Borland v. Sanders Lead Co. 369 So. 2d 523 (Ala. 1979) Case Analysis Questions CA Q. 1 What court decided this case? The Supreme Court of Alabama. CA Q. 2 What are the facts in this case? The Defendant lead company operated a smelting plant to recover lead from used automobile batteries. The Defendant located its smelter on the edge of its property nearest to the Plaintiff s property that was located just across the road. Despite the installation of a baghouse and two cooling systems to remove particulate matter from its gaseous emissions. Plaintiffs alleged that lead particulates and sulfoxide gases were deposited on their farmland property, thereby damaging the value of their property for residential and/or farming purposes. Nevertheless, there was also evidence that because of its close proximity to the Defendant s nearby lead smelting plant, the overall economic value of the Plaintiffs property had actually INCREASED due to its potential new use as commercial property. CA Q. 3 The Borland court refers to this as an ore tenus case. What is an ore tenus case? This is simply a Latin phrase that means orally, or verbally. In the context of this case, it likely refers to a proceeding before the trial judge (sitting without a jury) in which there is no written record of the facts from the trial court proceeding in this case. Since there is no written record for the appellate court to review on appeal, the court MUST rely entirely upon whatever findings of fact that the trial court may have made, ore tenus. The 1
historical justification for this rule arises from the presumption that since the trial judge was personally present to hear the oral testimony from witnesses directly, and was able to evaluate the individual demeanor and credibility of such witnesses, the trial judge s findings of fact based upon such oral testimony should not be overturned on appeal (in the absence of any written record) unless such findings were otherwise clearly erroneous under the circumstances. CA Q. 4 What is the significance of the Borland court s characterization of this case as being an ore tenus case? Under Alabama law, when an ore tenus case is appealed, the fact findings of the trial court are presumed to be correct, and the reviewing appellate court is precluded from altering the lower court s factual findings unless those findings are clearly erroneous or plainly and palpably wrong. However, as this court explains, the reviewing appellate court CAN reverse any case (including an ore tenus case) for an erroneous application of a legal principle, such as the one addressed by the court in the Borland case. This is why (on page 2 of the unedited version of the opinion available on the Course website) the court began its discussion in this case by pointing out that the trial court had made an erroneous ruling of LAW. See CA Q. 6, infra. CA Q. 5 What cause of action did the Plaintiffs assert against the Defendant in this case? The Plaintiffs brought an action for the tort of trespass to land, alleging that the fallout of particulate matter from the emissions produced by the Defendant s smelting plant constituted a trespassory invasion that had caused damage to their property. 2
CA Q. 6 How did the trial court respond to the Plaintiffs claim for trespass to land, and what was the legal basis for doing so? The trial court rejected the Plaintiffs claim for the tort of trespass to land, explaining that since the actual economic value of the Plaintiffs property (as commercial property) had been INCREASED by virtue of the Defendant s smelting operation, the Plaintiffs could not maintain an action for the tort of trespass to land. CA Q. 7 What is the LEGAL issue addressed by the Borland court in this decision? The court addresses the issue of whether an action for the tort of trespass to land can be maintained for injury to the exclusive possession of the land due to the fallout of particulate emissions deposited onto the land (i.e., an indirect entry) where there is no proven economic harm to the value of the land? CA Q. 8 According to the Borland decision, did the entry of the particulate emissions in this case constitute a direct or an indirect entry onto the Plaintiffs land? Applying Alabama law, the Borland court characterized these types of particulate emissions as an indirect entry onto the plaintiff s land. In doing so, the court cited two Alabama cases involving indirect injuries by invading substances. See the Rushing case involving the discharge of asphalt that was allowed to gradually spread out onto the plaintiff s property (discussed on pages 2-3 of the unedited version of the opinion available at the Course website) and the Coalite case involving concussion vibrations caused by blasting operations on the defendant s adjacent property (discussed on page 4 of the unedited version of the opinion available on the Course website). In BOTH of these cases, the entries of the alleged trespassing substances were characterized as being indirect. In the Rushing case recovery for the tort of trespass to land was allowed (despite the fact that the entry was indirect ) whereas in the Coalite case 3
recovery for the tort of trespass to land was not allowed, since the entry was indirect. CA Q. 9 HOW did the Borland court explain the apparently INCONSISTENT results between the Alabama Rushing and Coalite precedent cases? The Borland court simply declined to address this apparent inconsistency in its precedent case law with respect to the very different outcomes reflected by both the Rushing and the Coalite decisions, citing its own judicial restraint that prevented it from addressing legal issues that were NOT presently before the court for consideration. Specifically, the court explained that even though its prior Coalite decision (stating that concussion vibrations caused by blasting operations constituted an indirect entry onto the land of another for which an action based upon the tort of trespass to land was not permitted) was inconsistent with the manner in which other jurisdictions have resolved similar cases involving trespassory entries due solely to concussion vibrations (namely, Oregon as explained in the Martin v. Reynolds Metals Co. case), the circumstances presented by the present (i.e., Borland) case simply did not require the court to address this apparent inconsistency. In other words, the Borland court explained, since the Borland facts did NOT involve an alleged entry due solely to concussion vibrations caused by blasting operations on the defendant s adjacent property, any discussion of its previous decision in the Coalite case (involving such an entry) would be, at most, simply dictum in Borland and, as such, not particularly useful as precedent in future cases anyway. This approach to resolving apparently inconsistent or conflicting precedent cases is a fairly common one that is often taken by usually conservative courts who are more concerned with preserving the integrity of the doctrine of stare decisis than they are with necessarily going back to fix every previous decision that might even potentially be in conflict with current cases that reflect more modern trends in the law. While this approach may, at first glance, seem somewhat bad in regard to the court s continued reliance upon stare decisis, in effect it may actually be a 4
good thing in several respects. First, as the Borland case acknowledges, it avoids creating dictum and other unnecessary language in current decisions that may be used inadvisably to persuade courts to adopt new rules in future cases that are yet to even arise. Furthermore, by retaining the existing precedential validity of prior cases (even those whose legal analysis and reasoning potentially may be questioned) until such time as they can actually be re-examined within factually similar contexts, the common law can continue to be construed and developed on a more gradual basis (i.e., on a case-by-case basis over time) as it was intended under the doctrine of stare decisis. CA Q. 10 According to the Borland court, from where did the traditional common law distinction between trespass to land and nuisance causes of action based upon the characterization of the ENTRY as being either direct or indirect originate? On page 3 of the unedited version of the Borland opinion available at the Course website, the court referred to the original common law writ system that distinguished trespass to land from nuisance actions on the basis of whether the plaintiff s INJURY itself was caused either directly or indirectly as a result of the defendant s alleged tortious conduct. Specifically, the court explained that: The modern action for trespass to land stemmed inexorably from the common law action for trespass which lay when the injury was both direct and substantial. Nuisance, on the other hand, would lie when injuries were indirect and less substantial. (Emphasis supplied). Even though there is a somewhat subtle change in the wording of the language that was once used to distinguish between the early common law writs of trespass and trespass on the case, (see the emphasized language, supra), the court explained that this direct/indirect dichotomy was also responsible for the application of this same distinction by early common law cases addressing the tort of trespass on the land. The Borland court even used this same dichotomy to explain the early common law dimensionality test (based solely upon the physical SIZE of the 5
invading substance), pointing out that even that test was eventually abandoned by modern courts. (See Borland, citing the Martin v. Reynolds Metals Co. case (from Oregon). CA Q. 11 Instead of a distinction that is based upon the directness or the indirectness of the alleged trespassory invasion, what does the Borland court use as the legal basis for determining whether a particular cause of action should be maintained as one for trespass to land or nuisance? The Borland court utilizes a test that looks upon the specific nature of the plaintiff s legal interest that has been harmed by the alleged invasion. IF the plaintiff s interest in the exclusive possession of the land has been harmed, then the action is one for the tort of trespass to land. If, instead, the plaintiff s interest in the use and enjoyment of the land has been harmed, then the action is one for the tort of nuisance. On pages 4-5 of the unedited version of the Borland opinion (available on the Course website), the Borland court explained that: 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. CA Q. 12 According to the Borland decision, can the same conduct by the defendant constitute BOTH a trespass to land and also a nuisance? Yes! IF the plaintiff can show that the defendant s alleged tortious behavior resulted in harm to BOTH the plaintiff s exclusive possession of the land AND ALSO the plaintiff s use and enjoyment of the land, then the plaintiff can maintain BOTH a trespass to land action as well as a nuisance action. 6
CA Q. 13 Does the Borland decision completely abolish the traditional common law distinction between a direct versus indirect entry for purposes of determining whether a given trespassory invasion constitutes the tort of trespass to land or the tort of nuisance? No, not exactly. The Borland decision makes it clear that the traditional common law distinction between direct and indirect entries onto the land is still a RELEVANT and NECESSARY inquiry that must still be addressed in trespass to land and nuisance cases. HOWEVER, the Borland court did conclude that instead of using this distinction as a test to determine which of these two torts can be asserted in any given situation, the direct / indirect dichotomy is ONLY to be used in determining whether SUBSTANTIAL (i.e., non-trivial) are required as an additional element in order to establish liability for the tort of trespass to land. Look specifically at the language used by the Borland court on page 5 of the unedited version of the opinion (available on the Course website): While the direct/indirect analysis of the nature of the intrusion is not a valid method of determining trespass vis-a-vis nuisance, this analysis must be made in order to determine the elements necessary to prove trespass. If the intrusion is direct, then, under our present law, actual damages need not be shown. Thus, the Borland court says that instead of using the direct / indirect dichotomy as a test for determining whether a particular cause of action should be based upon the tort of trespass to land or the tort of nuisance, the Borland decision concludes that the nature of plaintiff s legal interest that has been harmed by the defendant s alleged misconduct is the appropriate test that determines whether the appropriate cause of action is one based upon the tort of trespass to land or nuisance. HOWEVER, in regard to any alleged cause of action for the tort of trespass to land is asserted (i.e., any action in which the plaintiff s interest in the exclusive possession of the land has been invaded), the Borland court concluded that IF the ENTRY is INDIRECT (as opposed to a direct entry), the plaintiff is REQUIRED TO PROVE SUBSTANTIAL (i.e., a non-trivial) HARM in order to maintain the cause of action. Conversely, IF the alleged 7
trespassory invasion is DIRECT then the plaintiff can still recover damages for such a direct trespassory invasion to the exclusive possession of the land without proving ANY damages whatsoever (i.e., damages are legally PRESUMED to be present from the very fact that the trespassory entry was direct as opposed to indirect ). CA Q. 14 Under the Borland decision, if an indirect trespassory invasion occurs but the plaintiff sustains no actual provable (i.e., substantial, non-trivial) damage to the land, does this mean that the plaintiff has no cause of action whatsoever against the defendant who caused the invasion? NO, it only means that the plaintiff has no cause of action for the tort of trespass to land (since the plaintiff will be unable to prove the existence of any substantial, non-trivial damage to a possessory interest in the land itself). However, the Borland court expressly states that even an indirect trespassory invasion that produces no substantial harm to the LAND itself may still be actionable as a tort of nuisance, IF the plaintiff s use and enjoyment of the land has been impaired. And, the Borland court explains, this is true even if the interference with that use and enjoyment might otherwise be regarded as trivial. CA Q. 15 Specifically WHAT MUST the plaintiff PROVE in order to establish liability in an action for trespass to land where the alleged trespassory invasion has occurred indirectly? The Borland court explained that: 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. 8
CA Q. 16 It appears from the Borland court s response in CA Q. 15, supra, that there are TWO ADDITIONAL REQUIREMENTS recognized by the court in order to establish liability for the tort of trespass to land in cases in which the alleged trespassory invasion has been indirect. Explain these two additional requirements. (1). The first requirement (i.e., requirement number 4 as listed by the Borland decision) is the requirement for proof as to SUBSTANTIAL (i.e., nontrivial) DAMAGE to the res. As explained in the Response to CA Q. 13, supra, this is a NEW requirement that the Borland court imposes ONLY in indirect entry trespass cases. But, what does the court mean by requiring substantial damages to the res? What is a res? This is simply a Latin term (meaning the thing ) and as it is used in this context, the res (or thing) is THE plaintiff s POSSESSORY INTEREST IN THE LAND ITSELF (as distinguished from OTHER potential harms that the plaintiff might also wish to assert (such as a harm to the plaintiff s use and enjoyment of the land). [NOTE: We will have another opportunity to address this same Latin term res in a different context when it is applied later in this Course to an evidentiary doctrine (referred to as res ipsa loquitur ) that is sometimes used as an aid in proving negligence.] (2). The second requirement (listed as number 3 by the Borland decision) is a bit more complicated to explain. This is apparently a reference to a legal concept that is more commonly referred to as proximate cause. This concept is ALWAYS required as one of the prima facie elements for establishing liability for the tort of negligence. However, since both the modern tort of negligence, as well as the modern tort of nuisance, were derived from the original common law writ of trespass on the case (requiring an INDIRECT HARM to the plaintiff), perhaps, by including this requirement in the listing of requirements for an indirect trespassory invasion to the plaintiff s possessory interest in the land itself, the Borland court was simply emphasizing the indirect harm aspect of this cause of action, as it relates to this tort s former common law origin. In that case, this really would not be a new requirement at all. If, however, the 9
Borland court intended to create a new proximate cause requirement as an additional element in the plaintiff s prima facie cause of action for an indirect entry trespassory invasion, then this would be quite a distinct departure from traditional legal rules as they are generally applied in most all other intentional tort causes of action. We do not know for sure exactly WHICH interpretation the Borland court may have intended by including this statement in its listing of the formal requirements for this particular aspect of the tort of trespass to land. However, as we will see, infra, in the discussion of the Bradley case, this exact same list of requirements will be quoted approvingly in the Bradley decision by the Supreme Court of Washington. As such, whatever the Borland court s intended meaning may have been when it included this additional requirement into the prima facie elements for an indirect trespassory entry, that confusion is now also becomes a part the case law precedent of the State of Washington. CA Q. 17 Since the Borland court concluded that (at least in Alabama law) the particulate emissions from the Defendant s lead smelting plant that fell onto the Plaintiffs land constituted an indirect entry for purposes of the tort of trespass to land, WHY did court uphold the Plaintiffs cause of action for the tort of trespass to land instead of requiring the Plaintiffs to sue for the tort of nuisance? The Borland court upheld that Plaintiffs cause of action for the tort of trespass to land because even though the entry by particulate emissions constituted an indirect entry (for which proof of SUBSTANTIAL, non-trivial damages to the Plaintiffs exclusive possessory interest in the land was required), under the facts and circumstances in this case the Plaintiffs clearly established such harm. 10
CA Q. 18 Since the proof in the Borland case established that the current market value of the Plaintiffs land (even after the Defendant s alleged trespassory invasion of particulate emission deposits onto the land) was greater than it was before the alleged trespass (by virtue of the potential use of the land for commercial rather than residential or farmland purposes), HOW were the Plaintiffs able to prove that they suffered SUBSTANTIAL non-trivial HARM to their land? The court explained that while the usual method of determining damages in a trespass to land case is to calculate the difference in market value of the land before the injury and its (usually lower) market value after the injury, this is NOT the only way that damages can be calculated in trespass to land cases. Instead, the court explained that since the purpose of compensatory damages is to fully compensate the plaintiff for ALL damages that were sustained as a result of the defendant s tortious conduct, the law allows for flexibility in determining an amount of damages that will fairly compensate the Plaintiffs for their total loss. In this case the Borland court concluded that different damages could be recovered, depending upon whether the Defendant s trespass was a continuing trespass (which was temporary in nature) or a permanent trespass. Unfortunately, the Borland court did not decide which type of trespass this case involved, apparently leaving that determination to be resolved by the when the case was sent back to the trial court. What exactly is the DIFFERENCE between a continuing trespass and a permanent trespass? A continuing trespass is one that is temporary in nature, Even though it may cause extensive harm to the plaintiff s land, that harm can (at least potentially) be remedied by awarding damages for the cost of RESTORING the land (to its former condition). If the cost of restoration is too great (i.e., greater than the diminution of the fair market value of the land resulting from the trespass) then an alternate measure of determining damages is to award the reasonable cost of RENTING comparable land during the period of the trespass. The whole point about a continuing trespass is that (at 11
least in the eyes of the law) it is not considered to be a PERMANENT impairment of the land. Moreover, an action for a temporary continuing trespass CONTINUES as an entirely new and different tortious injury each and every day that the trespass is allowed to continue. Thus, as the Borland court explains, the Plaintiffs could continue to bring successive actions for each new trespass and continue to recover damages from the Defendant for a continuing trespass for as long as the Defendant continued to deposit particulate emissions onto their land. Of course, this type of trespass action is quite burdensome (and potentially expensive) for the Plaintiffs, since they will be involved in potentially continuous future litigation, indefinitely. By contrast, a permanent trespass is one that so harms the Plaintiffs exclusive possessory interest in the property that (in the eyes of the law) the damage to that interest is considered to last forever, and permanent damages are calculated in one trespass to land action for harm to the land once and for all time, including all past, present, and even future damages. Of course, as the Borland court points out, the effect of treating this case as an action for a permanent trespass would be to allow industries such as the Defendant s smelting operation to have absolute control over the use of their neighbor s property, simply by paying damages in a one time trespass to land action. Moreover, the potential injustice of doing this under circumstances such as those in the present case would be to allow the Defendant to entirely change the character of the Plaintiffs use of their own land, by converting it into some other (i.e., more valuable) use, even if that is contrary to the desires of the current possessors. 12