Borland v. Sanders Lead Co., Inc.

• Decision Date: 09 February 1979
• Citation: 369 So.2d 523
• Parties: , 2 A.L.R.4th 1042, 15 Envtl. L. Rep. 20,934 J. H. BORLAND, Sr. and Sarah M. Borland v. SANDERS LEAD COMPANY, INC., a corporation. 77-283.
• Court: Alabama Supreme Court

Page 523

369 So.2d 523

12 ERC 2017, 2 A.L.R.4th 1042, 15 Envtl. L. Rep. 20,934

J. H. BORLAND, Sr. and Sarah M. Borland v. SANDERS LEAD COMPANY, INC., a corporation.

77-283.

Supreme Court of Alabama.

Feb. 9, 1979.

Rehearing Denied April 6, 1979.

Jack Crenshaw of Crenshaw, Minor & Carr, Montgomery, for appellants.

N. J. Cervera of Cervera & Yancey, and Oliver W. Brantley of Brantley & Calhoun, Troy, for appellee.

JONES, Justice.

This appeal involves the right of a property owner, in an action for trespass, to recover damages for pollution of his property. The case was tried Ore tenus to the trial Judge without a jury, and judgment was rendered for the Defendant. We reverse and remand for a new trial.

J. H. Borland, Sr., and Sarah M. Borland, Appellants, own approximately 159 acres of land, located just south of Troy, Alabama, on Henderson Road. On this property, Appellants raise cattle, grow several different crops, and have a large pecan orchard.

In 1968, the Appellee, Sanders Lead Company, started an operation for the recovery of lead from used automobile batteries. This operation is conducted on property just east of the Borlands' property across Henderson Road. The Appellee's smelter was placed on the west edge of their property, that part nearest to the Appellants' property. The smelter is used to reduce the plates from used automobile batteries. It is alleged by Appellants that the smelting process results in the emission of lead particulates and sulfoxide gases.

It is undisputed that Appellee installed a filter system, commonly known as a "bag house," to intercept these lead particulates which otherwise would be emitted into the atmosphere. The "bag house" is a building containing fiber bags. The smoke emitting from the furnace is passed through two cooling systems before passing through the "bag house" so that the fiber bags will not catch fire. If properly installed and used, an efficient "bag house" will recover over 99% Of the lead emitted. On two occasions, the cooling system at Appellee's smeltering plant has failed to function properly, resulting in the "bag house's" catching fire on both occasions. There is a dispute as to the efficiency of Appellee's "bag house" throughout its operation.

Appellants allege that, because of the problems with the "bag house," their property has been damaged by a dangerous accumulation of lead particulates and sulfoxide deposits on their property.

Admittedly, this is an Ore tenus case and the law is well settled that, in such cases, this Court is precluded from altering a lower court's findings unless those findings are clearly erroneous. Donnelly v. Doak, 346 So.2d 414 (Ala.1977). It is equally true, however, that this rule has never precluded this Court from reversing a case where the trial court erroneously applies the principles of law involved. Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970); St. Clair Industries, Inc. v. Harmon's Pipe & Fitting Co., 282 Ala. 466, 213 So.2d 201 (1968).

As stated by the Court of Civil Appeals in the very recent case of Alabama Farm Bureau Mutual Ins. Co., Inc. v. Davis, 354 So.2d 15 (Ala.Civ.App.1978):

"(I)n cases of this nature there is a presumption in favor of findings of fact made by the trial court since it hears the disputed evidence ore tenus. This presumption precludes our reversal of the trial court's judgment unless it is determined to be plainly and palpably wrong. . . . (T)his presumption is not applicable in situations where the trial judge takes an erroneous view of the law as applied to the facts . . . ." (Emphasis added.)

It is our opinion that the trial Judge has misapplied the law in this case.

In the trial Court's final decree, it is stated:

"Any court Is bound by the applicable laws in any case. In any society operating under manmade Law there is inherent the possibility that The law will provide no appropriate remedy for grievances no matter how strongly the equitable conscience of the court and/or a community may feel the need for action." (Emphasis in the original.)

Furthermore, the trial Court held:

"It is the opinion of the court that the plaintiffs not recover of the defendant. The court would comment that there is ample evidence (even from the testimony of plaintiff, J. H. Borland) that his land is significantly increased in value due to its proximity to the lead plant and has a much higher value as commercial property rather than residential or farm property . . . ."

It is apparent from a further reading of the final decree that the trial Court was under the mistaken impression that compliance with the Alabama Air Pollution Control Act shielded the Defendant from liability for damages caused by pollutants emitting from its smelter. This is not the law in this State. Furthermore, the trial Court incorrectly applied the law of this State in concluding that, because there was evidence showing that the Plaintiffs' farm had increased in value as industrial property, due to its proximity to the lead plant, Plaintiffs could not recover of the Defendant. Such a rule, in effect, would permit private condemnation, which, unquestionably, is impermissible. A discussion of the applicable rule of damages appears later in this opinion.

The Alabama Air Pollution Control Act is codified at § 22-28-1, Et seq., Alabama Code 1975. § 22-28-23, Alabama Code 1975, specifically provides:

(N)othing in this section shall be construed to limit or abrogate any private remedies now available to any person for the alleviation, abatement, control, correction or prevention of air pollution Or restitution for damage resulting therefrom. (Emphasis added.)

Alabama law clearly provides an appropriate remedy for Plaintiffs who have been directly injured by the deleterious effects of pollutants created by another party's acts.

In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974), this Court held, in a case of first impression, that a trespass need not be inflicted directly on another's realty, but may be committed by discharging foreign polluting matter at a point beyond the boundary of such realty. Rushing specifically held that a trespass is committed by one who knowingly discharges asphalt in such a manner that it will in due course invade a neighbor's realty and cause harm.

In Rushing, this Court cited with approval Restatement, Second, Torts, § 158, and particularly emphasized a portion of the Comments under this section, which recites:

" 'In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in entry of foreign matters.' "

Rushing further cited with approval the case of Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790, cert. denied, 362 U.S. 918, 80 S.Ct. 672, 4 L.Ed.2d 739 (1959). In Martin, a case remarkably similar to the present case, the Plaintiffs sought recovery from the Defendant, aluminum company, for trespass. The Plaintiffs in Martin alleged that the operation by Defendants of an aluminum reduction plant caused certain fluoride compounds in the form of gases and particulates, invisible to the naked eye, to become airborne and settle on Plaintiffs' property, rendering it unfit for raising livestock. Plaintiffs in the present case allege that the operation of Defendant's lead reduction plant causes an emission of lead particulates, and SO 2, invisible to the naked eye, which emissions have settled on their property, making it unsuitable for raising cattle or growing crops.

The Defendants in Martin contended that there had not been a sufficient invasion of Plaintiffs' property to constitute trespass, but, at most, Defendant's acts constituted a nuisance. This would have allowed the Defendants to set up Oregon's two-year statute of limitations applicable to non-possessory injuries to land rather than Oregon's six-year statute for trespass to land.

The Martin Court pointed out that trespass and nuisance are separate torts for the protection of different interests invaded trespass protecting the possessor's interest in exclusive possession of property and nuisance protecting the interest in use and enjoyment. The Court noted, and we agree, that the same conduct on the part of a defendant may, and often does, result in the actionable invasion of both interests.

The confusion surrounding trespass and nuisance is due in a large part to the influence of common law forms of action. The modern action for trespass to land stemmed inexorably from the common law action for trespass which lay when the injury was both direct and substantial. Nuisance, on the other hand, would lie when injuries were indirect and less substantial. See Winfield, Nuisance as a Tort, 4 Camb.L.J., 189, 201-06 (1931). A fictitious "dimensional" test arose, which obviated the necessity of determining whether the intrusion was "direct" and "substantial." If the intruding agent could be seen by the naked eye, the intrusion was considered a trespass. If the agent could not be seen, it was considered indirect and less substantial, hence, a nuisance. See, e. g., 1 Harper & James, Torts, § 1.23 (1946) (where the dimensional or the tangible/intangible test is included in an earlier definition of trespass and nuisance).

In Martin v. Reynolds, supra, the Court stated:

". . . 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."

The Martin Court rejected the dimensional test and substituted in its place a force and energy test, stating:

"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...