Bradley v. American Smelting & Refining Company

Supreme Court of Washington · 1986 · Property

709 P.2d 782 (Wash. 1985)

Updated July 23, 2026

PropertyTrespassNuisanceAirborne pollutantsStatute of limitationsmicroscopic particulatesexclusive possessionuse and enjoyment

Facts

The Bradleys owned and occupied land on Vashon Island about 4 miles north of ASARCO's copper smelter in Ruston. As part of its smelting process, ASARCO emitted gases and particulate matter, including arsenic and cadmium, and the parties stipulated that some of those emissions had been and continued to be deposited on plaintiffs' land. ASARCO had been aware since 1905 that wind on occasion carried smelter emissions over Vashon Island where plaintiffs' land was located. The record contained no proof of actual damages.

Issue

Whether ASARCO's intentional emission of microscopic airborne particulates that settled on plaintiffs' land constituted intentional trespass as well as nuisance, whether such a trespass requires proof of actual damages, and what limitations and defenses apply to such a claim.

Rule

An intentional deposit of microscopic airborne particulates on another's land can constitute trespass as well as nuisance. For trespass by airborne pollutants, the plaintiff must show: (1) an invasion affecting an interest in exclusive possession of property, (2) an intentional act resulting in the invasion, (3) knowledge and reasonable foreseeability that the act could disturb the plaintiff's possessory interest, and (4) actual and substantial damages. Intent exists when the actor knows with substantial certainty that the invasion will result, and such trespass is subject to a 3-year statute of limitations; if continuing, damages are limited to uncompensated injury occurring within the 3 years preceding suit.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Prairie Alloy Works operates a metal-processing plant outside Tulsa, Oklahoma. For years, the company has known that its furnaces release microscopic metal dust and that prevailing winds regularly carry some of that dust over nearby homes, including Lena Ortiz's lot, where testing later shows measurable accumulation in the topsoil.

If Lena sues for intentional trespass, which is the strongest argument that the plant acted with the requisite intent?

Explanation. Intent exists when the actor knows the consequence is substantially certain to result from the act. For airborne particulate trespass, the majority held that a defendant who knowingly emits particles and knows they will settle somewhere, including over the plaintiff's land, has the requisite intent even without a desire to harm. Direct propulsion onto the parcel and precise prediction of quantity are unnecessary. (Derived from Bradley v. American Smelting & Refining Company (1985).)