Borland v. Sanders Lead Co.

No. 77-283 (369 So. 2d 523, 12 ERC 2017) (Ala. February 9, 1979)

ELR Digest

The court rules that plaintiffs may recover damages in trespass for injuries caused by air pollution from defendant's smelter even though defendant was in compliance with state pollution laws and even though the construction of the smelter raised the market value of plaintiffs' land. Plaintiffs claim their farm has suffered damage from air pollution emanating from defendant's lead plant on property adjoining the farm. The court first rules that compliance with the state Pollution Control Act does not shield the defendant from common law liability. Under Alabama law, knowing emission of pollutants in a manner that will in due course invade another's realty can be a trespass dand also a nuisance. If the invasion substantially affects the owner's interest in possession, it is a trespass, and if it substantially affects use and enjoyment, it is a nuisance. In trespass actions, if the invasion is direct, plaintiff may receive nominal or punitive damages without proving actual damages. If the invasion is indirect, plaintiff must prove substantial actual damages along with the other elements of trespass. If the intrusion interferes with the use or enjoyment of the property but does not result in substantial damage to the property, then it is actionable only as a nuisance. For example, pollution causing personal discomfort or annoyance would be a nuisance. If the pollution also became deposited on the property and thereby caused substantial damage, it could also be a trespass.

The court next holds that the measure of damages must not be limited to the difference in property value before and after the invasion; such a rule would allow industries absolute control over their rural neighbors' property. First, the before-and-after rule must be based on the owner's desired use, not on the best and highest use. Second, the rule may not be used where it would not compensate the plaintiff for actual damages sustained. If the damage suffered is permanent, the court should award plaintiff the difference in market value of the property before and after the trespass, based on the plaintiff's use of the property or adaptability of the property to a particular use. If the injury continues only during the tenure of the trespass, plaintiff may recover fair rental value for the lost use of property, plus the cost of restoration if the total is less than the dimunition in value. Also plaintiffs may recover for loss of personal property proximately caused by the trespass.

The full text of this opinion is available from ELR (8 pp. $7.00, ELR Order No. C-1338).

Counsel for Appellants
Jack Crenshaw
3155 Gilmer Ave., Montgomery AL 36105
(205) 262-7528

Counsel for Appellee
Nicholas J. Cervera
Cervera & Ralph
914 S. Brundidge St., Troy AL 36081
(205) 566-0116

Oliver W. Brantley
Brantley & Calhoun
220 S. Oak St., Troy AL 36081
(205) 566-3783

Jones, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]