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Common Law and Environment Protection

The environmental law as it is known today is an amalgamation of common law and statutory principles. Even before specific laws came into force, there were certain common law remedies against pollution. Common law is the body of customary law of based upon judicial decisions and is embodied in the reports of decided cases. Common law had been administered by the common law courts of England since the middle ages.The term 'common law' is derived from Latin, lex communis.

The common law, so far as it has not been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the states. However, since the state court systems have functioned independently of each other, subject only to federal review in cases of national importance, the common law varies slightly from state to state. The common law actions are civil suits in which the plaintiff (the party bringing the lawsuit) seeks to remedy a violation of a right. Civil actions are distinguished from criminal proceedings. Criminal actions are those in which the state seeks to redress a breach of public or collective rights that are established in codified penal law.

In common law, pollution cases generally fall under four categories. They are Nuisance, Trespass, Negligence and Strict liability. The dominant water law theories and the public trust doctrine also had influence on the use of staple resources of water and land.


Nuisance is the most frequently pled common law action in environmental litigation. Nuisance law traditionally protected the right of a landowner to use and enjoy property.

Nuisance is defined as “that activity which arises from the unreasonable, unwarrantable or unlawful use by a person of his own property, working an obstruction or injury to the right of another or to the public, and producing such material annoyance, inconvenience, and discomfort that the law will presume resulting damage.”

The general rule is that a person may use his land or personal property in any manner he sees fit. However, this rule is subject to limitation. The owner must use his property in a reasonable manner. A nuisance arises whenever a person uses his property to cause material injury or annoyance to a reasonable neighbor. Odors, dust, smoke, other airborne pollutants, water pollutants and hazardous substances have all been held to be nuisances. Nuisance actions come in two forms: public and private.

Under both private and public nuisance law, the plaintiff must prove that the defendant’s activity unreasonably interfered with the use or enjoyment of a protected interest and caused the plaintiff substantial harm.

The trier of fact determines whether an activity is unreasonable by balancing the social utility of the activities against the harm they create.

Plaintiffs have used private nuisance actions to gain compensation and force polluters to discontinue interference with their physical private property as well as with their comfort and enjoyment of their property. In Boomeretal. v. Atlantic Cement Company,1), the plaintiffs claimed that the dirt, smoke, and vibrations coming from the defendant's cement plant caused injury to their property. The property owners sought damages and an injunction to close the plant. The plant already employed the best pollution control technology. The Boomer court addressed the economic consequence of the injunction and the effect of the nuisance. The court weighed the economic effect of closing the plant against the harm to the individual plaintiff's land, and concluded that the cement company could pay permanent damages in lieu of an injunction or closing. This case illustrates the limitations of private nuisance law to remedy pollution. Courts typically balance the equities and hardships. Private nuisances do not always outweigh the economic contribution of the polluting entity.

Public nuisance law protects from interference a “right common to the general public.” Plaintiffs may bring a public nuisance action if there are damages, interference, or inconvenience to the public. A state may assert a public nuisance action as an exercise of its police powers–the typical situation. A private citizen may bring a public nuisance action only if he or she can show that he or she has suffered from a harm that can be distinguished from that suffered by the members of the general public.

Village of Wilsonville v. SCA Services, Inc.2), is a case in which the plaintiffs, a village and other governmental bodies, alleged that the defendant's hazardous chemical landfill was a public nuisance. The plaintiffs sought to enjoin the operations of the landfill and require removal of toxic waste and contaminated soil. The court found that there was a substantial danger of groundwater contamination and explosions from chemical reactions. Although the damages were prospective, the nuisance already was present. Therefore, the court granted an injunction and ordered a site clean-up.

“Coming to a nuisance” is the phrase used to describe a defense that the complainant or plaintiff affected by the nuisance moved into the area where the complained about activity” had already been in existence.

An example of “coming to a nuisance” occurs when someone moves onto property near an airport or industrial complex and then complains of the nuisance that existed prior to his moving there. Generally, the fact that an individual purchases property with the knowledge of the existence of a nuisance or that he came to the nuisance will not defeat his right to the abatement of the nuisance or recovery of damages.

St. Helen Smelting Co. v Tipping

In this case3), the fumes from the defendants manufacturing work damaged plaintiffs trees and shrubs. The Court held that such damages being an injury to property gave rise to a cause of action. In the case of damage to property, any sensible injury will be sufficient to support an action.

Dilaware Ltd.v Westminister City Council

In this case4), the respondent was the owner of a tree growing in the footpath of a highway. The roots of the tree caused cracks in the neighboring building. The transferee of the building, after the cracks were detected, was held entitled to recover reasonable remedial expenditure in respect of the entire damage from the continuing nuisance caused by the trees.

Ram Baj Singh v Babu Lal

In this case5), A person built a brick grinding machine in front of the consulting chamber of a medical practitioner. The machine was generating a lot of dust and noise which polluted the atmosphere and entered the consulting chamber of the medical practitioner and caused physical inconvenience to him and his patients. The Allahabad High Court held that this amounts to the private nuisance which can reasonably be said to cause injury, discomfort or annoyance to a person. Exposure of unwilling persons to dangerous and disastrous levels of noise amounts to noise pollution. It is also known as noise nuisance and thus it can be controlled under the law of torts. No citizen can exercise his fundamental freedom under the constitution in such a way that it creates a nuisance to others to become a health hazard activity.

In this case6), the petition was filed on behalf of an association of public activists in public interest. The main grievance in this petition was that as a result of display of fireworks and use thereof during festivals and marriages, physical and mental health hazard is suffered by adults as well as children. It was also submitted that because of indiscriminate use of loudspeakers, noise pollution has become a routine affair affecting mental as well as physical health of citizens and it causes a nuisance. The Delhi high court rightly observed that the effect of noise on the health is a matter, which has yet not received full attention of our judiciary, which it deserves. Pollution being wrongful contamination of the environment which causes material injury to the right of an individual, noise can well be regarded as a pollutant because it contaminates the environment, causes nuisance and effects health of a person if it exceeds a reasonable limit.

Lakshmipathy v State

In this case7), the petitioners were aggrieved by the location an operation of industries and industrial enterprises in a residential area in alleged gross violation of the provisions of the Karnataka Town And Country Planning Act, 1961. The petitioners were questioning the industrial activity in a residential locality by establishing and running factories, workshops, factory sheds, manufacture of greases and lubricating oils by distillation process and also the production of inflammable products by the respondents. The Karnataka High Court directed such industries to be stopped and further held that earmarked residential area should not be used for such industries. The court also directed the authorities to remove all encroachments in public lands and roads in the area in question and to implement the order of the court within sixty days from the date of the receipt of the copy of the order. The petitioners were also held entitled to costs Rs.3000/- from the respondents.


Trespass is a theory closely related to nuisance and is occasionally invoked in environmental cases. Trespass requires an intentional invasion of the plaintiff's interest in the exclusive possession of property, whereas nuisance requires a substantial and unreasonable interference with his use and enjoyment of it. No substantial injury need be shown for a plaintiff to succeed in an action for trespass. The only requirement to establish a trespass is that there must be an intentional unprivileged physical entry by a person or object on land possessed by another. Upon proof of technical trespass plaintiff is always entitled to nominal damages. The plaintiff could also get injunctivity relief against a technical trespass. Another advantage of trespass action over an action for nuisance is that an action for trespass has a considerably longer statute of limitations.

Trespass is distinguished from nuisance in that trespass is interference with the possession of property whereas nuisance is interference with the use and enjoyment of property. Trespass to land is an unlawful, forcible entry on another’s realty. An injury to the realty of another or an interference with possession, above or below ground, is a trespass, regardless of the condition of the land and regardless of negligence.

Whether the third party physically invades your property or takes action that could be construed as contamination and invasion (such as rubbish dumping on your property) this would all come under the umbrella of trespass law. Damages for trespass include the recover of either the market value of the property or the cleanup of the pollution. This can differ from state-to-state, and some states will award the cheaper of the two options whereas others will award clean up costs regardless.

Martin v. Reynolds Metal Co

In this case, the deposit on Martin’s property of microscopic fluoride compounds, which were emitted in vapor form from the Reynolds’ plant, was held to be an invasion of this property and so a trespass.

Arvidson v. Reynolds Metals Company

In this case the court observed that aluminium is produced by the defendant plant in a manner that unavoidably caused fluorides to be discharged into the atmosphere and recognised that fluorides of some of the types escaping from the plants, if ingested in excessive quantities, are capable of causing damage to cattle. Nevertheless the court found for the defendants on the ground that large scale production of aluminium is essential to national defence.

Fairview Farms, Incorporated v. Reynolds Metals Company

In this case the court held that air borne liquids and solids deposited upon Fairview land constituted trespass and allowed damages for six year period applying the statute of limitations. However, injunctive relief was denied on the ground that pollution was not reasonably certain to be repeated and the defendant had apparently done all it could to control the pollution.


“Negligence” is “the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. Negligence is that part of the law of torts which deals with acts not intended to inflict injury.

The act of negligence may also constitute a nuisance if it interferes unlawfully and for a substantial length of time with the enjoyment of another's right in land or it occasions on the high way a dangerous state of affairs as contrasted with a single isolated act. Equally, it may also be a breach of the rule in Rylands v. Fletcher if the negligent act allows the escape of a non-natural and dangerous thing which the defendant has brought on his land.

Hagy v. Allied Chemical and Dye Corporation

In this case8) Mrs. Hagy successfully sued the defendant for damages suffered to her larynx when she and her husband drove through smog which she alleged to have contained injurious sulphuric acid components negligently emitted from the defendant's plant. The defen￾dant asserted before the appellate court that as a matter of law the evidence was insufficient to permit the jury to find causal connection between the smog and Mrs. Hagy's condition. The court affirmed the verdict of the court below on the ground that the burden was rather upon the appellants to convince the jury that the operation would have been ultimately necessary in any event, eventhough the cancerous larynx had not been traumatized by the irritation of the smog.

Nissan Motor Corp. v. Maryland Shipbuilding and Drydock Company

This case exemplifies a negligence action in an environmental case. The shipbuilding company’s employees failed to follow company regulations when painting ships, allowing spray paint to be carried by the wind onto Nissan’s cars. The shipbuilders had knowledge of the likely danger of spray painting, yet failed to exercise due care in conducting the painting operations in question. This failure to exercise due care amounted to negligence.

Ure v. United States

In this case9) where the plaintiff was injured by over flow of water from the irrigation canal maintained by the defendant, the court observed that a very high degree of danger calls for a very high degree of care. The dangers caused by environmental pollution are often potential dangers difficult to evaluate. Moreover the standard of care, no doubt, will be seriously affected not only by the state of scientific knowledge as to the causes and effects of air pollution but also by the state of technology and the extent to which prevailing pollution control devices are effective and economically feasible.

Strict Liability

The rule in Rylands v. Fletcher10). although normally dealt with as a separate tort, can be considered as an extension of the law of nuisance. The rule enunciated by Blackburn, J. in that case is that “the person who for his own purpose brings on his lands and collects and keeps there anything likely to be a mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape”. Use of care, skill and public benefit are not defences. However, “the act of God” excludes liability under the rule in Rylands v. Fletcher.“

Strict liability does not take in to consideration why the substance was used and does not take ignorance as an excuse. Whether or not the third party intended to cause damage to another’s property is irrelevant, and the third party will till be held accountable. Damages are usually calculated in accordance with the cost of retuning the property to its former state before the contaminant was released.

The doctrine of strict liability - liability without fault - is worth considering in relation to cases arising from environmental pollution. In Waschak v. Moffat,” hydrogen sulphide gas was emitted from two of the defendant's culm banks which damaged the paint on plaintiff's dwelling. The defendant did not know and had no reason to anticipate the emission of the gas and the results which might follow. The Supreme Court held the plaintiff liable on the ground that a different chemical content in the foreign coal which the defendant brought to the borough and processed there, accounted for the presence of the gas in the atmosphere. The Supreme Court of Pennsylvania distinguished three theories for allowing recovery against one from whose property material has escaped without negligence or fault and caused damage to another:

  1. The English rule of Rylands v. Fletcher
  2. Absolute Nuisance Doctrine
  3. Restatement Rules.

Under the cover of “absolute nuisance” in Rylands v. Fletcher, the concept of strict liability has gained acceptance in the majority of American jurisdictions. An activity is hazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of utmost care and (b) is not a matter of common usage.

In Fritz v. E. I. du Pont de Nemous and Company, the plaintiff suffered injuries from chlorine gas and fumes which escaped in a manner unknown to the defendant. The court held that the use of chlorine gas was not so unusual and that the defendant should have become liable as an insurer in case of injury. The “common usage” limitation is of doubtful utility in cases where the principle of strict liability is applied.

257 N.E.2d 870 (N.Y. 1970)
426 N.E.2d 824 (Ill. 1981)
1865 HL 642
2001 UKHL 55
AIR 1982
AIR 2001 Delhi 455
ILR 1991 KAR 1334
122 Cal. App. 2d 361 (1954)
D.C. Or., 93 F. Supp. 779
1868 L.R. 3 H.L. 330

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