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1903: Sammons v. Gloversville(1)
Sewer filth, accumulating on a river bank, constitutes a trespass.

At the turn of the century, a very polluted Cayadutta Creek flowed through Sampson Sammons’ New York farm. Upstream, the city of Gloversville emptied its sewers and drains into the creek, fouling its waters and depositing filth on its beds and along its banks. So, too, did the city of Johnstown, along with several tanneries. Mr. Sammons went to court to restrain Gloversville from further polluting the creek or its banks. The trial court found that city’s sewage disposal practices amounted to a continuing trespass that substantially injured Mr. Sammons’ property rights. It issued an injunction, to take effect after one year, prohibiting Gloversville from fouling Mr. Sammons’ premises by discharging its sewage into the creek. The court retained the right to extend the injunction if it took longer than a year for the city to establish a different sewage system or to obtain legislative relief. Both the Appellate Division and the Court of Appeals affirmed the decision.

Gloversville opposed the injunction, arguing that since its sewage constituted only one of several sources of pollution, enjoining it would not clean up the creek. The trial judge responded:

It is true that the injury to plaintiff will not be wholly obviated by restraining the defendant alone, but, if the plaintiff suffers substantial damages from one, he has the right, I think, to stop that, notwithstanding the fact that he may suffer also from another source. He could sue all and thus obtain entire relief; but he has the right, also, to sue the persons who injure him separately, and, if he proves substantial injury from that source, he has the right to have that part of the injury cease. He can take the others in their order, if he sees fit, and thus relieve himself entirely, or he can waive the injury by not asking to be relieved.(2)

Nor did the courts accept Gloversville’s defence that it had statutory authority to pollute. According to the Court of Appeals judge, the city’s legislative permission to construct sewers implied neither the right to appropriate property nor the right to commit a nuisance: “[T]he discretion of the municipal authorities in maintaining a system of sewage should be exercised in conformity with private rights.”(3)

Whether the city acted for the public benefit was of no consequence. As the trial judge explained, it was uniform practice in New York to enjoin trespass, regardless of the public necessity of the offending works or the great inconvenience that could result from their restraint.

1959: Fairview Farms v. Reynolds Metals and Martin v. Reynolds Metals(4)
Invisible matter or energy may constitute a trespass.

Fairview Farms had operated a dairy farm near Troutdale, Oregon, since 1935. Since its construction in 1942, the aluminum reduction plant next door had emitted fluorides in the form of fumes, gases and particulates, which settled on Fairview’s grasses and forage crops, rendering them unfit for feed. Periodically, Fairview had to refrain from pasturing its cows on contaminated fields; at those times it purchased hay and other forage, for which the aluminum plant paid in periodic settlements.

Despite years of promises, the aluminum plant failed to control its emissions. Fairview finally sued for trespass. Although the court (believing that damages would make the dairy farm “whole” again) refused to issue the requested injunction, it did find that the plant’s emissions, which physically entered upon Fairview’s lands, injuring cows and decreasing milk production, constituted a trespass.

The District Court judge who heard the case acknowledged that traditionally, trespass concerned direct physical invasions by tangible matter – intrusions visible to the naked eye. But the times, he noted, were changing: “One of these changes is scientific development which today allows the court, with the aid of scientific detecting methods, to determine the existence of a physical entry of tangible matter, which in turn gives rise to a cause of action in trespass under the Oregon Court’s holding that every unauthorized entry upon land of another constitutes actionable trespass.”(5) The fluoride emissions that Fairview Farms complained of, while invisible to the naked eye, could be accurately measured; the resulting toxic contamination could be determined in a laboratory.

Running concurrently with the Fairview Farms case was another case against Reynolds Metals, this one heard first by the Circuit Court and then by the Supreme Court of Oregon. Here, too, farmers had sued the aluminum company for trespass by fluoride compounds that made their land and water unfit for raising livestock. And here, too, the court found that invisible matter may constitute a trespass.

Justice O’Connell, for the Supreme Court, rejected the “dimensional test” proposed by the aluminum company. He explained that in the past, extremely small objects (such as gun shot, lead particles, a spray of water, and soot) had constituted trespasses. Modern science could now detect direct invasions by unseen instruments: “In fact, the now famous equation E=mc2 has taught us that mass and energy are equivalents and that our concept of ‘things’ must be reframed.”(6) The judge concluded, “[W]e may define trespass as any intrusion which invades the possessor’s protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy which can be measured only by the mathematical language of the physicist.”(7)

Justice O’Connell acknowledged that such a definition could require courts to treat trespasses more like nuisances in that they would have to decline to deal with trifling intrusions: “[T]here is a point where the entry is so lacking in substance that the law will refuse to recognize it, applying the maxim de minimis no curat lex [the law does not concern itself about trifles].”(8)

1976: Kerr v. Revelstoke(9)
A lumber company may not pollute its neighbours’ property with fly ash or sawdust.

James and Florence Kerr, attracted by the site’s tranquility and scenic beauty, purchased 160 acres of farm land in southwestern Alberta. There they built the Chinook Motel, opening it in 1951 and enlarging it over the next several years.

In 1958, Revelstoke Building Materials Ltd. commenced business across the road. The lumber company expanded its operations (thanks in part to government incentives) until, by 1971, it ran a sawmill, planer, and teepee burner, along with chipper and debarker operations, at the site.

The business generated a tremendous amount of smoke, sawdust, fly ash, and noise, eventually causing the Kerrs to close their motel. They went to court, alleging trespass, nuisance, and negligence.

Justice Shannon, of the Alberta Supreme Court’s Trial Division, agreed that the physical invasion of fly ash and sawdust from the lumber company constituted a trespass. He cited the 1765 decision in Entick v. Carrington: “‘Every invasion of property, be it ever so minute, is a tres-pass.'”(10) He also referred to Salmond on Torts: “‘It is a trespass to place any chattel upon the plaintiff’s land, or to cause any physical object or noxious substance to cross the boundary of the plaintiff’s land. . . .'”(11)

A trespass is a trespass, the judge noted, regardless of whether it causes any damage: “Trespass is actionable without proof of damages.”(12)

The judge also found that the lumber company interfered with the Kerr’s use and enjoyment of their property – “the essence of private nuisance.”(13) Its operations generated concern, anxiety and discomfort, not only for the Kerrs but also for their clients, who couldn’t even carry on normal conversations, let alone sleep at night, what with the machinery’s ear-piercing squealing and clanking.

For reasons that he did not explain, the judge decided that “in these circumstances an injunction would not be an appropriate remedy.”(14) He may have been influenced by the fact that the motel had been closed for five years. Or he may have been sensitive to the federal government’s efforts to encourage industry to locate in this depressed economic area – something he commented on in his judgment. Whatever his rationale, instead of granting an injunction he awarded general damages of $30,000.

1978: Friesen v. Forest Protection(15)
It is unlawful to spray pesticides onto another’s land.

Abram Friesen, a professor at the University of New Brunswick, lived with his wife and four children on a farm in Island View, just west of Fredericton, New Brunswick. On the evening of May 21, 1976, Dr. and Mrs. Friesen were picking fiddleheads near a brook on their farm when planes flew directly overhead, emitting a cloud of spray that descended on them, burning their cheeks, causing their eyes to water, and making them cough. The Friesens, organic farmers who shunned pesticides, were furious. They knew that as part of New Brunswick’s spruce budworm control program, Forest Protection Limited was spraying a pesticide formulation containing fenitrothion – a highly toxic organo-phosphate. Just one week earlier, Dr. Friesen had asked the company not to spray his property.

During the following weeks Dr. and Mrs. Friesen experienced a variety of physical ailments, which they attributed to fenitrothion poisoning. Their 12-year-old son suffered a protracted asthmatic attack, which the Friesens blamed on inhalation of drifting spray. The spraying company, in contrast, called the boy’s attack a response to the emotional distress suffered by his parents; similarly, it judged the adults’ symptoms psychosomatic. The Friesens also found several hundred dead bees near their hives, and lost two cows, a pony, and two sheep; no evidence, however, linked these deaths to the spraying.

The Friesens sued Forest Protection Limited for damages under trespass and nuisance. The court awarded them $1,328.20 plus taxed costs.

Mr. Justice Dickson determined that Forest Protection Limited had indeed trespassed:

To throw a foreign substance on the property of another, and particularly in doing so to disturb his enjoyment of his property, is an unlawful act. The spray deposited here must be considered such a foreign substance, and its deposit unquestionably amounted to a disturbance, however slight it may have been, of the owners’ enjoyment of their property. I therefore must conclude that the defendant, in depositing the spray did in fact commit what would, in the absence of statutory authority, be considered a trespass. This of course does not involve any question of whether or not the spray may have been toxic or non-toxic, because even to have thrown water, or garbage, or snow, or earth tippings, or any substance on the property would equally have amounted to an act of trespass.(16)

Mr. Justice Dickson also found Forest Protection Limited guilty of nuisance: “[A]t the same time the spraying by the defendant constituted what in law must be considered a private nuisance. Such a nuisance has been defined as an act or omission which causes damage to another person in connexion with the latter’s use of land or interference with the enjoyment of land or of some right connected with land.”(17)

In his judgment, Mr. Justice Dickson considered at great length the question of whether the defendant had statutory authority to commit a trespass or nuisance. Forest Protection Limited contended that New Brunswick’s Forest Service Act authorized the protection of provincial forests from insects and diseases, that the Lieutenant-Governor in Council had approved its aerial spraying program and indemnified it with respect to damage claims, and that the Minister of Natural Resources had delegated to it “whatever authority is necessary . . . to effectually carry out the above program.”(18)

After a lengthy review of scholars and cases on the issue of statutory authority, the judge concluded that Forest Protection Limited could not avail itself of the defence. Nothing in the Forest Service Act “authorizes either the Lieutenant-Governor in Council or the Minister to place spray, at least without consent, on private lands to the detriment of private rights of the owner. . . . Nowhere in the Act is given to the Minister the authority to enter, for the purpose of combatting forest insects or disease, upon private property either by spraying or otherwise.”(19)

1988: Didow v. Alberta Power(20)
Transmission lines constitute a trespass of airspace.

Fifty feet off the ground, the cross-arms of an Alberta Power transmission line protruded six feet over the Didows’ farm. The Didows objected that in addition to being unsightly, the cross-arms and the lines attached to them would interfere with aerial spraying and seeding operations, the use of tall machinery, and tree planting in the area.

Relying on the thirteenth-century Latin maxim cujus est solum, ejus est usque ad coelum et ad inferos (to whomsoever the soil belongs, he owns also to the sky and to the depths), the Didows argued that the cross-arms constituted a trespass of their air space. The Alberta Court of Appeal agreed.

In his judgment for the court, Justice Haddad explored the extent to which a landowner has rights to the airspace above his land. Early common law cases confirming the Latin maxim had determined that signs, telegraph wires, eaves, or any other artificial or permanent structures hanging over another’s land should be forbidden as trespasses. That the owner was not using his land, and was therefore not damaged by the trespass, was irrelevant: “[A] landowner is entitled to freedom from permanent structures which in any way impinge upon the actual or potential use and enjoyment of his land.”(21)

On the other hand, as the utility had argued, some recent cases regarding airlines had demonstrated that airspace is public domain. The judge concluded that such decisions would not apply to transmission lines: air traffic generally takes place much further from the ground, is transient, and does not directly interfere with the use of one’s property. And a low-flying aircraft, he noted, might indeed commit a trespass.

The utility also argued that public policy considerations should permit it to intrude over private property. Furthermore, it noted, “tens of thousands of miles of transmission lines across Alberta occupy private property.”(22) But the court was not swayed: “[I]f there are many miles of transmission lines already trespassing the air space above private property without any leave or licence, they will not transform an unlawful practice into a lawful one.”(23)

Notes

1. Sammons v. City of Gloversville, 34 Misc. Rep. 459, 70 N.Y. Supp. 284 (Sup. Ct. 1901), aff’d 67 App. Div. 628, 74 N.Y. Supp. 1145, 175 N.Y. 346, 67 N.E. 622 (1903).

2. Ibid. at 285-6.

3. Ibid. at 624.

4. Fairview Farms, Inc. v. Reynolds Metals Company, 176 F. Supp. 178 (D. Or. 1959); Paul Martin et al. v. Reynolds Metals Company, 342 P. 2d 790 (Or. 1959), cert. denied, 362 U.S. 918 (1960).

5. Ibid. at 186.

6. Paul Martin et al. v. Reynolds Metals Company, op. cit. at 793.

7. Ibid. at 794.

8. Ibid. at 795.

9. Kerr et al. v. Revelstoke Building Materials Ltd. (1976), 71 D.L.R. (3d) 134 (Alta. S.C.).

10. Ibid. at 136, citing Entick v. Carrington (1765), 19 St. Tr. 1030.

11. Ibid. at 137, citing Salmond on the Law of Torts, 15th ed. (1969) at p. 53.

12. Ibid. at 138.

13. Ibid. at 137.

14. Ibid. at 138.

15. Friesen et al. v. Forest Protection Limited (1978), 22 N.B.R. (2d) 146 (Q.B.).

16. Ibid. at 162.

17. Ibid. at 162.

18. Ibid. at 164.

19. Ibid. at 167.

20. Didow et al. v. Alberta Power Limited, [1988] 5 W.W.R. 606 (Alta. C.A.).

21. Ibid. at 616.

22. Ibid. at 612.

23. Ibid. at 612.

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