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Phillips v. Sun Oil Co.

Court of Appeals of the State of New York
Jul 14, 1954
307 N.Y. 328 (N.Y. 1954)

Summary

upholding dismissal of trespass claim when there was no indication as to how fluid passed from defendant's to plaintiff's property or that defendant knew, or had been put on notice, that gasoline was escaping from its underground tank

Summary of this case from Hanna v. Motiva Enterprises, LLC

Opinion

Argued May 26, 1954

Decided July 14, 1954

Appeal from the Supreme Court, Appellate Division, Second Department, GALLAGHER, J.

Henry Hirschberg and Ernest M. Levinson for appellant.

Donald H. McCann for respondent.


On each of three properties, two of them owned by plaintiff and defendant, respectively, at the intersection of two highways in a rural section of Orange County, there were gasoline tanks and pumps. At plaintiff's establishment there was a kerosene pump and tank, also. Noticing a peculiar taste, and an odor like gasoline or kerosene, in the water pumped into his building from his dug well nearby, plaintiff shut off the water supply and called in a chemist who found a heavy concentration of gasoline in the well. After tests, it was another chemist's opinion that the gasoline in plaintiff's well water was of the brand dispensed from defendant's pumps and tank, which were some seventy-five feet from plaintiff's well. For the damages resulting from contamination of his water supply, plaintiff sued defendant, pleading separate counts of alleged nuisance, negligence and trespass. On the trial, defendant moved, at the end of plaintiff's proof, for dismissal of all three causes of action. Plaintiff then withdrew his charges of nuisance and negligence, and the Trial Justice dismissed, for failure of proof, the remaining count in trespass. The Appellate Division affirmed the judgment except for a slight modification not related to the merits, and plaintiff's appeal is here by right, because of that modification.

We will (with some doubt) assume that the chemist's opinion testimony proved, prima facie, that the polluting gasoline came from defendant's tank across the highway. There was no showing on the trial as to how the fluid found its subterranean way from defendant's to plaintiff's premises, and there is nothing to show that defendant knew, or had been put on notice, that gasoline was escaping from its underground tank. There was no evidence of any leaky condition of defendant's tank, except this slight and remote item: that at a meeting of the town board of health, held some weeks after plaintiff's well had been polluted and closed up, a representative of defendant stated that, on the removal from the ground of defendant's tank (time of removal not shown), a leak was found, "but it did not amount to anything".

We hold, as did the courts below, that plaintiff did not make out a case in trespass. Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness ( Tonawanda R.R. Co. v. Munger, 5 Denio 255; Rightmire v. Shepard, 59 Hun 620, opinion in 12 N.Y.S. 800; Guille v. Swan, 19 Johns. 381; Mairs v. Manhattan Real Estate Assn., 89 N.Y. 498; New York Steam Co. v. Foundation Co., 195 N.Y. 43, 52; Restatement, Torts, Vol. 1, §§ 158, 166). To constitute such a trespass, the act done must be such as "will to a substantial certainty result in the entry of the foreign matter" (Restatement, Torts, supra, § 158, comment h).

The application of the above-stated rule, in the few pertinent New York cases, to damage claims arising from the underground movements of noxious fluids, produces this conclusion: that, even when the polluting material has been deliberately put onto, or into, defendant's land, he is not liable for his neighbor's damage therefrom, unless he (defendant) had good reason to know or expect that subterranean and other conditions were such that there would be passage from defendant's to plaintiff's land ( Dillon v. Acme Oil Co., 49 Hun 565; Elsey v. Adirondack St. Lawrence R.R. Co., 97 Misc. 273; Thompson v. Board of Educ., 124 Misc. 840). The leading New York decision seems to be Dillon v. Acme Oil Co. ( supra), where, in the absence of knowledge or notice, an oil refining company was held not liable for discharging, onto its own land, water containing chemicals which somehow soaked down into and through the soil, polluting a well on adjoining property. In the suit we have before us, plaintiff's position is weaker than was Dillon's, since Dillon's defendant intentionally poured, on the ground, the substance which seeped and percolated into Dillon's well.

Out of caution, we note that nothing herein said or held would prevent the granting of injunctive relief after a pollution has been traced to its source.

The judgment should be affirmed, with costs.

LEWIS, Ch. J., CONWAY, DYE, FULD, FROESSEL and VAN VOORHIS, JJ., concur.

Judgment affirmed.


Summaries of

Phillips v. Sun Oil Co.

Court of Appeals of the State of New York
Jul 14, 1954
307 N.Y. 328 (N.Y. 1954)

upholding dismissal of trespass claim when there was no indication as to how fluid passed from defendant's to plaintiff's property or that defendant knew, or had been put on notice, that gasoline was escaping from its underground tank

Summary of this case from Hanna v. Motiva Enterprises, LLC

contemplating the availability of a trespass action provided that the defendant knew or should have known that the plaintiff's well would be affected

Summary of this case from Baker v. Saint-Gobain Performance Plastics Corp.

describing the claim as based upon "the underground movement of noxious fluids" into the plaintiff's well

Summary of this case from Baker v. Saint-Gobain Performance Plastics Corp.

In Phillips v. Sun Oil Co. (1954), 307 N.Y. 328, 121 N.E.2d 249, gasoline from defendant's pumps seeped through the soil into plaintiff's well causing pollution.

Summary of this case from Hayes v. Bushey

In Phillips, polluting material (gasoline) seeped from a tank located on the defendant's property into a well on the plaintiff's property.

Summary of this case from Doundoulakis v. Town of Hempstead

In Phillips, the court found that even though defendant intentionally polluted its own land with gasoline, it did not know or have reason to know that gasoline would enter plaintiff's land, and thus was not liable for trespass.

Summary of this case from ROTT v. NEGEV, LLC
Case details for

Phillips v. Sun Oil Co.

Case Details

Full title:JOSEPH L. PHILLIPS, Appellant, v. SUN OIL COMPANY, Respondent

Court:Court of Appeals of the State of New York

Date published: Jul 14, 1954

Citations

307 N.Y. 328 (N.Y. 1954)
121 N.E.2d 249

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