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
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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
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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
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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.
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...
. . . 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
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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
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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.
B. Nuisance
The confusion attending the law of nuisance is indicated by the frequent references to
Prosser's comment that "[t]here is no more impenetrable jungle in the entire law than that which
surrounds the word 'nuisance'." Some of this confusion can be avoided by distinguishing at the
outset between public and private nuisance. Despite the overlapping terminology, the interests
protected by each action and the corresponding elements in establishing a prima facie case are
quite different. Although private nuisance is our primary concern, private individuals may,
under certain circumstances, employ public nuisance doctrine to protect against harm to person
and property. We begin with a brief discussion of the action for public nuisance.
1. Public Nuisance
The historical origins of public nuisance are found in criminal interferences with the
rights of the Crown, such as encroachments on the royal domain or on public highways.
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Subsequently, invasions of the rights of the public—represented by the Crown—became
actionable as well. At common law, public nuisance came to cover a broad group of minor
criminal offenses that involved unreasonable interferences with some right of the general public.
These "included interference with the public health, as in the keeping of diseased animals . . . ;
with the public safety, as in the case of storage of explosives in the midst of a city . . . ; with the
public morals, as in houses of prostitution . . . ; with the public peace as by loud and disturbing
noises; with the public comfort, as in the case of widely disseminated bad odors, dust, and
smoke; with the public convenience as by obstruction of a public highway or navigable stream;
and with a wide variety of miscellaneous public rights of a similar kind." Restatement (Second)
of Torts § 821B comment b. Most states, having abolished common law crimes, now have
broadly-phrased statutes providing criminal penalties for public nuisances, or have enacted
specific statutes declaring certain kinds of conduct to be public nuisances. It does not follow,
however, that public nuisance actions have become superfluous. Consider, for example, State v.
Schenectady Chemicals, Inc. 479 N.Y.S.2d 1010 (App.Div. 1984), in which the court found that
the migration of chemical wastes over a thirty-year period did not constitute a "discharge" within
the meaning of a relevant statute, but did constitute the basis for a public nuisance action
initiated by the state. See generally, Note, Chemical Discharge: Application of Public Nuisance
Theory as a Remedy for Environmental Law Violations, 26 Suffolk L. Rev. 51 (1992).
Traditionally, the tort of public nuisance required the element of criminality to justify
private relief. The Second Restatement, however, has eliminated the reference to a "criminal
interference." The motivation for the change was concern that the criminality requirement would
limit too severely the usefulness of public nuisance doctrine as a means of protecting the
environment, which had become of increasing public concern. Instead, § 821B(1) defines public
nuisance as "an unreasonable interference with a right common to the general public," and in
subsection (2) lists circumstances that could make an interference unreasonable. These include:
a significant interference with the public health, safety, peace, comfort, or convenience; the
existence of a statute or ordinance proscribing the conduct; or conduct of a continuing nature or
of long-lasting effect that the "actor knows or has reason to know has a significant effect upon
the public right."
In a novel application, a substantial number of municipalities sued the handgun industry
in the late 1990s alleging that the distribution and sales practices of the industry—and the
consequent use of handguns for criminal purposes—constituted a public nuisance. As stated by
a proponent, “to make out a public nuisance claim, an appropriate governmental entity … must
establish that the defendant’s conduct creates or contributes to a substantial, unreasonable
interference with common public rights and that defendant failed to take reasonable measure that
would eliminate or ameliorate the harm. The remedy is usually directed at ‘abatement’ of the
nuisance and typically includes injunctive relief and damages.” See Kairys, The Governmental
Handgun Cases and the Elements and Underlying Policies of Public Nuisance Law, 32 Conn.
L.Rev. 1175 (2000). The public nuisance handgun litigation is viewed in a broader context in
Developments in the Law—Civil Litigation, 113 Harv. L.Rev. 1752, 1759-83 (2000).
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Private litigants attempting to bring public nuisance suits must overcome strict standing
requirements. At early common law, a public nuisance action, in keeping with its criminal
character, could be maintained only by a public official. Beginning in the sixteenth century, a
private individual who could show special harm different in kind, and not just degree, from that
suffered by the general public was allowed to bring a private tort suit. The usual justification for
this requirement was that a defendant should not be subjected to the numerous actions that could
result from a widespread interference with common rights.
Section 821C(1) retains special harm as a prerequisite for recovery of damages in an
individual action. According to § 821C(2), standing to bring such an action requires that parties
other than public officials either have suffered special harm or "have standing to sue as a
representative of the general public, as a citizen in a citizen's action, or as a member of a class in
a class action." The requirement may be relaxed, however, in an injunctive action against a
public nuisance. Comment j explains that the reasons for the special-harm rule are less
applicable to injunctive actions and that there are indications of possible change in the courts.
Several commentators have suggested that the special-harm requirement be abandoned, again
primarily in response to the possibility of using nuisance doctrine as a means of controlling
environmental pollution.
The requirement of specific harm to the claimant is reaffirmed and discussed with
reference to a variety of illustrative cases in Stop & Shop Companies, Inc. v. Fisher, 444 N.E.2d
368 (Mass. 1983). The individualized harm requirement may be overcome in some cases,
particularly in the environmental field, by relying upon a statutory special injury requirement.
See, e.g., Florida Wildlife Federation v. State Department of Environmental Regulation, 390
So.2d 64 (Fla.1980), relying on the state Environmental Protection Act; Kirk v. United States
Sugar Corp., 726 So.2d 822 (Fla. App.1999)(“any citizen who sues in the name of the state to
enjoin a public nuisance need not show that he or she has sustained or will sustain special
damages or injury different in kind from injury to the public at large.”).
In some cases, the distinction between public and private nuisance (next to be discussed)
may be less than clear. See Lew v. Superior Court, 25 Cal.Rptr.2d 42 (App. 1993), involving
successful claims for damages by neighboring residents against the owner of an apartment
complex whose tenants were heavily involved in drug dealing activities on the premises. In
granting recovery, the court referred to defendant's conduct as both a public and private nuisance.
See generally, Abrams & Washington, The Misunderstood Law of Public Nuisance: A
Comparison with Private Nuisance Twenty Years After Boomer, 54 Alb.L.Rev. 359 (1990);
Hodas, Private Actions for Public Nuisance: Common Law Suits for Relief from Environmental
Harm, 16 Ecol.L.Q. 883 (1989); Bryson and MacBeth, Public Nuisance, The Restatement
(Second) of Torts and Environmental Law, 2 Ecol.L.Q. 241 (1972).
2. Private Nuisance
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Section 822 states the general rule that one is subject to liability for conduct that is a legal
cause of an invasion of another's interest in the private use and enjoyment of land if the invasion
is either: (a) intentional and unreasonable, or (b) unintentional and arising out of negligent or
reckless conduct or abnormally dangerous conditions or activities. The latter category,
unintentional nuisances, is governed primarily by the rules relating to the underlying negligence,
recklessness, or abnormally dangerous activity on which the nuisance is based, with the added
requirement that the injury be related to an invasion of interests in the use and enjoyment of land.
By far the more significant category of nuisances is that which the Restatement defines as
intentional. Section 825 extends that category to situations in which there is knowledge that the
conduct is invading, or is substantially certain to invade, another's interest in the use and
enjoyment of land. Virtually all conduct of a continuing nature, then, such as the typical
instances of industrial pollution, would be intentional after an initial invasion.
An intentional invasion satisfies the "unreasonableness" requirement, according to § 826,
if "(a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused
by the conduct is serious and the financial burden of compensating for this and similar harm to
others would not make the continuation of the conduct not feasible." "Gravity of harm" and the
"utility of the conduct" are in turn elaborated as follows:
§ 827 Gravity of Harm—Factors Involved
In defining the gravity of the harm from an intentional invasion of
another's interest in the use and enjoyment of land, the following factors are
important:
(a) The extent of the harm involved;
(b) the character of the harm involved;
(c) the social value that the law attaches to the type of use or
enjoyment invaded;
(d) the suitability of the particular use or enjoyment invaded to the
character of the locality; and
(e) the burden on the person harmed of avoiding the harm.
§ 828 Utility of the Conduct—Factors Involved
In determining the utility of conduct that causes an intentional invasion of
another's interest in the use and enjoyment of land, the following factors are
important:
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(a) The social value that the law attaches to the primary purpose of
the conduct;
(b) the suitability of the conduct to the character of the locality;
and
(c) the impracticability of preventing or avoiding the invasion.
These lists of factors are not intended to be exhaustive, and the relative weight to be given each
factor is dependent on the circumstances of the particular case. Obviously, this formulation
gives the courts very considerable discretion in determining the final outcome of a balancing test.
The first Restatement of Torts included only the test for unreasonableness contained in
Restatement (Second) § 826(a)—whether the gravity of the harm outweighs the utility of the
conduct. If this were the sole standard, it could be questioned whether there would be much
difference between the tests for intentional and unintentional nuisance—even though
"unreasonableness" is to be determined, in the case of intentional nuisances, with reference to the
gravity of the harm actually suffered, and in the case of unintended harm, with reference to the
likelihood of injury multiplied by the prospective extent of the harm. As comment k to § 822
explains, the negligent, reckless, and abnormally dangerous standards of unintentional nuisances
incorporate in some form a balancing of harm against the utility of the conduct, as in the concept
of unreasonable risk. And this balancing is made explicit for intentional invasions in § 826.
But § 826(a) is not the sole test in the Second Restatement. An intentional invasion may
now be unreasonable under § 826(b) even though the utility of the conduct outweighs the gravity
of the harm, if the harm is serious and the defendant could afford to compensate the plaintiff and
others similarly harmed while continuing to be engaged in its activity. Similarly, § 829A
declares that the gravity of an invasion outweighs its utility (and hence is unreasonable under §
826) whenever the harm caused is both substantial and greater than the plaintiff "should be able
to bear without compensation." Thus, an invasion, particularly one causing harm "physical in
character," may be so grievous that it outweighs as a matter of law any utility arising from the
activity.
At this point it should be evident that substantial similarities exist between the
Restatement approach to trespass and nuisance—particularly as the rules governing intentional
nuisance come to be strongly influenced by strict liability. Apart from the standards of liability,
however, what remedies are available to an aggrieved party? Although trespasses traditionally
tended to involve individual instances of harm, equity courts were willing to award injunctive
relief when the threat of continued trespassory activity existed. In the nuisance context, the
question of remedial alternatives often is critical, since continuing diminution of the plaintiff's
use and enjoyment of land is usually present. Should injunctive relief be generally available?
The following case deals with this important issue, and also provides the opportunity to go
beyond this general introduction and explore in greater detail some fundamental questions about
the threshold rules of liability.
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BOOMER V. ATLANTIC CEMENT CO.
Court of Appeals of New York, 1970.
26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312.
BERGAN, J. Defendant operates a large cement plant near Albany. These are actions for
injunction and damages by neighboring land owners alleging injury to property from dirt, smoke
and vibration emanating from the plant. A nuisance has been found after trial, temporary
damages have been allowed; but an injunction has been denied.
The public concern with air pollution arising from many sources in industry and in
transportation is currently accorded ever wider recognition accompanied by a growing sense of
responsibility in State and Federal Governments to control it. Cement plants are obvious sources
of air pollution in the neighborhoods where they operate.
But there is now before the court private litigation in which individual property owners
have sought specific relief from a single plant operation. The threshold question raised by the
division of view on this appeal is whether the court should resolve the litigation between the
parties now before it as equitably as seems possible; or whether, seeking promotion of the
general public welfare, it should channel private litigation into broad public objectives.
A court performs its essential function when it decides the rights of parties before it. Its
decision of private controversies may sometimes greatly affect public issues. Large questions of
law are often resolved by the manner in which private litigation is decided. But this is normally
an incident to the court's main function to settle controversy. It is a rare exercise of judicial
power to use a decision in private litigation as a purposeful mechanism to achieve direct public
objectives greatly beyond the rights and interests before the court.
Effective control of air pollution is a problem presently far from solution even with the
full public and financial powers of government. In large measure adequate technical procedures
are yet to be developed and some that appear possible may be economically impracticable.
It seems apparent that the amelioration of air pollution will depend on technical research
in great depth; on a carefully balanced consideration of the economic impact of close regulation;
and of the actual effect on public health. It is likely to require massive public expenditure and to
demand more than any local community can accomplish and to depend on regional and interstate
controls.
A court should not try to do this on its own as a by-product of private litigation and it
seems manifest that the judicial establishment is neither equipped in the limited nature of any
judgment it can pronounce nor prepared to lay down and implement an effective policy for the
elimination of air pollution. This is an area beyond the circumference of one private lawsuit. It
12
is a direct responsibility for government and should not thus be undertaken as an incident to
solving a dispute between property owners and a single cement plant?one of many?in the
Hudson River valley.
The cement making operations of defendant have been found by the court at Special
Term to have damaged the nearby properties of plaintiffs in these two actions. That court, as it
has been noted, accordingly found defendant maintained a nuisance and this has been affirmed at
the Appellate Division. The total damage to plaintiffs' properties is, however, relatively small in
comparison with the value of defendant's operation and with the consequences of the injunction
which plaintiffs seek.
The ground for the denial of injunction, notwithstanding the finding both that there is a
nuisance and that plaintiffs have been damaged substantially, is the large disparity in economic
consequences of the nuisance and of the injunction. This theory cannot, however, be sustained
without overruling a doctrine which has been consistently reaffirmed in several leading cases in
this court and which has never been disavowed here, namely that where a nuisance has been
found and where there has been any substantial damage shown by the party complaining an
injunction will be granted.
The rule in New York has been that such a nuisance will be enjoined although marked
disparity be shown in economic consequence between the effect of the injunction and the effect
of the nuisance.
The problem of disparity in economic consequence was sharply in focus in Whalen v.
Union Bag & Paper Co. (208 N.Y. 1 [1913]). A pulp mill entailing an investment of more than a
million dollars polluted a stream in which plaintiff, who owned a farm, was "a lower riparian
owner". The economic loss to plaintiff from this pollution was small. This court, reversing the
Appellate Division, reinstated the injunction granted by the Special Term against the argument of
the mill owner that in view of "the slight advantage to plaintiff and the great loss that will be
inflicted on defendant" an injunction should not be granted (p. 2). "Such a balancing of injuries
cannot be justified by the circumstances of this case," Judge Werner noted (p. 4). He continued:
"Although the damage to the plaintiff may be slight as compared with the defendant's expense of
abating the condition, that is not a good reason for refusing an injunction" (p. 5).
Thus the unconditional injunction granted at Special Term was reinstated. The rule laid
down in that case, then, is that whenever the damage resulting from a nuisance is found not
"unsubstantial", viz., $100 a year, injunction would follow. This states a rule that had been
followed in this court with marked consistency [ ].
...
Although the court at Special Term and the Appellate Division held that injunction
should be denied, it was found that plaintiffs had been damaged in various specific amounts up
to the time of the trial and damages to the respective plaintiffs were awarded for those amounts.
13
The effect of this was, injunction having been denied, plaintiffs could maintain successive
actions at law for damages thereafter as further damage was incurred.
The court at Special Term also found the amount of permanent damage attributable to
each plaintiff, for the guidance of the parties in the event both sides stipulated to the payment and
acceptance of such permanent damage as a settlement of all the controversies among the parties.
The total of permanent damages to all plaintiffs thus found was $185,000. This basis of
adjustment has not resulted in any stipulation by the parties.
This result at Special Term and at the Appellate Division is a departure from a rule that
has become settled; but to follow the rule literally in these cases would be to close down the
plant at once. This court is fully agreed to avoid that immediately drastic remedy: the difference
in view is how best to avoid it.*
One alternative is to grant the injunction but postpone its effect to a specified future date
to give opportunity for technical advances to permit defendant to eliminate the nuisance; another
is to grant the injunction conditioned on the payment of permanent damages to plaintiffs which
would compensate them for the total economic loss to their property present and future caused
by defendant's operations. For reasons which will be developed the court chooses the latter
alternative.
If the injunction were to be granted unless within a short period?e.g., 18 months?the
nuisance be abated by improved methods, there would be no assurance that any significant
technical improvement would occur.
The parties could settle this private litigation at any time if defendant paid enough money
and the imminent threat of closing the plant would build up the pressure on defendant. If there
were no improved techniques found, there would inevitably be applications to the court at
Special Term for extensions of time to perform on showing of good faith efforts to find such
techniques.
Moreover, techniques to eliminate dust and other annoying by-products of cement
making are unlikely to be developed by any research the defendant can undertake within any
short period, but will depend on the total resources of the cement industry nationwide and
throughout the world. The problem is universal wherever cement is made.
For obvious reasons the rate of the research is beyond control of defendant. If at the end
of 18 months the whole industry has not found a technical solution a court would be hard put to
close down this one cement plant if due regard be given to equitable principles.
*
Respondent's investment in the plant is in excess of $45,000,000. There are over 300 people
employed there.
14
On the other hand, to grant the injunction unless defendant pays plaintiffs such permanent
damages as may be fixed by the court seems to do justice between the contending parties. All of
the attributions of economic loss to the properties on which plaintiffs' complaints are based will
have been redressed.
The nuisance complained of by these plaintiffs may have other public or private
consequences, but these particular parties are the only ones who have sought remedies and the
judgment proposed will fully redress them. The limitation of relief granted is a limitation only
within the four corners of these actions and does not foreclose public health or other public
agencies from seeking proper relief in a proper court.
It seems reasonable to think that the risk of being required to pay permanent damages to
injured property owners by cement plant owners would itself be a reasonably effective spur to
research for improved techniques to minimize nuisance.
The power of the court to condition on equitable grounds the continuance of an injunction
on the payment of permanent damages seems undoubted. [ ]
The damage base here suggested is consistent with the general rule in those nuisance
cases where damages are allowed. "Where a nuisance is of such a permanent and unabatable
character that a single recovery can be had, including the whole damage past and future resulting
therefrom, there can be but one recovery" (66 C.J.S., Nuisances, § 140, p. 947). It has been said
that permanent damages are allowed where the loss recoverable would obviously be small as
compared with the cost of removal of the nuisance [ ].
...
Thus it seems fair to both sides to grant permanent damages to plaintiffs which will
terminate this private litigation. The theory of damage is the "servitude on land" of plaintiffs
imposed by defendant's nuisance. (See United States v. Causby, 328 U.S. 256, 261, 262, 267
[1946], where the term "servitude" addressed to the land was used by Justice Douglas relating to
the effect of airplane noise on property near an airport.)
The judgment, by allowance of permanent damages imposing a servitude on land, which
is the basis of the actions, would preclude future recovery by plaintiffs or their grantees.
This should be placed beyond debate by a provision of the judgment that the payment by
defendant and the acceptance by plaintiffs of permanent damages found by the court shall be in
compensation for a servitude on the land.
Although the Trial Term has found permanent damages as a possible basis of settlement
of the litigation, on remission the court should be entirely free to re-examine this subject. It may
again find the permanent damage already found; or make new findings.
15
The orders should be reversed, without costs, and the cases remitted to Supreme Court,
Albany County to grant an injunction which shall be vacated upon payment by defendant of such
amounts of permanent damage to the respective plaintiffs as shall for this purpose be determined
by the court.
JASEN, J. (dissenting). I agree with the majority that a reversal is required here, but I do not
subscribe to the newly enunciated doctrine of assessment of permanent damages, in lieu of an
injunction, where substantial property rights have been impaired by the creation of a nuisance.
It has long been the rule in this State, as the majority acknowledges, that a nuisance
which results in substantial continuing damage to neighbors must be enjoined. [ ]
To now change the rule to permit the cement company to continue polluting the air
indefinitely upon the payment of permanent damages is, in my opinion, compounding the
magnitude of a very serious problem in our State and Nation today.
In recognition of this problem, the Legislature of this State has enacted the Air Pollution
Control Act (Public Health Law, §§ 1264-1299-m) declaring that it is the State policy to require
the use of all available and reasonable methods to prevent and control air pollution (Public
Health Law, § 1265).
The harmful nature and widespread occurrence of air pollution have been extensively
documented. Congressional hearings have revealed that air pollution causes substantial property
damage, as well as being a contributing factor to a rising incidence of lung cancer, emphysema,
bronchitis and asthma.
The specific problem faced here is known as particulate contamination because of the
fine dust particles emanating from defendant's cement plant. The particular type of nuisance is
not new, having appeared in many cases for at least the past 60 years. [ ] It is interesting to note
that cement production has recently been identified as a significant source of particulate
contamination in the Hudson Valley. This type of pollution, wherein very small particles escape
and stay in the atmosphere, has been denominated as the type of air pollution which produces the
greatest hazard to human health. We have thus a nuisance which not only is damaging to the
plaintiffs, but also is decidedly harmful to the general public.
I see grave dangers in overruling our long-established rule of granting an injunction
where a nuisance results in substantial continuing damage. In permitting the injunction to
become inoperative upon the payment of permanent damages, the majority is, in effect, licensing
a continuing wrong. It is the same as saying to the cement company, you may continue to do
harm to your neighbors so long as you pay a fee for it. Furthermore, once such permanent
damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, thereby
continuing air pollution of an area without abatement.
16
It is true that some courts have sanctioned the remedy here proposed by the majority in a
number of cases, but none of the authorities relied upon by the majority are analogous to the
situation before us. In those cases the courts, in denying an injunction and awarding money
damages, granted their decision on a showing that the use to which the property was intended to
be put was primarily for the public benefit. Here, on the other hand, it is clearly established that
the cement company is creating a continuing air pollution nuisance primarily for its own private
interest with no public benefit.
This kind of inverse condemnation [ ] may not be invoked by a private person or
corporation for private gain or advantage. Inverse condemnation should only be permitted when
the public is primarily served in the taking or impairment of property. [ ] The promotion of the
interests of the polluting cement company has, in my opinion, no public use or benefit.
Nor is it constitutionally permissible to impose servitude on land, without consent of the
owner, by payment of permanent damages where the continuing impairment of the land is for a
private use. [ ] This is made clear by the State Constitution (art. I, § 7,subd. [a]) which provides
that "[p]rivate property shall not be taken for public use without just compensation" (emphasis
added). It is, of course, significant that the section makes no mention of taking for a private use.
In sum, then, by constitutional mandate as well as by judicial pronouncement, the
permanent impairment of private property for private purposes is not authorized in the absence of
clearly demonstrated public benefit and use.
I would enjoin the defendant cement company from continuing the discharge of dust
particles upon its neighbors' properties unless, within 18 months, the cement company abated
this nuisance.
It is not my intention to cause the removal of the cement plant from the Albany area, but
to recognize the urgency of the problem stemming from this stationary source of air pollution,
and to allow the company a specified period of time to develop a means to alleviate this
nuisance.
I am aware that the trial court found that the most modern dust control devices available
have been installed in defendant's plant, but, I submit, this does not mean that better and more
effective dust control devices could not be developed within the time allowed to abate the
pollution.
Moreover, I believe it is incumbent upon the defendant to develop such devices, since the
cement company, at the time the plant commenced production (1962), was well aware of the
plaintiffs' presence in the area, as well as the probable consequences of its contemplated
operation. Yet, it still chose to build and operate the plant at this site.
17
In a day when there is a growing concern for clean air, highly developed industry should
not expect acquiescence by the courts, but should, instead, plan its operations to eliminate
contamination of our air and damage to its neighbors.
Accordingly, the orders of the Appellate Division, insofar as they denied the injunction,
should be reversed, and the actions remitted to Supreme Court, Albany County to grant an
injunction to take effect 18 months hence, unless the nuisance is abated by improved techniques
prior to said date.
CHIEF JUDGE FULD and JUDGES BURKE and SCILEPPI concur with JUDGE BERGAN; JUDGE JASEN
dissents in part and votes to reverse in a separate opinion; JUDGES BREITEL and GIBSON taking
no part.
NOTESANDQUESTIONS
1. In Boomer the defendant argued at the trial level that it was not committing a nuisance.
The trial judge found that the defendant "took every available and possible precaution to protect
the plaintiffs from dust." Nonetheless, the court found a nuisance because the "discharge of large
quantities of dust upon each of the properties and excessive vibration from blasting deprived
each party of the reasonable use of his property and thereby prevented his enjoyment of life and
liberty therein." 287 N.Y.S.2d 112 (Albany Cty. 1967). In Boomer the defendant knew to a
substantial certainty that those nearby would be subjected to dust and vibration, and continued
the operation after having actual knowledge of the harm. Notice that by this analysis the
overwhelming majority of alleged industrial nuisances are "intentional." In what sense is the
harm intended here? Is there a difference between defendant's conduct in this case and that of a
product manufacturer who knows to a substantial certainty that one widget out of ten thousand
he produces will cause injury?
2. The fact that the vast majority of industrial nuisances are "intentional" makes all the
more important the question whether, in addition to being intentional, the activity is also
"unreasonable." This problem was explored at length in Jost v. Dairyland Power Cooperative,
172 N.W.2d 647 (Wis.1969), in which sulfur dioxide gas was discharged into the atmosphere by
defendant's power plant, damaging nearby crops. The farmers sued and the defendant sought to
prove that it had used due care in the construction and operation of its plant and that the "social
and economic utility of the Alma plant outweighed the gravity of damage to the plaintiffs." The
trial judge's rejection of such proof as to liability was affirmed. The court found crop damage of
several hundred dollars and then, turning to liability, concluded:
that the court properly excluded all evidence that tended to show the utility of the
Dairyland Cooperative's enterprise. Whether its economic or social importance dwarfed
the claim of a small farmer is of no consequence in this lawsuit. It will not be said that,
because a great and socially useful enterprise will be liable in damages, an injury small
by comparison should go unredressed. We know of no acceptable rule of jurisprudence
that permits those who are engaged in important and desirable enterprises to injure with
18
impunity those who are engaged in enterprises of lesser economic significance. Even the
government or other entities, including public utilities, endowed with the power of
eminent domain—the power to take private property in order to devote it to a purpose
beneficial to the public good—are obliged to pay a fair market value for what is taken or
damaged. To contend that a public utility, in the pursuit of its praiseworthy and
legitimate enterprise, can, in effect, deprive others of the full use of their property without
compensation, poses a theory unknown to the law of Wisconsin, and in our opinion
would constitute the taking of property without due process of law.
Is the court's reasoning consistent with the approach taken in the initial Restatement p. ___,
supra? In the Second Restatement? In Boomer ? For a comprehensive discussion of the case
law and law review literature on Boomer and private nuisance in the succeeding two decades
(including a tally of the cases adopting some version of the Second Restatement approach to
balancing the utilities), see Lewin, Boomer and the American Law of Nuisance: Past, Present,
and Future, 54 Alb.L.Rev. 189 (1990). For a case providing the flavor of nuisance
controversies—and resolutions—prior to the adoption of strict liability analysis, see Waschak v.
Moffat, 109 A.2d 310 (Pa. 1954). On the analogue to governmental takings, with particular
reference to Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), see Halper,
Untangling the Nuisance Knot, 26 B.C. Envtl. Aff. L.Rev. 89 (1998).
3. Recall that the trial court in Rylands, p. ___, supra, decided that there was no nuisance
because the act was not a continuing harm. Although most nuisances have been accompanied by
continuing harm, this is no longer considered an essential element.
4. The Boomer case also suggests the overlap between nuisance and trespass. Reconsider
Martin v. Reynolds Metals Co., p. ___, supra. Under the Boomer approach, does it matter for
purposes of liability whether defendant's conduct is characterized as nuisance or trespass?
Compare Wood v. Picillo, 443 A.2d 1244 (R.I.1982), in which the court enjoined the further
operation of a chemical dump on the defendant's property on nuisance grounds, remarking that
"it could well be argued that one who utilizes his land for abnormally dangerous activities or for
storage of abnormally dangerous substances may be strictly liable for resultant injuries, even in
the absence of a finding of nuisance or negligence," and citing Rylands v. Fletcher.
5. The law of private nuisance has occasionally been characterized as a form of judicial
zoning. Although the court of appeals in Boomer does not mention it, the appellate division
opinion notes that the area was zoned. 294 N.Y.S.2d 452 (App.Div. 1968). Apparently before
the defendant began operations in 1962, the town zoned the defendant's property to permit
quarrying and business, so that defendant's activity was lawful. Should the zoning be relevant to
whether the defendant is liable for any nuisance? Is it proper for a court to find a common-law
nuisance when the defendant has obeyed legislative zoning requirements? For an extensive
discussion of the subject, see Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and
Fines as Land Use Controls, 40 U.Chi.L.Rev. 681 (1973).
19
Boomer was held inapplicable in Little Joseph Realty, Inc. v. Town of Babylon, 363
N.E.2d 1163 (N.Y. 1977), in which plaintiff sued to enjoin the construction and operation of an
asphalt plant on defendant's adjoining property. The lower court determined that the plant,
which violated the town's zoning ordinance, was a nuisance, and ordered it enjoined unless
certain remedial devices were installed—and they were. On appeal, reversed. New York's longstanding rule that structures built on adjoining or nearby property in violation of zoning
ordinances were enjoinable at the demand of a specially-damaged neighbor, was not changed by
Boomer.
Boomer involved a private dispute between two parties in which it was proper to adjust
"competing uses with a view towards maximizing the social value of each." But zoning "is far
more comprehensive. Its design is, on a planned basis, to serve as a 'vital tool for maintaining a
civilized form of existence' for the benefit and welfare of an entire community. . . . It follows
that, when a continuing use flies in the face of a valid zoning restriction, it must, subject to the
existence of any appropriate equitable defenses, be enjoined unconditionally." This does not
mean that "risk-utility considerations have not entered into the adoption of a zoning law's
restriction on use. It is rather that presumptively they have already been weighed and disposed
of by the Legislature which enacted them."
6. A considerable body of nuisance law deals with land use disputes that lack the broader
environmental aspects of the Boomer case. Typically, these cases deal with the loss of
commercial value of adjoining property, such as Fontainebleau Hotel Corp. v. Forty-Five
Twenty-Five, Inc., 114 So.2d 357 (Fla.App.1959), in which a Miami Beach hotel sought an
injunction to prevent a neighboring hotel from building a 14-floor addition that would cut off a
considerable amount of sunlight from plaintiff's property, or a loss of economic value of
residential property, such as the numerous efforts to enjoin a funeral parlor from locating in a
neighborhood. See, e.g., Travis v. Moore, 377 So.2d 609 (Miss.1979). At times, the claims
combine allegations of loss of market value with pain and suffering; see Weinhold v. Wolff, 555
N.W.2d 454 (Iowa 1996), involving a successful claim for damages from noxious odors
emanating from a neighboring hog feeding and confinement facility. Hard feelings and spiteful
behavior are not uncommon in these cases. Consider Coty v. Ramsey Associates, 546 A.2d 196
(Vt.), cert. denied 487 U.S. 1236 (1988), in which defendants were held liable after establishing
a pig farm next to the property of neighbors who had successfully opposed the defendants' effort
to build a motel on their land. Contrast Wernke v. Halas, 600 N.E.2d 117 (Ind.App.1992), in
which the court held that nailing a toilet seat to a tree and placing offensive graffiti on a fence
facing the plaintiffs' property might constitute "unsightliness or lack of aesthetic virtue" but did
not rise to the level of a nuisance.
For a case merging the environmental and commercial aspects of nuisance law, see Prah
v. Maretti, 321 N.W.2d 182 (Wis.1982), in which the court upheld the claim of the owner of a
solar-heated residence against a neighbor's proposed construction that would have interfered with
the plaintiff's solar access. See also Vogel v. Grant-Lafayette Elec. Co-op, 548 N.W.2d 829
(Wis.1996), allowing a nuisance claim for stray voltage from defendant’s electric power grid that
caused plaintiffs’ cattle to exhibit “violent or erratic behavior” and to produce less milk.
20
Detailed consideration of these dimensions of nuisance law is beyond the scope of a Torts
course; the residential and commercial aspects of nuisance law—and zoning law, as well—are
taken up in courses in Land Use and Property.
7. In Boomer, the defendant came to the area more recently than the plaintiffs. Is this
relevant? Sometimes the defendant establishes its facility in an isolated area only to find the
nearby town expanding and others moving closer to it. The question raised is whether a plaintiff
who has knowingly encountered the nuisance is barred from suing. Restatement (Second) of
Torts § 840D says that this is "not in itself sufficient to bar his action, but it is a factor to be
considered in determining whether the nuisance is actionable." How might this be a relevant
factor? Might there be an underlying concern about first-comers exercising extra-territorial
controls over large areas of land? Might the price plaintiff paid for the land be relevant? The
issue is discussed in Wittman, First Come, First Served: An Economic Analysis of "Coming to
the Nuisance," 9 J.Legal Stud. 557 (1980).
8. Turning now to questions of remedy for private nuisance, what relief did the trial judge
award in Boomer? How did the court of appeals alter the remedy granted by the lower courts?
9. In the Jost case the court also awarded damages:
We see no basis for the jury's conclusion that the market value of one of the farms
was reduced by $500 and the value of the others not at all. Such a result—although there
could have been a differential—is completely unsupported by the evidence.
We conclude that the plaintiffs are entitled to recover for the crops and damage to
vegetation for the years complained of—1965 and 1966—as found by the jury, but after
those years recovery cannot again be for specific items of damage on a year-by-year
basis. Their avenue for compensation is for permanent and continuing nuisance as may
be reflected in a diminution of market value. Of course, permitting a recovery now for a
permanent loss of market value presupposes that the degree of nuisance will not increase.
If such be the case, an award of damages for loss of market value is final. If, however,
the level of nuisance and air pollution should be increased above the level that may now
be determined by a jury, with a consequent additional injury the plaintiffs would have the
right to seek additional permanent damage to compensate them for the additional
diminished market value.
What is the justification for reopening the case if the defendant increases the amount of
sulphur dioxide it emits? Is this similar to cases in which after final judgment the plaintiff's
injury turns out to be more serious than previously believed?
10. What should happen in Boomer and Jost if, after paying permanent damages, the
defendant reduces the harm being inflicted—either by closing down the operation or by
installing newly developed control devices? But what is the defendant's incentive in Boomer to
21
install any new devices at all? What if the plaintiff in Jost switches to crops that are less
profitable but impervious to sulfur dioxide gas?
11. Is the majority persuasive in its reasons for denying an injunction? The appellate
division upheld the trial court's denial, relying on "the zoning of the area, the large number of
persons employed by the defendant, its extensive business operations and substantial investment
in plant and equipment, its use of the most modern and efficient devices to prevent offensive
emissions and discharges, and its payment of substantial sums of real property and school taxes."
294 N.Y.S.2d 452 (App.Div. 1968). Are these factors relevant to the remedy question? The
liability question?
Further litigation ensued over the damage measurement. The opinions discuss
extensively the role of experts in land valuation problems. Boomer v. Atlantic Cement Co., 340
N.Y.S.2d 97 (Albany Cty. 1972), affirmed in Kinley v. Atlantic Cement Co., 349 N.Y.S.2d 199
(App.Div. 1973).
12. In Adams v. Star Enterprise, 51 F.3d 417 (4th Cir.1995), property owners brought suit
against defendant oil distribution facility for a major discharge of oil that created a plume
extending underground to near their property—although not yet actually contaminating their
property. They sought damages for emotional distress and diminished property value on, among
other theories, private nuisance. Applying Virginia law, the court held that there could be no
recovery on a nuisance theory absent some evidence of physically perceptible harm. Here the
plume was "incapable of detection" from plaintiffs' properties.
What are some of the problems associated with allowing such claims to go forward on
the grounds of depreciation of property values without “physically perceptible harm?” In Adkins
v. Thomas Solvent Co., 487 N.W. 2d 715 (Mich.1992), which held that property owners living
near a contaminated site could not recover for the diminution of their property values in the
absence of evidence demonstrating that contaminants had migrated to their property, the majority
reasoned that
[i]f any property owner in the vicinity of the numerous hazardous-waste sites that have
been identified can advance a claim seeking damages when unfounded public fears of
exposure cause property depreciation, the ultimate effect might be a reordering of the
polluter’s resources for the benefit of the persons who have suffered no cognizable harm
at the expense of those claimants who have been subjected to a substantial and
unreasonable interference in the use and enjoyment of property.
The dissent, however, would have allowed a nuisance action on a showing “that the
defendants actually contaminated soil and ground water in the neighborhood of plaintiffs' homes
with toxic chemicals and industrial wastes, that the market perception of the value of plaintiffs'
homes was actually adversely affected by the contamination of the neighborhood, and thus that
plaintiffs' loss was causally related to defendants' conduct. Who has the better argument? For an
outcome similar to that in Adkins, see Berry v. Armstrong Rubber Co. 989 F. 2d 822 (5th Cir.
22
1993), cert denied, 510 U.S. 1117 (1994) (rejecting nuisance action claiming property
depreciation because of "stigma" arising out of a tire manufacturer's dumping in the area where
the evidence failed to establish some physical damage to the owners' land caused by tire
manufacturer). In contrast, a few courts have been willing to allow a nuisance action without
evidence of physical harm. See, e.g., Omega Chemical Co. v. United Seeds, 560 N.W. 2d 820
(Neb. 1997) (finding a nuisance where accumulated snow on defendant’s roof merely threatened
harm to the plaintiff). What about situations involving continuing noxious odors, high noise
levels, or strong vibrations? Do these meet the threshold requirement of physically perceptible
harm? Should they?
13. Where the exposure leads to an individual claim of personal injury, nuisance law
typically holds that the harm suffered should be determined by reference to a “normal” person in
the community. Why might this be? For an early case articulating the general approach, see
Rogers v. Elliot, 15 N.E. 768 (Mass.1888) (denying relief to plaintiff who suffered harm from
ringing of church bells because of his highly nervous condition). For a more recent application,
see Jenkins v. CSX Transportation, Inc., 906 S.W. 2d 460 (Tenn. App. 1995) (holding that the
rarity of landowner’s allergic condition to creosote fumes from railroad ties, transported through
neighboring rail yard, precluded his nuisance claim). Is this approach contrary to the eggshell
plaintiff rule considered at p. ___, supra? Compare the treatment of the super-sensitive plaintiff
in emotional distress cases, p. ___, supra.
14. In an influential article, Property Rules, Liability Rules, and Inalienability: One View
of the Cathedral, 85 Harv.L.Rev. 1089 (1972), Calabresi and Melamed discuss a framework of
rules that the law uses to protect "entitlements" (decisions regarding which of two or more
conflicting parties will prevail). These rules yield the traditional results of no liability, damages,
or injunctive relief.
An entitlement is protected by a "property" rule when a person who wishes to obtain the
entitlement must purchase it at a price determined by the holder. Thus, the New York rule
regarding injunctions for nuisances, before Boomer, provided an entitlement in cases of "not
unsubstantial" damage to the neighbors of a polluter that was protected by a property rule: A
polluter who wished to continue operations had to buy the right to do so. Alternatively, an
entitlement protected by a property rule could be given to the polluter. This would be the case if
the courts adopted a rule of no liability for pollution damage.
Two other results are possible. The entitlement held by the polluter or by the neighbors
might be protected only by a "liability" rule, which is the case when one of the parties in conflict
can purchase the entitlement at an objectively determined price. This rule corresponds to the
imposition of damages by a court. Boomer is an example of an entitlement in the plaintiffs
protected by a liability rule--defendant polluter can continue operations as long as damages are
paid in satisfaction of the entitlement.
The fourth alternative, giving the polluter an entitlement protected by a liability rule, is
rarely recognized as a possibility. The leading nuisance case employing this approach, Spur
23
Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972), involved a conflict
between defendant's pre-existing cattle feedlot operation and plaintiff's residential subdivision,
which expanded towards the feedlot until the flies and odors drifting onto the development made
sale of more units impossible and provoked numerous complaints from existing residents. The
court found that the feedlot was an enjoinable nuisance, but held that because of the "coming to
the nuisance" aspect of the case, plaintiff developer would be required to indemnify defendant
Spur for the cost of "moving or shutting down." The court reasoned:
It does not seem harsh to require a developer, who has taken advantage of the lesser land
values in a rural area as well as the availability of large tracts of land on which to build
and develop a new town or city in the area, to indemnify those who are forced to leave as
a result.
The court emphasized, however, that:
this relief to Spur is limited to a case wherein a developer has, with foreseeability,
brought into a previously agricultural or industrial area the population which makes
necessary the granting of an injunction against a lawful business and for which the
business has no adequate relief.
Is the remedy accorded in Spur likely to be useful or applicable in many cases? Consider
that here the homeowners' individual interests were represented by the development company. If
an action were brought by an individual or by a class, how would compensation to the feedlot be
apportioned among all the homeowners affected? What about homeowners who failed to join in
the action?
What factors should be considered in deciding who gets an entitlement? In deciding
whether the entitlement should be protected by a property rule or a liability rule? See generally,
E. Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 Va.L.Rev. 1299 (1977);
Lewin, Compensated Injunctions and the Evolution of Nuisance Law, 71 Iowa L. Rev. 775
(1986).
15. Is it helpful to analyze these cases in terms of causal responsibility? See Epstein,
Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. Legal Stud. 49 (1979).
Contrast the following two views on assigning causal responsibility. Professor Fletcher,
in the 1972 article discussed at p. ___, supra, argues that a victim of harm
has a right to recover for injuries caused by a risk greater in degree and different in order
from those created by the victim and imposed on the defendant—in short, for injuries
resulting from nonreciprocal risks.
In Coase, The Problem of Social Cost, 3 J. of Law & Econ. 1 (1960), discussed at p. ___, supra,
the author challenges widely-accepted notions of causal direction:
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The question is commonly thought of as one in which A inflicts harm on B and what has
to be decided is: how should we restrain A? But this is wrong. We are dealing with a
problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The
real question that has to be decided is: should A be allowed to harm B or should B be
allowed to harm A? . . . [An] example is afforded by the problem of straying cattle
which destroy crops on neighboring land. If it is inevitable that some cattle will stray, an
increase in the supply of meat can only be obtained at the expense of a decrease in the
supply of crops. The nature of the choice is clear: meat or crops.
Is one of these formulations more helpful than the other in thinking about nuisance cases?
Do they address the issue of appropriate remedy as well as initial right (entitlement)? Does Spur
reflect the idea that the feedlot and the development impose reciprocal costs on each other?
16. In his article Coase goes on to argue that in the absence of transaction costs (i.e., costs
associated with striking a bargain) the rule of liability does not matter from an economic
efficiency standpoint. In a Boomer situation, if the polluter is liable he will invest more in
pollution control measures only when doing so is cheaper than paying damages or going out of
business. If the polluter is not liable, the victim will "bribe" him to invest in pollution control
equipment where doing so costs less than the damage the victim would otherwise suffer.
Whatever the liability rule, the choice between pollution control measures and victim harm will
result in precisely the same amount of resources being invested in elimination of the harm—
although, of course, the distributional consequences will differ.
Since there are almost invariably transaction costs—consider the costs of getting the
parties together in Boomer, and the potential "holdout" problems if a "property" rule (injunctive
relief) were granted—the rights and remedies recognized by nuisance law do generally make a
considerable difference. The economic consequences under various assumptions about
bargaining behavior are systematically explored in Polinsky, Resolving Nuisance Disputes: The
Simple Economics of Injunctive and Damage Remedies, 32 Stan.L.Rev. 1075 (1980).
17. In the Union Bag case, cited in Boomer, the plaintiff's harm was assessed at $100 per
year. Plaintiff enforced his injunction and the mill, which represented an investment of
$1,000,000, was permanently closed. Why was the pre-Boomer New York rule on injunctive
relief on its face so favorable to plaintiffs? Did it embody a distinctive view about property
rights in land? Is the majority in Boomer correct in its assertion that the court's essential function
is to decide "the rights of the parties before it"? Does the dissent disagree?
18. One legislative remedy available in New York against air pollution was Public Health
Law §§ 1264-98, establishing an administrative body to determine standards for pollution and to
promulgate regulations accordingly. The Commissioner of Health was to investigate and
determine violations. His conclusions were subject to administrative and judicial review.
Failure to take corrective action subjected the offender to penalties not to exceed $1,000 plus
$200 for each day of continued violation. The Commissioner could also seek an injunction. The
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act expressly stated that it was supplementary to any other existing remedies, but at the same
time provided that the rules and regulations promulgated under the statute were "not intended to
create in any way new or enlarged rights or to enlarge existing rights." Any determination by the
Commissioner that pollution existed or that a regulation had been violated "shall not create by
reason thereof any presumption of law or finding of fact which shall inure to or be for the benefit
of any person other than the state." New York had also entered interstate compacts to combat
water and air pollution. (N.Y. Public Health Law §§ 1299-1299s.) Does the existence of these
procedures affect your views of the majority decision?
19. Intersection with environmental regulatory schemes. Since 1970, the federal
government has assumed a major presence in the field of regulatory control of environmental
pollution. A wide variety of statutory schemes have been enacted in an effort to develop a more
comprehensive approach to many of the environmental harms associated with air and water
pollution, hazardous wastes, and toxic substances (among others). For the most part, these
enactments have not been interpreted as preempting private nuisance actions under state common
law, but there are exceptions. In International Paper Co. v. Ouellette, 479 U.S. 481 (1987), for
example, the Supreme Court held that the Clean Water Act preempts state nuisance law when
applied to an out-of-state source.
At the state level, most states have enacted pollution control statutes that either
specifically preserve nuisance actions or have been interpreted by the courts to preserve such
actions. As in the federal system, however, there are exceptions. In San Diego Gas & Electric
Co. v. Superior Court, discussed at p. ___ supra, on the trespass claim, in which a group of
homeowners alleged that electric and magnetic fields (EMF) emitted from the utility’s electric
power lines had caused them emotional distress, made their homes uninhabitable, and destroyed
the market value of their homes, the court rejected their private nuisance action, holding that an
award of damages would impermissibly interfere with the Public Utility Commission's policy on
power-line electric and magnetic fields. Recall the discussion of the preemption defense at p.
___, supra. Is there reason to think it would play out differently in the nuisance context? For an
overview of the preemption issue and an argument that nuisance law should be retained as a
supplemental remedy rather than being preempted by pollution control statutes, see Heimert,
Keeping Pigs Out Of Parlors: Using Nuisance Law To Affect The Location Of Pollution, 27
Envtl. L. 403 (1997).
Conversely, consider the prospect of nuisance law being used to enforce regulations.
See, e.g., Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496 (5th Cir.1999), cert. denied
Kansas City Southern Ry. Co. v. Rushing, 120 S.Ct. 1171 (2000) (holding, among other things,
that a plaintiff pressing a common-law private nuisance claim, asserted under Mississippi law
against a railroad in connection with alleged excessive noise and vibration from its switching
yard operations, could not seek to enforce noise limits stricter than those set forth in regulations
implementing the federal Noise Control Act of 1978--but that such an action could be used to
enforce the statutory limits.)
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Although the regulatory approach to environmental pollution cannot be explored in a
Torts course, it is important to be aware of the fact that a distinctly different way of dealing with
health and safety issues does exist—an approach that has its counterpart in other areas, such as
regulation of product safety, occupational safety, and motor vehicle safety.
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