Martin v. Reynolds Metals Co.

• Decision Date: 29 July 1959
• Citation: 221 Or. 86,342 P.2d 790
• Parties: Paul MARTIN and Verla Martin, Respondents, v. REYNOLDS METALS COMPANY, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 790

342 P.2d 790

221 Or. 86

Paul MARTIN and Verla Martin, Respondents, v. REYNOLDS METALS COMPANY, a corporation, Appellant.

Supreme Court of Oregon, In Banc.

Argued March 11, 1959.

Decided July 29, 1959.

Fredric A. Yerke, Jr., Portland, argued the cause for appellant. With him on the brief were King, Miller, Anderson, Nash & Yerke, Clifford N. Carlsen, Jr., Portland, Gustav B. Margraf, and W. Tobin Lennon, Richmond.

George W. Mead, Portland, and Irving Rand, Portland, argued the cause for respondents.

Before McALLISTER, C. J., and LUSK, WARNER, PERRY, SLOAN, O'CONNELL and MILLARD, JJ.

O'CONNELL, Justice.

This is an action of trespass. The plaintiffs allege that during the period from August 22, 1951 to January 1, 1956 the defendant, in the operation of its aluminum reduction plant near Troutdale, Oregon caused certain fluoride compounds in the form of gases and particulates to become airborne and settle upon the plaintiffs' land rendering it unfit for raising livestock during that period. Plaintiffs allege that their cattle were poisoned by ingesting the fluorides which contaminate the forage and water on their land. They sought damages in the amount of $450,000 for the loss of use of their land for grazing purposes and for the deterioration of the land through the growth of brush, trees and weeds resulting from the lack of use of the premises for grazing purposes. The plaintiffs also sought punitive damages in the amount of $30,000.

The plaintiffs and the defendant each moved for a directed verdict, whereupon the trial court found that the plaintiffs had suffered damage in the amount of $71,500 in the loss of use of their land and $20,000 for the deterioration of their land and entered judgment accordingly. The trial court rejected the plaintiffs' claim for punitive damages.

In the course of the pleadings the defendant raised the issue as to whether the complaint alleged a cause of action in trespass. The defendant contended that at most a cause of action in nuisance was stated. The trial court accepted the plaintiff's theory of the case. The principal assignments of error rest upon the defendant's contention that the trial court was mistaken in identifying the defendant's invasion of the plaintiffs' land as a trespass; that there was not sufficient evidence to establish a cause of action under any theory, but that if the court should find the evidence sufficient to give rise to liability the defendant's conduct constituted a nuisance and not a trespass.

Through appropriate pleadings the defendant set up the two-year statute of limitations applicable to nontrespassory injuries to land (ORS 12.110). If the defendant's conduct created a nuisance and not a trespass the defendant would be liable only for such damage as resulted from its conduct during a period of two years immediately preceding the date upon which plaintiffs' action was instituted. On the other hand, if the defendant's conduct resulted in a trespass upon plaintiffs' land the six-year statute of limitations provided for in ORS 12.080 would be applicable and plaintiffs would be entitled to recover damages resulting from the trespasses by defendant during the period from August 22, 1951 to January 1, 1956.

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.

There is evidence to prove that during the period from August, 1951, to January, 1956 the emanation of fluorides from defendant's plant averaged approximately 800 pounds daily. Some of this discharge was deposited upon the plaintiffs' land. There is sufficient evidence to support the trial court's finding that the quantity of fluorides deposited upon plaintiffs' land was great enough to cause $91,500 damage to the plaintiffs in the use of their land for grazing purposes and in the deterioration of their land as alleged.

We must determine, however, whether all or only a part of this damage may be shown; all, if the invasion constitutes a trespass, a part only (i. e., the damage which resulted within the two-year period of the statute of limitations) if the invasion was a nuisance and not a trespass.

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. 4 Restatement, Torts 224, Intro. Note Chapter 40.

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. York v. Stallings, Or.1959, 341 P.2d 529; Lindley v. Hyland, 1943, 173 Or. 93, 144 P.2d 295; Bourne v. Wilson-Case Lumber Co., 1911, 58 Or. 48, 113 P. 52; Columbian Carbon Co. v. Tholen, Tex.Civ.App.1947, 199 S.W.2d 825; Weller v. Snoqualmie Falls Lumber Co., 1930, 155 Wash. 526, 285 P. 446; Sterrett v. Northport Mining & Smelting Co., 1902, 30 Wash. 164, 70 P. 266.

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. Bartlett v. Grasselli Chemical Co., 1922, 92 W.Va. 445, 115 S.E. 451, 27 A.L.R. 54; O'Neill v. San Pedro, L. A. & S. L. R. Co., 1911, 38 Utah 475, 114 P. 127; Thackery v. Union Portland Cement Co., 1924, 64 Utah 437, 231 P. 813; see Ryan v. City of Emmetsburg, 1942, 232 Iowa 600, 4 N.W.2d 435. 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.

Thus it has been held that causing shot from a gun to fall upon the possessor's land is a trespass. Munro v. Williams, 94 Conn. 377, 109 A. 129, 13 A.L.R. 508 (pellets from an air gun fell upon land); Peters v. Ambridge District Sportsmen's Ass'n, 1952, 14 Beaver, Pa., 99 (shot from shotguns fell upon land); DiGirolamo v. Philadelphia Gun Club, 1952, 371 Pa. 40, 89 A.2d 357 (same); Whittaker v. Stangvick, 1907, 100 Minn. 386, 111 N.W. 295, 10 L.R.A.,N.S., 921 (same); Herrin v. Sutherland, 1925, 74 Mont. 587, 241 P. 328, 42 A.L.R. 937 (shotgun shot passing over surface of land).

The dropping of particles of molten lead upon the plaintiff's land has been held to be a trespass. Van Alstyne v. Rochester Telephone Corp., 163 Misc. 258, 296 N.Y.S. 726. And the defendant was held liable in trespass where spray from a cooling tower on the roof of its theater fell upon the plaintiff's land. B & R Luncheonette, Inc. v. Fairmont Theatre Corp., 278 App.Div. 133, 103 N.Y.S.2d 747.

The deposit of soot and carbon from defendant's mill upon plaintiff's land was held to be a trespass in Young v. Fort Frances Pulp and Paper Co., Canada 1919, 17 Ont. Wkly. Notes 6.

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. McNeill v. Redington, 1945, 67 Cal.App.2d 315, 154 P.2d 428. Liability on this basis was clearly recognized in Bedell v. Goulter, 1953, 199 Or. 344, 361, 261 P.2d 842, 850, where Justice Lusk, after discussing the rule of Rylands v. Fletcher, LR 3 HL 330, continued with the following observation:

'* * * And there is slight difficulty in holding that one who engages in blasting operations which set in...