*1
rehearing
petition
denied
July 29,
Argued
11, affirmed
March
denied, United States
18, 1959, certiorari
November
Supreme
Court March
METALS
REYNOLDS
et ux MARTIN
COMPANY
Before McAllister, J., C. Lusk, Warner, Perry, and Millard, Justices. Sloan, O’Connell J. O’CONNELL,
This is action of The plaintiffs allege from during period August 22,1951 to January 1,1956 the in the defendant, operation of its aluminum reduction near plant Oregon caused Troutdale, certain fluoride in the form of compounds gases and particu- lates become and settle airborne plaintiffs’ land it rendering for livestock raising during that unfit
period. allege poisoned Plaintiffs that their cattle were by ingesting forage the fluorides which contaminate the They damages sought and water on land. in the their amount for loss use their land of of $450,000 grazing purposes of the for and for the deterioration through growth re- land trees and weeds brush, grazing sulting premises the lack of for use damages plaintiffs sought punitive purposes. The also in the amount $30,000. plaintiffs each
The and the defendant moved for whereupon the trial court found that verdict, directed plaintiffs damage in amount had suffered use their land and $20,000 in the loss of $71,500 judgment land the deterioration of their and entered rejected plaintiffs’ accordingly. trial court damages. punitive claim for pleadings In the course of the the defendant raised complaint alleged a issue to whether the cause *3 trespass. action in The defendant contended of cause action in nuisance was stated. The at most a theory accepted the court the case. trial upon principal assignments rest of error the de- The the trial court was mistaken contention that fendant’s plain- identifying the defendant’s invasion of trespass; was not sufficient land as a that there tiffs’ any a action under cause of to establish evidence theory, find the evidence that if the court should but liability give to con- rise the defendant’s to sufficient and not a a nuisance constituted duct Through appropriate pleadings the defendant set applicable two-year up of limitations to statute (ORS 12.110). injuries nontrespassory land If a a nuisance and not created tres- conduct defendant’s only liable for such pass would be dam- the defendant during period a conduct age from its as resulted years immediately preceding two the date plaintiffs’ action was instituted. the other hand, On a if the defendant’s conduct resulted in six-year plaintiffs’ pro- land statute of limitations applicable plain- vided for in 12.080 and OES would he damages resulting tiffs would be entitled to recover trespasses by during period from the defendant August January from 22,1951 1,1956. gist argument of the defendant’s is as follows; only “breaking arises when there has been entering upon constituting property,”
and real a direct, distinguished consequential, invasion of the settling upon interest in land; and the compounds consisting gases, land of fluoride fumes particulates satisfy is not sufficient to these re- quirements. appraising argument
Before we shall first de- particularly scribe more and chemical deposited upon nature of the substance which was plaintiffs’ reducing (the land. In alumina oxide of aluminum) subjected to aluminum the alumina is electrolytic process which causes the emanation of compounds consisting principally hydrogen fluoridie calcium iron fluoride, fluoride and silicon fluoride, particulates tetrafluoride. The individual which form compounds these chemical are not visible to the naked captured eye. part A of them were a fume collection system which was installed November, 1950; part uncap- remainder became airborne and of eventually deposited particles upon plain- tured were tiffs’ land. *4 prove during period to that
There is evidence the January, August, the 1951 1956 emanation of plant averaged approxi- defendant’s fluorides from daily. mately pounds discharge of this Some was deposited upon plaintiffs’ land. There is the sufficient finding support the the trial evidence court’s upon quantity deposited plaintiffs’ land of fluorides plain- great enough damage to was to cause the $91,500 grazing purposes and tiffs in the use their land for of alleged. of land as in the deterioration their only all must whether or determine, however, damage We may part a if the invasion all, of this be shown; only damage part (i.e., a the a constitutes two-year period of the statute which resulted within limitations) and not was a nuisance of if invasion trespass. a private separate
Trespass are nuisance liability relating interfer tort to actionable fields may They possession land. be distin ence with guished comparing an action invaded; the interest possessor’s in the exclusive of a able invasion trespass; possession invasion of land is actionable enjoyment interest in the use and Intro. is a Torts Eestatement, his land nuisance. Chapter Note 40. part
The same conduct on the of a defendant both and often does result the actionable invasion of of these which case choice between interests, most a matter of little conse- two remedies cases, is, brought theory quence. the action is on the Where ordinarily alone court is not called nuisance also result in the conduct would determine whether trespassory treat- In such cases courts’ invasion. solely the law of nuis- in terms of ment of the invasion not that the same conduct could mean ance does regarded of the cases Some also be type; are of this cases in defendant relied that the interference with court holds through possession soot, cinders, dirt, smoke,
91
ashes
similar substances constitute a
but
nuisance,
applicability
where the court
not
does
discuss the
the law of
to the
same set
facts. York v.
Stallings,
Lindley
Hy-
217
341
v.
13,
Or
P2d 529;
(1943);
173
P2d
land,
93, 144
Or
295
Bourne v. Wilson-
(1911);
Case Lumber Co., 58
52
48, 113
Or
P
Columbian
(1947) (Tex
Co. v.
Carbon
Tholen,
However,
cases which have held that the
plaintiff’s possession
defendant’s interference with
re
sulting
settling upon
from the
his land of effluents
emanating
operations
exclusively
from defendant’s
nontrespassory. Bartlett v. Grasselli Chemical
92
Co.,
(1922);
W Va
v.
et
94
A
Williams,
377, 109
Conn
al,
Ambridge
gun
land);
npon
District
an air
fell
Peters v.
(shot
(Penn 1952)
Sportsmen’s Assn., 14 Beaver 99
shotguns
upon land);
v. Philadel
fell
DiGirolamo
(1952) (same)
phia
Club,
;
A2d
371 Pa
89
357
40,
Gun
Stangvick
al.,
et
Minn
111 NW
Whittaker
(1907) (same);
Sutherland,
Herrin v.
The a Van land has been held be Telephone Corp., Alstyne 163 258, v. Rochester Misc Supp held liable 296 NY 726. And defendant was cooling spray trespass a tower on the in from where plaintiff’s land. B & R roof theater fell of its Corp., App Theatre 278 Luncheonette, Inc. v. Fairmont Supp2d Div NY 747. 133, 103 deposit of soot and carbon defendant’s trespass upon plaintiff’s land was held in mill Paper Young Pulp Co., v. and Ont Fort Frances 17 (Canada 1919). Wkly 6 *7 requirement trespass ties into the that a can result only from a age direct invasion. But in this atomic great even the uneducated know the and awful force contained the atom and what it can do to a man’s property if it is released. In fact, now famous = equation taught E me2 energy has us that mass and equivalents concept are “things” and that our of must be reframed. If these on observations science in rela trespass appear tion to the law of should theoretical they very practical and unreal in the become abstract, possessor and real to the of land when the unseen force just cracks of the foundation Ms house. The force is as real if it is chemical in nature and must be awakened
by agency the intervention of another before it does harm.
If, we must look then, to the character of the instru- mentality making which is used in an intrusion prefer emphasize object’s another’s land we energy or force rather than its size. in this Viewed way may any we define as intrusion which possessor’s protected invades the interest exclusive possession, whether that intrusion is visible or in- pieces by energy visible of matter or which can be only by language measured the mathematical of the physicist. opinion,
We are of the that the intru therefore, particulates present sion of the fluoride in the case constituted a argues Amphi-
The defendant that our decision in theaters, Inc. v. Portland Meadows, 184 Or 336, (1948) requires contrary P2d 847 conclusion. In dis- cussing the distinction between and nuisance the court referred to a difference between “a cannon ray light” indicating ball and a of that the former but produce trespassory not the latter could invasion. suggestion The court also said “The mere that the cast- light upon premises ing plaintiff of a would proof any render a defendant liable without actual damage, carries its own refutation.” 184 343. Or regard pronouncement not this statement as a do We trespass can never be that caused the intrusion rays intangible light properly or other more forces; may interpreted stating that the case the conduct particular in a the defendant case be ac- legally protected it does not violate tionable if plaintiff. The court states that the defendant proof damage. actual without In not liable plaintiff that he had contended suffered dam- case *8 age in the form of less efficient cinema screen due to lights. denying recovery the defendant’s In the court damage, apparently found that there was no because plaintiff damnum whatever harm the suffered was injuria. absque every alleged
In case in which the court presented problem deciding with a whether the legally protected defendant’s intrusion violated a has plaintiff. interest of the In most cases the defendant’s clearly posses- conduct so invades the well established sory plaintiff interest of the that no discussion of the point is called for. But where neither the defendant’s conduct nor the fall familiar use within trespass pattern past of the the courts are faced with preliminary inquiry plaintiff as to whether the has protectible interest under the law of This inquiry in turn for the as to calls whether the defend- was such as to ant’s conduct constitute an invasion of that interest. some
In cases the solution can be based ground that the defendant’s conduct is not substantial regarded trespassory enough to be as a intrusion. Thus, casting of a beam candle screen of a drive- would not constitute an in theater actionable invasion, trifling simply intrusion because the is so that the law principle it and the will not consider de minimis non applicable. may In some cases curat lex is the solution by admitting at be arrived intrusion is sub- refusing recognize plaintiff but stantial has a particular protected legally possessory interest in the particular against conduct use defendant. lights upon glare adjoining flood so the And Amphitheater as in screen, cinema owner’s case, not because not be intrusion is protect trifling, the law does not wish to but because *9 sucia a use from an whether invasion, the cause of the interference be viewed aas intrusion or aas nontrespassory act and covered the law of nuisance. Amphitheaters explained
The case can be in terms point glare this latter of view, that the i.e., of de- lights regarded fendant’s could be as an intrusion trespass, plaintiff within the law of but that the had right no to treat the intrusion as actionable in view of plaintiff’s the nature of use and the manner in which the defendant interfered with it. Had the defendant purposely, legitimate and not as an incidence of his own rays light against plaintiff’s use, directed the might position screen the court well have taken the plaintiff trespass could have recovered in a action. These illustrations demonstrate that the tort of tres- pass weighing process, a involves similar to that in- although in volved the law of nuisance, to a more pur- limited extent than in nuisance and for different pose, possessor’s in the one i.e., case to define the possession, interest and in the other to exclusive. possessor’s enjoyment. define the interest in use and normally inquiry As stated earlier, no is made in trespass plaintiff’s cases as to whether the interest making particular property use of his is within protection provided for under the law traditionally regarded because the interest has been clearly protection entitled to trespass as one in adjudicated There are cases field. which have refused trespass clearly where the to find intrusion is estab the court but where has felt that lished protected. not be interest should Thus it has been held flight plaintiff’s aircraft over the surface of not constitute land does unless the intrusion present enjoyment property. interferes Transport, (9th Air F2d Hinman Cir. Pacific 1936). if the The result would seem to follow same present land with the use intrusion interfered legal protection but where such use was not entitled to socially against conduct of the de- desirable apparent that the law of fendant. Here it is very merging. come close to and the law of nuisance inquiry whether is made as to is so because when This plaintiff’s tres- within the ambit of interest falls pass interference with look at the law the courts enjoyment to determine of his land use and possession should exclusive whether his protected coalesce. the two torts and thus Amphitheater as a also be viewed case *10 pronouncement is not in a that trifling by that it can so an intrusion which is vaded recognized it is not Inasmuch as the law. not be necessary mag damage prove actual any ordinarily not would be intrusion nitude of the entry point is consequence. where the But there is recog lacking law will refuse to in substance so applying lex. de minimis non curat the maxim nize it, casting ordinarily that clear it would seem Thus upon not be grain land would another’s of sand of a casting light of diffused trespass. too the And so ordinarily rays upon consti land would another’s rays Conceivably could be so such tute entry upon possessor’s land their concentrated appropriate trespassory An invasion. ain result would Mississippi River found in Watson illustration (1916) NW 191 23, 32, 174 Iowa Co., Power said: court where * “* * person example, him- interests If, experimenting phenomena, while and, in solar self accidentally sunglass, he focuses powerful awith material on inflammable some instrument the the starting neighbor, a blaze nextdoor his lot of injury which results in and loss to the can latter, it be said there was no no actual invasion neighbor’s premises?” of the light But plaintiff’s premises where the is cast in a damage manner which does no actual or causes any way legitimate no interference in with a use of the premises recognizing then there is no reason for an plaintiff’s possessory invasion of the interest. Note (1949). again important LHarv Bev 704 Here it is point composed out that the tort of components (including which include the character magnitude) causing of the defendant’s conduct in (including magnitude) intrusion and the character plaintiff interfering the harm visited on the possession premises. his interest in the exclusive of the Consequently question ray light as to whether a any or other intrusion is so unsubstantial that it is to disregarded principle under the de minimis cannot solely standpoint at be looked from the of the defend- ant’s but it must conduct, be evaluated with reference to the nature of the interest. The broader possessor’s protectible and more diverse the interests they the more sensitive are to violation the defend- ant and the easier it is find although that his conduct, apparently inconsequential, gives liability. rise to scope possessor’s legitimate interest in the ex- *11 possession clusive of land-is broad and difficult to specifically. recognizing define Once that actual dam- age making not be shown in need out an actionable right the invasion, insist freedom possession interference his seems almost limitless. they only there are limits and can
But be if found, protecting vaguely, possessory in the reasons the damage landholder where no of the actual interest is plaintiff is that It is sometimes said suffered. prevent permitted loss of to recover in order by running statute of limitations. of the p Harper § 26; 25 and Whittaker James, 1.8, & Torts, Laraway, Bragg Stangvick, supra; 65 Vt 673, v. respectable (1893). reason this is not 27 A 492 But by inapplicable hold made because the statute could be in ing harmless arose for the no cause of action trespass can understood modern law of vasion. The background. against only its historical it is seen as including trespass types Originally all punishable law because the criminal under were land, regarded trespasser’s a breach of conduct was aspect peace. of tres and civil the criminal When pass separated, action for was civil were peace past, and the idea colored community its trespasser’s put danger con was of the ideas of the character the courts’ duct influenced granted plaintiff to the relief was tort. Therefore, damaged, partly actually at least as he was where disruptive discouraging influences in the a means of (4th ed) p expresses community. on Torts Winfield as follows: the idea harsh, face of looks but tres- it, on the law, “The likely times to lead to a breach
pass in earlier was so unwitting peace and trivial devia- that even person’s land were reckoned un- to another on tions day present much is, course, there At the respect lawful. apprecia- general law greater for the security and the theo- affords, it tion severity to land rules as retical practice.” exploited hardly ever Harper expressed similarly in 1 James, & idea p § 25: 1.8, Torts, emphasis placed early was law, “In the trespasses, aspect- as breach of of willful
criminal *12 peace -wrong Compensation the the aor to the state. injured regarded secondary- victim was as of importance. It came that the about, therefore, rule developed plaintiff might recover nominal though damages ary pecuni- even he sustained no actual trespass.”
loss as a result of the
part
If
we find
then,
that an act on the
of the defend
interfering
plaintiff’s
ant
possession,
in
with the
does,
likely
arousing
or is
result
conflict between them,
that act will characterize the tort as a
assum
ing of course that the other elements of the tort are
importance
made out. The
of this consideration in de
scribing
many
to land is evident in
modern cases. Fincannon v.
144 N
Sudderth,
C 587,
(1907); Bragg
Laraway, supra;
Probably important the most factor which describes protected the nature of the interest trespass under the law of nothing feeling pos- more than a which a respect sessor has with to land which he holds. It is a ownership; feeling sense that what one owns or possesses should not be interfered and that with, it is protection through being entitled to law. This nature of it is interest, understandable why damage ingredient actual not an essential pointed Harper the law of As out in 1 & p § permitting recovery the rule James, Torts, 1.8, 26, spite damages probably absence actual “is vindictatory justified right protect posses- as a dignitary proprietary or sor’s in his land.” that a think We interest in land as de- by may, the considerations fined recited above under appropriate by ray circumstances, violated particle, by light, particulate or atomic if- contrariwise, such and, fluoride interest circum- scribed these is not or en- considerations violated dangered, though defendant’s it conduct, even result in a will not render him liable intrusion, *13 trespass. Amphitheaters, v. Port- in an action of Inc. supra. land Meadows, causing
We hold that the defendant’s conduct in deposited plaintiffs’ chemical substances to be the requirements land fulfilled all of the under the law of trespass. that will contends not
The defendant injury lie in was indirect and con this case because the injury sequential requirement and that the must and be direct immediate constitute deposit par was not met. We have held that the the plaintiff’s upon the land ticulates was an intrusion trespass. within the definition of That intrusion was damages direct. The which flowed from it are conse quential, consequen but it is well that established such damage proven tial in an action of Alstyne Telephone Corp., supra; Van Rochester ed) § (2d p Torts, Restatement, 163; Prosser, Torts 57. The distinction between and direct indirect invasions where there has been a intrusion land has been abandoned some courts. (2d ed) p Torts 1 56; See Prosser, Restatement, Torts, § h. Since the invasion in the 158, Comment instant necessary case was it direct for tous decide recognized whether distinction is this state. court that The trial found the fluoride com pounds plant emitted the defendant’s between August January plain and 1, 1956 rendered drinking tiffs’ land and water on the unfit land grazing consumption livestock thereon. The defend that ant there is contends no substantial evidence to finding. support support In this of this contention the points the fume con- to the effectiveness of defendant system prior in 1950 to Au- trol which was installed during gust beginning period 22,1951, alleged damage plaintiffs occurred. The that conflicting evidence is but there is substantial evidence from which the trial court could have connected the damage alleged. emanation of the fluorides finding. trial We disturb the court’s cannot, therefore, urged failing It is also trial court erred special finding requested by enter a the defendant. finding requested in effect that it was im- stated possible operation in the of an aluminum reduction plant capture all fluorides which are created in the system manufacturing process; that the fume collection during period question; operation was in systems it the most efficient of the known in that was plants in the aluminum reduction United States. *14 argued that since the trial court elected It is special general findings than enter rather it was re findings quired to enter on all 17.430 material ORS it is would include the issue de claimed, issues which, findings. complaint alleged requested The fined in the “carelessly, wantonly willfully defendant plant continuously from emitted,” caused to be its allegation compounds. poisonous was This denied in The issue thus as to raised, answer. the defendant’s making conduct the intru defendant’s character of only upon plaintiffs’ be material would land, sion damages punitive respect which, claim to the rejected by already was the trial indicated, have we that the intrusion this case we hold court. Since trespass it immaterial whether the de constituted wanton and willful or careless, was conduct fendant’s entirely Therefore, fault. refusal free finding requested not error. enter judgment the lower court is affirmed. Mc ALLIS TER, C.J., specially concurring.
I concur in the result of the above opinion but dis
sent from that portion thereof that attempts to recon
cile the
holding
this ease with the
in the
holding
case of Amphitheaters,
Inc. v. Portland Meadows, Or
P2d
336, 198
847.
Notes
theory
liability
on
has been
And
produced by
recognized
the vibra
where the harm was
air
which,
tion of the soil or
the concussion
nothing
than
movement of mole
more
course,
Redington,
against
v.
67
the other. McNeill
cules one
Liability
(1945).
App2d
on this