Fluoridation Fallout from WA Aluminum Plant

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PRIOR HISTORY:

 [***1] 
 

United States District Court: The District Court for the Western District of Washington, No. C83-1449R,
certified to the Supreme Court of Washington various questions concerning the
elements, limitation period, and defenses applicable to the tort of trespass.

DISPOSITION: The court holds that the defendant intended to trespass, that the deposit of
the particles rendered the defendant liable upon a showing of substantial
damages, that the limitation period for such a trespass was 3 years, that a
prescriptive easement defense could be applicable, and that the trespass action
was not preempted by the Washington Clean Air
Act.

HEADNOTES:

 

[1] Trespass — Elements — Intent — Knowledge of Consequences. A trespassory invasion of property is intentional if the act is undertaken
volitionally with the knowledge that the invasion is substantially certain to
occur.

 

[2] Environment — Trespass — Air Pollution — Elements. Airborne pollutants give rise to liability for the tort of trespass if the
pollution results from an
intentional act which is reasonably likely to and does result in a deposit of
matter which both invades a property owner’s interest in the exclusive
possession
 [***2]  of his land and causes substantial actual damages. The fact that the matter
deposited is microscopic and undetectable by human senses does not affect the
status of the deposit as
a trespass.

 

[3] Limitation of Actions — Environment — Trespass — Air Pollution —
Limitation Period. The 3-year limitation period of RCW 4.16.080(1) applies to a trespassory
invasion of property by air pollution. Damages for a continuing trespass are
limited to the harm caused within the
3-year period preceding the commencement of the action. (Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164,
Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, and
Riblet v. Spokane-Portland Cement Co., 41 Wn.2d 249, are overruled
insofar as they are inconsistent.)

 

[4] Environment — Trespass — Air Pollution — Defenses — Prescriptive
Easement. A trespassory invasion of property by air pollution is subject to a defense of
the acquisition of a prescriptive easement.

 

[5] Environment — Trespass — Air Pollution — Clean Air Act — Effect. The Washington Clean
Air Act (RCW 70.94) does not preclude a cause of action for trespass arising
from air pollution.

SYLLABUS:

 [***3] 

Nature of Action: Landowners sought damages under theories of trespass and nuisance based on the
deposit of microscopic metallic particles emanating from a smelter smokestack.

COUNSEL:
Cooper
& Tobin, Bill Tobin, and
David F. Cooper, for plaintiffs.

Eisenhower, Carlson, Newlands, Reha, Henriot
& Quinn, by
Ronald A. Roberts and
Kathryn J. Nelson (Victor E. Schwartz, Lorraine B. Halloway, and
Liberty Mahshigian, of counsel), for defendant.

JUDGES: En Banc. Callow, J. Dolliver, C.J., and Utter, Brachtenbach, Dore, Pearson,
Andersen, Goodloe, and Durham, JJ., concur.

OPINIONBY: CALLOW

OPINION:

 [*679] 

 [**784]  This comes before us on a certification from the United States District Court
for the Western District of Washington. Plaintiffs, landowners on Vashon
Island, had sued for damages in trespass and nuisance from the deposit on their
property of microscopic, airborne particles of heavy metals which came from the
American Smelting and Refining Company (ASARCO)
copper smelter at Ruston, Washington.

The issues certified for answer are as follows:

1. Did the defendant have the requisite intent to commit intentional trespass
as a matter of law?

2. Does
 [***4]  an intentional deposit of microscopic particulates, undetectable by the human
senses, upon a person’s property give rise to a
cause of action for trespassory invasion of the person’s right to exclusive
possession of property as well as a claim of nuisance?

3. Does the cause of action for trespassory invasion require proof of actual
damages?

4. If a cause of action for intentional trespass is recognized in Washington,
what are the appropriate
limitations? What is the effect of the theory of continuing trespass and the
discovery rule in this context? Are the affirmative defenses of prescription
and preemption by other state laws recognized?

The parties have stipulated to the facts as follows: Plaintiffs Michael O.
Bradley and Marie A. Bradley, husband and wife, are owners and occupiers of
real property on the
southern end of Vashon Island in King County, Washington. The Bradleys
purchased their property in 1978. Defendant ASARCO, a New Jersey corporation
doing business in Washington, operates a primary copper smelter on real
property it owns in Ruston, which is an incorporated municipality
surrounded by the city of Tacoma, Washington.

On October 3, 1983, plaintiffs brought
 [***5]  this action against

 [*680]  defendant alleging a cause of action for intentional trespass and for nuisance.

Plaintiffs’ property is located some 4 miles north of defendant’s smelter.
Defendant’s primary copper smelter (also referred to as the
Tacoma smelter) has operated in its present location since 1890. It has
operated as a copper smelter since 1902, and in 1905 it was purchased and
operated by a corporate entity which is now ASARCO. As a part of the
industrial process of smelting copper at the Tacoma smelter, various gases such
as sulfur
dioxide and particulate matter, including arsenic, cadmium and other metals,
are emitted. Particulate matter is composed of distinct particles of matter
other than water, which cannot be detected by the human senses.

The emissions from the Tacoma smelter are subject to regulation under the
Federal Clean Air Act, the Washington Clean Air
Act (RCW 70.94) and the Puget Sound Air Pollution Control Agency (PSAPCA).
Currently, the Tacoma smelter meets the National Ambient Air Quality Standards,
both primary and secondary, for both sulfur dioxide and particulate matter. As
a result of the variance granted by PSAPCA, the Tacoma
smelter is also
 [***6]  in compliance with PSAPCA Regulation I concerning particulate emissions.

As a part of defendant’s smelting process, the Tacoma smelter emits into the
atmosphere gases and particulate matter. For the purposes of resolving the
certified questions, the parties stipulate that some particulate emissions of
both cadmium and arsenic from the Tacoma smelter have been and are
continuing to be deposited on plaintiffs’ land. Defendant ASARCO has been
aware since it took over operation of the Tacoma smelter in 1905 that the wind
does, on occasion, cause smelter particulate emissions

 [**785]  to blow over Vashon Island where plaintiffs’ land is located.

The parties are squabbling to some extent about other
“factual” assertions which are
immaterial to the resolution of the issues posed by the certification. It was
apparently stipulated that the record contains no proof of actual damages.

 [*681]  Other matters have been brought to our attention in the briefs of the parties
which may be pertinent to the disposition of the case by the Federal District
Court, but which are not relevant to our inquiry.

This case was initiated
in King County Superior Court and later removed to the United
 [***7]  States District Court. Upon the plaintiffs moving for summary judgment on the
issue of liability for the claimed trespass, the stated issues were certified
to this court. The issues present the conflict in an industrial society
between the need of all for the
production of goods and the desire of the landowner near the manufacturing
plant producing those goods that his use and enjoyment of his land not be
diminished by the unpleasant side effects of the manufacturing process. A
reconciliation must be found between the interest of the many who are
unaffected by the possible poisoning and the few who may be affected.

1. Did the
defendant have the requisite intent to commit intentional trespass as a matter
of law?

The parties stipulated that as a part of the smelting process, particulate
matter including arsenic and cadmium was emitted, that some of the emissions
had been deposited on the plaintiffs’ land and that the defendant has been
aware since 1905 that the wind, on occasion, caused these emissions to be blown
over the
plaintiffs’ land. The defendant cannot and does not deny that whenever the
smelter was in operation the whim of the winds could bring these deleterious
 [***8]  substances to the plaintiffs’ premises. We are asked if the defendant,
knowing what it had to know from the facts it admits, had the legal intent to
commit trespass.

The Restatement (Second) of Torts
§ 158 (1965) states:

One is
subject to liability to another for trespass, irrespective of whether he
thereby causes harm to any legally protected interest of the other, if he
intentionally

(a) enters land in the possession of the other, or causes a thing or a third
person to do so, or

(b) remains on the land, or

 [*682]  (c) fails to remove from the land a thing which he is under
a duty to remove.

In the comment on clause (a) of
§ 158, at 278 it is stated in part:

i. Causing entry of a thing. The actor, without himself entering the land, may invade another’s interest
in its exclusive possession by throwing, propelling, or placing a
thing either on or beneath the surface of the land or in the air space above
it. Thus, in the absence of the possessor’s consent or other privilege to do
so, it is an actionable trespass to throw rubbish on another’s land . . . In
order that there may be a trespass under the rule stated in this Section, it is
not necessary that
 [***9]  the foreign matter should be
thrown directly and immediately upon the other’s land. It is enough that an
act is done with knowledge that it will to a substantial certainty result in
the entry of the foreign matter.

Addressing the definition, scope and meaning of
“intent”, section 8A of the Restatement (Second) of Torts says:

The word
“intent” is used . . . to denote that the actor
desires to cause consequences of his act, or that he believes that the
consequences are substantially certain to result from it.

 

and we find in comment
b, at 15:

 

Intent is not, however, limited to consequences which are desired. If the
actor knows that the consequences are certain, or substantially certain, to
result from his act, and still goes ahead, he is treated by the law as if he
had in fact
desired to produce the result.
 [**786] 

The defendant has known for decades that sulfur dioxide and particulates of
arsenic, cadmium and other metals were being emitted from the tall smokestack.
It had to know that the solids propelled into the air by the warm gases would
settle back to earth somewhere. It had to know that a purpose of the tall
stack was to disperse the
gas,

 [***10]  smoke and minute solids over as large an area as possible and as far away as
possible, but that while any resulting contamination would be diminished as to
any one area or landowner, that nonetheless contamination, though slight, would
follow. In W. Prosser,
Torts
§ 8, at 31-32 (4th ed.

 [*683]  1971)
intent is defined as follows:

The intent with which tort liability is concerned is not necessarily a hostile
intent, or a desire to do any harm. Rather it is an intent to bring about a
result which will invade the interests of another in a way that the law will
not sanction. The defendant may be liable
although he has meant nothing more than a good-natured practical joke . . .

. . .

Intent, however, is broader than a desire to bring about physical results. It
must extend not only to those consequences which are desired, but also to those
which the actor believes are substantially certain to follow from what he does.
. . . The man who fires a bullet into a dense
crowd may fervently pray that he will hit no one, but since he must believe and
know that he cannot avoid doing so, he intends it. The practical application
of this principle has meant that where a reasonable
 [***11]  man in the defendant’s position would believe that a particular result was
substantially certain to follow, he will be
dealt with by the jury, or even by the court, as though he had intended it.

 

(Footnotes omitted.)

This has been the reasoning of the decisions of this State.
Garratt v. Dailey, 46 Wn.2d 197, 279 P.2d 1091 (1955) involved a 5-year-old boy who pulled a chair from under an
arthritic woman as she was about to sit in it. The court held that to find
liability for an intentional tort it had to be found that there was a
volitional act undertaken with the knowledge and substantial certainty that
reasonably to be expected consequences would follow.

It is patent that the defendant acted on its own volition and had to appreciate
with substantial certainty that the law of gravity would visit the
effluence upon someone, somewhere.

The defendant cites
Washington Natural Gas Co. v. Tyee Constr. Co., 26 Wn. App. 235, 611 P.2d 1378,
review denied,
94 Wn.2d 1011 (1980) as standing for the proposition that the intent necessary to find
a trespass is an intent to cause damage. We find nothing in that statement
inconsistent

 [*684]  with our holding that intent
 [***12]  to trespass may also include an act that the actor undertakes realizing that
there is a high probability of injury to others and yet the actor behaves with
disregard of those likely consequences.

We find that the defendant had the requisite intent to commit
intentional trespass as a matter of law.

2. Does an intentional deposit of microscopic particulates, undetectable by
the human senses, upon a person’s property give rise to a cause of action for
trespassory invasion of the person’s right to exclusive possession of property
as well as a claim of nuisance?

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
 [***13]  was substantial rather than
slight.
See

 [**787] 
also
Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266 (1902).

We agree with 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

 [*685]  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
 [***14]  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,

 [***15]  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.

 [*686]  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
 [***16]  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

 [**788]  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
 [***17]  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

 [*687]  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<2> has taught us that mass and energy are equivalents and that our concept of
‘things’ must be reframed. If these observations
 [***18]  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
 [***19]  of market value.

 

(Footnotes omitted.) 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

 [*688]  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,

 [**789]  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.

 [***20]  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. Some of the cases
relied upon by the defendant are of this type; 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. The defendant asks us to
 [***21]  take account of the difference in size of the physical agency through which
the intrusion occurs 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 movement or deposit of rather
small objects over or upon the surface of the possessor’s land.

. . .

We hold that the defendant’s conduct in causing chemical substances to be
deposited upon the plaintiffs’ land fulfilled all of the requirements
under the law of trespass.

 

 [*689]  (Citations omitted.) We 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
 [***22]  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
 [***23]  may have his choice of one or the other, or may proceed upon both.
 [**790] 

We also should recognize the fallacy of clinging to outmoded doctrines. 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

 [*690]  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
 [***24]  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).

Having held that there was an
intentional trespass, we adopt, in part, the rationale of
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.”

 [***25]  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,

 [*691]  remedies of trespass and nuisance are not necessarily mutually exclusive.

. . .

Under the modern theory of trespass, the law presently allows an action to be
maintained in trespass for invasions that, at one time, were considered
indirect and, hence,
only a nuisance. In order to recover in trespass for this type of invasion
[i.e., the asphalt piled in such a way as to run onto plaintiff’s property, or
the pollution emitting from a defendant’s smoke stack, such as in the present
case], a plaintiff must show 1) an invasion affecting an
interest in the exclusive possession of his property; 2) an intentional doing
of the act which results in the invasion; 3) reasonable foreseeability that the
act done could result in an invasion of plaintiff’s possessory interest; and 4)
substantial damages to the
res.

 

(Footnote omitted.)

We accept and approve
 [***26]  the elements of trespass by airborne
pollutants as set forth by the
Borland case.
See also
Roberts v. Permanente Corp., 188 Cal. App. 2d 526, 10 Cal. Rptr. 519 (1961);
Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 138 N.E.2d 777 (1956). We note, but decline to follow
Arvidson v. Reynolds Metals Co., 125 F. Supp. 481 (W.D. Wash. 1954); and
Ryan v. Emmetsburg, 232 Iowa 600, 4 N.W.2d 435 (1942).

 [**791]  3. Does the cause of action for trespassory invasion
require proof of actual damages?

When airborne particles are transitory or quickly dissipate, they do not
interfere with a property owner’s possessory rights and, therefore, are
properly denominated as nuisances.
Born v. Exxon Corp., 388 So. 2d 933 (Ala. 1980);
Ryan v. Emmetsburg, supra;
Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690 (1948). When, however, the particles or substance accumulates on the land and does not
pass away, then a trespass has occurred.
Borland v. Sanders Lead Co., supra;
Martin v. Reynolds Metals Co., supra.
While at common law any trespass entitled a landowner to recover nominal or
punitive damages
 [***27]  for the invasion of his property, such a rule is

 [*692]  not appropriate under the circumstances before us. No useful purpose would be
served by sanctioning actions in trespass by every landowner within a
hundred miles of a manufacturing plant. Manufacturers would be harassed and
the litigious few would cause the escalation of costs to the detriment of the
many. The elements that we have adopted for an action in trespass from
Borland require that a plaintiff has suffered actual and substantial damages. Since
this is an element of the action, the plaintiff who cannot show that actual and
substantial damages have been suffered should be subject to dismissal of his
cause upon a motion for summary judgment.

4. If a cause of action for intentional trespass is recognized in Washington,
what are the appropriate limitations? What is the effect of the theory of
continuing trespass and the discovery rule in this context? Are the
affirmative defenses of prescription and
preemption by other state laws recognized?

We have recognized that the intrusion to land from this kind of an invasion,
once thought to be a trifling interference with the actual use of the land,

 [***28]  may be very devastating indeed. The former approach, whether arising from the
infrequency with which interference occurred, the unsophisticated nature of
earlier air pollutants or because of our lack of awareness of their
potential for harm, we now abandon. It is appropriate, therefore, that having
recognized this intrusion upon land as a trespass, the 3-year statute of
limitations should apply. RCW 4.16.080(1). An action for trespass to land
must be brought within 3 years of the invasion to the premises.
Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wn.2d 72, 75, 569 P.2d 1141 (1977);
Suter v. Wenatchee Water Power Co., 35 Wash. 1, 76 P. 298 (1904). We now hold that when the actions of a defendant have (1) invaded the
plaintiff’s interest in the exclusive possession of his property, (2) been
committed intentionally, (3) been done with the knowledge and reasonable
foreseeability that the act would disturb the

 [*693]  plaintiff’s possession, and (4) caused actual and substantial damages, the
3-year statute of limitations applies. To the extent that they are
inconsistent with this holding,
Riblet v. Spokane-Portland Cement Co., 41 Wn.2d 249, 248 P.2d
 [***29]  380 (1952);
Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930); and
Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266 (1902) are overruled.

Songstad v. Municipality of Metro Seattle, 2 Wn. App. 680, 472 P.2d 574 (1970), commenting upon
Zimmer v. Stephenson, 66 Wn.2d 477, 403 P.2d 343 (1965) (which we have previously quoted), observed that intentional
intrusions fall within the ambit of RCW 4.16.080(1). The action of the
defendant amounts to a continuing trespass which is defined by the Restatement
(Second) of Torts
§ 158, comment
m as
“[a]n unprivileged remaining on land in another’s possession”. Assuming that a defendant has caused actual and
substantial damage to a plaintiff’s property, the trespass continues until the
intruding substance is removed. If such is the case, and damages can be
proved, as required, actions may be brought for uncompensated injury. In view
of our holding that the tort falls within the theory of continuing trespass, we

 [**792]  further find that the 3-year
period of limitations must run from the date that the cause of action accrues.
We reject the discovery rule as being inappropriate
 [***30]  for a continuing trespass claim. The discovery rule begins the running of the
statute of limitations when the plaintiff discovers or reasonably could have
discovered, in the exercise of reasonable diligence, that he had a cause of
action.
U.S. Oil & Ref. Co. v. Department of Ecology, 96 Wn.2d 85, 91, 633 P.2d 1329 (1981). With circumstances, such as confront us here, and in the interests of
certainty, it would be improper to expose manufacturers to claims running back
for untold years when the injury many years back
may have been inconsequential and the very existence of a cause of action vague
and speculative. Further, in ruling that actual and substantial damages are
required, we find it proper to also require that damages claimed not extend
past the 3-year

 [*694]  period of limitations.

Defendant argues that we should allow, as a defense, a claim of prescriptive
easement and preemption by the Washington Clean Air Act. We note that RCW
4.16.020(1) creates a right of adverse possession 10 years after initial
possession. In order to obtain a prescriptive easement the defendant would
have to show (1) use adverse to the title owner, (2)
open, notorious, continuous and uninterrupted
 [***31]  use for 10 years, and (3) the owner’s knowledge of the adverse use when he was
able to enforce his rights.
Dunbar v. Heinrich, 95 Wn.2d 20, 22, 622 P.2d 812 (1980). There is little likelihood that the doctrine of prescriptive easement will
have
application to the situation before us. To gain a prescriptive easement, the
use must be open, notorious, continuous and uninterrupted for a period of 10
years. We have observed that invasion by particulate matter is not open and
notorious and therefore it would indeed be difficult to establish on the part
of a defendant that the prescriptive easement period had
run. However that may be, there may be instances when a defendant can
establish as a defense all of the elements of prescriptive easement, thereby
precluding any recovery by a landowner. As a practical matter, this would
indeed be a blatant and flagrant pollution of adjoining land to start the
running of the prescriptive period and to forever bar the landowner from
recovering for the continuing activity of the polluter. We recognize the
possibility and recognize also that whether or not the invasion of the
plaintiffs’ land was open and notorious is a question of fact to be
 [***32]  established in a forum other than this court.

Defendant also proposes that the Washington Clean Air Act permits only suits in
nuisance. RCW
70.94.230 provides in part:

 

[N]othing herein shall be construed to supersede any local county, or city
ordinance or resolution, or any provision of the statutory or common law
pertaining to nuisance . . .

 

RCW 70.94.901 provides in part:

 [*695]  This 1967 amendatory act shall not be construed to create in any way nor to
enlarge,
diminish or otherwise affect in any way any private rights in any civil action
for damages.

 

This is a civil action for damages, and the Washington Clean Air Act
specifically does not preclude such suits.

In conclusion, we answer the certified questions as follows:

1. The defendant had the requisite intent to
commit intentional trespass.

2. An intentional deposit of microscopic particulates, undetectable by the
human senses, gives rise to a cause of action for trespass as well as a claim
of nuisance.

3. A cause of action under such circumstances requires proof of actual and
substantial damages.

4. The
appropriate limitations period for such a trespass is 3 years, but if the
trespass
 [***33]  continues, suit for damages may be brought for any damages not recovered
previously and occurring within the 3-year period preceding suit. The period
of limitations runs from the date the cause of action accrues. The

 [**793] 
defense of easement by prescription is available if the defendant can prove
each of the elements of the defense. The cause of action for trespass is not
preempted by the Washington Clean Air Act.

The United States District Court for the Western District of Washington shall
be notified for such further action as it
deems appropriate.

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