Comparison definition. The essential elements necessary to state a cause of action in trespass are: (1) an unauthorized intentional act, and (2) entry upon land in the possession of another. See, e.g., Blashinsky v. Topazio (Apr. 17, 1987), Lake App. No. 11-113, unreported, 1987 WL 9942. Traditionally, an invasion of the exclusive possession of land by intangible substances, such as an airborne pollutant, was usually held by the courts not to constitute a trespass since a trespass involved a physical invasion by tangible matters. See Annotation, Recovery in Trespass for Injury to Land Caused by Airborne Pollutants (1980), 2 A.L.R. 4th 1054. However, there has been a growing trend among jurisdictions to hold that the test for whether an invasion of a property interest is a trespass does not depend upon whether the intruding agent is an intangible or tangible substance, but whether the intrusion interferes with the right to the exclusive possession of property. Id. at 1055. However, odors emanating from a facility, see Born v. Exxon Corp. (Ala.1980), 388 So.2d 933, or mere diminution of value, see Maddy v. Vulcan Materials Co. (D.Kan.1990), 737 F.Supp. 1528, are insufficient to state a trespass claim even under the modern view.
The Supreme Court of Alabama in Born cited its previous decision in Borland v. Sanders Lead Co., Inc. (Ala.1979), 369 So.2d 523, 530, to note the following distinction between trespass under the modern trend and nuisance at 388 So.2d at 934: 'For an indirect invasion to amount to an actionable trespass, there must be an interference with plaintiff's exclusive possessory interest; that is, through the defendant's intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character, and causing substantial actual damage to the res.
For example, if the smoke or polluting substance emitting from a defendant's operation causes discomfort and annoyance to the plaintiff in his use and enjoyment of the property, then the plaintiff's remedy is for nuisance; but if, as a result of the defendant's operation, the polluting substance is deposited upon the plaintiff's property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass, though his alternative remedy in nuisance may co-exist.'
Nuisance is an action that protects not the right to exclusive possession but the right to use and enjoyment of the property.
The courts have been groping for a reconciliation of the doctrines of trespass and nuisance over a long period of time and, to a great extent, have concluded that little of substance remains to any distinction between the two when air pollution is involved. Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930) held that the discharge of smoke, ashes and cinders from a sawmill upon a neighboring farm was 'in the nature of a continuing nuisance' and that the 2-year statute of limitations applied. The opinion also stated that an action for damages could be maintained if the injury to the premises was substantial rather than slight. See also Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266 (1902).
Some point to the observations on the inconsequential nature of the efforts to reconcile the trappings of the concepts of trespass and nuisance in the face of industrial airborne pollution when Professor Rodgers states: Trespass is a theory closely related to nuisance and occasionally invoked in environmental cases. The distinction between the two originally was the difference between the old action of trespass and the action on the case: if there was a direct and immediate physical invasion of plaintiff's property, as by casting stones or water on it, it was a trespass; if the invasion was indirect, as by the seepage of water, it was a nuisance. Today, with the abandonment of the old procedural forms, the line between trespass and nuisance has become 'wavering and uncertain.' The basic distinction is that trespass can be defined as any intentional invasion of the plaintiff's interest in the exclusive possession of property, whereas a nuisance requires a substantial and unreasonable interference with his use and enjoyment of it. That is to say, in trespass cases defendant's conduct typically results in an encroachment by 'something' upon plaintiff's exclusive rights of possession.
The first and most important proposition about trespass and nuisance principles is that they are largely coextensive. Both concepts are often discussed in the same cases without differentiation between the elements of recovery. It is also true that in the environmental arena both nuisance and trespass cases typically involve intentional conduct by the defendant who knows that his activities are substantially certain to result in an invasion of plaintiff's interests.
The principal difference in theories is that the tort of trespass is complete upon a tangible invasion of plaintiff's property, however slight, whereas a nuisance requires proof that the interference with use and enjoyment is 'substantial and unreasonable.' This burden of proof advantage in a trespass case is accompanied by a slight remedial advantage as well. Upon proof of a technical trespass plaintiff always is entitled to nominal damages. It is possible also that a plaintiff could get injunctive relief against a technical trespass -- for example, the deposit of particles of air pollutant on his property causing no known adverse effects. The protection of the integrity of his possessory interests might justify the injunction even without proof of the substantial injury necessary to establish a nuisance. Of course absent proof of injury, or at least a reasonable suspicion of it, courts are unlikely to invoke their equitable powers to require expensive control efforts.
While the strict liability origins of trespass encourage courts to eschew a balancing test in name, there is authority for denying injunctive relief if defendant has exhausted his technological opportunities for control. If adopted generally, this principle would result substantially in a coalescence of nuisance and trespass law. Acknowledging technological or economic justifications for trespassory invasions does away with the historically harsh treatment of conduct interfering with another's possessory interests.
Just as there may be proof advantages in a trespass theory, there may be disadvantages also. Potential problems lurk in the ancient requirements that a trespassory invasion be 'direct or immediate' and that an 'object' or 'something tangible' be deposited upon plaintiff's land. Some courts hold that if an intervening force, such as wind or water, carries the pollutants onto the plaintiff's land, then the entry is not 'direct.' Others define 'object' as requiring something larger or more substantial than smoke, dust, gas, or fumes. Both of these concepts are nonsensical barriers, although the courts are slow to admit it.
The requirement that the invasion be 'direct' is a holdover from the forms of action, and is repudiated by contemporary science of causation. Atmospheric or hydrologic systems assure that pollutants deposited in one place will end up somewhere else, with no less assurance of causation than the blaster who watches the debris rise from his property and settle on his neighbor's land. Trespassory consequences today may be no less 'direct' even if the mechanism of delivery is viewed as more complex.
The insistence that a trespass involve an invasion by a 'thing' or 'object' was repudiated in the well known (but not particularly influential) case of Martin v. Reynolds Metals Co. [221 Or. 86, 342 P.2d 790 (1959)], which held that gaseous and particulate fluorides from an aluminum smelter constituted a trespass for purposes of the statute of limitations: [L]iability on the theory of trespass has been recognized where the harm was produced by the vibration of the soil or by the concussion of the air which, of course, is nothing more than the movement of molecules one against the other. 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 trespass expressed in some quarters. [Citing the Restatement (First), Torts and Prosser].
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 not fit an invasion through unseen physical instrumentalities 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=MC2 has taught us that mass and energy are equivalents and that our concept of 'things' must be reframed. If these observations on science in relation to the law of trespass should appear theoretical 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 awakened by the intervention of another agency before it does harm. Martin is quite right in hastening the demise of the 'direct' and 'tangible' limitations on the law of trespass. But any disappearance of these limits on the doctrine is likely to be accompanied by modifications of its strict liability advantages also. While parts per billion of fluorides or rays of light or magnetic invasions may work a trespass as effectively as flying rocks, it would seem that relief (particularly injunctive relief) should not follow without further inquiry into the limits of technology and prevailing land use patterns.
With regard to remedies, the trespass and nuisance cases are quite alike. Martin points up an important difference because the statutes of limitation for nuisances are generally shorter than those for trespasses. The measure of damages for a permanent trespass, like a nuisance, is depreciation of market value. W. Rodgers, Environmental Law § 2.13, at 154-57 (1977). Martin v. Reynolds Metals Co., 221 Or. 86, 90-91, 101, 342 P.2d 790 (1959) was an action in trespass brought against the defendant corporation for causing gases and fluoride particulates to settle on the plaintiffs' land making it unfit for livestock.
The quote set forth from Rodgers' Environmental Law included a portion of the decision from that case. In addition, the court stated: Trespass and private nuisance are separate fields of tort liability relating to actionable interference with the possession of land. They may be distinguished by comparing the interest invaded; and actionable invasion of a possessor's interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor's interest in the use and enjoyment of his land is a nuisance. 4 Restatement, Torts 224 Intro. Note Chapter 40.
The same conduct on the part of a defendant may and often does result in the actionable invasion of both of these interests, in which case the choice between the two remedies is, in most cases, a matter of little consequence. Where the action is brought on the theory of nuisance alone the court ordinarily is not called upon to determine whether the conduct would also result in a trespassory invasion. In such cases the courts' treatment of the invasion solely in terms of the law of nuisance does not mean that the same conduct could not also be regarded as a trespass. Cases in which the court holds that the interference with the plaintiff's possession through soot, dirt, smoke, cinders, ashes and similar substances constitute a nuisance, but where the court does not discuss the applicability of the law of trespass to the same set of facts. However, there are cases which have held that the defendant's interference with plaintiff's possession resulting from the settling upon his land of effluents emanating from defendant's operations is exclusively nontrespassory. Although in such cases the separate particles which collectively cause the 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.
There are cases which have held that a trespass results from the movement or deposit of rather small objects over or upon the surface of the possessor's land. Some courts hold that theories of trespass and nuisance are not inconsistent, that the theories may apply concurrently, and that the injured party may proceed under both theories when the elements of both actions are present. The Restatement (Second) of Torts § 821D, comment d, at 102 (1979) states: For an intentional trespass, there is liability without harm; for a private nuisance, there is no liability without significant harm. In trespass an intentional invasion of the plaintiff's possession is of itself a tort, and liability follows unless the defendant can show a privilege.
In private nuisance an intentional interference with the plaintiff's use or enjoyment is not of itself a tort, and unreasonableness of the interference is necessary for liability. Comment e, at 102 states: There may, however, be some overlapping of the causes of action for trespass and private nuisance. An invasion of the possession of land normally involves some degree of interference with its use and enjoyment and this is true particularly when some harm is inflicted upon the land itself.
The cause of action for trespass has traditionally included liability for incidental harms of this nature. If the interference with the use and enjoyment of the land is a significant one, sufficient in itself to amount to a private nuisance, the fact that it arises out of or is accompanied by a trespass will not prevent recovery for the nuisance, and the action may be maintained upon either basis as the plaintiff elects or both. .The two actions, trespass and private nuisance, are thus not entirely exclusive or inconsistent, and in a proper case in which the elements of both actions are fully present, the plaintiff may have his choice of one or the other, or may proceed upon both.
The distinction between direct and indirect invasions to land was abandoned in Zimmer v. Stephenson, 66 Wn.2d 477, 403 P.2d 343 (1965). There the defendant had been plowing a fireguard in his field when a spark escaped from the exhaust stack of his tractor and set on fire the plaintiff's adjoining wheat field. An action was commenced more than 2 years but less than 3 years from the date of the fire. The trial court held that an action would not lie in trespass due to the indirect nature of the invasion, and dismissed the case. The opinion states in part at pages 482-83:
The common law, along with its forms of action, has long been recognized as capable of growth and expansion in keeping with the necessities of modern society. The writings of Chitty and Coke have long been absent from the library shelves of most practicing attorneys, and, if for no other reason, the fine, though oftentimes indiscernible distinctions, between the ancient writs of trespass and trespass on the case should not be unduly preserved in aid of a statute of limitations.
The proper rule should now be as enunciated in Restatement, Torts § 165, p. 390: One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor thereof or to a thing or a third person in whose security the possessor has a legally protected interest. See also 35 Wash. L. Rev. 474 (1960); 46 Wash. L. Rev. 47, 114-16 (1970). In Borland v. Sanders Lead Co., 369 So. 2d 523, 529 (Ala. 1979), which stated in part: Although we view this decision as an application, and not an extension, of our present law of trespass, we feel that a brief restatement and summary of the principles involved in this area would be appropriate. Whether an invasion of a property interest is a trespass or a nuisance does not depend upon whether the intruding agent is 'tangible' or 'intangible.' Instead, an analysis must be made to determine the interest interfered with. If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies. If the intrusion is to the interest in use and enjoyment of property, the law of nuisance applies. As previously observed, however, remedies of trespass and nuisance are not necessarily mutually exclusive.
While there are differences between a trespass and a nuisance cause of action, the two are neither mutually exclusive nor inconsistent. RESTATEMENT (SECOND) OF TORTS section 821D cmt. e (1979). Thus, where the elements of both actions are fully present, plaintiffs may choose to proceed upon one or both theories. Id. While trespass involves interference with the plaintiffs' possessory rights and requires an intentional act that results in a physical invasion of the plaintiffs' property, nuisance involves an unreasonable land use that interferes with the plaintiffs' right of enjoyment and does not require an intentional act. See Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 879-80 (Mo. banc 1985); Looney v. Hindman, 649 S.W.2d 207, 212-14 (Mo. banc 1983); Thomas v. City of Kansas City, 92 S.W.3d 92, 97-98 (Mo.App. W.D.2002); Maryland Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218, 221, 224-26 (Mo.App. E.D.1985). A nuisance can be based on the defendant's negligence or on the existence of a 'continuing known invasion' that the defendant failed to remedy despite the plaintiffs' complaints. Frank, 687 S.W.2d at 881-82. Certain types of physical invasions can constitute both a trespass and a nuisance. See Maryland Heights, 706 S.W.2d at 221, 224-26 (use of radioactive materials resulting in emission of radiation can constitute both trespass and nuisance); Rosenfeld v. Thoele, 28 S.W.3d 446, 449-50 (Mo.App. E.D.2000) (placement of debris on neighbor's property can constitute both trespass and nuisance).
Recovery under a nuisance claim requires proof of actual and substantial injury, whereas trespass entitles a plaintiff to nominal damages even in the absence of any actual injury. See Green Tree Servicing, LLC v. Williams, 377 S.C. 179, 184, 659 S.E.2d 193, 195-96 (Ct. App. 2008). Also, in order to rise to the level of an actionable nuisance, the interference or inconvenience must be unreasonable. Winget v. Winn-Dixie Stores, Inc., 242 S.C. 152, 159, 130 S.E.2d 363, 367 (1963). The unreasonableness requirement reflects the unavoidable reality that persons must suffer some inconvenience and annoyance from their neighbors for modern life to carry on. Id. For trespass, there is no requirement of unreasonableness. Rather, any trespass, however small and insignificant, gives rise to an actionable claim. Green Tree, 377 S.C. at 184, 659 S.E.2d at 195-96.