Law School Case Brief
Borland v. Sanders Lead Co. - 369 So. 2d 523 (Ala. 1979)
Under the modern theory of trespass, the law presently allows an action to be maintained in trespass for invasions that, at one time, were considered indirect and, hence, only a nuisance. In order to recover in trespass for this type of invasion, a 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; and 4) substantial damages to the res. A further clarification of our nuisance/indirect trespass dichotomy is appropriate at this point. In the traditional sense, the law of nuisance applies where the invasion results in no substantial damage to the res, but where there is interference with the use and enjoyment of one's property.
Appellants J. H. Borland, Sr., and Sarah M. Borland owned approximately 159 acres of land on which they raised cattle, grew several crops, and kept a pecan orchard. In 1968, appellee Sanders Lead Company started an operation for the recovery of lead from used automobile batteries. This operation was conducted on property just east of the Borlands' property across Henderson Road. Sanders’ smelter was placed on the west edge of their property, that part nearest to the Borlands’ property. The smelter was used to reduce the plates from used automobile batteries. The Borlands alleged that the smelting process resulted in the emission of lead particulates and sulfoxide gases. The Borlands brought an action against Sanders for trespass to recover damages for land pollution resulting from the emission of lead particulates and sulfoxide gases. Following a trial ore tenus to the trial judge, the Pike Circuit Court (Alabama) entered judgment in favor of Sanders. The trial court reasoned that the Borlands could not recover because Sanders complied with the Alabama Air Pollution Control Act (Act), Ala. Code § 22-28-1, et seq., and the property's commercial value was enhanced by its proximity to Sanders’ property. The Borlands appealed.
Did the trial court err in holding that landowner Borlands could not recover trespass damages because smelting company Sanders complied with the Alabama Air Pollution Control Act, Ala. Code § 22-28-1, et seq.?
The Supreme Court of Alabama disagreed with the trial court. Reversing, the Court held that the Act specifically provided that it was not to be construed to limit any private remedies available for damages resulting from air pollution. Alabama law clearly provided a remedy in trespass for direct injury by the effects of pollutants created by another party, although an alternative remedy in nuisance could co-exist. The increase in the commercial value of the property was immaterial to the proper measure of damages. The proper measure was the difference in the fair market value of the property before and after the trespass, based on the landowners' use of the property or adaptability of the property to a particular use prior to the trespass. If the injury was continuous, damages for future loss could be recovered in a later action if and when a subsequent trespass occurred.
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