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Here is an excerpt of the Legal Analysis for

MORGAN V. HIGH PENN OIL CO.

238 N.C. 185, 77 S.E.2d 682 (1953)

LEGAL ANALYSIS: Here is comparison between nuisance and trespass which is very important for you to understand as well as what this case gives you about negligence and nuisance. Comparison definitions are important as they compare and define with negative aspects so you can figure out the set theory of the action you are dealing with.

Nuisance vs. Trespass: The essential elements necessary to state a cause of action in trespass are: (1) an unauthorized intentional act, and (2) entry upon land in the possession of another. See, e.g., Blashinsky v. Topazio (Apr. 17, 1987), Lake App. No. 11-113, unreported, 1987 WL 9942. Traditionally, an invasion of the exclusive possession of land by intangible substances, such as an airborne pollutant, was usually held by the courts not to constitute a trespass since a trespass involved a physical invasion by tangible matters. See Annotation, Recovery in Trespass for Injury to Land Caused by Airborne Pollutants (1980), 2 A.L.R. 4th 1054. However, there has been a growing trend among jurisdictions to hold that the test for whether an invasion of a property interest is a trespass does not depend upon whether the intruding agent is an intangible or tangible substance, but whether the intrusion interferes with the right to the exclusive possession of property. Id. at 1055. However, odors emanating from a facility, see Born v. Exxon Corp. (Ala.1980), 388 So.2d 933, or mere diminution of value, see Maddy v. Vulcan Materials Co. (D.Kan.1990), 737 F.Supp. 1528, are insufficient to state a trespass claim even under the modern view. The Supreme Court of Alabama in Born cited its previous decision in Borland v. Sanders Lead Co., Inc. (Ala.1979), 369 So.2d 523, 530, to note the following distinction between trespass under the modern trend and nuisance at 388 So.2d at 934: "For an indirect invasion to amount to an actionable trespass, there must be an interference with plaintiff's exclusive possessory interest; that is, through the defendant's intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character, and causing substantial actual damage to the res. For example, if the smoke or polluting substance emitting from a defendant's operation causes discomfort and annoyance to the plaintiff in his use and enjoyment of the property, then the plaintiff's remedy is for nuisance; but if, as a result of the defendant's operation, the polluting substance is deposited upon the plaintiff's property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass, though his alternative remedy in nuisance may co-exist." Nuisance is an action that protects not the right to exclusive possession but the right to use and enjoyment of the property.

A nuisance may be committed negligently, intentionally, and under strict liability. Nuisance by itself is a cause of action that protects a party's use and enjoyment of the land. This court correctly states the composition of the actions under nuisance.

However, this author has a lot of problems with this case in that it was heavily edited in most casebooks. There was so much editing that many of the important terms and concepts regarding nuisance were taken out and in fact the result of this case was butchered. You cannot get the rule of law we have quoted from what was in the casebook. Such concepts as the legality of D’s business and the concept of the nuisance per accidens and nuisance per se were conveniently removed. One maxim is true, courts are very loose with what they call nuisances and there is substantial confusion of what is actually a nuisance in many instances. Part of D’s appeal was the fact that he was a legal and legitimate business. A lawful business cannot be a nuisance per se but it can be a nuisance per accidens when it is a nuisance by virtue of its location (remember the facts of this case talked about all the other properties around D) or manner of operation. Also the intentional definition of nuisance is the same as for all other intentional torts but the concept of transferred intent does not apply. Also a nuisance is nontrespassory interference. This gives parties a lot of trouble because here the interference was gas which in fact cannot interfere unless it physically passes over the land of another. This case does not address why a gas or odor is a nontrespassory interference. Also it seems that the parties in the area were in the area first and the nuisance was established by D. The concept of unreasonableness was introduced but it is difficult to comprehend in the 1950’s how the operation of a refinery in emitting bad smelling gas could not be curtailed because if there is no way to fix the problem it can’t be unreasonable. Also the injunction effectively closed the plant; is there some kind of equitable relief available for such a drastic measure in closing a plant in order to save a restaurant and trailer park? Before a court issues a permanent injunction, it must weigh the hardships and balance the equities. Is there a remedy available that will fix the problem and at the same time be equitable? In fact, D was not negligent in the operation of his plant.

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