## Facts

- Burl Rushing possessed and operated “Bonners Fish Pond” in Andalusia, Alabama, for commercial fishing and recreation as a sublessee under his brother, who held a written lease from the fee owner for the pond and its banks (with access rights).
- Hooper-McDonald, Inc. owned adjacent uphill land.
- Rushing alleged Hooper-McDonald repeatedly disposed of asphalt or asphalt-like material on its property so that rain and runoff carried the material downhill onto the pond property, into a stream, and ultimately into the fish pond.
- The alleged runoff polluted the pond, killed fish, and rendered fish unmerchantable.
- Rushing filed an amended complaint asserting multiple counts of trespass covering several separate incidents (1968–1971) and a continuing trespass, seeking compensatory and punitive damages.
- The trial court directed a verdict for Hooper-McDonald on the theory that the injury was indirect/consequential and therefore not actionable in trespass (only in “trespass on the case”/negligence).

## Issues

1. Whether an action for trespass lies when a defendant deposits material on its own land knowing with substantial certainty that it will flow onto another’s land and cause damage.
2. Whether a sublessee in possession of a fish pond and its banks has a sufficient possessory interest to maintain a trespass action for contamination of the pond.
3. Whether destruction or injury of fish in a stocked pond is compensable in trespass as damage to personal property associated with the wrongful invasion.

## Decision

- The Supreme Court of Alabama reversed the directed verdict and remanded.
- The court held that trespass may be committed by intentionally causing a foreign substance to enter land in another’s possession, including where the defendant acts on its own property but knows with substantial certainty that runoff will carry the substance onto the plaintiff’s premises.
- The court held Rushing’s possession as a sublessee of the pond and banks was sufficient to sue in trespass against an alleged wrongdoer.
- The court held fish in a stocked pond could be treated as personal property for damages purposes, and their destruction could be recovered in a trespass action tied to the invasion of the premises.
- The court noted that nominal damages for trespass may support punitive damages if the trespass is accompanied by malice, wantonness, or reckless disregard of rights, making the case one for the jury if supported by evidence.

## Legal Principles

- Trespass includes not only physical entry by a person but also intentionally “causing a thing” to enter land in another’s possession.
- An indirect invasion can constitute trespass when the invasion is the immediate or inevitable result of the defendant’s conduct and the defendant acts intentionally or with knowledge to a substantial certainty that the invasion will occur.
- A plaintiff need not be the fee owner; actual possession under a lease or sublease is sufficient to maintain trespass against a wrongdoer.
- Fish in a stocked pond may be treated as personal property of the party entitled to exploit the pond, permitting recovery for their loss when caused by a wrongful invasion.
- Nominal damages are available for trespass; punitive damages may be awarded when the trespass is attended by malice, wantonness, or reckless disregard.

## Conclusion

The court held that knowingly causing polluting material to migrate onto another’s land can support a trespass claim, that a sublessee in possession has standing to sue for such an invasion, and that damages may include loss of stocked fish as personal property; the directed verdict was improper and the case was returned for jury determination.


Rushing v. Hooper-McDonald, Inc., 300 So. 2d 94 (Ala. 1974)