## Facts

- J. H. Borland, Sr. and Sarah M. Borland owned about 159 acres in Alabama used for cattle, crops, and a pecan orchard.
- Sanders Lead Company operated a lead-recycling smelter on adjacent land, located near the Borlands’ property line.
- The Borlands alleged the smelter emitted lead particulates and sulfur oxide gases that traveled through the air and settled on their land, accumulating in soil and vegetation.
- Sanders used a filtration system (“bag house”) intended to capture most emitted lead; the system’s effectiveness and the amount of escape were disputed.
- On two occasions, failures in the cooling system allegedly caused the bag house to catch fire, increasing disputed emissions.
- The Borlands claimed the deposits made their land unsafe or unsuitable for livestock and food production and sued in trespass for property damage.

## Issues

1. Whether airborne pollutants that physically settle on another’s land can constitute trespass under Alabama law.
2. Whether compliance with Alabama air-pollution regulations precludes common-law liability for trespass based on such emissions.

## Decision

- The Supreme Court of Alabama reversed the defense judgment and remanded for a new trial.
- The court held that intangible invasions (including airborne particulates) may support trespass when they result in a physical invasion causing substantial damage to the plaintiff’s possessory interest.
- The court held that regulatory compliance does not, by itself, immunize a defendant from common-law trespass liability.
- The court concluded the trial court applied an incorrect legal standard by treating regulatory compliance as a bar to recovery.

## Legal Principles

- Trespass may be proven by entry onto land through particulate matter or other intangible agents when there is a physical invasion and substantial damage to the property or possessory interest.
- Nuisance and trespass are not mutually exclusive in pollution cases; physical contamination can be actionable as trespass even if the invasion is not readily visible.
- Statutes and administrative standards generally set minimum requirements and do not displace common-law remedies absent clear legislative intent.
- In an ore tenus case, appellate courts defer to factual findings unless clearly erroneous, but review legal errors without deference.

## Conclusion

The court recognized that pollution-related deposits can constitute a trespass when they physically invade land and cause substantial harm, and it rejected the view that compliance with air-pollution regulations automatically defeats a landowner’s trespass claim, requiring a retrial under the proper standard.


Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala. 1979)