only when
there has been a "breaking and entering upon real property," constituting a direct, as
distinguished from a consequential, invasion of the possessor's interest in land; and the
settling upon the land of fluoride compounds consisting of gases, fumes and particulates
is not sufficient to satisfy these requirements.
Before appraising the argument we shall first describe more particularly the
physical and chemical nature of the substance which was deposited upon plaintiffs' land.
In reducing alumina (the oxide of aluminum) to aluminum the alumina is subjected to an
electrolytic process which causes the emanation of fluoridic compounds consisting
principally of hydrogen fluoride, calcium fluoride, iron fluoride and silicon tetrafluoride.
The individual particulates which form these chemical compounds are not visible to the
naked eye. A part of them were captured by a fume collection system which was
installed in November, 1950; the remainder became airborne and a part of the
uncaptured particles eventually were deposited upon plaintiffs' land.
...
Trespass and private nuisance are separate fields of tort liability relating to
actionable interference with the possession of land. They may be distinguished by
comparing the interest invaded; an actionable invasion of a possessor's interest in the
exclusive possession of land is a trespass; an actionable invasion of a possessor's interest
in the use and enjoyment of his land is a nuisance. [ ]
The same conduct on the part of a defendant may and often does result in the
actionable invasion of both of these interests, in which case the choice between the two
remedies is, in most cases, a matter of little consequence. Where the action is brought on
the theory of nuisance alone the court ordinarily is not called upon to determine whether
the conduct would also result in a trespassory invasion. In such cases the courts'
treatment of the invasion solely in terms of the law of nuisance does not mean that the
same conduct could not also be regarded as a trespass. Some of the cases relied upon by
the defendant are of this type; cases in which the court holds that the interference with
the plaintiff's possession through soot, dirt, smoke, cinders, ashes and similar substances
constitute a nuisance, but where the court does not discuss the applicability of the law of
trespass to the same set of facts. [ ]
However, there are cases which have held that the defendant's interference with
plaintiff's possession resulting from the settling upon his land of effluents emanating
from defendant's operations is exclusively nontrespassory. [ ] Although in such cases the
separate particles which collectively cause the invasion are minute, the deposit of each of
the particles constitutes a physical intrusion and, but for the size of the particle, would
clearly give rise to an action of trespass. The defendant asks us to take account of the
difference in size of the physical agency through which the intrusion occurs and relegate
entirely to the field of nuisance law certain invasions which do not meet the dimensional
test, whatever that is. In pressing this argument upon us the defendant must admit that
there are cases which have held that a trespass results from the movement or deposit of
rather small objects over or upon the surface of the possessor's land.
[The court cites examples such as molten lead, soot, and gunshot pellets.]
And liability on the theory of trespass has been recognized where the harm was
produced by the vibration of the soil or by the concussion of the air which, of course, is
nothing more than the movement of molecules one against the other. . . . The view
recognizing a trespassory invasion where there is no "thing" which can be seen with the
naked eye undoubtedly runs counter to the definition of trespass expressed in some
quarters. [ ] It is quite possible that in an earlier day when science had not yet peered into
the molecular and atomic world of small particles, the courts could not fit an invasion
through unseen physical instrumentalities into the requirement that a trespass can result
only from a direct invasion. But in this atomic age even the uneducated know the great
and awful force contained in the atom and what it can do to a man's property if it is
released. In fact, the now famous equation E = mc2 has taught us that mass and energy
are equivalents and that our concept of "things" must be reframed. If these observations
on science in relation to the law of trespass should appear theoretical and unreal in the
abstract, they become very practical and real to the possessor of land when the unseen
force cracks the foundation of his house. The force is just as real if it is chemical in
nature and must be awakened by the intervention of another agency before it does harm.
If, then, we must look to the character of the instrumentality which is used in
making an intrusion upon another's land we prefer to emphasize the object's energy or
force rather than its size. Viewed in this way we may define trespass as any intrusion
which invades the possessor's protected interest in exclusive possession, whether that
intrusion is by visible or invisible pieces of matter or by energy which can be measured
only by the mathematical language of the physicist.
We are of the opinion, therefore, that the intrusion of the fluoride particulates in
the present case constituted a trespass.
...
. . . The modern law of trespass can be understood only as it is seen against its
historical background. Originally all types of trespass, including trespass to land, were
punishable under the criminal law because the trespasser's conduct was regarded as a
breach of the peace. When the criminal and civil aspect of trespass were separated, the
civil action for trespass was colored by its past, and the idea that the peace of the
community was put in danger by the trespasser's conduct influenced the courts' ideas of
the character of the tort. Therefore, relief was granted to the plaintiff where he was not
actually damaged, partly at least as a means of discouraging disruptive influences in the
community. Winfield on Torts (4th ed.) p. 305 expresses the idea as follows:
"The law, on the face of it, looks harsh, but trespass was so likely
in earlier times to lead to a breach of the peace that even unwitting and
trivial deviations on to another person's land were reckoned unlawful. At
the present day there is, of course, much greater respect for the law in
general and appreciation of the security which it affords, and the
theoretical severity of the rules as to land trespass is hardly ever exploited
in practice."
. . . If then, we find that an act on the part of the defendant in interfering with the
plaintiff's possession, does, or is likely to result in arousing conflict between them, that
act will characterize the tort as a trespass, assuming of course that the other elements of
the tort are made out. . . .
Probably the most important factor which describes the nature of the interest
protected under the law of trespass is nothing more than a feeling which a possessor has
with respect to land which he holds. It is a sense of ownership; a feeling that what one
owns or possesses should not be interfered with, and that it is entitled to protection
through law. This being the nature of the plaintiff's interest, it is understandable why
actual damage is not an essential ingredient in the law of trespass. As pointed out in 1
Harper & James, Torts, § 1.8, p. 26, the rule permitting recovery in spite of the absence
of actual damages "is probably justified as a vindicatory right to protect the possessor's
proprietary or dignitary interest in his land."
We think that a possessor's interest in land as defined by the considerations
recited above may, under the appropriate circumstances, be violated by a ray of light, by
an atomic particle, or by a particulate of fluoride and, contrariwise, if such interest
circumscribed by these considerations is not violated or endangered, the defendant's
conduct, even though it may result in a physical intrusion, will not render him liable in an
action of trespass. [ ]
We hold that the defendant's conduct in causing chemical substances to be
deposited upon the plaintiffs' land fulfilled all of the requirements under the law of
trespass.
The defendant contends that trespass will not lie in this case because the injury
was indirect and consequential and that the requirement that the injury must be direct and
immediate to constitute a trespass was not met. We have held that the deposit of the
particulates upon the plaintiff's land was an intrusion within the definition of trespass.
That intrusion was direct. The damages which flowed from it are consequential, but it is
well established that such consequential damage may be proven in an action of trespass.
[ ] The distinction between direct and indirect invasions where there has been a physical
intrusion upon the plaintiff's land has been abandoned by some courts. [ ] Since the
invasion in the instant case was direct it is not necessary for us to decide whether the
distinction is recognized in this state.
...
It is also urged that the trial court erred in failing to enter a special finding
requested by the defendant. The requested finding in effect stated that it was impossible
in the operation of an aluminum reduction plant to capture all fluorides which are created
in the manufacturing process; that the fume collection system was in operation during
the period in question; and that it was the most efficient of the systems known in
aluminum reduction plants in the United States.
It is argued that since the trial court elected to enter special rather than general
findings it was required by ORS 17.430 to enter findings on all material issues which, it
is claimed, would include the issue defined in the requested findings. The complaint
alleged that the defendant "carelessly, wantonly and willfully continuously caused to be
emitted," from its plant the poisonous compounds. This allegation was denied in the
defendant's answer. The issue thus raised, as to the character of defendant's conduct in
making the intrusion upon plaintiffs' land, would be material only with respect to the
claim for punitive damages which, as we have already indicated, was rejected by the trial
court. Since we hold that the intrusion in this case constituted a trespass it is immaterial
whether the defendant's conduct was careless, wanton and willful or entirely free from
fault. Therefore, the refusal to enter the requested finding is not error.
The judgment of the lower court is affirmed.
[The concurring opinion of MCALLISTER, C.J., is omitted.]
NOTESANDQUESTIONS
1. Is aluminum production an ultrahazardous activity? Is the theory of liability
here different from that of the New York blasting cases in Chapter VII?
2. Why is it irrelevant whether the defendant's fume collection system constituted
a reasonable effort to capture the fluoride particulates? Is the case distinguishable from
Losee v. Buchanan, p. ___, supra?
3. Can Martin be viewed as an application of the doctrine of Rylands v. Fletcher?
4. Under the court's expansive view of the trespass action, what types of cases
would be exclusively nuisance actions? Martin is adopted and the question of overlap
between trespass and nuisance discussed at length in Borland v. Sanders Lead Co., Inc.,
369 So.2d 523 (Ala.1979)(action in trespass for lead pollution emitted from defendant’s
smelter). See also Bradley v. American Smelting and Refining Co., 709 P.2d 782 (Wash.
1985), adopting Martin in a case involving deposit of airborne particles from a copper
smelter, but rejecting the Restatement view that an intentional trespass entitles a
landowner to damages irrespective of actual harm. The court required a showing of
"actual and substantial damage" as a safeguard against mass trivial claims by neighboring
landowners. See also Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996)(calling physical
contamination of land with barium particles a trespass as well as a nuisance, where the
claim was for actual damages); Mercer v. Rockwell Intern., 24 F.Supp.2d 735 (W.D.Ky.
1998)(following Martin in holding that invasion by invisible particles (PCBs) could
constitute a trespass, but declining to find liability where no “actual” harm).
Is there a meaningful distinction between "exclusive possession" and "use and
enjoyment" of land? If the plant in Martin had emitted a noxious stench, would the court
have regarded the harm as actionable in trespass? In nuisance? What about a continuing
abrasive level of noise? See Wilson v. Interlake Steel Co., 649 P.2d 922 (Cal. 1982), in
which the court asserted that "intangible intrusions, such as noise, odor, or light alone, are
dealt with as nuisance cases, not trespass." Wilson was re-affirmed in San Diego Gas &
Electric Co. v. Superior Court, 920 P.2d 669 (Cal. 1996), in which plaintiffs purchased a
house near SDG&E’s powerlines (which were on adjacent property). SDG&E
subsequently increased the number of power lines, which plaintiff alleged “dramatically
increased the dangerous levels of electromagnetic radiation.” On the trespass claim, the
court held that electric and magnetic fields are “intangible” as defined in Wilson, and thus
to bring a trespass action plaintiffs would need to allege physical damage to their
property, which they failed to do; as in Wilson they alleged only diminution in property
value. Compare Ream v. Keen, 838 P.2d 1073 (Or. 1992), in which the Oregon court
relied on Martin to find liability for trespass in a case involving "intrusion of smoke and
its lingering odor" from defendant farmer's burning of grass stubble on his field.