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Bradley v. American Smelting & Ref. Co.

ELR Citation: 16 ELR 20346
Nos. No. 51094-6, 709 P.2d 782/23 ERC 1851/104 Wash. 2d 677, (Wash., 11/14/1985) On certification to state supreme court

The court rules that an action in trespass is appropriate in a case where air pollution particulate matter has interfered with a party's exclusive possession of his property. The court first holds that since defendant must have known with substantial certainty that its emissions would contaminate surrounding lands, it had the requisite intent to commit intentional trespass. The court also holds that the invasion of plaintiff's property by microscopic particles may constitute trespass as well as nuisance. Trespass and nuisance principles are largely co-extensive. Washington has abandoned using the distinction between direct and indirect invasion to separate trespass and nuisance, and the proper focus of the law of trespass is not on whether the object is tangible or intangible, but rather on whether the invasion interferes with the right to exclusive possession of the property. Next, the court rules that plaintiffs must prove nontransitory injury to their possessory interests and actual, substantial damages. Also, the court rules that the state's three-year statute of limitations for trespass actions applies and that the statute runs from accrual of the cause of action, not from discovery of the injury. Next, the court holds that the defense of prescriptive easement probably does not impede the bringing of a suit. Prescriptive easement is unlikely when the invasion is occurring by microscopic particulate matter since this easement requires an open and notorious use of the property invaded. Finally, the court rules that the Washington Clean Air Act allows for civil actions for damages, and thus no preemption argument could be sustained.

Counsel for Plaintiffs
William C. Tobin Jr.
Cooper & Tobin
P.O. Box, 4, Vashon WA 98070
(206) 463-3608

Counsel for Defendants
Ronald A. Roberts, Kathryn J. Nelson
Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn
Suite 1200, First Interstate Plaza, Tacoma WA 98402
(206) 572-4500