Bradley v. American Smelting and Refining Co.
709 P.2d 782 · 1985
Facts
Plaintiffs Michael O. Bradley and Marie A. Bradley own property on Vashon Island, Washington, which they purchased in 1978. Defendant American Smelting and Refining Company (ASARCO) operates a primary copper smelter in Ruston, Washington, 4 miles north of the Bradleys' land. Since 1905, ASARCO has known that its smelting process emits microscopic, airborne particulate matter, including arsenic and cadmium, which wind occasionally deposits on Vashon Island. The parties stipulated that these emissions have been and continue to be deposited on the Bradleys' land, though the particles are undetectable by human senses. The smelter's emissions meet current air quality standards. The record contains no proof of actual damages.
Procedural history
Plaintiffs initiated this action in King County Superior Court, which was subsequently removed to the United States District Court for the Western District of Washington. Upon the plaintiffs' motion for summary judgment on the issue of liability for trespass, the District Court certified several legal questions to this court for resolution.
Issue
1. Did the defendant have the requisite intent to commit intentional trespass? 2. Does an intentional deposit of microscopic, undetectable particulates constitute trespass and/or nuisance? 3. Does a cause of action for trespassory invasion require proof of actual damages? 4. What are the appropriate limitations, the effect of continuing trespass and discovery rule, and recognition of prescriptive easement and preemption by state laws for such a trespass?
Holding
1. The defendant had the requisite intent to commit intentional trespass. 2. An intentional deposit of microscopic, undetectable particulates gives rise to a cause of action for trespass as well as nuisance. 3. A cause of action for such trespass requires proof of actual and substantial damages. 4. The limitations period is 3 years, running from accrual, with damages recoverable for the 3 years preceding suit for continuing trespass; the discovery rule is rejected; prescriptive easement is a possible defense; and the Washington Clean Air Act does not preempt this cause of action.
Rule
Intent for trespass is established if the actor knows that consequences are substantially certain to result from their act, even if not desired. For airborne pollutants, trespass requires: 1) an invasion affecting exclusive possession; 2) an intentional act causing the invasion; 3) reasonable foreseeability of the invasion; and 4) substantial damages to the property. While trespass protects exclusive possession and nuisance protects use and enjoyment, they are not mutually exclusive. Unlike common law, this type of trespass requires proof of actual and substantial damages. The statute of limitations for such trespass is 3 years, applying to damages incurred within the 3-year period preceding suit for continuing trespass, and the discovery rule is not applicable.
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