v. American Smelting and Refining
104 Wash.2d 677, 709 P.2d 782.
Prosser, p. 64-66
Facts: The plaintiff owned land near the defendant’s copper smelter. Gases and particles from the smelter landed on the plaintiff’s land. The plaintiff sued for trespass to land as well as nuisance. Both parties filed for summary judgment.
Issue: Can trespass lie when it does not involve anything visible to the naked eye?
Rule: Even the slightest bit of harm, including “by the vibration of the soil or by the concussion of the air” constitutes trespass.
Analysis: The court says that modern science insists that little particles can land on other peoples’ land, and that this is trespass. The court goes on to say that trespass and nuisance are not mutually exclusive. It is stated that a plaintiff must show “actual and substantial damages” in order to withstand a summary judgment motion.
Conclusion: The case was remanded to the United States District Court for the Western District of Washington, which granted American Smelting’s motion for summary judgment due to the low levels of pollutants found in the plaintiff’s soil.
Notes and Questions
1. I think nuisance would lie in the case of the race track and the drive-in theater. Shining lights on the theater, and thus obscuring the movies, would intrude upon “the use and enjoyment of property” for sure.
2. We’ll see more in Ch. 16.