# Petition for Writ of Certiorari — Reynolds Metals Co. v. Martin (No. 691) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0199%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 ## Text ; iis ; 5 ; 7 a Couf, us. | 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 , eri _ 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 - © — t é ¢ Pacr. 18 18, 21 22 24° TABLE, OF CASES o , €} 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 : pe % Lo , a . 59 Columbia Law Review (1959), p. 468 ...c.0.0coesceone ke - ae e a "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! °. o\, ' = ~* ‘ . ’ 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. 4 Ae % ‘11 interferes with the efficient operation of the basic economy of the nation. . . o I “a | 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 13 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, ‘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.’ ? - ~ . 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).