onto the neighboring property, this
type of actual interference constitutes a
trespass. When the crane jib temporarily passes over the property, however, as
it swings materials during the limited
construction (again temporary) of the
neighboring property without causing
any damage or permanent invasion of
the neighboring property, such an action is not a trespass and consequently
not subject to restraint.
Crane Passage Does Not Cause
The Bradley case also focuses on the
third prong of the analysis, emphasizing that, under the modern theory
of trespass, the plaintiff must prove
“substantial damage to the res [i.e.,
property].” Bradley, 104 Wn.2d at 695.
Accordingly, the Washington Supreme
Court held that it was inappropriate in
airborne pollution cases to follow the
common-law rule that trespass entitles
a landowner to recover nominal or punitive damages for invasion of property
without proof of substantial harm. For
example, in the case of airborne pollution, no useful purpose would be served
by sanctioning actions in trespass to
every landowner within 100 miles
without those landowners demonstrating any damage. Id. at 692. Further,
“[m]anufacturers would be harassed
and the litigious few would cause the
escalation of costs to the detriment
of many.” Id. Bradley demonstrates
the willingness of courts to refashion
common-law trespass to accommodate
unique factual issues and limit the
scope of a defendant’s liability even in
the case of an intentional trespass.
In Washington, one of the only examples of an award of nominal damages for trespass is Keesling v. City of
Seattle, 52 Wn.2d 247, 324 P.2d 806
(1958). In that case, the Washington
Supreme Court found that the six-inch
overhang of a crossarm of a telephone
pole constituted a technical trespass,
but reduced the trial court award of
damages to $1 because the plaintiffs
were not damaged by the trespass.
No reported Washington case has approved of imposing punitive damages
in a simple trespass or nuisance action.
The requirement of substantial damage to the property will likely have significant bearing on a crane trespass be-
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cause similar to the air pollution, there
is, more often than not, no interference
with the land over which it passes.
Further, the Bradley case’s comment
regarding the potential litigation im-
pacts is highly relevant in the construc-
tion crane context. For a court to hold
that a neighbor can, without evidence
of any damage to its property, seek
sanctions for trespass, the litigious few
would cause the escalation of costs to
the detriment of many. For example,
contractors bidding on jobs which
require crane usage in urban areas
would be forced to incorporate the
costs of obtaining air use agreements
or potential litigation costs into their
bids, to the detriment of the bidders
and the owners of the property to be
improved. Moreover, in the context of
public works projects, these costs will
undoubtedly be passed along to tax-