Public Nuisance and Public Plaintiffs: Ownership, Use, and Causation (Part II)

Louise A. Halper

Editors' Summary: In the second of a three-part series, Ms. Halper, an assisant attorney general for the state of New York, analyzes the question of land ownership, land use, and causation in the context of the state public nuisance action to remedy environmental damage. The article argues that the use of land, rather than ownership, is the key to liability in the public nuisance context, and compares this to the traditional private nuisance action. The final article in this series will discuss defenses that may be raised.

Louise A. Halper is an Assistant Attorney General in the Environmental Protection Bureau, New York State Department of Law. The views expressed in this article are the author's and not necessarily those of the Department of Law or Attorney General Robert Abrams.

[17 ELR 10044]

This is the second in a series of three articles discussing legal principles applicable to common law public nuisance actions brought by the state to remedy environmental harms. An earlier article¹ discussed the appropriate liability standard in such actions which is, in fact, strict. This article will address the issues of land ownership, land use, and causation in the context of state civil prosecution for public nuisance. It examines the difference between public and private nuisance in this regard. A third article will deal with the defenses of reasonableness, preemption, permitting, and briefly with the various equitable defenses.

This article argues that use of land, rather than its ownership, is the basis of liability for public nuisance. Because land tenure is neither a predicate to public nuisance liability nor a requirement for standing to maintain such an action, defenses based on sale, transfer, or lack of ownership of land are not apposite to a state suit charging creation or maintenance of a nuisance.² Notions to the contrary may stem from a confusion of public and private nuisance.

Liability Based on Use

The question of the basis for liability with the no-fault context of public nuisance has been most carefully considered in Commonwealth v. Barnes & Tucker Co.³ In that case, which was discussed at some length in the first part of this article,⁴ a mining company was required to abate acid discharge from its closed mine as a public nuisance. The company, Barnes & Tucker (B&T), had not built the mine from which acid minewater was released and had ceased operating it before the discharge. Moreover, B&T claimed the acid discharge was actually fugitive minewater from another mine. Under these circumstances, B&T said, there was no proof that any of its activities had been the proximate cause of the nuisance. Thus it claimed that the state was seeking to impose liability merely on the basis of B&T's ownership and in violation of its due process rights.

The trial court agreed with B&T that "an owner of land cannot lawfully be required to abate a public nuisance existing on his land where such ownership is unrelated to the forces and conditions resulting in a public nuisance,"⁵ but it did not view B&T as such a passive owner.⁶ While the court readily conceded there was no proof that B&T's activities were the proximate cause of the offending discharge in tort terms, this did not dispose of the company's potential liability in a public nuisance case brought by the state.

[17 ELR 10045]

"[W]ant of proof of proximate cause in traditional negligence" terms is not fatal in the public nuisance context,⁷ the court said. This jibed with the Pennsylvania Supreme Court's declaration, at an earlier stage of the case, that "facts supporting concepts of negligence"⁸ were not required in this public plaintiff's action for abatement of a public nuisance, because, as the trial court stated, they lead to "an entirely mistaken emphasis upon what the defendant has done rather than the result which has followed."⁹

Focussing on the result, the trial court explained how it viewed causation in the public nuisance context:

The activity or conduct of [the defendant] … created a condition which has in turn resulted in a public nuisance. Whether the impelling force which produced the public nuisance is solely or partially that of fugitive mine water …, the conduct of Barnes & Tucker in its mining activity remains the dominant and relevant fact without which the public nuisance would not have resulted where and under the circumstances it did.¹⁰

Even accepting B&T's allegations that a former owner was responsible for construction of the discharging mine and that escaping minewater came from another's mine, B&T's mining activities, which culminated in the massive discharge of minewater, were enough to attach liability. "In our opinion," said the court, "Barnes & Tucker does not qualify as exempt from imposition of relief in abatement of a public nuisance for want of conduct or activity by it bearing upon the forces and conditions producing the public nuisance."¹¹ Its mining use of the land where the mining-related nuisance subsequently occurred was sufficient predicate to its liability for public nuisance. This ruling was affirmed by the Pennsylvania Supreme Court.¹²

This expansive interpretation of causation in the nuisance context has been echoed in a recent Pennsylvania case, Commonwealth v. PBS Coals, Inc.¹³ There, too, the trial court held that public nuisance causation did not require traditional proximate cause proof but rather could rest on the coincidence of the occurrence of the nuisance and a change in defendant's mining practices.

These cases make clear the appropriate causation analysis to be applied to public nuisance. It is not a traditional tort test focussing on proximate cause, but rather one which has at its core an inquiry into defendant's use of the land. If its use is "the dominant and relevant fact … bearing upon the forces and conditions producing the public nuisance,"¹⁴ it is not exempt from liability for abatement.

It is no excuse to such liability that the potential for harm inherent in an enterprise has been realized by the acts of strangers. One may not for the sake of private interest create or benefit from a condition which could threaten the public and then evade liability when the threat becomes present through the acts of others. The actualization of harm will be attributed to the party whose use is beneficially related to the condition under which harm could occur.

This principle, as carefully explained in Barnes & Tucker, is demonstrated in an earlier well-considered public nuisance case from New York, Board of Health v. Copcutt.¹⁵ In that case, Copcutt built a dam to supply water power to factories to which he rented land. The dam formed a pond which eventually became contaminated from upstream garbage and sewage disposal. The local board of health declared the pond a nuisance, but Copcutt refused to bear the expense of abatement, arguing that "when he built the dam the stream was clear and the water pure; that he never did anything to pollute it or make it dangerous to health; [and] that it came to that condition from the acts of others."¹⁶

But New York's highest court found that Copcutt, having built the dam and pond, had a duty to keep them clean or do without them.¹⁷ The court would not accept the defense, from one whose enterprise involved creation of a condition which led to a nuisance, that it was the acts of others that actually brought about the nuisance. That others polluted the pond did not excuse Copcutt's duty to abate the nuisance resulting from the condition created as an adjunct to his use of the land. This is in accord with the Barnes & Tucker holding that causation may be derived from an "activity which is the dominant and relevant fact … bearing upon the forces and conditions producing the public nuisance,"¹⁸ however faultless that activity is in itself.

This causation standard is crucial to public nuisance cases in the environmental context. If causation could not be implied from activity bearing upon the forces and conditions which created the public nuisance, polluting landowners could shed liability for their activities if a resulting nuisance did not occur until after their use was concluded and the land transferred. Hazardous waste generators, for example, could escape common law liability by selling land on which they had disposed of their waste before it leached into soil or groundwater.

Such a result would vitiate the force of the common law public nuisance remedy. That this is not the case is made clear by the common law's approach to the attempt to shift liability on the basis of sale.

Public Nuisance Liability and Rights In Land

Sale of Land Does Not Transfer Liability

In State v. Ole Olsen, Inc.,¹⁹ the New York Court of Appeals [17 ELR 10046] rejected sale as a defense to a former owner's liability in a public nuisance action filed by the state. A unanimous court required nuisance creators to bear the costs of abatement of a public nuisance even through they had sold the nuisance-laden property several years before the state sued. The principal defense, that defendants were no longer liable for the public nuisance once they sold the property, was decisively rejected.

The defendants in Olsen were developers who built 42 vacation houses adjacent to a lake. After some years, the sewage disposal systems in the houses failed, and sewage migrated through the soil, eventually contaminating the lake. The state sued the developers to abate the public nuisance by installing proper sewage disposal systems. Defendant moved to dismiss the state's complaint on the ground that "prior to the institution of the present action, [they] sold and conveyed title to all of the … residences."²⁰ The trial court rejected this sale defense, holding that "the creator of a nuisance does not by conveying the property to another, release himself from liability for its continuance."²¹ The Appellate Division affirmed, terming the sale defense "untenable."²²

After trial, the lower court again rejected the sale defense as one that "cannot stand up."²³ The former owners were ordered to abate the nuisance and post a bond to insure compliance with the order. The current owners were made parties-defendant and made subject to an order requiring them to give the developers access to their property for the purposes of abatement.

Other courts have come to similar conclusions regarding a prior owner or occupier's liability to the public under the common law. For example, in United States v. Ottati & Goss, Inc.,²⁴ a hazardous waste site case brought under both CERCLA and common law public nuisance, a federal district court held that, under New Hampshire law, "a past owner … cannot avoid its obligations [as a nuisance creator] by conveying the land." A Pennsylvania case has applied the same concept to a lessee. In Ryan v. Department of Environmental Resources,²⁵ Ryan, a former tenant, had operated a landfill which, after his tenancy ended, began discharging leachate into groundwater. Although abatement by Ryan would now require his entry onto property in which he no longer had any interest, the court said "the fact that the nuisance is on the land of a stranger is no reason for not abating it."²⁶ The suggestion that the state environmental agency "lacks the power to issue an abatement order against [Ryan] … because he is not a present landowner or occupier of the property … would fail."²⁷ Although Ryan is not a "sale" case, here again one whose use created the nuisance is not excused from abatement because of a change in his status in relation to the real property on which the nuisance exists.

Ownership of Land Does Not Create Liability

The obverse of the principle that sale of land will not relieve a public nuisance creator of liability is that mere ownership of nuisance-laden land will not sustain public nuisance liability.²⁸ As the Third Circuit has pointed out in Philadelphia Electric Co. v. Hercules, Ltd.:

[T]he common law … imposed liability only on those whose conduct (even if without fault) had been a legal cause of the nuisance, and not simply on the basis of ownership of the offending land.²⁹

Several public nuisance cases involving past and current landowners illustrate this principle.

In New Jersey Department of Environmental Protection v. Exxon Corp.,³⁰ the court relied upon Ole Olsen for the "general rule that the creator of a nuisance remains liable even after alienating his property.'³¹ It ruled that a current owner which had done no more than purchase oil-soaked land from the company that had maintained the land as an oil transport depot could not be held liable for cleanup under the common law:

[M]ere ownership of property without anything more cannot and should not be the determinative factor in imposing liability here …. It would be inequitable … to impose on [the current owner] the burden of abating the pollution condition solely on the theory of ownership.³²

The court pointed out that the rationale behind strict liability is "that an enterprise involving unusual hazards must pay its way."³³ But it was Exxon, the prior owner, not the current owner, ICI America, Inc., that had been involved in hazardous activity, and the court refused to hold ICI liable when it had neither engaged in the activity nor profited by it.

Similarly, in New Jersey Department of Environmental Protection v. Ventron Corp.,³⁴ the New Jersey Supreme Court held three former landowners, all of whom had been active mercury polluters, liable for costs of abatement while, at the same time, current owners who were not active polluters remained free of liability for the necessary cleanup. Although the court stated that "a landowner is strictly liable to others for harm caused by toxic wastes that are stored on his property and flow onto the property of others,"³⁵ it allowed the current owners to stay clear of liability while upholding imposition of liability on the former landowners whose use polluted the land. The court described its holding as based on "long-standing common-law principles of landowner liability,"³⁶ but in fact, used that term as a shorthand for the liability of a current or former owner of land who uses or has used the land to conduct an abnormally dangerous activity. The Ventron result holds polluters who are currently nonowners liable:

[17 ELR 10047]

Wood Ridge and Berk [former landowners and dumpers] were at all times engaged in an abnormally dangerous activity — dumping toxic mercury; Ventron [purchaser in 1967 of Wood Ridge's parent corporation] remains liable because it expressly assumed the liability of Wood Ridge in the merger. After 1967, Velsicol [Wood-Ridge's parent corporation], as an adjacent landowner, permitted Wood Ridge to dump mercury onto its land … [but] the Wolfs [current owners] have not continued to dump mercury and they have been responsible for only a minimal aggravation of the underlying hazardous condition.³⁷

The lower court had dismissed the state agency's attempt to impose common law liability on the Wolfs, the current landowners, because they "had never operated a mercury processing plant on the site nor, according to the proofs, dumped mercury."³⁸ Of course, it is open to question whether the Wolfs would have succeeded in avoiding liability completely if they had not taken some remedial steps during their tenure.³⁹ Even an innocent landowner must use all reasonable means within his/her power to put a halt to threatening conditions.⁴⁰

In establishing what constitutes innocent ownership, as opposed to liability-producing use, CERCLA is a good guideline. With the enactment of the 1986 amendments, it is the landowning defendant's burden to prove "innocence," which is essentially an initial lack of knowledge that would indicate an intent to profit from the polluting use and the exercise of due care when knowledge is acquired later.⁴¹ In terms of the assumption that an owner knows of a polluting condition and plans to profit from it, "those engaged in commercial transactions should … be held to a higher standard."⁴² This seems appropriate as well in the common law where there are many means to benefit by indirection from a polluting use, and where, as noted earlier,⁴³ liability is indeed based on beneficial use.

A recent common law case from New York, dealing with the liability of the purchaser of an inactive hazardous waste site, may be read as a case imposing liability precisely on one who seeks such indirect benefit. In New York v. Shore Realty Corp.,⁴⁴ hazardous waste was brought to the site by a predecessor of the defendant. Shore Realty did not itself engage in any hazardous waste-related business, but rather was a real estate speculator. In upholding a grant of summary judgment for abatement against Shore Realty, the Second Circuit, some argue,⁴⁵ imposed liability on mere ownership. Another reading of the case, however, suggests that liability attached just because of defendant's intent to profit from the fact that it had purchased nuisance-laden land. Thus, as the court points out, the buyer knew of the unsafe conditions under which the waste was stored, hired consultants to estimate the cost of abatement, learned approximate expenses could be over a million dollars, and sought and failed to obtain a waiver of liability from the state environmental agency, all before purchase. Nonetheless, it bought the land for purposes of condominium development.⁴⁶ It may be assumed that defendant, a knowing buyer if there ever was one, calculated that despite cleanup costs, the difference between the purchase price and the profit to be made in its real estate enterprise warranted the investment. And because of the knowing purchase, defendant was denied an opportunity to prove that the release of wastes was due to the acts of third parties.⁴⁷ Thus, in Shore, liability to the public seems to be premised on a planned land use benefiting from the existence of the threatening condition.⁴⁸

Public and Private Nuisance Distinguished

The principle that liability will be imposed on one whose land use creates or benefits from a public nuisance serves as a guide through the tangled thicket of ownership and sale questions. A lack of clarity exists in this area at least in part because in private nuisance, sale of land generally does shift liability. And because public and private nuisance share a common name (which, Dean Prosser says, is "in the highest degree unfortunate"⁴⁹), the separate rules of law applicable to each are all too often confused.⁵⁰

[17 ELR 10048]

It is worthwhile to point out that there are in fact three separate civil actions generally denominated as "nuisance." Dean Prosser has outlined the three kinds of actions. First of all:

A private nuisance is narrowly restricted to the invasion of interests in the use and enjoyment of land. It is only a tort, and the remedy for it lies exclusively with the individual whose rights have been disturbed.⁵¹

Secondly:

A public nuisance is a species of catch-all low-grade criminal offense, consisting of an interference with the rights of the community at large … as in the case of other crimes, the normal remedy is in the hands of the state.⁵²

And third:

[A] tort action would [also] lie even for the purely public nuisance [i.e., one not interfering with private land rights] if the plaintiff suffered "particular damage."⁵³

The sine qua non of a private nuisance action is the impact upon plaintiff's enjoyment of rights in real property. On the other hand, the threat to a community which constitutes a public nuisance need not arise from nor affect private property, nor need the particular damage which sustains a private plaintiff's complaint on a public nuisance. Rights in land are thus the underpinning of private, but not public, nuisance.

Because a public nuisance is a kind of criminal offense, one who creates it has done so in violation of public rights. Like other criminal offenses, liability for public nuisance may not be transferred to another party.⁵⁴ No agreement between parties will make a public nuisance noncriminal as to its creator.⁵⁵ Indeed, it is a long-standing principle of contract law that parties may not contract to relieve themselves "of a duty imposed by law for the public benefit,"⁵⁶ such as the duty not to threaten the public safety. The creator of a public nuisance has done a quasicriminal act and thus cannot be exonerated from liability by a private contract, like a deed of sale.

But in private nuisance, the familiar principle of caveat emptor dictates that responsibility for the offending condition is transferred between parties to the sale of land on which it exists. The private nuisance creator's liability to a neighboring landowner is transferred to the nuisance buyer: it runs with the land on which the nuisance exists. In the absence of fraud and when there has been a reasonable opportunity for inspection and discovery,⁵⁷ it is assumed that the buyer is aware of the nuisance and has bargained for a lower price for the land or, indeed, finds the nuisance useful.

The very different rules which apply to sale of land in the public and private nuisance context reflect the criminal and tortious nature, respectively, of these causes of action rather than a principle applicable to both public and private nuisance, which according to an English commentator, "are not in reality two species of the same genus at all."⁵⁸

Example of Hercules

A case which neatly explains the distinctions between public and private nuisance in regard to land ownership is Philadelphia Electric Co. v. Hercules, Ltd.⁵⁹ In that case, the Third Circuit also differentiated a private plaintiff's public nuisance action from that of the sovereign. The defendant was found to be at one and the same time 1) not liable to plaintiff for the tort of private nuisance because defendant was the seller of nuisance-laden land that plaintiff bought under the rule of caveat emptor; 2) not liable for the tort of public nuisance to plaintiff-buyer which did not suffer its harm in the exercise of a common right; and 3) potentially liable to the public for creating a public nuisance despite the sale. The sale of property was relevant to the private nuisance claim alone. In its opinion, the court clearly distinguished among various actual and possible nuisance claims, making the case worth a closer look.

Plaintiff Philadelphia Electric Co. (PECO) purchased land from defendant Hercules' predecessor in interest, Philadelphia Industrial Chemical Corporation (PICCO). PICCO had conducted a chemical manufacturing business in the course of which it created a lagoon filled with chemical waste that later leaked into the Delaware River. The waste caused a statutory public nuisance under Pennsylvania's Clean Streams Law, which PECO, as owner of the land, was required under that law to abate.⁶⁰ Abatement [17 ELR 10049] was ordered by the Department of Environmental Resources.⁶¹ PECO expended funds for cleanup and then sued Hercules, which had since merged with PICCO, in tort under common law public and private nuisance theories. It prevailed at trial and the trial court refused defendant's motion for judgment not withstanding the verdict.⁶²

The Third Circuit held on appeal that, as to private nuisance liability, the rule of caveat emptor applies between buyer and seller, when the latter has created a public nuisance on the land sold.⁶³ PECO could not recover from Hercules the cost of abating the nuisance on the land bought from Hercules' predecessor. Private nuisance, said the court, is a means of resolving competing, not successive, land use questions:

[T]he historical role of private nuisance [is] as a means of efficiently resolving conflicts between neighboring contemporaneous land uses …. [It is] not an additional type of consumer protection for purchasers of realty.⁶⁴

As to PECO's public nuisance tort claim, the court found that PECO had not suffered its particular damage, the cleanup costs, in the exercise of a right common to all.

If PECO … had suffered damage to its land or operations as a result of the pollution …, it would possibly have a cause of action for public nuisance. But the condition was not the result of the pollution, it was the cause of it…. PECO has been specially harmed only in the exercise of its private property rights … [and] has suffered no "particular damage" in the exercise of a right common to the general public, and [thus] it lacks standing to sue for public nuisance.⁶⁵

That PECO now occupied the land on which the seller had created a public nuisance was simply "happenstance"⁶⁶ and did not support PECO's public nuisance claim, which was not based on an injury due to the nuisance, but rather on PECO's expenditure for cleanup.

Although Hercules was not liable to the private plaintiff either for the tort of private nuisance or the tort of public nuisance, the court recognized that the facts did not warrant a conclusion that Hercules was free of liability to the public as the successor in interest of the creator of nuisance who had sold its nuisance-laden land. The court pointed out, sua sponte, and although no action against Hercules was pending on behalf of the state, that, as to the public, a seller could not escape liability because of sale:

We emphasize that our decision today should not be interpreted as standing for the general proposition that a party that contaminates land, or the successors to its assets, can escape liability by the expedient of selling the land.⁶⁷

In a footnote, the court explained that the Pennsylvania Department of Environmental Resources or the Environmental Protection Agency "may be able to proceed directly against Hercules on … public nuisance theories."⁶⁸ Despite Hercules' lack of nuisance liability to a private plaintiff, it could nonetheless be sued for public nuisance by a public plaintiff.

Conclusion

In sum, then, liability to the public for a public nuisance, which unlike private nuisance is an offense against the state, cannot be transferred. Liability for public nuisance is based on a use of land which is "the dominant and relevant fact"⁶⁹ in bringing a public nuisance into being, or, alternatively, on a subsequent use which profits from the existence of the nuisance. It is consistent with both modern and traditional strict liability principles⁷⁰ that those who create or benefit from a polluting use should be held strictly liable for the depredations brought about by their enterprise.

1. Halper, Public Nuisance and Public Plaintiffs: Rediscovering the Common Law (Part I), 16 ELR 10292 (Oct. 1986).

2. In this respect, common law public nuisance appears to resemble the CERCLA 1986 amendments which now provide a defense for the innocent owner of a Superfund site. See CERCLA § 101(35), 42 U.S.C. § 9601(35), ELR STAT. 44008, and H.R. CONF. REP. NO. 962, 99th Cong., 2d Sess., at 186-88 [hereinafter CONF. REP.]. For a discussion of how the 1986 amendments changed prior law, see generally Atkeson, et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986, 16 ELR 10360, 10400 (Dec. 1986).

3. 23 Pa. Commw. 496, 353 A.2d 471, 6 ELR 20466 (digest) (Pa. Commw. Ct. 1976), aff'd, 472 Pa. 115, 371 A.2d 461 (Pa. 1977), appeal dismissed, 434 U.S. 807.

4. Halper, supra note 1, at 10296-97.

5. Barnes & Tucker, 23 Pa. Commw. at 509, 353 A.2d at 478, 6 ELR 20466 (digest).

6. Id.

7. Id. at 510, 353 A.2d at 479, 6 ELR 20466 (digest).

8. 455 Pa. 392, 414, 319 A.2d 871, 883, 4 ELR 20545, 20550 (Pa. 1974), rev'g and remanding, 9 Pa. Commw. 1, 303 A.2d 544 (Pa. Commw. Ct. 1973).

9. 23 Pa. Commw. at 509, 353 A.2d at 478, 6 ELR 20466 (digest), (quoting W. PROSSER, HANDBOOK OF THE LAW OF TORTS, § 88 at 595 (3d ed. 1964)).

10. Id. at 509-510, 353 A.2d at 479, 6 ELR 20466 (digest).

11. Id. at 510, 353 A.2d at 479, 6 ELR 20466 (digest).

12. 472 Pa. 115, 371 A.2d 461, 7 ELR 20394 (Pa. 1977).

13. 17 ELR 20204 (Pa. Ct. C.P. Somerset County, Apr. 20, 1986).

14. Barnes & Tucker, 23 Pa. Commw. at 510, 353 A.2d at 479, 6 ELR 20466 (digest).

15. 140 N.Y. 12, 35 N.E. 443 (1893).

16. Id. at 21, 35 N.E. at 445.

17. Id. at 21-22, 35 N.E. at 446.

18. Barnes & Tucker, 23 Pa. Commw. at 510, 353 A.2d at 479, 6 ELR 20466 (digest).

19. 35 N.Y.2d 979, 365 N.Y.S.2d 528, 324 N.E.2d 886 (N.Y. 1975), aff'g, 45 A.D.2d 821, 357 N.Y.S.2d 1016 (N.Y. App. Div. 1974), aff'g mem., 76 Misc. 2d 796, 352 N.Y.S.2d 97 (N.Y. Sup. Ct. 1973). In a pretrial decision, the trial court had also rejected the sale defense. State v. Ole Olsen, Inc., 65 Misc. 2d 366, 317 N.Y.S.2d 538 (N.Y. Sup. Ct. 1971), aff'd, 38 A.D.2d 967, 331 N.Y.S.2d 761 (N.Y. App. Div. 1972); see text accompanying notes 20-23.

20. 65 Misc. 2d at 368, 317 N.Y.S.2d at 541.

21. Id.

22. 38 A.D.2d at 968, 331 N.Y.S.2d at 763.

23. 76 Misc. 2d at 797, 352 N.Y.S.2d at 99.

24. 630 F. Supp. 1361, 1407, 16 ELR 20763 (digest) (D.N.H. 1985).

25. 30 Pa. Commw. 180, 373 A.2d 475 (Pa. Commw. Ct. 1977).

26. Id. at 185, 373 A.2d at 478.

27. Id.

28. But see, infra, text accompanying notes 39-40.

29. 762 F.2d 303, 317 n. 17, 15 ELR 20554, 20561 n. 17 (3d Cir. 1985), rev'g, 587 F. Supp. 144, 14 ELR 20515 (E.D. Pa. 1984). The Pennsylvania trial court in Barnes & Tucker also expressed its agreement with the principle that ownership alone would not sustain public nuisance liability. 23 Pa. Commw. at 509, 353 A.2d at 478, 6 ELR 20466 (digest).

There are statutes which impose liability for abatement on the basis of land ownership alone. See, e.g., the Pennsylvania Clean Streams Law, 35 PA. STAT. ANN. § 691.316, which was at issue in Hercules; see also infra note 60.

30. 151 N.J. Super. 464, 376 A.2d 1339 (N.J. Sup. Ct. 1977).

31. Id. at 485, 376 A.2d at 1350.

32. Id.

33. Id. at 484, 376 A.2d at 1349.

34. 94 N.J. 473, 463 A.2d 893, 13 ELR 20837 (N.J. 1983).

35. Id. at 488, 463 A.2d at 900, 13 ELR at 20839.

36. Id. at 493, 463 A.2d at 903, 13 ELR at 20840 (emphasis supplied).

37. Id.

38. 182 N.J. Super. 210, 227, 440 A.2d 455, 463, 12 ELR 20281, 20284 (N.J. App. Div. 1981).

39. 182 N.J Super. at 226-27, 440 A.2d at 462, 12 ELR at 20284.

40. 66 C.J.S. Nuisance § 88 (1950) at 844. Compare, CONF. REP., supra note 2, at 187 (a landowner must take "those steps necessary to protect the public from a health or environmental threat").

It is not clear what position a court would take if the creator of the nuisance were not available to finance abatement and it were not within the innocent landowner's power to abate. In that case, cleanup costs would fall on the state, which cannot allow the nuisance to continue to threaten public health and safety. A state-financed cleanup would be a windfall to the innocent owner in the form of enhanced property values at sale. In this case, the state might acquire an equitable lien for restitution of its cost at the time of sale, or, alternatively, add the landowner as a party-defendant in an equitable suit seeking restitution. RESTATEMENT OF RESTITUTION §§ 112-117, § 161 comment a (1937). For a discussion of this problem in the CERCLA context, see United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 581, 16 ELR 20557, 20560 (D. Md. 1986).

41. CONF. REP., supra note 2, at 186-87.

42. Id. at 187.

43. See text accompanying notes 3-18.

44. 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

45. See Drabkin, Moorman, and Kirsch, Bankruptcy and the Cleanup of Hazardous Waste: Caveat Creditor, 15 ELR 10168, 10169 & n.9 (June 1985).

46. Shore Realty, 759 F.2d at 1038, 15 ELR at 20360.

47. Id. at 1048, 15 ELR at 20365.

48. It is also worth noting that the imposition of liability on Shore did not dispose of the potential liability of generators and former landowners, as it would in a private nuisance case, where liability is transferred with sale. New York v. Shore Realty Corp., 763 F.2d 49, 54, 15 ELR 20431, 20434 (2d Cir. 1985). The public nuisance liability of landowners and generators is not mutually exclusive but supplemental.

49. Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399, 411 (1942).

50. Some of the confusion between public and private nuisance has arisen because the first Restatement of Torts did not deal with public nuisance at all but used the broad term "nuisance" when referring solely to private nuisance. Bryson & MacBeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 ECOLOGY L.Q. 241, 241-42 N.1. That approach is not confined to the past. For example, a recent discussion of common law approaches to toxic waste litigation fails to distinguish either between public and private nuisance or between tort and police power actions. It categorically states that "nuisance actions are designed primarily to combat invasions of property interests," and gives them short shrift. Note, Developments — Toxic Waste Litigation, 99 HARV. L. REV. 1458, 1610 (1986).

THE RESTATEMENT (SECOND) OF TORTS (1965) does contain a statement of liability for public nuisance, but has not made quite explicit that the public nuisance liability which it discusses is for a private plaintiff's particular damages, and not applicable in the sovereign's equitable action for abatement or restitution. Thus, for example, § 822 of the Restatement, which sets forth general rules of liability under the heading "Private Nuisance: elements of liability," states that a defendant is liable for a nuisance only if his or her interference with a public right was intentional or, if unintentional, was negligent or reckless. This is true in tort, but the comments go on to apply these standards to public nuisance, unless statutorily distinguished. RESTATEMENT (SECOND) OF TORTS § 822 comment a (1977). But a threat to the public is abatable regardless of how it came about, though liability to an individual member of the public may well be conditioned on conduct.

Hornbooks, too, may be problematic in this regard. Thus, Professor Keeton in his revision of Dean Prosser's treatise on torts, supra note 9, now titled PROSSER AND KEETON ON THE LAW OF TORTS § 90 (5th ed. 1984), notes for the first time in that volume's history that state actions against public nuisance are beyond the scope of the work:

This is not the place to discuss in any detail the remedies available to the state and other governmental units to protect the general welfare from conduct regarded as so inimical to so many people as to constitute a public nuisance.

51. Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997, 999 (1966).

52. Id.

53. Id. There is also liability to private parties for ultrahazardous activity which is sometimes called Rylands v. Fletcher liability, for the English case which first explicated it, L.R.1 Ex. 265 (1865), aff'd, L.R.3 H.L. 330 (1868). This liability stems from use of property causing harm to person, land, or chattel, and involves aspects of the torts of both public and private nuisance. Such harm may or may not threaten the public and amount to a public nuisance; it may or may not harm a plaintiff's rights in land and be a private nuisance. Thus it falls between two stools and yet, because it involves strict liability for a use of property, it is often classed under the rubric of nuisance.

54. Of course, the transferee may also incur criminal liability for continuing the violation of public rights; that liability supplements but does not supplant, the liability of the transferor.

55. J. WINFIELD, THE PROVINCE OF THE LAW OF TORTS 89 (1931).

56. 17 AM. JUR. 2D Contracts § 188 (1964).

57. Hercules, 762 F.2d at 314, 15 ELR 20559-60.

58. J. SALMOND, THE LAW OF TORTS 64 (R. Heuston ed., 15th ed. 1969).

59. 762 F.2d 303, 15 ELR 20554.

60. Id. at 307, 15 ELR at 20555; see 35 PA. STAT. ANN. § 691.316. For a discussion of strict liability for ownership under the Clean Streams Law, see Philadelphia Chewing Gum Corp. v. Commonwealth, 35 Pa. Commw. 443, 387 A.2d 142 (Pa. Commw. Ct. 1978), aff'd sub nom. National Wood Preservers v. Department of Environmental Resources, 489 Pa. 221, 414 A.2d 37, 10 ELR 20724 (Pa. 1980). Despite the Pennsylvania Supreme Court's affirmance of the Commonwealth Court, these two opinions are contradictory in their views of ownership liability. The lower court refused to premise liability on ownership, despite the statutory language. In a state suit against for landowning defendants, the court dismissed two defendants and imposed liability on the other two on the basis of use. The latter appealed, claiming their liability had in fact been premised on ownership. The Supreme Court agreed, but held that liability could be imposed on that basis. However, the higher court refused to reinstate the state's complaint against the two dismissed defendants on a thin procedural point, thus generally upholding the outcome in the court below, though on very different grounds.

61. 762 F.2d at 307, 15 ELR at 20555.

62. 587 F. Supp. 144, 14 ELR 20515 (E.D. Pa. 1984).

63. 762 F.2d at 312-13, 15 ELR at 20559.

64. Id. at 314, 15 ELR at 20559 (emphasis in original).

65. Id. at 316, 15 ELR at 20560 (emphasis in original).

66. Id. at 315, 15 ELR at 20560.

67. Id. at 318, 15 ELR at 20562.

68. Id. n. 20.

69. Barnes & Tucker, 23 Pa. Commw. at 510, 353 A.2d at 479, 6 ELR 20466 (digest).

70. See, e.g., 2 F. HARPER AND F. JAMES, THE LAW OF TORTS § 11.2 at 731 (1956) (The justification of strict liability "is that loss from these accidents is a cost of the enterprises or their beneficiaries"), and SEN. CONF. REP. NO. 848, 96th Cong. 2d Sess., at 13, for a similar rationale applied to CERCLA liability.