October 27, 2013

Bradley v. American Smelting and Refining Co. | Case Brief Law Students - 104 Wash.2d 677, 709 P.2d 782 (1985) - Supreme Court of Washington

FACTS: Plaintiff's property is located 4 miles north of the defendant's smelter.  The various gases and particulate matter including arsenic, cadmium, and other metals landed on Plaintiff's property.

ISSUE: Do the particulate matters qualify as a trespass?


RATIONALE: "If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies.  If the intrusion is to the use and enjoyment of the land the law of nuisance applies." (64)  The court held that trespass and nuisance can apply concurrently.  In order to recover for what at one time was only considered a nuisance that 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
4 - substantial damages to the res.

DISPOSITION: U.S. District Court for the Western District of Washington shall be notified for such further action as it deems appropriate.