Petition for Writ of Certiorari — Reynolds Metals Co. v. Martin (No. 691)

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FILE GOPY °. PiLee

ne - Supeeme Court

of the Wnited States

October 7. 1959

.

REYNOLDS METAL S COMPANY,

a corporation, Petitioner,

v. ‘ ,

PAUL MARTIN and VERLA MARTIN,

husband and wife, + Respondents. ree? s at

. e * ; ‘ oa

ee Petition for Writ of Certiorari to the

| Supreme Court of the State of Oregon

KING, MILLER, ANDERSON, NASH & ‘YERKE*

* FREDRIC A. YERKE, JR.

American Bank Building, Portland 5, Oregon

Attorneys for Petitioner

_ GUSTAV B. MARGRAF \

‘ W. TOBIN LENNON *

Reynolds Metals Building, Richmond, Virginia

_ Of Counsel for Petitioner”

v —_ ee

\ La Lr sOURNAL OF LOMMERCE te

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_ SUBJECT INDEX

Sty ey * Pace

Opinions Below .....:. Setiacheeenisanmetonens pdastatinclEbacnasesna )

| Jurisdiction . SST ate tO ratte aT CEA Te en

Questions Presented eae PERE eae ; se cides 3

( ‘onistitutional Provisions and Statutes _............ ee Bu :.

: ‘Statement of thé Case OT ee asain. Ves ie | cial 5

A. Summary @ Facts ................ : cae . a mien i Fae ie 5.

B. The Decision of the Trial Court ............. Sepevcasesnies in

C. The Decision of the Court Below irs vee io ED

i D. Raising of Federal Questions ee eidsiiadetiniscsemmninat ey 8

‘Reasons Relied Upon for the Allowance of i: wi rit a Lenses 10

Argument A Al SRN LATE ES EIR TS

_ I. Petitioner was denied equal spatection of the laws 3 in

violation of the Fourteenth Amendment to the Consti-

tution of the United States by reasotyof the refusal of |

_ the Supreme Court of the State of Oregon, in deiermin- a.

_____.ing_that_petitioner had—trespassed pon respondents’ —-

real property, to apply well-settled common law rules. 11

A. — court did not accord petitioner the benefit of

on law — of the State of Oregon _re-

gard g the _— between the torts of tres-’

ee BEES a re 11

“1. Under the common law of the State of Oregon

a trespass occurs only when there has been an

invasion by an object. PSEA rer OR et OS EE 12

| Under the confmon law of the State of Oregon

ceagpeeti a trespass occurs only when the injuries com-

plained of are the direct rather than the conse-

quential result of the alleged wrongful act........ 15

iB. Failure to give petitioner the benefit of rules. of law

. Which would be accorded to others similarly situ’ —

ated is a denial of equal-protéction of the laws’ in

~— violation of the Fourtefath Amendment to the Con- .

stitution of the United States. ........................... sais 17

HP

b, .

&

a

: INDEX—Gontinbed

II Petitioner ‘was ‘denied equal protection of the laws in

violation’ of the Fourteenth Amendment to the Consti-

tution of the United States by reason of the failure of

the Supreme Court of the State of Oregon to accord

petitioner the benefit of the new rule of law applicable

» to trespass actions which it*ormulated in: this CASE. ......

A... The court has injected a “weighing process” into

the tort law relating to trespass. ................... oo

B. The benefit, of the “weighing process” has been

pI A MUMS ncineihonbinccncdsnfarsesseenvatneisbeseesintaevecs

C. The court has denied petitioner equal protection

‘of the laws in violation of the Fourteenth Amend-

_mhent to the Constitution of the United’ States by

its failure to give petitioner.the advantage pf the

weighing process, ............:.......:00-0+++ See el ine

III. . The decision of the Supreme Court of the State of Ore-

gon conflicts with the effective conduct of the national

defense program by the federal government and inter-

feres with the efficient ‘operation of the\ basic economy

TES. cctatnnnisgstiensMacpictsewsincasnipiaplasdpsignarietssanieess’

SNE EIRE PR et MEN Fe ORO Om NEED, ONE AT na

Appendix pacebbehaahsnughescasnee IE ESA IE POS Aa mo : {cienennnalaneoiewves okbams cabeand

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Pacr.

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18,

21

22

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TABLE, OF CASES

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,

€}

P Pace.

Am phitheaters, Inc.. v. Portland “Meadows sisson 184 Or.

"336. SE PIE SEY ansorsacapin xvenvccecstseteotesseDicsiechsdnions sAieshodeg #2. 14;19

‘Brinkerhoff-Faris Trust Co. v. Hill (1999) 281 US 673. alae 9

Great Northern R: Co. v. ‘Sunburst Oil & Ref. Co. (1932) 287

IRR Rk Ue RE CO ee | CS as

Martin v. ex rnolds. Metals Company (July 29, 1959) 68 Or.

\

Adv Sh 1577 seseesssssngratnsscncncesseseesssesesoesnecesecnenesensoessessne 12, 16,19— —s

McFarland v. American Seas Ref. Co. (1915) 241 US 79 ...... 23

: Missouri ex rel Missouri Ins-€o- Vv. Gehner (1929) 281 US 313° 9

- Norwood v. Eastern Crag Land Co. (1932) 139 Or. 25,5 P2d

Nk gL ROR ARE SIE OI HERMES, en

‘Shelley v. Kraemer (1947) $US 1 .............. eo Nesiiglardiah ‘ses OT

Southern R. Co. v. Greene’ (1909) 216 US 400 ....0ecceccen 17,22 -.

State of Oregon -v:Pirkey (1955) 203 Or. 697, 281 Pod 698... 17,22

Yick Wo v. Hopkins (1885) 118 US I iitecd canal amedieleeaan 23 /

York v. Stallings (1959) 68 Or’Ady Sh 1105, 341 pod. 529........ )

TABLE OF STATUTES =

> agi.

: Constitutiod of the United States, Amendrnent XIV, Section | eT

Constitution of the United ‘States, Article I, Section 8 aveiteonchnt 4, 26

“if Oregon Rev: Statutes _ ‘ : | ve |

~ Section 12.010, p. 75. ......-..--.---.-- ealenapsnmnssiing Jf. Seas issih : .

_ Section 12. 080, p. 76 uence iuneaes pelle Pe terees. Te

Section 12.110; FG checinss Laceneasvee va neh Okan 5, 6, 11

28 USCA 1257 (3). pate Sais EY LEY Son ee falas hd 2

L

oti ‘a4 is Pn a :

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59 Columbia Law Review (1959), p. 468 ...c.0.0coesceone ke

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Restatement df the Law of Torf8

Section 165, p. 390

“Section 826, p. 241

Section 828, p. 250

Oe eer ree eee eee ee ee eee eee eee

Section 166, pp: 394+395 o..ccccccccclessssecssssssssssessssssssstesesseeeseee

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"Supreme Court of the”

. “nited States. —

- October Term, 1959

ee '

.

. REYNOLDS METALS COMPANY, ~*

* . @ corporation, Petitioner, -

w .

- PAUL MARTIN and VERLA MARTIN, |

husband and wife, _ Respondents.

Petition for Writ of Certiorari to the

Supreme Court of the State of Oregon

To thd Hie: Honorable Chief Justice and the Associate Justices

of the Supreme Court of the — States:

* Comes now REYNOLDS METALS COMPANY, a

corporation, and respectfully prays that 4 writ of ¢ér-

tiorari’ issue to review the judgment of the Supreme

Court of the State of Oregon, entered in the abote- eh

entitled case on November 18, 1959..

. OPINIONS BELOW

- Thevopinion: of the Circuit-Court of the State of

Oregek for Multnomah County i in granting respondents!

°.

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~* ‘ . ’

motion for ; a directed bpedict is unreported and is ap-

pended hereto at pages 2&to 33. |

' ‘The opinion of the Supreme Court of the State of .

“Oregon affirming the judgment of the Circuit Court of

the State of Oregon for Multnomah County is reported -

-at'68 Or. Adv Sh 1577. 342 P 2d 790, and.is appended at

pages 3+ t0 55.

~ No written Tae was rendered = the SEN ‘eme

~ Court of the State of Oregon. in denying a petition for. ox.

- rehearing. «2 ies

JURISDICTION

—

The judgment of the Supreme Court of the State of

Oregon .was dated ‘July 29, 1959, and was éntered on

the same day. Foe Bo oe

November 18, 1959, an order of said court was filed

Jenying a petition for rehearing. On November 25,

cour’ is filed stayiiig ‘issu-

-

1959, an order of saic

ance: a the mandate for-a period of 90 days to ‘permit

petitioner’ to’ apply, to this court for a writ of certiorari.

®

This court has jurisdiction to review the judgment

in question ‘by writ of certiorari by reason of «28 USCA

1257 (3) because rights claimed under the Constitution

of the United States are involved.

. 1. Was petitioner denied equal protection oiAhe

laws i in violation of the Fourteenth Amendment to the

Cc onstitution ‘of the United States by reason of the refusal

of the Supreme Court of the State of Oregon, i in deter-

‘mining that petitioner had trespassed upon respondents’

real property, to apply; well.settled common law rules?

2. Was petitioner denied. equal protection of the

Jaws i in violation of the ‘Fourteenth Amendment to the

to — actions which it formulated i in this ‘case?

3. Does the decision of the Supreme Court of the

State of Oregon interfere with the effective conduct of

the national defense program by the federal government

| mation? ss Path ;

CONSTITUTIONAL PROVISIONS AND STATUTES

1. Constitution of: the United States, Amendment XLV,

| § 1 :

| ~. .° “No state shall * * * deny to any. person ‘within

its jurisdiction-the equal protection, of the Laws.”

of the Supreme Court of the State of Oregon to give.

< -onstitution of the United States by reason 6f the refusal .

petitioner the benefit of the new rule of law: ‘applicable ;

4

| and the efficient operation of the basic economy of the

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2, Constitution of the United States, Article, $8

x " “The C ongress shall have Power T o** * provide

. for the. common Defense anid general W elfare of the amen

United States; *-* * | ; ?

_

“Tp regulate Cormmnetce with foreign Nations,

and ‘among the sev eral States, and with the Indian

Tribes; * * * ry 8

“To declare War, * * *

To raise and — oe ot ; ;

“To provide and laintain a Navy; °° i

“To. make Rules for the Government ang Regu-

lation of the land and,waval Forces; .

i,

“Tolprov ide for calling forth the Miti tia to exe-

cute the Laws of the Union, suppress Insurrections |

and. repel Invasions;

.» lo proy ide for didaleuké, arming, and diect-

plining, th Militia, and for goverifing such‘Part of

» them as may be employed in the Service of the

United States, reserving to the States respectively,

- the Appointment ‘of the Officers,‘and the Authority’

of training the Militia according ‘to the discipline

prescribed by Congress.” |, __ « /

~ oe Oregon Rev. Statutes, § 12.010, p. 75

“Actions at law shall only be commenced within

the periods prescribed in this chapter, after the cause

of, action shall have accrued, except whereya differ-

ent limitation is prescribed by statute. The objection

that the action was not commenced within the time

limited shall only be taken by answer, except as

3 provided. in ORS 16. 260. ee /

- -

-§

4. 1 Oregon Rev. Statutes, § 12.080, p. 76

“Within six-years.° ** ; ' / oF

*(3) An action for waste or trespass upon real

eo:

4

- 1 Oregon Rev. Statutes, § 12.110, p. 76

. 3 on

“Within two years; 7?

ited injury to the person or rights of

another, not arising on contract, and not especially

enumerated -in this chapter, shall’ be commenced

' within two years; * * *.” .

4 re) “a ; : <

STATEMENT OF THE CASE

Inasmuch as the hacbiiicse presented by this petition

relates to the law of trespass and the application thereof,

— only se facts.are stated which are required to place |

is issue \in its —e

é ?

“e A. Summary f Facts | € ‘-

| fevers ito operatyon of that plant, uoride

~ conypounds unatdidably escape into the atmos sphere in

the form of Bases, funies and subsmicron size Cinvisible)

particulates. During the sorted frees August 22, 1951,

* to January 1, $56, respondents. owned certain lands “a

-6

‘located to the east of petitioner's aluminum reduction -

plant which had been used for the grazing of cattle..

February 17, 1955, respondents commenced this |

-action by filing a complaint in which they alleged that

fluoride compounds escaping from petitioner” s plant

-had , rendered their lands unfit for raising livestock

. during the aforementioned period. They further alleged

that willows, brush, trees and weeds had grown up on

said lands because of lack-of use. Respondents sought

compensatory damages in the sum of $300,000 for the

loss of use of said lands, $150,000 for deterior ation in

the condition thereof, and $300.00 as punitive. ‘dam-

ages. Respondents characterized their cause of action

as trespass in their complaint, first amended complaint

and second amended and supplemental complaint.

‘The statute of limitations in the ‘State of Oregon is

six years in trespass actions. 1 Oregon Rev. Statutes,

§ 12.080, p. 76. In nuisance actions, the statute of limita-

tions is two years. 1 Qregon Rev. Statutes, § 12.110, p. 76.

‘In the lower court petitioner continually trged, that

the settling of gases, fumes and particulates upon real

property did not constitute a trespass inasmuch as such

effluents could not be seen or touched. Motions to strike

the characterization of the action as trespass directed

“at each of the complaints were denied in each instance

by the court. ‘ , ‘

7

B.: The Decision of the Trial Court

_ Atthe conclusion of the evidence, both parties moved

for a directed verdict. The trial court awarded respon-

dents the sum of $71,500 for loss of use of their said

ranch lands and $20,000 for deterioration af said lands.

Judgment was entered for respondents in the ‘sum of

$91,500. mane

C. The Decision of the Court Below

Petitioner appealed from this judgment to the Su-

preme Court of the State of Oregon. Among the errors

t . P '

_ of law assigned as error on appeal to that court as

ground for reversal were the following:

1. The ruling of the trial court that the. settling

of gases, fumes and particulates upon respondents’

real property constituted a trespass. :

2. The failure of the trial court to hold that

respondents’, claims were’ subject to the two- -year

statute of limitations. ‘ in

The Supreme Court of the State of Oregon

(1) Defined a tr espass 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

‘ ra . . .

he;

8

measuredonly by the mathematical language of the

physicist.”

(2) Stated that the tort of trespass “involves a

weighing process, similar to that involved in the law

of nuisance, although to a more limited extent than?

‘i in nuisance and for a different purpose, i.e., in the

one caseé to, define the possessor’s interest in exclusiye

possession, and.in the other to define the possessor s

interest in use and enjoyment.”

(3) Refused to’ accord to petitioner the bencfit

of the “*w eighing process.”

(4) Held that the settling of invisible fluoride

_particulates escaping from petitioner’s plant and

_ settling upon reepeneens real pr operties resulted

ina trespass. . .

" 0. Raising of Federal Questions |

’

Petitioner’ s pray er fora writ of certiorari in this”

case is based upon 3 ‘See ee:

1. Denial of equal protection of the laws because

of the action of the Supreme Court of the State of

Or egon outlined above; and

2. The effect of the character of the decision

upon the national defense program and the basic

economy of the nation.

¢

¢°

That the court, in rendering its decision, Would ignore

well-estahlished rules of common law as to the tort

of trespass, formulate a new definition of trespass and

‘fail ‘to apply the new definition in this case was, of

course, a matter that petitioner could not be cognizant

of ufitil the court’s opinion was filed. Also, only at this

nar could petitioner be woe of the probable. effect

of tlie decision upon the national cavoner: program and

the basic economy of the nation.

Therefore, the first opportitinkwhich petitioner had

. to raise the federal questions sought to be reviewed

herein was in its petition for rehearing filedewith the

Oregon Supreme Court and in it®brief in support there-

of. For this reason, petitioner’ 's assertion of the federal

_, question in its-petition for rehearing to the Supreme

Court of the State of Oregon and in its brief in support’

thereof was timely. Brinkerhoff- Faris’Trust Co. v. Hill

(1929) 281 US 673, 677-678: Great Northern R. Co. v.

“Sunburst Oil & Ref. Co. (1932) 287 US 358, 367. The

petition for rehearing: was summarily denied by the

¢

court. The efficacy of said petition and brief as to raising.

federal questions is not less because it was summarily

‘denied. Brinkerhoff- Faris Trust Co: v. Hill, supra: AJis-

souri er rel Missouri Ins. Co. v. Gehner (1929) 281. US

363, 320. :

*

10

ALLOWANCE OF THE Watt

Petitioner submits that this court should review the

de ‘cision of the Supreme Court of the State of Oregon -

for the following reasons:

-~«

= | 4

Petitioner was denied equal protection of the laws in

violation of the Fourteenth Amendment to the C onsti-

tution of the United States by reason of the refusal of )

‘s ~the Supreme Court of the State of Oregon, i in determin-

ing that petitioner had trespassed upon respendents’ real

property, to apply well-settled common law rules.

’ Petitioner was denied’equal protection of the laws

in violation of’the Fourteenth Ainendment to the’ Con-

stitution of the United States by reason of the failure

of the Supreme Court of the State of Oregon to accord

petitioner the benefit of the new rule of law + omen

to trespass actions which it formulated in this case.

(Mee + - 7:

The decision of the Supreme Court of the State of

Oregon conflicts with the. effective conduct of the na-

tional defense program by thé federal government and

r

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4

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% ‘11

interferes with the efficient operation of the basic

economy of the nation. .

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| Petitioner was denied equal protection of-the lavis in

Pos ot emcee nt acl

of the United States by reason of the refusal of the Supreme .

Court of the State of Oregon; in determining that petitioner

hed trespessed uped respondents’ real property, com

welb-copted commen tow cules. /

| A. The court did not accord petitioner the benefit

ef commen lew principles of the State of Oregon re-

Gerding the distinction between the torts of trespass

ond nuisance.

The statute of limitations in the State of Oregon is

“six years in trespass actions. 1 Ore ‘gon Rev. er ;

§ 12.080, p. 76. In nuisance actions, the statute of limita

tions is two years. f Oregon Rev. Statutes, § 12.110, p.

76. In the subject case respondents claimed, ‘and were

awarded, damages for a period of four and one-half

_ years. Accordingly, the determination of the applicable

statute of limitations was vital to an establishment ‘of

the parties’ rights. This in turn, of course, required a

eo pa

oe

al 12

‘deter mination as tow hether or not the alleged wrongful

couduct was in the nature. of a trespass or @ nuisance.!

a .

1. “Unde the common law of the State of Oregon .

em sey ete en bro on

__ by en cbject. - he ‘ |

It Us the settled rule that to constitute a trespass, an.

invasion causing interference with. possession, there —

must be occupancy of space by.an olfect. Restatement

of the Law of Torts, § 158, pp. 359-360; § 165, p. 390;

$ 166, PP. 304. 395, This rule-has been accepted. in Ore-

gon.

tas sennye Sa ah Inc. v, Portland Meadows (1948)

- 184 Or. 336, 198 P 2d 847.

C

This was an action brought by the operator of a

drive-i -in open air motion picture theater against the

operator of an adjoining race track for horses, I he track

o

was brilliantly lighted for night racing. Its a alleged

“that. the lights from the work destroyed the natural »

, a The court conceded that wnpaes and nuisance are separate fields of tort

ability) :

Martin » Reynolds Metals Company (July 29, 1949). lbs

68 Or. Adv Sh 1577, 1580 ¢

“Trespass and private nuisance are iaparete fields of tort liability relat

ing to actionable interference with the possession of land. They may be

disunguished by comparing the interest invaded; an actionable invasjon of

_@ pogsessor’s interest in the exclusive _posséssion of land is a trespass, an

“actionable invasion of a possessor’s interest in the use and enjoyment of his

land is @ nuisance. 4 Restatement, Torts 224, Intro. Note Chapter 40.”

eo

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darkness on plaintiff's property, rendering it impossible ..

to successfully show outdoor. motion pictures, and thus

constituted a trespass, or, in the alternative, a nuisance.

Judgment based on a directed verdict for defendant was

affirmed. -The Supreme Cc ourt of the State of Oregon

states at pages 343- 34, 345:

i

“Plaintiff contends that the defendant, by casting

light equivalent to that of a full moon upon plain--

tiff's screen has committed a trespass upon real prop-

_ erty and error is assigned by reason of the failure of

the court to submit to the jury the question of tres-

pass! While the dividing line between trespass and

‘nuisance is not always a sharp ¢ one, we think it clear

that the case at bar is governed by the law of nui-

sance and not by the law of trespass. Under our deci-

sions every unauthorized entry upon-larid of another,

although without damage, constitutes actionabletres-

pass. Kesterson v. California-Oregon Power Co., 114

Or, 22, 228 P51092; Huber v. Portland Gas & Coke |.

—Co., 128 OF. 363; 274 P. 509; 52. Am. Jur.; ; Trespass,

§ +7, p, 872; Restatement of the Law of T orts, Vol. 1,

§ 158, p. 359. The mere suggestion that the casting

of light upon the premises of a plaintiff would render

a defendant liable without proof of any actual dam-

age, carries its own refutation. Actions for damages

on account of smoke, noxious odors and the like have

been universally classified as falling within the law |

of nuisance. In fact; cases of this, type are described

in the Restatement of the Law as ‘non ‘trespassory’.

invasions, <“<Segonnaiag of the. Law of Tor ts, Vol. +4,

-Ch. 40, , P. 214, et seq.

. : “

14

.

.

/ “* * * We need not argue the distinction between

a cannon balland a ray of light.” (Emphasis added )2

The Supreme Court of the State,of Oregon never at-

‘tempted to limit the ‘application of the Amphitheaters

decision in any Way. In the case at bar the court did

consider the Amphitheaters decision at some length.

While not overruling the decision and continuing to

recognize-it as part of the substantive law of Oregon,

the court did not give petitioner the benefit of the rule |

of law set forth therein. Yet the Amphitheaters wule con-

_. tinues to exist as a rule to be applied without restriction

to’ persiris involved in litigation similar to that in which

petitioner is presently i involved. Howev er, petitioner has

been denied the benefit of this existent rule and has,

therefore, Had abridged. its federally guaranteed right

to have.the substantive law of the Supreme Court of the..

| State of Oregon applied without discrimination.

2. In a recent comment concernin this decision, Dean Page Keeton of the

University of Texas Law School ning in 59 Columbia Law Review (1959) at

page 468 as follows:

“While it is generally assumed and held that a personal entry. by the

actor is unnecessary for the latter to be a trespasser, his act must result in-an

invasion by tangible matter; otherwise, there would be no disturbance of

ion. Thus, it is not a trespass to project light, noise, or vibrations

across or onto the land of ‘another .because there-is no occupancy of space

even for a brief period. -

‘ ; i Amphitheatres, Inc. v. Portland Meadows, the courtapia:

\ \ “While the dividing line between‘trespass and nuisance is not always:

*. “a sharp qne, we think it clear that the .case at bar is governed by the

‘law of nuisance and not by the law of trespass... . The mere suggestion

that the casting of light upon the premises of a ’ plaintiff would render

a defendant liable, ‘without proof of any ne comage, carries its own -

refutation.” " (Emphasis added )

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=

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2. Under the common law of the State of Oregon’a

trespass occurs only when the injuries complained of

are the direct rather than the consequential result of the

alleged wrongful act.

A cause of action in teespass arises only where the

‘injury,,is direct and immediate rather than consequen-

tial. This rule was recognized by the Supreme Court

of the State of Oregon 27 years ago and has remained

inviolate since its enunciation. In Norwood vu. Eastern

Oregon Land. Co. (1932) 139 Or. 25, 3 P2d 1057, 7 P2 . ’

996, the court stated at pages 37-38: .

~ “The injuries. wehich he sustained were mt of the

immediate and direct nature which is essential in

an action for trespass. The damage to.the crops and

the lands followed as a consequence of the wrongful.

diversion of the water, but it can not be said that

they were the immediate and. direct result of such

wrongful act. As‘stated in 2 Words & Phrases, First

_ Series, p. 1442: * 5°

“+ “Conseqifential damages,” are those that fol

low naturally, but indirectly, from’ a wrong act.”

“Also see 26 R.C.L. 930, wherein it is said: “as

“«* * * an injury is a trespass only when-i it is

imniediate and direetly occasioned by, and.is not

_ merely a consequence resulting from, the act.omm-

plained of.’ ” .

—< 16°

' This rule has neyer been overruled nor modified. It

‘remains the law ofthe State of Oregon to this day, asa

* mandatory rule to be followed in determining whether

the conduct of a defendant constitutes a trespass or a

nuisance in any. case ‘in which’ that question must be

resolved. The ‘court denied, to petitioner its coristitu- -

tional right to have this rule applied here. Although

the question was clearly before it, the court declined _

to give petitioner the benefit of said rule, not by over-

ruling or changing it, but by ignoring its existence for

the purpose of this case. The court acknowledged that.

the damages flowing from the acts of which respond-

"ents complained were Comecaquceayal, -but then stated: .

‘Martin v. Reynolds - Metals Co. (July 29, 1959) 68

Or. Adv Sh 1577, 1591

e 3 ;

“The distinction between direct and indirect inva- - .

sions where there has been a physical intrusiori upon

the plaintiff's land has been abandoned. by some

courts..* * * it is mot necessary for us to decide -

whether the distinction is recognized in this state.”

» ro]

- The court thus declined to'give petitioner the bene-

fit of an Oregon common law rule of long standing a

which i is, and will, urider the law’ of the-state as it now |

‘exists, continue to be available to others to 4v hom the —

distinction between trespass and nuisayice is of im-

‘ portance, Dee ake ’ ¢

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bo

' guarantees su

a

7B. Failure to give petitioner the benefit of rules of |

law which would be accorded to others similarly situ-

ated is a denial of equal protection of the laws in vio-

-*> ‘lation of the Fourteenth Amendment to the Constitution

of the United States. P48 eae ted

_ The equal | protection clause ’ of the: Fourteenth

——— a Constitution of the “United States ’

l jection to equal laws, applying feet

all in the same situation, Southern R. Co. Gree

(1909) 216 US 400. The Suprenie Court of the State of: 7

Mregon has recognized that under the equal protection

clause of the’ Federal Constitution there is a. guarantee.

of like treatment. to all persens similarly situated. Staté

of Oregon v. Pirkey. (1955) 203 Or..697, 281 P2d 698.

Action of state courts and-judicial officers in their -offi-

cial capacities is action of the state within the meaning

of the Fourteenth Amendment to the Constitution of. the

United States. Shelley v. Kraemer (1947) 334 US 1.

o

- As already noted, the ultimate question involved in

this caseis whether the two or the six year statute oft ;

limitations is-applicable. Consequently a d&ermination

_ as to whether or rot petitioner's conduct ‘constituted a

trespass or a nuisance is essential. The Supreme Court

of the State of Oregon has for mulated certain principles |

to be used in deter rhining whether certain conduct con-

stitutes a trespass or a nuisance. Such principles have

‘ a d 18

‘ )

not been abrogated or overruled, They remain for appli-

cation to litigants other than petitioner. However, the —

benefit of these principles has beén denied to petitioner

in this case. This is an unjust discr iminatiort and denial

of equal protection of the laws.

For the reasons’ set forth above, petitioner respect-

fully urges that a writ of certiorari‘’should issue to cor-

rect the violation by the Supreme Court of the State of

Oregon of . petitioner's fuindamental rights under the

Fourteenth Amendment to the Constitution. of ‘the

United States.

I

Petitioner was denied equal protection of the laws in

violation of the Fourteenth Amendment to the Constitution

of the United States by reasen of the failure of the Su- -

preme Court of the State of Oregon to accord petitioner

the benefit of the new rule of law applicable to trespass

actions which it formulated in this case.

A. The court has injected a “weighing process” into

the tort law relating to trespass.

’

‘ .

In determining whether certain activity constitutes,

» or results in the creation of, a nuisance, the courts have

‘

traditionally weighed the utility of the’ conduct com-

-plained of against the gravity of the harm, occ urring.

% = . :

oy A ‘ ¢

° . ¢. | * @ ° 4 vaya . . .

- Until the decision in the present case, this ‘weighing _

process has been entirely foreign to the law of trespass.

The Supreme Court of the State of Oregon, by the deci-

sion in this’case, has injected such weighing process fiito

the law of trespass. It has thus created an entirely new

‘element in thie law oe to te wr i The court stated

in its opinion in

“Martin v. Reynolds Metals Company July” 29,

1959), 68 Or. Adv Sh 1577, 1586

-. “* *:* the tort of trespass involves a weighing

process, similar to. that involved in-the law of nui-

sarice, although to a more limited extent than in

nuisance and for a different purposé, i.e., in the one

case to define the possessor’s interest in exclusive

' possession, and in the other tb define the possessor’s

interest in use and enjoyment.” ~

\ *

The court is not ‘definitive “as to what factors will

be a part of this weighing process, However, the court

has recognized such process in the law of nuisance and

has adopted the statement of that process set out by the

Restatement of the Law of Torts. York v. Stallings.

(1959) 68 Or. Adv Sh 1105, 1111, 341, P2d 529, 5335.

Amphitheaters, Inc... Portland Meadows (1948) 184

Or. 3 36, 198 P2d 847. According to that authority, de-

tithe

terniination of w hether an invasion is unreasonable im

det termining if.a nuisance exists requires weighing “the

?

20

utility of the actor’s conduct” against “the gravity of the

harm.” Restatement of the Law of Torts, § 826, p. O41. .

Consider ‘ration is made of the following factors in —

mining the gravity of the harm:

“(a) the extent of the hart involved;

“(b) the character of'the harm involved:

“(c) the ciel value which the law attaches to the

type of use or enjoyment invaded;

“(d) the suitability of the particular use or enjoy-

ment invaded to the character of the locality;

we ~ ee ee burden on the person harmed of avoiding

the harm.’

?

<7 Indetermining the utility of the conduct, the following

factors are considered: _.” ~\:

_ Restatement of the Law of Torts, § 838, p. 250

“s a) social value.which the law attaches to the pri-

_ mary purpose of the condu

“(b) suitability of the conduct to the character of

.* the locality;

- “(e) impractibility. of preventing or avoiding the |

invasion.’

Some or all of” the above factors are obviously en-

titled to consideration in applyi vad the new sae wet

9

_ process.

~~

Petitioner does not dispute the authority of the court -

ina proper case-to adopt new- standards heretofore not

recognized as relevant in determining whether a tres- -

pass’ has occurred. Petitiorier does object, however, to

an adoption of any rule or definition whic rayill be

available to all litigants within’ the state of Oregon = **

Cpt petitioner.

ae ‘

B. The benefit of the “weighing process” bine been

" denied to petitioner. a

Because of the decision by the Supreme Court of the

State of Oregon, litigints whose conduct would other--

wise, constitute a trespass are entitled to introduce evi-

dence on some or all of the factors set forth above for

the purpose of having the same “weighed.” However,

the court has, while making this.new rule available to

all who are situated as petitioner, summarily denied

the benefit of the rule to petitioner.

Petitioner has been given’ no opportunity to intro- ~

duce evidence on matters relevant to this weighing

process. The trial court has been given no opportunity

to apply the weighing process in this case and, as long.

as such weighing process is ‘applicable to trespass ac-’

tions, it.is obvious that there will always be considerable

evidence which the trial court should consider regard-

ing utility of the petitioner’s conduct in the legitimate

.

i

22

operation of an aluminum reduction plant as eompared:

with the gravity of the harm claimed by respondents.

The court would concededly give others whose ¢on-

duct may constitute a trespass the benefit: of this rule

of law. Petitioner should also be entitled to the benefit

of the same rule. Accordingly, after the court had

-adopted this new and completely unanticipated rule, .

.. the cause should have been remanded to the trial court

in order. to permit petitioner to introduce relevant evi-

dence and to allow the trial court to weigh the factors

‘involved. Failure to do so was a discrimination by the.

court against petitioner.

C. The court has denied petitioner equal protection

of the laws in violation of the Fourteenth Amendment.

to the Constitution of the United States by its failure to -

_ give petitioner the advantage of the weighing process.

The equal protection clause of the Fourteenth

Amendment to the Constitution of the United States

guarantees subjection to equal laws, applying alike to

all in the. same situation. Southern R. Co. v. Greene

(1909) 216 US 400; State of Oregon v. Pirkey (1955)

203 Or. 697, 281 P2d 698. Application and administra-

tion of a law by a public authority with an unequal

23 - as (

hand, so.as to in practice make unjust and illegal dis-

criminations between persons in similar circumstances,

has the same result as if the discrimination were incor-

‘porated i in the law. Yick Wor v. Hopkins (1885) 118_US

= ~~

356, 373. Such discrimination by uriequal application of

.

the law may appear on the face of the action taken with

respect to a certain person or class of persons. McFar-

land v. American Sugar Ref. Co. (1915) 241 US 79.

The Supreme Gourt of the State of Oregon has for-

mulated a new rile as part of the law of the state relat-

ing to trespass by injecting a “weighing: process” into

said tort. This rule, although novel, is fair on Its face.

However, here the court administered the new y rule in

a discriminatory fashion in summarily oonying peti-

tioner its benefits. This was done in spite ‘of the fact

that petitioner’s claimed conduct was the cause for the

__/ formulation of the rule and was typical of the conduct

to which such rule should .be applied. Failure to give

petitioner the benefit of this rule resulted in the denial —

to petitioner of equal protection of the laws in violation

of the Fourteenth Amendment to the Constitution of

the United States. For this reason petitioner respectfully

urges. that a writ of certiorari should issue to correct

the violation of this fundamental constitutional’ guar-

antee.

4

HI

The decision of the Supreme Court of the State of-Ore-

gon conflicts with the effective conduct of the national de- 7

fense program by the federal government and interferes

wih Gin Giitent eqecetiys af i Gate aang Be

nation. ia

The importance of the aluminum industry to the)

basic economy of the nation and to national defense

is obvious. Consequently, the formulation or application

of. any rule of law ina manner as to in effect make

such an industry strictly liable because of invisible efflu- -

ehts unavoidably. escaping during the course. of its oper-

ations must be viewed with grave concern. This is the

situation which exists in the present case, The Supreme

Court of the State of Oregon has

Ww Formulated a new definition of trespass

which, if literally applied, would. result i in ‘the im- —

position of tort liability upon segments of the com-

munity heretofore adjudged free of the same. .

(2) Incorporated in the law of trespass a. novel

weighing process heretofore foreign to this tort.

(3) Failed to define the elements or factors to

be considered where this weighing process is to be

employed.

j lish a precedent whereby any court may find that a’

}

cE

25

(+), Failed to apply the “weighing process” to -

this case, which the opinion indicates is eacaaes of

een ee Le ed

the cases where weighing should occur.

oS

The net ~_—" of the opinion, thet ‘fore, is to estab-_

trespass has occurred as a result of a mere intrusion of

tangible matter or-intangible forces. In so doing, the

court in question may disregard the so-called “weighing

process” on the ground that the ¢ began Supreme Court

failed to apply the same. :

Logically, there is no reason to restrict the applica-

tion of this precedent to the aluminum industry. Other

industries such as steel, oil, cement and fertilizer also

produce. fluoride compounds in the course of normal

operations. Application of the rule, however, is not to

~ be limited to fluoride compounds. The same may. also

7

be applied-to many other industries producing effluents .

which settle on real property, or for that matter to |

nuclear falléut or even to the smoke particles from a

a)

simple chimney.

Thus, application of the rule to be derived from the

intolerable burden upon various segments of the com-

munity, and espec ially industry. In addition, a new

_ basis of liability will be established for recovery against

e°

gj

Ce)

‘opinion will‘undoubtedly’ result in the imposition of an —

A erie O i 5

f =)

26 «. ;

the federal government for invasions by radioactive

fallout from nuclear tests. The fact of an inVasion or

»

“intrusion” havirig been established, then as a result

of the contents of the opinion in this case liability would -

follow. In what way does this differ from the applica-

tion of the doctrine of strict liability or liability without

bee i, Eee

One can speculate endlessly as to the harmful re-

sults to be expected following the removal of industry

from the Sa of the well-defined rules. of the law

of nuisance and the consequent exposure to the harsher

law of trespass. The nature and public importance ef

the conclusions set forth in the opinion are »bvious. The

matter is one not only involying private industry in gen-

eral but also, of necessity, the national defense program.

The decision of the Supreme Court of the State of

Oregon. has established a precedent by which a stag-

gering burden mov be imposed on national defense in-

dustries. and industries basic to the economy, This can

result in a smothering effect upon the national defense

program administered by the Congress under the Con--

stitution. of the United States. Constitution of the United

States, Article I, Section 8. Because of the grave public

importance of the question presented, petitioner respect-

fully urges that its petition for writ of certiorari should

e

be granted by this court.

St ee —

4) e >

- ~ .

ee

—_—

.

27

CONCLUSION

Be ‘cause petitioner has been denied its fundamental

7 constitutional right to equal protection of the laws as

guaranteed by the Fourteenth Amendment to: the Con-

stitution of the United States, and because of the vital

importance of the-issues. presented to the public and to

the basic industry of the nation, petitioner respectfully

prays that its petition for a writ of certiorari to the

Supreme Court of Oregon be granted. |

Respectfully: submitted,

KING, MILLE R, ANDE :RSON, N ASH

& YERKE,

FRE. DRIC A. XE -RKE, JR.

Attorm -ys for Petitioner,

~ 1200 American Bank Building,

-

Portland 5, Oregon.

GUST AV B. MARGRAF,

TOBIN: LENNON,

Of Couhsel for Petitioner,

* Reynolds Metals Building,

Richmond 18, Virginia. |

€

-

>

Messrs. George W. Mead &

Irving Rand _ . ge

29

APPENDIX ’ oe

PART 1

, CIRCU IT COURT OF OREGON

Fourth Judicial District

Department No. 13

Portland +, Oregon

Paul R. Harris

Judge

° May 7, 1956

Attorneys at Law ~~ ;

Public Service Building

Portland 4+, Oregon : om

Mibewe. King, Miller, Astieveen,

Nash & Yerke — - Je

Attorneys at Law

* 926 American Bank Building

Portland +, Oregon

Re: Paul Martin and Verla Martin

. husband and wife vs. Reynolds

Metals Company, a corporation

at No. 223-612

«©

Gentlemen: . ;

~~

- At the conclusion of the evidence both the plaintiffs

. . » . ° a 4

and the defendant submitted a motion for a directed

v

8 | .

verdict. Thus the right to a jury trial was waived by

all parties and the whole duty was cast upon the trial

Judge of deciding the case. (Williams v. Corbett 286 7

ia ae: (Ore) 115, 116.

, The Court finds that between August 22, 1951 and

January the 1st, 1956 the defendant continuously oper.

ated the aluminum reduction plant in question and in

. ®>

the operation thereof and as a result of such operation

produc ed at said plant pid caused to be emitted there-

trom and to be blown over and deposited upon plain-

tiffs’ land toxic and poisonous fluoride compounds in

the for m of gases; fumes and. particulates; the Court.

further finds that this trespass upon and invasion of

the land of the plaintiffs by said substances emanating

from defendant’s plant have during the period above

mentioned rendered plaintiffs’ land and the grasses and

forage and drinking water thereon poisonous and toxic

in character and unfit fof consumption by livestock

grazing upon said land, and that as a result thereof

cattle grazing on said land during said period ingested —

more than a normal-amount of fluorine; that the fpre-«

going did materially and directly impair plaintiffs’ land

with reference to its usé as a grazing: property and ex-

cept for the emanations from defendant's plant, plain-

tiffs’ land would during. the period above me nntioned

have been valuable for the producing, ‘raising | and fat-

tening of beef cattie and livestock,

|

cr

31

‘ The Court further finds that because of the tres-

pass by the defendant of plaintiffs” land above men-

tioned and the contamination ‘resulting. therefrom,

plaintiffs have been unable to produce, raise, pasture

or fatten-livestock upon said ranch land and that there-

by plaintiffs have been damaged in the loss of use of

said land from August 22, 1951 to January the Ist, 1956

_in the sum of-$71,500.

In addition thereto and as a direct result of defend-

ant’s trespass as above set forth, the Court further finds

that plaintiffs’ land has been deteriorated by portions

of the same “having grown up to willows, brush, trees

and weeds, and that the plaintiffs have been damaged.

thereby in the sum of $20,000.

' The Court is of-the opinion that the instant. cause °

is not a proper one in which to award punitive damages.

(Williams v Goose Lake Valley Irrigation Co., 83

ORE. 302, 309-310.)

‘ ~The plaintiffs urged during the trial of the cause

that certain facts found by Chief Judge James Alger Feeg =

ina case prev iously tried’ in 1 the Federal District, Court

(or

be ‘tween the same parties were conclusively binding in

: the instant cause under the theory of estoppel by judg-

ment. However, the Court is of the opinion that the facts

in the Federal case and claimed to be conclu-

32

‘sively binding here were not directly in issue in said

cause if the sense of being: actually determined ‘as the

decisive questions therein and are therefor £ conclu-

sive for the purpose of a subsequent suit on a different

cause of action. The Court is of the opinion that said

facts concluded in the former litigation were merely

evidenciary of the matters directly in issue and not the

decisive questions in issue ‘in the former case,

(Judgments 50 CJS, Page 218, Section 730. Harvey

‘v. Getchal, 190 ORE 205, 214-215. Farmers Bank v.

Davis, 93 ORE 655, 666).

In view of the foregoing the Court hereby rules that

the transcript in the case of Martin v. Reynolds Metals

Company in.the United States District Court is inad-

missible as-eviderice in this case for the -consideration

of the Court as the trier of the facts and the-Court has

ignored said transcript in determining the iss of fact

herein.’

In conclusion, it may be stated that while not di-

rectly: in point the case of Oregon-Washington R. & N. .

Co. v. Reed, 87 ORE. 398, in the opinion of the Court

comes closer to paralleling the instant cause than any

other Oregon case. In the Reed case a railroad in chang-.

-ing its roadbed diverted the water of a brook so that it

seeped through an embankment and damaged: adjoin-

ing lands, injuring them for the purposes of pasturage.

re

33

- The Oregon Supreme Court indicated that a continuing

trespass upon the real property had been thereby, com-

“mitted. } i

Counsel for the plaintiffs may prepare and submit

findings, conclusions and judgment in conformity with

the foregoing. | |

- Yours very truly,

PAUL R. HARRIS, Judge.

. -

@ s

~

34.

PART Il

No. 6278—July 29, 1959

IN: THE SUPREME COURT OF THE STATE OF

OREGON

IN Banc |

MARTIN et x, Respondenis, v. REYNOLDS

METALS COMPANY, Appellant. |

Appeal from Circuit Court, Multnomah County.

Paut R. Haanis, Judge. |

Argued and submitted ‘March 11, 1959.

Fredric A. Yerke, Jr., Portland, ened the cause for

; appellant. With him on the brief were King, Miller,

Anderson, Nash & Yerke, Portland; Clifford N. Carlsen,

Jr., Portland; Gustav B. Margraf, Richmond, Virginia .

and soi “cy Richmond, Virginia. |

rge . Mead, Portland, and Irving Rand, Port-

land; argued the Sause for respondents.

’ Before hicAss seven C. J., Lusk, Warner, Perry,

SLOAN, O'CONNELL and. MILLARD, Justices.

AFFIRMED.

O'CONNELL, J.

This is an action of trespass. The plaintiffs allege |

‘that i the period from August 2 22, 1951 to January

35

1, 1956 the defendant, in the operation of its aluminum

reduction plant near Troutdale, Oregon caused certain

‘fluoride compounds in the form of gases and particu-

lates to become airborne and settle upon the .plaintiffs’

land rendering it unfit for raising livestock during that

period. Plaintiffs allege that their cattle were poisoned

by ingesting the fluorides which contaminate the forage

and water on their land. They sought damages in the

amount of $450,000 for the loss of use of their land

for grazing purposes and for the deterioration of the

land through the growth of brush, trees and weeds re-

sulting from the lack of use of the premises for grazing

purposes. The plaintiffs also sought punitive cpamages.

_in the amount of $30,000.

The plaintiffs and the defendant,each moved for a

directed verdict, whereupon the trial court found that |

the plaintiffs had suffered damage in the amount of

$71,500 in the loss of use of their land and $20,000 for.

the deterioration of their land and entered judgment

accordingly. The trial court rejected the plaintiffs’

claim for punitive damages.

_

In the course of the pleadings the defendant raised |

the issue as to whether the complaint alleged a cause

of action in trespass.. The defendant contended that

at most a cause of action in nuisance Was stated. The .

trial court accepted: the plaintiffs’ theory of the case.

¢

\

36

The principal assignments of error rest upon the de-

fendant’s contention that the trial .court was mistaken

in identifying the defendant's invasion of the plain-

tiffs’ land as a trespass; that there was not sufficient

evidence to establish a cause of action under any theory,

but that if the court should find the evidence sufficient

to give rise to liability the Gefendent s conduct consti-

_ tuted a nuisance and not a trespass,

Through appropriate pleadings the defendant set

up the two-year statute of limitations applicable to

nohtrespassory injuries to land (ORS 12.110). If the

defendant’s conduct created a. nuisance and not a tres-

pass the defendant would be liable only for such dam-

age as resulted from its conduct during a period of

two years immediately preceding the date upon which

plaintiffs’ action: was instituted. On the other hand,

if the defendant’s conduct resulted in a trespass upon —

* plaintiffs’ land the six year statute of limitations pro-

vided for in ORS 12.080 would be applicable and plain-

tiffs would be entitled. to recover damages resulting

from the trespasses by defendant during the period

from August 22, 1951-te January 1, 1956.

The gist of the defendant's argument is as follows;

a trespass arises only wlien there has been'a “breaking

and entering upon real property,” constituting a direct,

as distinguished from a consequential, invasion of the

37

possessor’s interest in-land; and the settling upon the

land of fluoride compounds: consisting of gases, fumes

and particulates is not sufficient torsatisfy these re-

quirements. —

Before appraising the argument we shall first de-

_ scribe more particularly the physical and chemieal

‘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

fluoride 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 nakéd

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 uncap- °

tured particles eventually were deposited upon plain-

tiffs’ land. |

There is evidence -to prove that during the period

from August, 1951 to January, 1956 the emanation of

fluorides. from defendant’s plant averaged approxi-

mately 800 pounds daily. Some of this discharge was

- deposited upon the plaintiffs’ land. There is sufficient

evidence to’ support the trial court's finding that the |

quantity of fluorides deposited upon plaintiffs’ land

38

Was great enough to cause $91,500 damage to the pjain-

tiffs in the use of their land for grazing purposes anc

in the deterioration of their land as alleged.

We must determine, however, whether all or only”

a part of this damage may be shown; all, if the invasion

constitutes a trespass, a part only (ie. the damage

Which resulted within the two-year period of the statute

of limitations) if the invasion was a nuisance and not

“a trespass.

acces

‘Trespass and private nuisance are separate fields

of tort liability relating to actionable inferenée! 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 posses-

sor’s interest in the use and enjoyment of his land is

a nuisance. + Restatement, Torts 224, Intro. Note

Chapter 40..

; “y

The same conduct on the part of a defendant may

and often does result in the actionable invasion of “both

of these iriterests, in which case the choice between the

two remedies is, in most cases, a matter of little Conse -

quence. Where the action is brought. on the theory of ©

“nuisance alone the court ordinarily is not called upen

to determine whether the conduct would also result’in

a trespassory invasion. In such cases the courts’ treat-

39 :

"ment of the invasion solely in terms of the law of nui-

sance does not mean that the same conduct could not

also be regardéd 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

plaintiffs’ possession. through soot, dirt, smoke, cinders,

ashes-and similar substances constitute a nuisance, but

where the court dees not discuss the applic ability of

the law of trespass to the same set of facts. York v.

Statlings, 68 Or Adv Sh 1105 (1959); Lindley v. Hy-

land, 173 Or 93, rH P2d 295 (1943): Bourne v. Wilson-

Case Lumber Co., 38 Or 48, 113 P52 (1911); Columbian

Carbon Co. v. Tholen, 199 SW 2d 825 11947) (Tex Civ

App); Weller*v. Snoqualmie Falls Lumber Co., 155

Wash 326, 285 P HO (19508; Sterrett v. Northport

Mining & Smelting Co., 30 Wash 164, 70 P 266 (1902).

_, However, there are cases which have held that the

| defendant's interference with plaintiffs’ possession re-

sulting from the settling upon his land of effluents

emanating: from defendant's operations is exclusively

‘nontrespassory. Bartlett v: ¢ frasselli Chemical Co., 92

W Va 445, 115.SE 451 (1922); O'Neill v. San Pedro,

Lb. & SLR. Co., 38 Utah 475, 114°P 127 1911;

Thackery v. Union Portland Cement-Co:, 6+ Utah 437,

231 P 813 (1924): see Ryan v. City of Emmetsburg,

232 lowa 600, 4 NW2d #35 (1942). Although in such

cases the separate particles which collectively cause the

~

?

+O

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 eccurs 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 niovement or deposit of rather small objects

<

over or upon the surface of the possessor’s land.

Thus it has been held that causing shot froma gun :

to fall upon the possessor’s land is a trespass. Wunro

vr. Williams, et al, 94 Conn. 377, 109 A 129 (pellets from

an. air gun fell upon land); Peters v. Ambridge Distriet

Sportsmen's . Issrz., 14+ Beaver 99 | Pen 1952) (shot from

shotguns fell upon land); DiGirolamo wv. Philade ‘Iphia

Gun Club, 371 Pa 40, 89: A2d 357 (1952) Csame}2 W hit-

taker-v. Stangvick, et al., 100 Minn 386, 111 NW 295 i<

(1907) (same); Herrin wv. Sutherland, 7+ Mont 587, |

241.P 328 (1923) (shotgun shot passing over surface

of land).

The dropping’ of particles of molten lead upon the

plaintiff's land has been held to be a trespass. Varn

Alstyne v. Rochester Telephone Corp., 103 Mise -258,

+i

296 NY Supp 726. And the defendant was held liable

in trespass where spray from a cooling tower on ‘the

roof of its theafer fell upon the plaintiff's land. B & R

Luncheonette, lac., v. Fairmount Theatre Corp, 278.

App Div 133, 103 NY Supp2d 747.

The deposit of soot and carbon: from defendant's

mill ypon plaintiff's land was held to be a trespass in

Young v. Fort Frances Pulp and Paper Co., 17 Ont

Wkly Notes 6 (Canada 1919), |

And _ liability on the theory of trespass has been

recognized where the harm was produced by the vibra-

.tion’of the soil or by the concussion of the air which,

of course, is nothing more than the movement of mole-

cules one against the other. McNeill v. Redington, 67

Cal App2d 452, 154 P2d 428 (1945). Liability on this

basis was clearly recognized in Bedell, et ux v. Goulter,

et al, 199 Or 344, 361, 261 -P2d 842 (1953), where Justice

Lusk, after discussing the rule of Rylands v~ Fletcher,

LR. 3 H L 330, continued with the following observa-

— tion:

“* * * And there is slight difficulty in holding

that one who engages in blasting operations, which

set in motion vibrations and concussions of the earth

and air which reach to another's land—no matter

how far distant—and shatter his dw elling, commits

a trespass no less than one who accomplishes the

same result by the propulsion of rocks or other ma-

terial. Parcell v. United States, (104 F Supp 110);

+2

Bluhm v. Blanck & Gargaro, {62 Oh App 451, 24

NE2d 615]; 22 Am Jur 180, Explosions-and Ex-

plosives, § 54. ‘Is not a concussion of-the air. and °

jarring, breaking, and cracking the ground with

such force as to wreck the buildings thereon, as

much an invasion of the rights of the owner as the

. hurling ‘of a missile thereon” Louden v. C ity of

Cincinnati, (90 Oh St 144, 106 NE 970. LRA 1915F

356, Ann Cas 1916C 1171 }..”

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 tres-

pass expressed in some quarters, 1 Restatement, Torts

$ 158, Comment h (1934); Prosser, Torts § 13 (2d Ed

1955).<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 net

fit an invasion through unseen physical instrumentali-

tives 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 = mc? has taught us that mass and energy

are equivalents and that our concept of “things” must

’ be reframed. If these observations on science in rela-

tion to the law of trespass should appear theoretical

43

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 awakéned

by the intervefition of another agency before it does

’ harm. ;

If, then, we must look to the character of the instru-

mentality 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 pr esent case consti-

tuted a trespass.

The defendant argues that our decision’ in Amphi-

theaters, Inc. v. Portland -Meadows, 184+ Or 336,-198

P2d 847 (1948) requires a contrary coriclusion. In dis-

cussing the distinction between trespass and. nuisance

the court referred to a difference between “a cannon

ball and a ray of light” in cating that the former’ but

not the latter could produce a trespassory invasion. The

court also’ said “The mere suggestion that the casting

44

of light upon the premises of a plaintiff would render

‘a defendant liable Without proof of any actual damage.

carries its own refutation.” ” 184 Or 336, 343. We do not

regard this statement as a pronouncement that a trespass

can never be «caused by the intrusion of light rays or

other. intangible forces; more properly the case may be

interpreted as stating that the conduct of the defendant

ina particular-case may not be actionable if it does not

violate a legally protected interest of the plaintiff. The

court states that the defendant is not liable without proof

of actual damage. In that case the plaintiff contended

that he had suffered damage in the form of a less effi-

cient cinema screen due to the defendant’s lights. In

denying recovery the court found that there was. no

damage, apparently because whatever harm the plain-

_ tiff suffered was damnum absque i Sanpete.

In every case in which trespass is alleged the court

is presented with a problem of deciding whether .the

defendant’s intrusion has violated a legally protected

interest of the plaintiff. In most cases the’ defendant’ s

conduct so clearly invades the well established posses- -

sory interest of the plaintiff that no discussion of the

point is called for. But where neither. the defendant's a

conduct nor the plaintiff’s use falt within the familiar

trespass pattern of the past |Ahe courts are faced with

a preliminary inquiry as to whether the plaintiff has

45

- a protectible. interest under the law of trespass. This

in‘ turn calls for. the inquiry as to whether the defend-

ant’s conduct was such as to constitute an invasion of

that interest.

“In some cases the solution can be based upon the

ground that the defendant's conduct is not substantial

enough to be regarded as a trespassory, intrusion. Thus,

the casting of.a candle beam upon the screen of a drive- |

in theater would not constitute an actionable invasion,

simply because ‘the intrusion is so trifling that the law

‘will not consider it and the principle de‘minimis non

curat-lex is applicable. In some cases the solution may

be arrived at by admitting that the intrusion is sub-

stantial but refusing to recognize that plaintiff has a

legally protected interest in the particular possessory?

use as against the particular conduct of the defendant.

And. so the glare of flood lights upon an adjoining

owner's cinema screen, as. in the Amphitheater case,

may not be a trespass, not because the intrusion is

trifling; but because the law.does not wish to protect

such a use from an invasion, whether the cause of the

interference be viewed as a physical intrusion or as a

nohtrespassory act and covered by the law of myseance.

The Amphitheaters case. can be explained i in terms

of this latter point of view, Le. . that the glare of de-

*fendant’s lights could be regarded as an intrusior

46

Avithin the law of trespass, but that the plaintiff had

no right to treat the intrusion as actionable in view of —

the nature of plaintiff's use and the manner in which

the defendant’ interfered with it. Had the defendant

purposely, and not as an inc ‘idence of his own legitimate

use, directed the rays’ of, light against the plaintiff's

screen the court might well have taken the position that

the plaintiff could have recovered in a trespass action.

These illustrations demonstrate that the tort of trespass

involves a weighing process, similar to that involved

in the law ef nuisance, although to a more limited extent

than in nuisance and for a different purpose, i.e., in the

one case to define the possessor’s interest in exclusive

possession, and in the other to define the possessor’s

interest in,use and enjoyment,

: . . .

As stated earlier, normally no inquiry is made in

the trespass cases as to whether the plaintiff's interest

in making a particular use of his property is within |

the protection provided for under the law of trespass,

because traditionally the interest has been regarded

as one clearly entitled to protection in the trespass field.

_There are adjudicated cases which have refused to find

-a trespass-w here the intrusion-is clearly established but

where ,the court re felt that the possessor’s interest

should not be protected. Thus it has been held that the

‘flight of aircraft’over the surface of plaintiff's land does

er

“a

With the present enjoyment of property. Hinman v.

Pacifie-Air Transport, 8+ F2d 755 (9th Cir, #936). The

same result would seem to follow if the intrusion inter-

fered with the presen, use ofthe land hut where such

use was not entitled to legal protection as against the

socially desirable conduct of the defendant. Here it is

apparent that the law of trespass and the law of nuisance

come very close to merging. This is so because ‘when

inquiry is made as to whether the plaintiff's interest

falls within the ambit of trespass law. the courts look

at the interference with the plaintiff's use and. enjoy-

"ment of his land to determine whether his interest in

exclusive possession should be protected and thus the

two torts coalesce. .

The Amphitheater case may also be viewed as a

pronouncement that,a possessor’s interest is not invaded

‘by an intrusion which is so trifling that H cannot be

recognized by the law. Inasmuch as it is not necessary

to’ prove actual damage in trespass the magnitude of the

intrusion ordinarily would not be of any consequence.

But there iS a point ‘where the entry is so lacking in

substance that the law will refuse to recognize it, apply-

ing the maxim de minimis non.curat lex. Thus it would

seem clear that ordinarily the casting of a grain of sand.

upon another's land would not be a trespass. Andéso

° \

. ° \

4

aoe ton

not onstitute a trespass. unless bre intrusion interferes

+8

too the ¢asting oi diffused light rays upon another's land

would nof ordinarily constitute a trespass. Conceivably

such rays could be so concentrated that their entry upon

the possessor’s land would result in a trespassory inva-

sion. An appropriate illustration is found in Watson v-.

Mississippi River Power Co.,A7+ lowa 23, 32, 1 36 NW

188, 191 (1916) where the court said:

a

“* * * If, for example, a person interests himself

in solar phenomena, and, while experimenting with ~

a powerful sunglass,’ he accidentally focuses the

instrument upon some inflammable material on the

lot of his nextdoor neighbor, starting a blaze which

results in injury and loss tothe latter, can it be said

there Was no trespass, no actual invasion of the

neighbor's premises?” ~— -- :

.But where the light is cast upon the plaintiffs premises

in a manner which does no actual damage or causes no

interference in any way with a legitimate use of the

premises then there is no reason for recognizing an

invasion of the plaintiff's possessory ‘interest. Note 62//

Harv L. Rev. 70+ (1949). Here again it is important to

point out’ that the tort of trespass is composed of com-

ponents which include the character (includirig the

; magnitude) of the defendant's conduct in- causing an

intrusion and the character (including the magnitude )

of the Harm visited ‘on the plaintiff in interfering with

~ his interest int the exclusive possession of the premises.

“ : \

.

m

49

Consequently the question as to whether-a ray of light

or any other intrusion is so unsubstantial that it is to

he disregarded under the de minimis principle cannot

be looked at solely from the standpoint of the defend-

ant’s conduct, but it must, be evaluated with. reference

to the nature of the plaintiff's interest. The broader and

more diverse the possessor’s protectible interests the

more sensitive they are to violation by the defendant .

and the easier it is to find that his’ conduct. although

apparently inconsequential, gives rise to liability. The

scope of the possessor’s legitimate interest in the exclu-

sive possession of land is broad and difficult to define

specifically. Once recognizing that actual damage need

not be shown in making out an actionable i invasion, the

plaintiff's right to insist upon f reedom from interference

with his possession seems almost limitless. |

But there are limits and they.can be found; if only. -

vaguely, in the reasons for protecting the possessory

interest of the landholder where no actual damage is

suffered. It is sometimes said that the plaintiff is per-

mitted to recover in order to preveiit a loss of interest

by the running of the statute of limitations. 1 Harper &

James, Torts, § 1.8, p 25 and 26; Whittaker v. Stangvick,

supra; Bragg v. Laraway, 65 Vt 673, 27 A 492 (1893).

But this is not a respectable reason because the statute

could be made inapplicable by holding that no cause

oe

of action arose for the harmless invasion. 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, was punishable

under the criminal law beeause the trespasser’s conduct

Was regarded as a breach of the peace. When the crimi-

nal 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 court’s ideas of

‘the character of the tort. Therefore, relief was granted

to the plaintiff where he was. not actually damaged,

ie partly ‘at least as a means of discouraging disruptive

influences in the community. Winfield on Torts (4th

oa p 305 expresses the idea as follows:

. “The law, on the face of it, looks harsh, but tres-

pass was so likely in earlier times to lead to a breach

_ of the peace that even unwitting and trivial devia-

tions orf to another person’s land were reckoned un-

lawful. At the present day there is, of course, much

greater respect for the law in general and apprecia-

tion of the security which it affords, and the theo-

retical severity of the rules as to land trespass is

hardly ever exploited in practice.”

51

The idea is similarly expressed in 1.Harper & James,

Torts, § 1.8, p 25: | .

“In the early law, emphasis was placed upon the |

criminal aspect of willful trespasses, as a breach of

the peace or'a wrong to the state. Compensation to

the injured victim was regarded as of secondary

importance. It came about, therefore, that the rule

- developed that the plaintiff might recover nominal

damages even though ‘he sustained | no actual pecuni-

ary loss as a result of the trespass.”

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.

The importance of this consideration. in describing a

trespass to land is evident in many of the modern cases.

Fincannon v. Sudderth, 144 N C 587, 57 SE 337 (1907);

Bragg v. Laraway, supra; Whittaker v. Stangvick, supra.

Probably the most important factor which describes

the nature of the interest protecte:t 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

32

plaintiff’sinterest, it is understandable why actual dam-

age is not an esseutial ingredient in the law of trespass.

As pointed outtin 1 Harper & James, Torts, § £.8, p2

the rule per mitting recovery in spite of the absence of

actual damages * ‘is probably justified as a-vindic tatory

°

right to protect the possessor’s proprietary or dignitary

interest in his land.”

We think that a possessor’s interest in land as de-

fined by the considerations recited above may, under

the appropriate circumstances, be violated by a ray .of

light, by an atomic particte. or by a particulate of

fluoride. and, CoE, -if such interest) circum-

scribed by these considerations is not violated or en-

dangered, the defendant’ s coniluc t. even though it mav .

result ina physical intrusion, will not render him liable

_in_ an action of trespass. Amphitheaters, Ine. vo Port-.

land Veadows, supra. ral

We hold that the eaitied s conduct, in causing

chemical substances to be deposited upon the plaintiffs:

lane fulfilled all of the requirements under the law of

trespass.

The defendant contends that trespass will not Jie in

this case because the injury was indirect and conse-

quential 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 :particu-

~

53

lates 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 dam-

age may be proven in an ac tion of trespass, Var Alstyne

Rochester Telephone Corp., supra; 1 Restatement,

Torts, § 163: Prosser, Torts (2d ed) p 37. The distinction ¢

between direct and indirect invasions where there has

been a physical intrusion upon the plaintiff's land has

been abandoned by some courts. See Prosser, Torts {2d

ed) p 56: 1 Restatement, Torts, § 158, € omment h. 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:

The trial court found that the fluoride compounds

emitted from the defendant's plant’ between August 22,

1951 and January 1, 1956 rendered plaintiff's land

and the drinking water on the land unfit for consump-

tion by livestock grazing thereon. The defendant con-

tends that there is no substantial evidence to support -

‘this finding. In support of this contention the detend-

ant points to the effectiveness of the fume control system

which was installed in 1°50 prior to August 22, 1954,

the beginning } the period during which the plaintiffs

alleged that the damage occurred. The evidence is con-

. flicting but there is substantial evidence from which the

| ;

‘trial court could have connected the emanation of the °

fluorides with the damage alleged. ‘We cannot, there-

fore, disturb the trial court's finding.

Tt 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 impos-

sible in the operation of an aluminium reduction plant

to capture al) fluorides which are created in the manu-

facturing -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 alumi-

num reduction plants in the United States.

It is argued that since the trial court elected to

enter special rather than general findings it was re-

quired by ORS 17.430 to enter findings on all material -

issues whickr, it is claimed, would include the issue de-

fined in the requested findings. The complairft alleged

that the defendant “carelessly, wantonly and willfull:

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 intru-

. . . 7 . “ . ll -

sion upon plaintiffs land, would be material only with

respect to. the claim for punitive damages which, as

we have already indicated; was rejecte by the trial.

court. Since we hold that the intrusion in this’ case

55

constitiited ‘a trespass it is immaterial whether the de-

fendant’s conduct was careless, wanton and willful or

entirely free from fault. Therefore, the refusal to enter

the requested finding is not error.:

The judgme nt of the lower court is affirmed.

McALLISTER, C.J., specially concurring.

I concur in the result of the above opinion but dis-

~ sent from that portion thereof that attempts to recon-

-cile the holding in this case with the holding in the case

‘of -imphitheaters, Inc. v. Portland Meadows, 184 Or °

336, 198 P2d §47.

aaa