Rushing v. Hooper-McDonald, Inc.
300 So.2d 94, 293 Ala. 56, 1974 Ala. LEXIS 921 (1974)
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Rule of Law:
A trespass to land is committed not only by direct and immediate entry, but also by an indirect invasion if the defendant acts with knowledge that it is substantially certain to result in the entry of foreign matter onto the plaintiff's property.
Facts:
- Burl Rushing was in possession of a fish pond and its surrounding banks, known as Bonners Fish Pond, under a sublease from his brother.
- Hooper-McDonald, Inc. owned land that was uphill from and bordered the property containing the fish pond.
- On seven separate occasions between April 1968 and March 1971, Hooper-McDonald emptied asphalt or asphalt-like materials on its own property, on adjacent property, and on a public street.
- The asphalt subsequently ran downhill into a stream which carried the material into the fish pond possessed by Rushing.
- The influx of asphalt polluted the pond, which killed or rendered the fish unmerchantable.
Procedural Posture:
- Burl Rushing (plaintiff) filed a complaint against Hooper-McDonald, Inc. (defendant) in an Alabama trial court, alleging trespass.
- The case proceeded to trial.
- At the close of the plaintiff's evidence, the trial judge gave a general affirmative charge with hypothesis (a directed verdict) in favor of the defendant.
- The trial judge ruled that the plaintiff's remedy was in an action for trespass on the case (negligence), not trespass, because the defendant did not dump materials directly onto the land possessed by the plaintiff.
- Final judgment was entered in favor of the defendant, Hooper-McDonald, Inc.
- The plaintiff, Burl Rushing (appellant), appealed the judgment to the Supreme Court of Alabama.
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Issue:
Does a defendant commit a trespass to land by discharging foreign matter onto property not in the plaintiff's possession, when the defendant knows with substantial certainty that the matter will migrate onto the plaintiff's possessed property?
Opinions:
Majority - Heflin, Chief Justice
Yes. A trespass to land can be committed even if the defendant does not personally enter the property. An indirect invasion constitutes a trespass if the actor knows with substantial certainty that their actions will result in foreign matter entering another's land. The court adopted the view of the Restatement (Second) of Torts, § 158, which states that one is liable for trespass if he intentionally 'causes a thing... to do so [enter land in the possession of the other].' The court reasoned that it is not necessary for the foreign matter to be thrown directly and immediately onto the plaintiff's land; it is sufficient that an act is done with knowledge that it will to a substantial certainty result in the entry. The court distinguished prior cases requiring an action for 'trespass on the case' (negligence) by noting that the flow of asphalt here was direct and not the result of a secondary obstruction, making it an intentional intrusion. The court also held that fish in a private pond are personal property, and a trespasser is liable for damages to such personal property.
Analysis:
This decision significantly broadens the scope of the tort of trespass in Alabama by aligning it with the modern view expressed in the Restatement (Second) of Torts. It eliminates the archaic distinction between direct (trespass) and indirect (trespass on the case) invasions for situations where the result is substantially certain. This ruling is particularly important for environmental law, as it provides plaintiffs in pollution cases a path to sue under a trespass theory, which often has a longer statute of limitations and may not require proof of actual harm to recover nominal and potentially punitive damages. By recognizing that an invasion by pollutants can constitute an intentional trespass, the court made it easier for landowners to hold polluters accountable.
