F: cause of action: trespass and nuisance. Ps, land owners, sued for damages in trespass and nuisance from the deposit
on their property of airborne particles which came from the D. But, those particles cannot be detected by the human senses.
Trespass with object rather than person. Insensible.
I: In circumstances where someone’s property is disturbed by airborne particles from the factory that is not visible, whether he is entitled to a cause of action for trespass or/and nuisance by proving his actual and substantial damages Whether invasion by a thing or object can be considered as one of the element for constituting trespass
R: In circumstances where someone’s property is disturbed by airborne particles from the factory that is not visible, he is entitled to a cause of action for trespass by proving his actual and substantial damages
Or, landowner/possessor must show actual physical damages for recovery in trespass by intangible objects or substances
Invasion by a thing or object can be considered as one of the element for constituting trespass
A: The elements that we have adopted for an action in trespass from Borland require that a P has suffered actual and substantial damages. Since this is an element of the action, the P who cannot show that actual and substantial damages have beeen suffered should be subject to dismissal of his cause.
C: Trial court shall be notified for such further action as it deems appropriate. Trial court judge granted ASARCO’s motion for SJ on the trespass count, finding that the P’s soil were not harmful, thus P could not establish a necessary element of their environmental trespass claim, actual and substantial damages to the property itself.
Co: Theories of trespass and nuisance are not inconsistent, the theories may apply concurrently, the injured party may proceed under both theories when the elements of both actions are present
Difference btw. Trespass and nuisance
They may be distinguished by comparing the interest invaded; and actionable invasion of a possessor’s interest in the exclusive possession of land is a trespass; and actionable invasion of a possessor’s interest in the use and enjoyment of his land is a nuisance (ex. noise)
The remedies of trespass and nuisance are not necessarily mutually exclusive.
Airborne particle – need to prove accumulate+proving actual and substantial damageàtrespass
Remedy for trespass is to stop somebody from doing it, however nuisance doesn’t have this remedy.