C H A P T E R IX

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

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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

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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. [ ]

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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

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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

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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.]

N O T E S A N D Q U E S T I O N S

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

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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.

B. Nuisance

The confusion attending the law of nuisance is indicated by the frequent references to Prosser's comment that "[t]here is no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'." Some of this confusion can be avoided by distinguishing at the outset between public and private nuisance. Despite the overlapping terminology, the interests protected by each action and the corresponding elements in establishing a prima facie case are quite different. Although private nuisance is our primary concern, private individuals may, under certain circumstances, employ public nuisance doctrine to protect against harm to person and property. We begin with a brief discussion of the action for public nuisance.

1. Public Nuisance

The historical origins of public nuisance are found in criminal interferences with the rights of the Crown, such as encroachments on the royal domain or on public highways. Subsequently, invasions of the rights of the public—represented by the Crown—became actionable as well. At common law, public nuisance came to cover a broad group of minor criminal offenses that involved unreasonable interferences with some right of the general public. These "included interference with the public health, as in the keeping of diseased animals . . . ; with the public safety, as in the case of storage of explosives in the midst of a city . . . ; with the public morals, as in houses of prostitution . . . ; with the public peace as by loud and disturbing noises; with the public comfort, as in the case of widely disseminated bad odors, dust, and

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smoke; with the public convenience as by obstruction of a public highway or navigable stream; and with a wide variety of miscellaneous public rights of a similar kind." Restatement (Second) of Torts § 821B comment b. Most states, having abolished common law crimes, now have broadly-phrased statutes providing criminal penalties for public nuisances, or have enacted specific statutes declaring certain kinds of conduct to be public nuisances. It does not follow, however, that public nuisance actions have become superfluous. Consider, for example, State v. Schenectady Chemicals, Inc. 479 N.Y.S.2d 1010 (App.Div. 1984), in which the court found that the migration of chemical wastes over a thirty-year period did not constitute a "discharge" within the meaning of a relevant statute, but did constitute the basis for a public nuisance action initiated by the state. See generally, Note, Chemical Discharge: Application of Public Nuisance Theory as a Remedy for Environmental Law Violations, 26 Suffolk L. Rev. 51 (1992).

Traditionally, the tort of public nuisance required the element of criminality to justify private relief. The Second Restatement, however, has eliminated the reference to a "criminal interference." The motivation for the change was concern that the criminality requirement would limit too severely the usefulness of public nuisance doctrine as a means of protecting the environment, which had become of increasing public concern. Instead, § 821B(1) defines public nuisance as "an unreasonable interference with a right common to the general public," and in subsection (2) lists circumstances that could make an interference unreasonable. These include: a significant interference with the public health, safety, peace, comfort, or convenience; the existence of a statute or ordinance proscribing the conduct; or conduct of a continuing nature or of long-lasting effect that the "actor knows or has reason to know has a significant effect upon the public right."

In a novel application, a substantial number of municipalities sued the handgun industry in the late 1990s alleging that the distribution and sales practices of the industry—and the consequent use of handguns for criminal purposes—constituted a public nuisance. As stated by a proponent, “to make out a public nuisance claim, an appropriate governmental entity … must establish that the defendant’s conduct creates or contributes to a substantial, unreasonable interference with common public rights and that defendant failed to take reasonable measure that would eliminate or ameliorate the harm. The remedy is usually directed at ‘abatement’ of the nuisance and typically includes injunctive relief and damages.” See Kairys, The Governmental Handgun Cases and the Elements and Underlying Policies of Public Nuisance Law, 32 Conn. L.Rev. 1175 (2000). The public nuisance handgun litigation is viewed in a broader context in Developments in the Law—Civil Litigation, 113 Harv. L.Rev. 1752, 1759-83 (2000).

Private litigants attempting to bring public nuisance suits must overcome strict standing requirements. At early common law, a public nuisance action, in keeping with its criminal character, could be maintained only by a public official. Beginning in the sixteenth century, a private individual who could show special harm different in kind, and not just degree, from that suffered by the general public was allowed to bring a private tort suit. The usual justification for this requirement was that a defendant should not be subjected to the numerous actions that could result from a widespread interference with common rights.

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Section 821C(1) retains special harm as a prerequisite for recovery of damages in an individual action. According to § 821C(2), standing to bring such an action requires that parties other than public officials either have suffered special harm or "have standing to sue as a representative of the general public, as a citizen in a citizen's action, or as a member of a class in a class action." The requirement may be relaxed, however, in an injunctive action against a public nuisance. Comment j explains that the reasons for the special-harm rule are less applicable to injunctive actions and that there are indications of possible change in the courts. Several commentators have suggested that the special-harm requirement be abandoned, again primarily in response to the possibility of using nuisance doctrine as a means of controlling environmental pollution.

The requirement of specific harm to the claimant is reaffirmed and discussed with reference to a variety of illustrative cases in Stop & Shop Companies, Inc. v. Fisher, 444 N.E.2d 368 (Mass. 1983). The individualized harm requirement may be overcome in some cases, particularly in the environmental field, by relying upon a statutory special injury requirement. See, e.g., Florida Wildlife Federation v. State Department of Environmental Regulation, 390 So.2d 64 (Fla.1980), relying on the state Environmental Protection Act; Kirk v. United States Sugar Corp., 726 So.2d 822 (Fla. App.1999)(“any citizen who sues in the name of the state to enjoin a public nuisance need not show that he or she has sustained or will sustain special damages or injury different in kind from injury to the public at large.”).

In some cases, the distinction between public and private nuisance (next to be discussed) may be less than clear. See Lew v. Superior Court, 25 Cal.Rptr.2d 42 (App. 1993), involving successful claims for damages by neighboring residents against the owner of an apartment complex whose tenants were heavily involved in drug dealing activities on the premises. In granting recovery, the court referred to defendant's conduct as both a public and private nuisance.

See generally, Abrams & Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer, 54 Alb.L.Rev. 359 (1990); Hodas, Private Actions for Public Nuisance: Common Law Suits for Relief from Environmental Harm, 16 Ecol.L.Q. 883 (1989); Bryson and MacBeth, Public Nuisance, The Restatement (Second) of Torts and Environmental Law, 2 Ecol.L.Q. 241 (1972).

2. Private Nuisance

Section 822 states the general rule that one is subject to liability for conduct that is a legal cause of an invasion of another's interest in the private use and enjoyment of land if the invasion is either: (a) intentional and unreasonable, or (b) unintentional and arising out of negligent or reckless conduct or abnormally dangerous conditions or activities. The latter category, unintentional nuisances, is governed primarily by the rules relating to the underlying negligence, recklessness, or abnormally dangerous activity on which the nuisance is based, with the added requirement that the injury be related to an invasion of interests in the use and enjoyment of land.

By far the more significant category of nuisances is that which the Restatement defines as intentional. Section 825 extends that category to situations in which there is knowledge that the

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conduct is invading, or is substantially certain to invade, another's interest in the use and enjoyment of land. Virtually all conduct of a continuing nature, then, such as the typical instances of industrial pollution, would be intentional after an initial invasion.

An intentional invasion satisfies the "unreasonableness" requirement, according to § 826, if "(a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible." "Gravity of harm" and the "utility of the conduct" are in turn elaborated as follows:

§ 827 Gravity of Harm—Factors Involved

In defining the gravity of the harm from an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:

(a) The extent of the harm involved;

(b) the character of the harm involved;

(c) the social value that the law attaches to the type of use or enjoyment invaded;

(d) the suitability of the particular use or enjoyment invaded to the character of the locality; and

(e) the burden on the person harmed of avoiding the harm.

§ 828 Utility of the Conduct—Factors Involved

In determining the utility of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:

(a) The social value that the law attaches to the primary purpose of the conduct;

(b) the suitability of the conduct to the character of the locality; and

(c) the impracticability of preventing or avoiding the invasion.

These lists of factors are not intended to be exhaustive, and the relative weight to be given each factor is dependent on the circumstances of the particular case. Obviously, this formulation gives the courts very considerable discretion in determining the final outcome of a balancing test.

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The first Restatement of Torts included only the test for unreasonableness contained in Restatement (Second) § 826(a)—whether the gravity of the harm outweighs the utility of the conduct. If this were the sole standard, it could be questioned whether there would be much difference between the tests for intentional and unintentional nuisance—even though "unreasonableness" is to be determined, in the case of intentional nuisances, with reference to the gravity of the harm actually suffered, and in the case of unintended harm, with reference to the likelihood of injury multiplied by the prospective extent of the harm. As comment k to § 822 explains, the negligent, reckless, and abnormally dangerous standards of unintentional nuisances incorporate in some form a balancing of harm against the utility of the conduct, as in the concept of unreasonable risk. And this balancing is made explicit for intentional invasions in § 826.

But § 826(a) is not the sole test in the Second Restatement. An intentional invasion may now be unreasonable under § 826(b) even though the utility of the conduct outweighs the gravity of the harm, if the harm is serious and the defendant could afford to compensate the plaintiff and others similarly harmed while continuing to be engaged in its activity. Similarly, § 829A declares that the gravity of an invasion outweighs its utility (and hence is unreasonable under § 826) whenever the harm caused is both substantial and greater than the plaintiff "should be able to bear without compensation." Thus, an invasion, particularly one causing harm "physical in character," may be so grievous that it outweighs as a matter of law any utility arising from the activity.

At this point it should be evident that substantial similarities exist between the Restatement approach to trespass and nuisance—particularly as the rules governing intentional nuisance come to be strongly influenced by strict liability. Apart from the standards of liability, however, what remedies are available to an aggrieved party? Although trespasses traditionally tended to involve individual instances of harm, equity courts were willing to award injunctive relief when the threat of continued trespassory activity existed. In the nuisance context, the question of remedial alternatives often is critical, since continuing diminution of the plaintiff's use and enjoyment of land is usually present. Should injunctive relief be generally available? The following case deals with this important issue, and also provides the opportunity to go beyond this general introduction and explore in greater detail some fundamental questions about the threshold rules of liability.

BOOMER V. ATLANTIC CEMENT CO.

Court of Appeals of New York, 1970.

26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312.

BERGAN, J. Defendant operates a large cement plant near Albany. These are actions for injunction and damages by neighboring land owners alleging injury to property from dirt, smoke and vibration emanating from the plant. A nuisance has been found after trial, temporary damages have been allowed; but an injunction has been denied.

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The public concern with air pollution arising from many sources in industry and in transportation is currently accorded ever wider recognition accompanied by a growing sense of responsibility in State and Federal Governments to control it. Cement plants are obvious sources of air pollution in the neighborhoods where they operate.

But there is now before the court private litigation in which individual property owners have sought specific relief from a single plant operation. The threshold question raised by the division of view on this appeal is whether the court should resolve the litigation between the parties now before it as equitably as seems possible; or whether, seeking promotion of the general public welfare, it should channel private litigation into broad public objectives.

A court performs its essential function when it decides the rights of parties before it. Its decision of private controversies may sometimes greatly affect public issues. Large questions of law are often resolved by the manner in which private litigation is decided. But this is normally an incident to the court's main function to settle controversy. It is a rare exercise of judicial power to use a decision in private litigation as a purposeful mechanism to achieve direct public objectives greatly beyond the rights and interests before the court.

Effective control of air pollution is a problem presently far from solution even with the full public and financial powers of government. In large measure adequate technical procedures are yet to be developed and some that appear possible may be economically impracticable.

It seems apparent that the amelioration of air pollution will depend on technical research in great depth; on a carefully balanced consideration of the economic impact of close regulation; and of the actual effect on public health. It is likely to require massive public expenditure and to demand more than any local community can accomplish and to depend on regional and interstate controls.

A court should not try to do this on its own as a by-product of private litigation and it seems manifest that the judicial establishment is neither equipped in the limited nature of any judgment it can pronounce nor prepared to lay down and implement an effective policy for the elimination of air pollution. This is an area beyond the circumference of one private lawsuit. It is a direct responsibility for government and should not thus be undertaken as an incident to solving a dispute between property owners and a single cement plant?one of many?in the Hudson River valley.

The cement making operations of defendant have been found by the court at Special Term to have damaged the nearby properties of plaintiffs in these two actions. That court, as it has been noted, accordingly found defendant maintained a nuisance and this has been affirmed at the Appellate Division. The total damage to plaintiffs' properties is, however, relatively small in comparison with the value of defendant's operation and with the consequences of the injunction which plaintiffs seek.

The ground for the denial of injunction, notwithstanding the finding both that there is a nuisance and that plaintiffs have been damaged substantially, is the large disparity in economic

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consequences of the nuisance and of the injunction. This theory cannot, however, be sustained without overruling a doctrine which has been consistently reaffirmed in several leading cases in this court and which has never been disavowed here, namely that where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted.

The rule in New York has been that such a nuisance will be enjoined although marked disparity be shown in economic consequence between the effect of the injunction and the effect of the nuisance.

The problem of disparity in economic consequence was sharply in focus in Whalen v. Union Bag & Paper Co. (208 N.Y. 1 [1913]). A pulp mill entailing an investment of more than a million dollars polluted a stream in which plaintiff, who owned a farm, was "a lower riparian owner". The economic loss to plaintiff from this pollution was small. This court, reversing the Appellate Division, reinstated the injunction granted by the Special Term against the argument of the mill owner that in view of "the slight advantage to plaintiff and the great loss that will be inflicted on defendant" an injunction should not be granted (p. 2). "Such a balancing of injuries cannot be justified by the circumstances of this case," Judge Werner noted (p. 4). He continued: "Although the damage to the plaintiff may be slight as compared with the defendant's expense of abating the condition, that is not a good reason for refusing an injunction" (p. 5).

Thus the unconditional injunction granted at Special Term was reinstated. The rule laid down in that case, then, is that whenever the damage resulting from a nuisance is found not "unsubstantial", viz., $100 a year, injunction would follow. This states a rule that had been followed in this court with marked consistency [ ].

. . .

Although the court at Special Term and the Appellate Division held that injunction should be denied, it was found that plaintiffs had been damaged in various specific amounts up to the time of the trial and damages to the respective plaintiffs were awarded for those amounts. The effect of this was, injunction having been denied, plaintiffs could maintain successive actions at law for damages thereafter as further damage was incurred.

The court at Special Term also found the amount of permanent damage attributable to each plaintiff, for the guidance of the parties in the event both sides stipulated to the payment and acceptance of such permanent damage as a settlement of all the controversies among the parties. The total of permanent damages to all plaintiffs thus found was $185,000. This basis of adjustment has not resulted in any stipulation by the parties.

This result at Special Term and at the Appellate Division is a departure from a rule that has become settled; but to follow the rule literally in these cases would be to close down the

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plant at once. This court is fully agreed to avoid that immediately drastic remedy: the difference in view is how best to avoid it.*

One alternative is to grant the injunction but postpone its effect to a specified future date to give opportunity for technical advances to permit defendant to eliminate the nuisance; another is to grant the injunction conditioned on the payment of permanent damages to plaintiffs which would compensate them for the total economic loss to their property present and future caused by defendant's operations. For reasons which will be developed the court chooses the latter alternative.

If the injunction were to be granted unless within a short period?e.g., 18 months?the nuisance be abated by improved methods, there would be no assurance that any significant technical improvement would occur.

The parties could settle this private litigation at any time if defendant paid enough money and the imminent threat of closing the plant would build up the pressure on defendant. If there were no improved techniques found, there would inevitably be applications to the court at Special Term for extensions of time to perform on showing of good faith efforts to find such techniques.

Moreover, techniques to eliminate dust and other annoying by-products of cement making are unlikely to be developed by any research the defendant can undertake within any short period, but will depend on the total resources of the cement industry nationwide and throughout the world. The problem is universal wherever cement is made.

For obvious reasons the rate of the research is beyond control of defendant. If at the end of 18 months the whole industry has not found a technical solution a court would be hard put to close down this one cement plant if due regard be given to equitable principles.

On the other hand, to grant the injunction unless defendant pays plaintiffs such permanent damages as may be fixed by the court seems to do justice between the contending parties. All of the attributions of economic loss to the properties on which plaintiffs' complaints are based will have been redressed.

The nuisance complained of by these plaintiffs may have other public or private consequences, but these particular parties are the only ones who have sought remedies and the judgment proposed will fully redress them. The limitation of relief granted is a limitation only within the four corners of these actions and does not foreclose public health or other public agencies from seeking proper relief in a proper court.

* *Respondent's investment in the plant is in excess of $45,000,000. There are over 300 people employed there.

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It seems reasonable to think that the risk of being required to pay permanent damages to injured property owners by cement plant owners would itself be a reasonably effective spur to research for improved techniques to minimize nuisance.

The power of the court to condition on equitable grounds the continuance of an injunction on the payment of permanent damages seems undoubted. [ ]

The damage base here suggested is consistent with the general rule in those nuisance cases where damages are allowed. "Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery" (66 C.J.S., Nuisances, § 140, p. 947). It has been said that permanent damages are allowed where the loss recoverable would obviously be small as compared with the cost of removal of the nuisance [ ].

. . .

Thus it seems fair to both sides to grant permanent damages to plaintiffs which will terminate this private litigation. The theory of damage is the "servitude on land" of plaintiffs imposed by defendant's nuisance. (See United States v. Causby, 328 U.S. 256, 261, 262, 267 [1946], where the term "servitude" addressed to the land was used by Justice Douglas relating to the effect of airplane noise on property near an airport.)

The judgment, by allowance of permanent damages imposing a servitude on land, which is the basis of the actions, would preclude future recovery by plaintiffs or their grantees.

This should be placed beyond debate by a provision of the judgment that the payment by defendant and the acceptance by plaintiffs of permanent damages found by the court shall be in compensation for a servitude on the land.

Although the Trial Term has found permanent damages as a possible basis of settlement of the litigation, on remission the court should be entirely free to re-examine this subject. It may again find the permanent damage already found; or make new findings.

The orders should be reversed, without costs, and the cases remitted to Supreme Court, Albany County to grant an injunction which shall be vacated upon payment by defendant of such amounts of permanent damage to the respective plaintiffs as shall for this purpose be determined by the court.

JASEN, J. (dissenting). I agree with the majority that a reversal is required here, but I do not subscribe to the newly enunciated doctrine of assessment of permanent damages, in lieu of an injunction, where substantial property rights have been impaired by the creation of a nuisance.

It has long been the rule in this State, as the majority acknowledges, that a nuisance which results in substantial continuing damage to neighbors must be enjoined. [ ]

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To now change the rule to permit the cement company to continue polluting the air indefinitely upon the payment of permanent damages is, in my opinion, compounding the magnitude of a very serious problem in our State and Nation today.

In recognition of this problem, the Legislature of this State has enacted the Air Pollution Control Act (Public Health Law, §§ 1264-1299-m) declaring that it is the State policy to require the use of all available and reasonable methods to prevent and control air pollution (Public Health Law, § 1265).

The harmful nature and widespread occurrence of air pollution have been extensively documented. Congressional hearings have revealed that air pollution causes substantial property damage, as well as being a contributing factor to a rising incidence of lung cancer, emphysema, bronchitis and asthma.

The specific problem faced here is known as particulate contamination because of the fine dust particles emanating from defendant's cement plant. The particular type of nuisance is not new, having appeared in many cases for at least the past 60 years. [ ] It is interesting to note that cement production has recently been identified as a significant source of particulate contamination in the Hudson Valley. This type of pollution, wherein very small particles escape and stay in the atmosphere, has been denominated as the type of air pollution which produces the greatest hazard to human health. We have thus a nuisance which not only is damaging to the plaintiffs, but also is decidedly harmful to the general public.

I see grave dangers in overruling our long-established rule of granting an injunction where a nuisance results in substantial continuing damage. In permitting the injunction to become inoperative upon the payment of permanent damages, the majority is, in effect, licensing a continuing wrong. It is the same as saying to the cement company, you may continue to do harm to your neighbors so long as you pay a fee for it. Furthermore, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, thereby continuing air pollution of an area without abatement.

It is true that some courts have sanctioned the remedy here proposed by the majority in a number of cases, but none of the authorities relied upon by the majority are analogous to the situation before us. In those cases the courts, in denying an injunction and awarding money damages, granted their decision on a showing that the use to which the property was intended to be put was primarily for the public benefit. Here, on the other hand, it is clearly established that the cement company is creating a continuing air pollution nuisance primarily for its own private interest with no public benefit.

This kind of inverse condemnation [ ] may not be invoked by a private person or corporation for private gain or advantage. Inverse condemnation should only be permitted when the public is primarily served in the taking or impairment of property. [ ] The promotion of the interests of the polluting cement company has, in my opinion, no public use or benefit.

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Nor is it constitutionally permissible to impose servitude on land, without consent of the owner, by payment of permanent damages where the continuing impairment of the land is for a private use. [ ] This is made clear by the State Constitution (art. I, § 7,subd. [a]) which provides that "[p]rivate property shall not be taken for public use without just compensation" (emphasis added). It is, of course, significant that the section makes no mention of taking for a private use.

In sum, then, by constitutional mandate as well as by judicial pronouncement, the permanent impairment of private property for private purposes is not authorized in the absence of clearly demonstrated public benefit and use.

I would enjoin the defendant cement company from continuing the discharge of dust particles upon its neighbors' properties unless, within 18 months, the cement company abated this nuisance.

It is not my intention to cause the removal of the cement plant from the Albany area, but to recognize the urgency of the problem stemming from this stationary source of air pollution, and to allow the company a specified period of time to develop a means to alleviate this nuisance.

I am aware that the trial court found that the most modern dust control devices available have been installed in defendant's plant, but, I submit, this does not mean that better and more effective dust control devices could not be developed within the time allowed to abate the pollution.

Moreover, I believe it is incumbent upon the defendant to develop such devices, since the cement company, at the time the plant commenced production (1962), was well aware of the plaintiffs' presence in the area, as well as the probable consequences of its contemplated operation. Yet, it still chose to build and operate the plant at this site.

In a day when there is a growing concern for clean air, highly developed industry should not expect acquiescence by the courts, but should, instead, plan its operations to eliminate contamination of our air and damage to its neighbors.

Accordingly, the orders of the Appellate Division, insofar as they denied the injunction, should be reversed, and the actions remitted to Supreme Court, Albany County to grant an injunction to take effect 18 months hence, unless the nuisance is abated by improved techniques prior to said date.

CHIEF JUDGE FULD and JUDGES BURKE and SCILEPPI concur with JUDGE BERGAN; JUDGE JASEN dissents in part and votes to reverse in a separate opinion; JUDGES BREITEL and GIBSON taking no part.

N O T E S A N D Q U E S T I O N S

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1. In Boomer the defendant argued at the trial level that it was not committing a nuisance. The trial judge found that the defendant "took every available and possible precaution to protect the plaintiffs from dust." Nonetheless, the court found a nuisance because the "discharge of large quantities of dust upon each of the properties and excessive vibration from blasting deprived each party of the reasonable use of his property and thereby prevented his enjoyment of life and liberty therein." 287 N.Y.S.2d 112 (Albany Cty. 1967). In Boomer the defendant knew to a substantial certainty that those nearby would be subjected to dust and vibration, and continued the operation after having actual knowledge of the harm. Notice that by this analysis the overwhelming majority of alleged industrial nuisances are "intentional." In what sense is the harm intended here? Is there a difference between defendant's conduct in this case and that of a product manufacturer who knows to a substantial certainty that one widget out of ten thousand he produces will cause injury?

2. The fact that the vast majority of industrial nuisances are "intentional" makes all the more important the question whether, in addition to being intentional, the activity is also "unreasonable." This problem was explored at length in Jost v. Dairyland Power Cooperative, 172 N.W.2d 647 (Wis.1969), in which sulfur dioxide gas was discharged into the atmosphere by defendant's power plant, damaging nearby crops. The farmers sued and the defendant sought to prove that it had used due care in the construction and operation of its plant and that the "social and economic utility of the Alma plant outweighed the gravity of damage to the plaintiffs." The trial judge's rejection of such proof as to liability was affirmed. The court found crop damage of several hundred dollars and then, turning to liability, concluded:

that the court properly excluded all evidence that tended to show the utility of the Dairyland Cooperative's enterprise. Whether its economic or social importance dwarfed the claim of a small farmer is of no consequence in this lawsuit. It will not be said that, because a great and socially useful enterprise will be liable in damages, an injury small by comparison should go unredressed. We know of no acceptable rule of jurisprudence that permits those who are engaged in important and desirable enterprises to injure with impunity those who are engaged in enterprises of lesser economic significance. Even the government or other entities, including public utilities, endowed with the power of eminent domain—the power to take private property in order to devote it to a purpose beneficial to the public good—are obliged to pay a fair market value for what is taken or damaged. To contend that a public utility, in the pursuit of its praiseworthy and legitimate enterprise, can, in effect, deprive others of the full use of their property without compensation, poses a theory unknown to the law of Wisconsin, and in our opinion would constitute the taking of property without due process of law.

Is the court's reasoning consistent with the approach taken in the initial Restatement p. ___, supra? In the Second Restatement? In Boomer ? For a comprehensive discussion of the case law and law review literature on Boomer and private nuisance in the succeeding two decades (including a tally of the cases adopting some version of the Second Restatement approach to balancing the utilities), see Lewin, Boomer and the American Law of Nuisance: Past, Present, and Future, 54 Alb.L.Rev. 189 (1990). For a case providing the flavor of nuisance controversies—and resolutions—prior to the adoption of strict liability analysis, see Waschak v. Moffat, 109

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A.2d 310 (Pa. 1954). On the analogue to governmental takings, with particular reference to Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), see Halper, Untangling the Nuisance Knot, 26 B.C. Envtl. Aff. L.Rev. 89 (1998).

3. Recall that the trial court in Rylands, p. ___, supra, decided that there was no nuisance because the act was not a continuing harm. Although most nuisances have been accompanied by continuing harm, this is no longer considered an essential element.

4. The Boomer case also suggests the overlap between nuisance and trespass. Reconsider Martin v. Reynolds Metals Co., p. ___, supra. Under the Boomer approach, does it matter for purposes of liability whether defendant's conduct is characterized as nuisance or trespass? Compare Wood v. Picillo, 443 A.2d 1244 (R.I.1982), in which the court enjoined the further operation of a chemical dump on the defendant's property on nuisance grounds, remarking that "it could well be argued that one who utilizes his land for abnormally dangerous activities or for storage of abnormally dangerous substances may be strictly liable for resultant injuries, even in the absence of a finding of nuisance or negligence," and citing Rylands v. Fletcher.

5. The law of private nuisance has occasionally been characterized as a form of judicial zoning. Although the court of appeals in Boomer does not mention it, the appellate division opinion notes that the area was zoned. 294 N.Y.S.2d 452 (App.Div. 1968). Apparently before the defendant began operations in 1962, the town zoned the defendant's property to permit quarrying and business, so that defendant's activity was lawful. Should the zoning be relevant to whether the defendant is liable for any nuisance? Is it proper for a court to find a common-law nuisance when the defendant has obeyed legislative zoning requirements? For an extensive discussion of the subject, see Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U.Chi.L.Rev. 681 (1973).

Boomer was held inapplicable in Little Joseph Realty, Inc. v. Town of Babylon, 363 N.E.2d 1163 (N.Y. 1977), in which plaintiff sued to enjoin the construction and operation of an asphalt plant on defendant's adjoining property. The lower court determined that the plant, which violated the town's zoning ordinance, was a nuisance, and ordered it enjoined unless certain remedial devices were installed—and they were. On appeal, reversed. New York's long-standing rule that structures built on adjoining or nearby property in violation of zoning ordinances were enjoinable at the demand of a specially-damaged neighbor, was not changed by Boomer.

Boomer involved a private dispute between two parties in which it was proper to adjust "competing uses with a view towards maximizing the social value of each." But zoning "is far more comprehensive. Its design is, on a planned basis, to serve as a 'vital tool for maintaining a civilized form of existence' for the benefit and welfare of an entire community. . . . It follows that, when a continuing use flies in the face of a valid zoning restriction, it must, subject to the existence of any appropriate equitable defenses, be enjoined unconditionally." This does not mean that "risk-utility considerations have not entered into the adoption of a zoning law's restriction on use. It is rather that presumptively they have already been weighed and disposed of by the Legislature which enacted them."

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6. A considerable body of nuisance law deals with land use disputes that lack the broader environmental aspects of the Boomer case. Typically, these cases deal with the loss of commercial value of adjoining property, such as Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So.2d 357 (Fla.App.1959), in which a Miami Beach hotel sought an injunction to prevent a neighboring hotel from building a 14-floor addition that would cut off a considerable amount of sunlight from plaintiff's property, or a loss of economic value of residential property, such as the numerous efforts to enjoin a funeral parlor from locating in a neighborhood. See, e.g., Travis v. Moore, 377 So.2d 609 (Miss.1979). At times, the claims combine allegations of loss of market value with pain and suffering; see Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996), involving a successful claim for damages from noxious odors emanating from a neighboring hog feeding and confinement facility. Hard feelings and spiteful behavior are not uncommon in these cases. Consider Coty v. Ramsey Associates, 546 A.2d 196 (Vt.), cert. denied 487 U.S. 1236 (1988), in which defendants were held liable after establishing a pig farm next to the property of neighbors who had successfully opposed the defendants' effort to build a motel on their land. Contrast Wernke v. Halas, 600 N.E.2d 117 (Ind.App.1992), in which the court held that nailing a toilet seat to a tree and placing offensive graffiti on a fence facing the plaintiffs' property might constitute "unsightliness or lack of aesthetic virtue" but did not rise to the level of a nuisance.

For a case merging the environmental and commercial aspects of nuisance law, see Prah v. Maretti, 321 N.W.2d 182 (Wis.1982), in which the court upheld the claim of the owner of a solar-heated residence against a neighbor's proposed construction that would have interfered with the plaintiff's solar access. See also Vogel v. Grant-Lafayette Elec. Co-op, 548 N.W.2d 829 (Wis.1996), allowing a nuisance claim for stray voltage from defendant’s electric power grid that caused plaintiffs’ cattle to exhibit “violent or erratic behavior” and to produce less milk. Detailed consideration of these dimensions of nuisance law is beyond the scope of a Torts course; the residential and commercial aspects of nuisance law—and zoning law, as well—are taken up in courses in Land Use and Property.

7. In Boomer, the defendant came to the area more recently than the plaintiffs. Is this relevant? Sometimes the defendant establishes its facility in an isolated area only to find the nearby town expanding and others moving closer to it. The question raised is whether a plaintiff who has knowingly encountered the nuisance is barred from suing. Restatement (Second) of Torts § 840D says that this is "not in itself sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance is actionable." How might this be a relevant factor? Might there be an underlying concern about first-comers exercising extra-territorial controls over large areas of land? Might the price plaintiff paid for the land be relevant? The issue is discussed in Wittman, First Come, First Served: An Economic Analysis of "Coming to the Nuisance," 9 J.Legal Stud. 557 (1980).

8. Turning now to questions of remedy for private nuisance, what relief did the trial judge award in Boomer? How did the court of appeals alter the remedy granted by the lower courts?

9. In the Jost case the court also awarded damages:

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We see no basis for the jury's conclusion that the market value of one of the farms was reduced by $500 and the value of the others not at all. Such a result—although there could have been a differential—is completely unsupported by the evidence.

We conclude that the plaintiffs are entitled to recover for the crops and damage to vegetation for the years complained of—1965 and 1966—as found by the jury, but after those years recovery cannot again be for specific items of damage on a year-by-year basis. Their avenue for compensation is for permanent and continuing nuisance as may be reflected in a diminution of market value. Of course, permitting a recovery now for a permanent loss of market value presupposes that the degree of nuisance will not increase. If such be the case, an award of damages for loss of market value is final. If, however, the level of nuisance and air pollution should be increased above the level that may now be determined by a jury, with a consequent additional injury the plaintiffs would have the right to seek additional permanent damage to compensate them for the additional diminished market value.

What is the justification for reopening the case if the defendant increases the amount of sulphur dioxide it emits? Is this similar to cases in which after final judgment the plaintiff's injury turns out to be more serious than previously believed?

10. What should happen in Boomer and Jost if, after paying permanent damages, the defendant reduces the harm being inflicted—either by closing down the operation or by installing newly developed control devices? But what is the defendant's incentive in Boomer to install any new devices at all? What if the plaintiff in Jost switches to crops that are less profitable but impervious to sulfur dioxide gas?

11. Is the majority persuasive in its reasons for denying an injunction? The appellate division upheld the trial court's denial, relying on "the zoning of the area, the large number of persons employed by the defendant, its extensive business operations and substantial investment in plant and equipment, its use of the most modern and efficient devices to prevent offensive emissions and discharges, and its payment of substantial sums of real property and school taxes." 294 N.Y.S.2d 452 (App.Div. 1968). Are these factors relevant to the remedy question? The liability question?

Further litigation ensued over the damage measurement. The opinions discuss extensively the role of experts in land valuation problems. Boomer v. Atlantic Cement Co., 340 N.Y.S.2d 97 (Albany Cty. 1972), affirmed in Kinley v. Atlantic Cement Co., 349 N.Y.S.2d 199 (App.Div. 1973).

12. In Adams v. Star Enterprise, 51 F.3d 417 (4th Cir.1995), property owners brought suit against defendant oil distribution facility for a major discharge of oil that created a plume extending underground to near their property—although not yet actually contaminating their property. They sought damages for emotional distress and diminished property value on, among other theories, private nuisance. Applying Virginia law, the court held that there could be no

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recovery on a nuisance theory absent some evidence of physically perceptible harm. Here the plume was "incapable of detection" from plaintiffs' properties.

What are some of the problems associated with allowing such claims to go forward on the grounds of depreciation of property values without “physically perceptible harm?” In Adkins v. Thomas Solvent Co., 487 N.W. 2d 715 (Mich.1992), which held that property owners living near a contaminated site could not recover for the diminution of their property values in the absence of evidence demonstrating that contaminants had migrated to their property, the majority reasoned that

[i]f any property owner in the vicinity of the numerous hazardous-waste sites that have been identified can advance a claim seeking damages when unfounded public fears of exposure cause property depreciation, the ultimate effect might be a reordering of the polluter’s resources for the benefit of the persons who have suffered no cognizable harm at the expense of those claimants who have been subjected to a substantial and unreasonable interference in the use and enjoyment of property.

The dissent, however, would have allowed a nuisance action on a showing “that the defendants actually contaminated soil and ground water in the neighborhood of plaintiffs' homes with toxic chemicals and industrial wastes, that the market perception of the value of plaintiffs' homes was actually adversely affected by the contamination of the neighborhood, and thus that plaintiffs' loss was causally related to defendants' conduct. Who has the better argument? For an outcome similar to that in Adkins, see Berry v. Armstrong Rubber Co. 989 F. 2d 822 (5th Cir. 1993), cert denied, 510 U.S. 1117 (1994) (rejecting nuisance action claiming property depreciation because of "stigma" arising out of a tire manufacturer's dumping in the area where the evidence failed to establish some physical damage to the owners' land caused by tire manufacturer). In contrast, a few courts have been willing to allow a nuisance action without evidence of physical harm. See, e.g., Omega Chemical Co. v. United Seeds, 560 N.W. 2d 820 (Neb. 1997) (finding a nuisance where accumulated snow on defendant’s roof merely threatened harm to the plaintiff). What about situations involving continuing noxious odors, high noise levels, or strong vibrations? Do these meet the threshold requirement of physically perceptible harm? Should they?

13. Where the exposure leads to an individual claim of personal injury, nuisance law typically holds that the harm suffered should be determined by reference to a “normal” person in the community. Why might this be? For an early case articulating the general approach, see Rogers v. Elliot, 15 N.E. 768 (Mass.1888) (denying relief to plaintiff who suffered harm from ringing of church bells because of his highly nervous condition). For a more recent application, see Jenkins v. CSX Transportation, Inc., 906 S.W. 2d 460 (Tenn. App. 1995) (holding that the rarity of landowner’s allergic condition to creosote fumes from railroad ties, transported through neighboring rail yard, precluded his nuisance claim). Is this approach contrary to the eggshell plaintiff rule considered at p. ___, supra? Compare the treatment of the super-sensitive plaintiff in emotional distress cases, p. ___, supra.

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14. In an influential article, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv.L.Rev. 1089 (1972), Calabresi and Melamed discuss a framework of rules that the law uses to protect "entitlements" (decisions regarding which of two or more conflicting parties will prevail). These rules yield the traditional results of no liability, damages, or injunctive relief.

An entitlement is protected by a "property" rule when a person who wishes to obtain the entitlement must purchase it at a price determined by the holder. Thus, the New York rule regarding injunctions for nuisances, before Boomer, provided an entitlement in cases of "not unsubstantial" damage to the neighbors of a polluter that was protected by a property rule: A polluter who wished to continue operations had to buy the right to do so. Alternatively, an entitlement protected by a property rule could be given to the polluter. This would be the case if the courts adopted a rule of no liability for pollution damage.

Two other results are possible. The entitlement held by the polluter or by the neighbors might be protected only by a "liability" rule, which is the case when one of the parties in conflict can purchase the entitlement at an objectively determined price. This rule corresponds to the imposition of damages by a court. Boomer is an example of an entitlement in the plaintiffs protected by a liability rule--defendant polluter can continue operations as long as damages are paid in satisfaction of the entitlement.

The fourth alternative, giving the polluter an entitlement protected by a liability rule, is rarely recognized as a possibility. The leading nuisance case employing this approach, Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972), involved a conflict between defendant's pre-existing cattle feedlot operation and plaintiff's residential subdivision, which expanded towards the feedlot until the flies and odors drifting onto the development made sale of more units impossible and provoked numerous complaints from existing residents. The court found that the feedlot was an enjoinable nuisance, but held that because of the "coming to the nuisance" aspect of the case, plaintiff developer would be required to indemnify defendant Spur for the cost of "moving or shutting down." The court reasoned:

It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result.

The court emphasized, however, that:

this relief to Spur is limited to a case wherein a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief.

Is the remedy accorded in Spur likely to be useful or applicable in many cases? Consider that here the homeowners' individual interests were represented by the development company. If

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an action were brought by an individual or by a class, how would compensation to the feedlot be apportioned among all the homeowners affected? What about homeowners who failed to join in the action?

What factors should be considered in deciding who gets an entitlement? In deciding whether the entitlement should be protected by a property rule or a liability rule? See generally, E. Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 Va.L.Rev. 1299 (1977); Lewin, Compensated Injunctions and the Evolution of Nuisance Law, 71 Iowa L. Rev. 775 (1986).

15. Is it helpful to analyze these cases in terms of causal responsibility? See Epstein, Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. Legal Stud. 49 (1979).

Contrast the following two views on assigning causal responsibility. Professor Fletcher, in the 1972 article discussed at p. ___, supra, argues that a victim of harm

has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant—in short, for injuries resulting from nonreciprocal risks.

In Coase, The Problem of Social Cost, 3 J. of Law & Econ. 1 (1960), discussed at p. ___, supra, the author challenges widely-accepted notions of causal direction:

The question is commonly thought of as one in which A inflicts harm on B and what has to be decided is: how should we restrain A? But this is wrong. We are dealing with a problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A? . . . [An] example is afforded by the problem of straying cattle which destroy crops on neighboring land. If it is inevitable that some cattle will stray, an increase in the supply of meat can only be obtained at the expense of a decrease in the supply of crops. The nature of the choice is clear: meat or crops.

Is one of these formulations more helpful than the other in thinking about nuisance cases? Do they address the issue of appropriate remedy as well as initial right (entitlement)? Does Spur reflect the idea that the feedlot and the development impose reciprocal costs on each other?

16. In his article Coase goes on to argue that in the absence of transaction costs (i.e., costs associated with striking a bargain) the rule of liability does not matter from an economic efficiency standpoint. In a Boomer situation, if the polluter is liable he will invest more in pollution control measures only when doing so is cheaper than paying damages or going out of business. If the polluter is not liable, the victim will "bribe" him to invest in pollution control equipment where doing so costs less than the damage the victim would otherwise suffer. Whatever the liability rule, the choice between pollution control measures and victim harm will result in precisely the same amount of resources being invested in elimination of the harm—although, of course, the distributional consequences will differ.

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Since there are almost invariably transaction costs—consider the costs of getting the parties together in Boomer, and the potential "holdout" problems if a "property" rule (injunctive relief) were granted—the rights and remedies recognized by nuisance law do generally make a considerable difference. The economic consequences under various assumptions about bargaining behavior are systematically explored in Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 Stan.L.Rev. 1075 (1980).

17. In the Union Bag case, cited in Boomer, the plaintiff's harm was assessed at $100 per year. Plaintiff enforced his injunction and the mill, which represented an investment of $1,000,000, was permanently closed. Why was the pre-Boomer New York rule on injunctive relief on its face so favorable to plaintiffs? Did it embody a distinctive view about property rights in land? Is the majority in Boomer correct in its assertion that the court's essential function is to decide "the rights of the parties before it"? Does the dissent disagree?

18. One legislative remedy available in New York against air pollution was Public Health Law §§ 1264-98, establishing an administrative body to determine standards for pollution and to promulgate regulations accordingly. The Commissioner of Health was to investigate and determine violations. His conclusions were subject to administrative and judicial review. Failure to take corrective action subjected the offender to penalties not to exceed $1,000 plus $200 for each day of continued violation. The Commissioner could also seek an injunction. The act expressly stated that it was supplementary to any other existing remedies, but at the same time provided that the rules and regulations promulgated under the statute were "not intended to create in any way new or enlarged rights or to enlarge existing rights." Any determination by the Commissioner that pollution existed or that a regulation had been violated "shall not create by reason thereof any presumption of law or finding of fact which shall inure to or be for the benefit of any person other than the state." New York had also entered interstate compacts to combat water and air pollution. (N.Y. Public Health Law §§ 1299-1299s.) Does the existence of these procedures affect your views of the majority decision?

19. Intersection with environmental regulatory schemes. Since 1970, the federal government has assumed a major presence in the field of regulatory control of environmental pollution. A wide variety of statutory schemes have been enacted in an effort to develop a more comprehensive approach to many of the environmental harms associated with air and water pollution, hazardous wastes, and toxic substances (among others). For the most part, these enactments have not been interpreted as preempting private nuisance actions under state common law, but there are exceptions. In International Paper Co. v. Ouellette, 479 U.S. 481 (1987), for example, the Supreme Court held that the Clean Water Act preempts state nuisance law when applied to an out-of-state source.

At the state level, most states have enacted pollution control statutes that either specifically preserve nuisance actions or have been interpreted by the courts to preserve such actions. As in the federal system, however, there are exceptions. In San Diego Gas & Electric Co. v. Superior Court, discussed at p. ___ supra, on the trespass claim, in which a group of homeowners alleged that electric and magnetic fields (EMF) emitted from the utility’s electric

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power lines had caused them emotional distress, made their homes uninhabitable, and destroyed the market value of their homes, the court rejected their private nuisance action, holding that an award of damages would impermissibly interfere with the Public Utility Commission's policy on power-line electric and magnetic fields. Recall the discussion of the preemption defense at p. ___, supra. Is there reason to think it would play out differently in the nuisance context? For an overview of the preemption issue and an argument that nuisance law should be retained as a supplemental remedy rather than being preempted by pollution control statutes, see Heimert, Keeping Pigs Out Of Parlors: Using Nuisance Law To Affect The Location Of Pollution, 27 Envtl. L. 403 (1997).

Conversely, consider the prospect of nuisance law being used to enforce regulations. See, e.g., Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496 (5th Cir.1999), cert. denied Kansas City Southern Ry. Co. v. Rushing, 120 S.Ct. 1171 (2000) (holding, among other things, that a plaintiff pressing a common-law private nuisance claim, asserted under Mississippi law against a railroad in connection with alleged excessive noise and vibration from its switching yard operations, could not seek to enforce noise limits stricter than those set forth in regulations implementing the federal Noise Control Act of 1978--but that such an action could be used to enforce the statutory limits.)

Although the regulatory approach to environmental pollution cannot be explored in a Torts course, it is important to be aware of the fact that a distinctly different way of dealing with health and safety issues does exist—an approach that has its counterpart in other areas, such as regulation of product safety, occupational safety, and motor vehicle safety.

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