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.]


            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.