Continuing Trespass and Nuisance for Toxic Chemicals

• Publication year: 2003
• Pages: 107
• Citation: Vol. 32 No. 7 Pg. 107

32 Colo.Law. 107 Colorado Lawyer 2003.

2003, July, Pg. 107. Continuing Trespass and Nuisance for Toxic Chemicals

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107

Vol. 32, No. 7, Pg. 107

The Colorado Lawyer
July 2003
Vol. 32, No. 7 [Page 107]

Specialty Law Columns
Natural Resource and Environmental Notes
Continuing Trespass and Nuisance for Toxic Chemicals
by Dana L. Eismeier

This column is sponsored by the CBA Environmental Law, Water Law, and Mineral Law Sections. The Sections publish articles of interest on local and international topics

Column Editors

Maki Iatridis of The Hannon Law Firm, LLC, Denver (Environmental) - (303) 861-8800; Michael F. Browning of Porzak Browning & Bushong LLP, Boulder (Water) - (303) 443-6800; Gus Michaels, Boulder (Mineral) - (303) 442-3688 Column Editor Maki Iatridis is a member of The Hannon Law Firm, LLC, which represented Hoery at the district court and appellate levels in Hoery v. United States.

Dana L. Eismeier
About The Author:

This month's article was written by Dana L. Eismeier, Englewood, a shareholder with Burns, Figa, and Will, P.C. - (303) 796-2626, deismeier@ bfw-law.com. The author represented Walker Drug, Inc. in Walker Drug I and II, cited in this article.

The Colorado Supreme Court recently held that both the continued migration to another's property and the ongoing presence of toxic chemicals on that property constitute continuing nuisance and trespass in Colorado. This article examines the case of Hoery v. United States and addresses issues that may arise from that case.

In Hoery v. United States,1 the Colorado Supreme Court recently held that the continued migration to and ongoing presence of toxic chemicals on another's property constitute a continuing nuisance and trespass in Colorado. For statute of limitations purposes, this means that a new cause of action accrues each day that the contamination continues.

Hoery's lawsuit was originally dismissed by the U.S. District Court for the District of Colorado. The case then was appealed to the Tenth Circuit Court of Appeals, which in turn certified two questions to the Colorado Supreme Court. Following the Supreme Court's ruling, the case was returned to the Tenth Circuit Court, which then reversed the lower court's dismissal and remanded the case to the district court. This article analyzes Hoery and its implications.

The Hoery v. United
States Case

The Hoery case arose out of contamination emanating from the former Lowry Air Force Base in Denver. The United States operated Lowry for decades and ceased operation in 1994. During operation, the United States allegedly disposed of toxic chemicals at Lowry; they were primarily solvents, including trichloroethylene ("TCE"). Those released chemicals reached groundwater and migrated to nearby residential properties in the Montclair neighborhood of Denver, where Robert Hoery lived. Hoery had a groundwater well on his property, which he had owned since 1993. He used the well to irrigate his lawn and vegetable garden.

In 1998, Hoery filed suit against the United States in federal court under the Federal Tort Claims Act ("FTCA"),2 alleging continuing trespass and nuisance because contamination existed on and continued to migrate to his property. The United States moved to dismiss on statute of limitations grounds, and the U.S. District Court for the District of Colorado granted the motion. The district court held that the claims as pled constituted a permanent, not continuing, trespass and, therefore, were barred by the applicable two-year statute of limitations under the FTCA.3

The district court held that Hoery's 1998 claims were untimely because as of 1995, Hoery knew, or should have known, that his property might be contaminated. The district court reasoned that the only "wrongful act" alleged by Hoery was the actual release of toxic chemicals.4 The district court also stated that the complaint Hoery filed had alleged no continuing tort because the act of release had ended in 1994, when operations at Lowry stopped.5 The continued migration to or ongoing presence of pollution on the Hoery property was not the focus of the district court's analysis.

On appeal to the Tenth Circuit Court of Appeals, Hoery argued that the continued migration and presence of TCE on his property were in themselves wrongful acts and constituted continuing torts under Colorado law.6 After reviewing case law, the Tenth Circuit Court determined that there was no controlling Colorado precedent. It therefore certified the following two questions to the Colorado Supreme Court for resolution:7

1. Does the continued migration of toxic chemicals from defendant's property to plaintiff's property, allegedly caused by chemical releases by the defendant, constitute continuing trespass and/or nuisance under Colorado law?

2. Does the ongoing presence of those toxic chemicals on plaintiff's property constitute trespass and/or nuisance under Colorado law?

The Colorado Supreme Court answered the certified questions.

Trespass and Nuisance

The Colorado Supreme Court discussed the elements of trespass and nuisance under Colorado law. A trespass is a physical intrusion on the property of another without permission from the person legally entitled to possession of the property.8 The intrusion can occur when an actor intentionally enters land possessed by someone else, or when an actor causes something else to enter the land. Thus, when a landowner creates a circumstance that, in the usual course of events, would damage the property of another, that landowner has committed a trespass on the other's property.9

Private nuisance, on the other hand, results from a substantial invasion of another's interest in the use and enjoyment of the individual's property.10 Like trespass a nuisance may result from indirect or...