709 P.2d 782 (Wash. 1985)
The Supreme Court of Washington received this case on certification from the United States District Court for the Western District of Washington.1 Michael O. Bradley and Marie A. Bradley, husband and wife, own and occupy real property on the southern end of Vashon Island in King County, Washington, which they purchased in 1978.2 American Smelting and Refining Company, a New Jersey corporation doing business in Washington, operates a primary copper smelter on real property it owns in Ruston, an incorporated municipality surrounded by the city of Tacoma.3
The Tacoma smelter has operated in its present location since 1890, as a copper smelter since 1902, and under a corporate entity that is now ASARCO since 1905.4 As part of the industrial process of smelting copper, the facility emits gases such as sulfur dioxide and particulate matter including arsenic, cadmium, and other metals.5 Plaintiffs' property is located some 4 miles north of the smelter.6 The parties stipulated that some particulate emissions of both cadmium and arsenic from the Tacoma smelter have been and are continuing to be deposited on plaintiffs' land.7
Defendant ASARCO has been aware since it took over operation of the Tacoma smelter in 1905 that the wind does, on occasion, cause smelter particulate emissions to blow over Vashon Island where plaintiffs' land is located.8 The emissions from the Tacoma smelter are subject to regulation under the Federal Clean Air Act, the Washington Clean Air Act, and the Puget Sound Air Pollution Control Agency.9 Currently, the Tacoma smelter meets the National Ambient Air Quality Standards for both sulfur dioxide and particulate matter.10 It is in compliance with PSAPCA Regulation I concerning particulate emissions as a result of a variance granted by PSAPCA.11
On October 3, 1983, plaintiffs brought this action against defendant in King County Superior Court alleging a cause of action for intentional trespass and for nuisance.12 The case was later removed to the United States District Court for the Western District of Washington.13 The record contains no proof of actual damages.14 Upon the plaintiffs moving for summary judgment on the issue of liability for the claimed trespass, the district court certified four questions to the Washington Supreme Court.15
Whether the defendant had the requisite intent to commit intentional trespass as a matter of law?16
Under the Restatement (Second) of Torts § 158, one is subject to liability for trespass if he intentionally enters land in the possession of another or causes a thing to do so.17 Intent under § 8A exists when the actor desires the consequences of the act or believes that the particulates will settle on the land as a result of the act.18 Comment b treats the actor as intending the result when the consequences of the particulates settling on the land are known to follow yet the actor proceeds anyway.19
Yes. The parties stipulated that ASARCO has operated the Tacoma smelter since 1905.20 ASARCO has known since that time that wind occasionally carries particulate emissions over Vashon Island where the Bradleys' property is located four miles north of the facility.21 The stipulations further establish that arsenic and cadmium particulates from the smelter have been and continue to be deposited on the Bradleys' land as a result of the smelting process.22
Because ASARCO operated the smelter with knowledge that the emissions would settle on the property whenever the wind blew in that direction, the facts satisfy the Restatement standard for intentional trespass.23
The defendant had the requisite intent to commit intentional trespass as a matter of law.24
Whether an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property gives rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance?25
An actionable invasion of a possessor's interest in exclusive possession of land constitutes trespass, while an actionable invasion of the interest in use and enjoyment constitutes nuisance; the same conduct may invade both interests, allowing the plaintiff to proceed on either or both theories when the elements of each are present, and modern trespass law permits recovery for invasions by airborne particulates that interfere with exclusive possession.26
Yes. The stipulations establish that microscopic arsenic and cadmium particulates emitted by the ASARCO smelter have been and continue to be deposited on the Bradleys' land. These deposits invade the Bradleys' interest in exclusive possession, supporting a trespass claim, while any substantial and unreasonable interference with use and enjoyment would additionally support a nuisance claim.27 The facts therefore permit concurrent causes of action under both theories.28
An intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property gives rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance.29
Whether the cause of action for trespassory invasion requires proof of actual damages?30
Although common-law trespass permitted recovery of nominal damages for any invasion, modern trespass by airborne particulates requires the plaintiff to prove actual and substantial damages to the res as an element of the claim.31 Without such proof the action is subject to dismissal on summary judgment.32
Yes. The established facts state that the record contains no proof of actual damages from the particulate deposits on the Bradleys' property.33 Actual and substantial damages constitute an essential element of the trespass claim for airborne pollutants.34 The absence of any such proof in the record means the Bradleys cannot prevail on the trespass theory under the facts presented.35
The cause of action for trespassory invasion requires proof of actual damages.36
Whether a cause of action for intentional trespass is recognized in Washington and what limitations apply including the effect of continuing trespass, the discovery rule, and the defenses of prescription and preemption?37
A cause of action for intentional trespass by airborne particulates is recognized when the invasion affects exclusive possession, is intentional, is reasonably foreseeable, and causes actual and substantial damages; the three-year statute of limitations applies, the trespass is continuing until the substance is removed, the discovery rule does not apply, prescription is available if all elements are proved, and the Washington Clean Air Act does not preempt the claim.38
Yes. The facts show that ASARCO's intentional emissions have deposited particulates on the Bradleys' land with knowledge and foreseeability since 1905, satisfying the elements for the recognized trespass action. The three-year statute of limitations governs and runs from accrual, the continuing nature of the trespass permits suits for damages within the preceding three years, the discovery rule is rejected, prescription remains theoretically available though difficult to establish because the invasion is not open and notorious, and the Clean Air Act expressly preserves private damage actions.39
A cause of action for intentional trespass is recognized in Washington. The three-year statute of limitations applies to the continuing trespass without the discovery rule. Prescription is available if proved. The claim is not preempted by the Washington Clean Air Act.40