Bradley
v. American Smelting and Refining
Supreme
Court of
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.