Jacques v. Pioneer Plastics, Inc.

• Decision Date: 24 May 1996
• Docket Number: Docket No. A,No. 7675,7675
• Citation: 676 A.2d 504
• Parties: Roger JACQUES et al. v. PIONEER PLASTICS, INC. and Sterling Engineered Products, Inc. DecisionLawnd 95 475.
• Court: Maine Supreme Court

Page 504

676 A.2d 504

43 ERC 1348

Roger JACQUES et al. v. PIONEER PLASTICS, INC. and Sterling Engineered Products, Inc.

Decision No. 7675.

Law Docket No. And 95 475.

Supreme Judicial Court of Maine.

Argued Feb. 6, 1996.

Decided May 24, 1996.

Paul F. Macri, (orally), John E. Sedgewick, Berman & Simmons, P.A., Lewiston, for Plaintiffs.

Richard L. Suter (orally), Preti, Flaherty, Beliveau & Pachios, Portland, for Defendants.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and DANA, JJ.

DANA, Justice.

Roger Jacques and Janine Jacques appeal from the entry of a summary judgment in the Superior Court (Androscoggin County, Fritzsche, J.) in favor of defendants Pioneer Plastics, Inc. and Sterling Engineered Products, Inc. On appeal the Jacques argue that their action for trespass and nuisance is not barred by the statute of limitations because a genuine issue of material fact has been raised whether environmental contaminants dumped by the defendants' predecessor constitute a continuing trespass and/or nuisance. ¹ The plaintiffs also argue that the court erred in granting the defendants' motion to quash a subpoena duces tecum and for a protective order that prohibits the plaintiffs from deposing engineers hired by the defendants. We agree that a genuine issue of material fact has been raised whether the contaminants on the plaintiffs' land are a continuing trespass or nuisance and vacate the judgment.

In approximately 1976 the plaintiffs purchased a lot of land in Auburn (lot A) abutting the land now owned by Pioneer and previously owned by Sterling. Lot A was a wooded lot with no improvements, accessed via a "farming only" entrance that permitted access to Washington Street, a limited access highway. Roger Jacques cleared the lot and desired to subdivide it. In 1980 he was informed by the City of Auburn that he would not be permitted to do so until he obtained alternate access to the property. The plaintiffs then purchased for $500 an approximately sixty-foot wide, three thousand-foot long, piece of property (lot B) connecting lot A and Rodman Road. Prior to purchasing lot B Roger Jacques walked the property and saw a six hundred-foot long mound of sand, a portion of which was on lot B. At the time he thought he would be able to use the sand for his intended road. Roger began clearing lot B but was stopped by the Department of Environmental Protection because of its concern that all of its "test pipes" on lot B would be damaged. After three weeks the DEP allowed Roger to continue clearing, but when he attempted to move the sand with a bulldozer he was again told by the DEP to stop.

The sand area that is presently partly on the plaintiffs' land is a former lagoon dump site, into which liquid chemical wastes were deposited. It is undisputed that the two defendants in this case are among the responsible parties for the waste lagoon. ² The chemicals in the lagoon have been described by the DEP as dangerous to public health and in need of remediation. It is undisputed that all dumping ceased as of 1978.

The plaintiffs' amended complaint alleges that the dumped chemicals constitute a trespass and a nuisance. In addition to damages for the destruction of the fair market value of both lots A and B, the plaintiffs seek indemnification for any costs they may be subjected to as a result of the presence of hazardous materials on their property and an injunction forcing the defendants to remove such materials.

I.

A summary judgment is proper when the party that bears the burden of proof of an essential element at trial has presented evidence that, if it presented no more, would entitle the opposing party to a judgment as a matter of law. Guiggey v. Bombardier, 615 A.2d 1169, 1171 (Me.1992). In reviewing a grant of a summary judgment we view the evidence in the light most favorable to the party against whom a judgment has been granted, and review the trial court decision for errors of law. Casco N. Bank v. Estate of Grosse, 657 A.2d 778, 780 (Me.1995). We independently determine whether the record supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law. Id.

The statute of limitations for trespass and nuisance is six years. 14 M.R.S.A. § 752 (1980). Because it is undisputed that no dumping has occurred since 1978, the plaintiffs' claim may be maintained only if the materials on lot B constitute a continuing nuisance or trespass. See 58 Am.Jur.2d Nuisances § 307 (1989) (where nuisance complained of is permanent in nature statute of limitations may bar action if it is not brought within prescribed period). We have long recognized claims for a continuing trespass, Russell v. Brown, 63 Me. 203, 204 (1875) (prior judgment for trespass does not preclude new action where trespassing "thing" still on plaintiff's land), and for a continuing nuisance, Cumberland and Oxford Canal Corp. v. Hitchings, 65 Me. 140, 142-43 (1876) (successive actions may be maintained until defendant removes nuisance). See also Murray v. Bath Iron Works Corp., 867 F.Supp. 33, 48 (D.Me.1994) (Maine law recognizes both the doctrines of continuing trespass and nuisance). If the presence of the lagoon on lot B does constitute a continuing trespass or nuisance, a new cause of action accrues each day the hazardous materials remain and the plaintiffs' action is not barred by the statute of limitations.

In granting the defendants' motion for a summary judgment the trial court relied on a recent decision of the Massachusetts Supreme Judicial Court, Carpenter v. Texaco, Inc., 419 Mass. 581, 646 N.E.2d 398 (1995). In Carpenter the court affirmed a summary judgment in favor of Texaco because the statute of limitations for the Carpenter's trespass and nuisance claims had run. Id. 646 N.E.2d at 399-400. The Carpenters owned land near a gasoline service station formerly owned by Texaco. Id. 646 N.E.2d at 399. The Carpenters became aware in 1982 that gasoline from an underground storage tank was leaking onto their property, and argued that the continued presence of gasoline on their property amounted to a continuing trespass and nuisance. Id. Finding that after 1984 there was "no continuing release of gasoline from the gasoline station property, nor seepage of gasoline onto the plaintiff's property," the summary judgment was affirmed because there was no evidence that any seepage had occurred within the three year statute of limitations period prior to the commencement of the suit. Id. 646 N.E.2d at 399-400.

The plaintiffs contend that the court's reliance on Carpenter is misplaced because in Maine the test for whether a nuisance or trespass is continuing is whether the trespassing material remains on the property and whether it is abatable. They further contend that the question of abatability is one of fact, and therefore there is a disputed issue of material fact that precludes a summary judgment. The Defendants rely on Carpenter for the proposition that contamination that results from discontinued pollution is not a continuing nuisance or trespass.

The Carpenter court found that a continuing nuisance or trespass must be based on "recurring tortious or unlawful conduct and is not established by the continuation of harm caused by previous but terminated tortious or unlawful conduct." Carpenter, 646 N.E.2d at 399. In other words, the Massachusetts court's focus was on the conduct of the tortfeasor. See also Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177, 202 N.E.2d 811 (1964) (gutter repeatedly poured water onto plaintiff's building); Wishnewsky v. Town of Saugus, 325 Mass. 191, 89 N.E.2d 783 (1950) (recurrent and intermittent flooding of drainage system caused damage to plaintiff's land). In contrast, we have defined a nuisance as continuing when the thing that constitutes the nuisance "is not of such a permanent nature that it can not readily be removed and thus abated." Caron v. Margolin, 128 Me. 339, 343, 147 A. 419 (1929) (defendant's addition, interfering with a restrictive easement held by the plaintiffs, clearly a continuing nuisance). See also Murray v. Bath Iron Works, Corp., 867 F.Supp. at 48 (denying defendant's motion for a summary judgment on claim of continuing trespass and nuisance resulting from presence of waste on plaintiff's property because "[a]s long as the nuisance continues unabated, a plaintiff may bring successive actions for damages throughout its continuance"); Restatement (Second) of Torts § 162 cmt. e (1965) ("A continuing trespass must be distinguished from a trespass which permanently changes the physical condition of the land"). In the present action the subject of our inquiry is not the dumping itself, but instead the hazardous material that remains on the plaintiffs' land.

In determining the distinction between "permanent" and "continuing" one commentator has considered the following three factors:

(1) is the source of the invasion physically permanent, i.e., is it likely in the nature of things, to remain indefinitely? (2) is the source of the invasion the kind of thing an equity court would refuse to abate by injunction because of its value to the community or because of relations between the parties? (3) which party seeks the permanent or prospective measure of damages?

Dan B. Dobbs, Handbook on the Law of Remedies § 5.4, p. 338 (1973). Professor Dobbs goes on to state that "a nuisance or trespass is usually not regarded as a permanent one unless it is physically permanent or likely to continue indefinitely." Id. Likewise, many courts have considered the question of abatability to be the deciding factor in their determination of whether a nuisance or trespass is continuous or permanent. Beatty v. Washington Metro. Area Transit Auth. 860 F.2d 1117, 1122 (D.C.Cir.1988) (continuing nuisance one which is abatable, or intermittent or periodical); Reynolds Metals Co. v. Wand, 308 F.2d 504, 508 (9th Cir.1962) (...