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McDowell v. Alaska (4/24/98), 957 P 2d 965

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


SAM E. MCDOWELL, A. JOYCE     )
MCDOWELL, THOMAS L. EDWARDS,  )    Supreme Court No. S-7559
and RAYME GARDNER EDWARDS,    )
                              )    Superior Court No.
            Petitioners,      )    3KN-93-808 CI
                              )
     v.                       )
                              )    O P I N I O N
STATE OF ALASKA, TESORO ALASKA)
PETROLEUM COMPANY, a Delaware )    [No. 4975 - April 24, 1998]
corporation, JOHN E. COOK,    )
CAROL A. COOK, and C&R        )
ENTERPRISES, d/b/a STERLING   )
TESORO SERVICE STATION,       )
                              )
            Respondents.      )
______________________________)



          Petition for Review from the Superior Court of
the State of Alaska, Third Judicial District, Kenai,
                     Jonathan H. Link, Judge.


          Appearances: Kenneth P. Jacobus, Kenneth P.
Jacobus, P.C., Anchorage, for Sam E. McDowell, A. Joyce McDowell,
Thomas L. Edwards, and Rayme Gardner Edwards.  Phillip Paul Weidner
and Nicole D. Stucki, Weidner & Associates, Inc., Anchorage, for
Sam E. McDowell and A. Joyce McDowell.  James E. Cantor, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for the State of Alaska.  Joseph R.D. Loescher,
Hughes Thorsness Powell Huddleston & Bauman LLC, Anchorage, for
Tesoro Alaska Petroleum Company.  Paul L. Davis and Ronald F.
Black, The Law Offices of Paul L. Davis & Associates, Anchorage,
for John E. Cook, Carol A. Cook, and C&R Enterprises.   


          Before: Matthews, Chief Justice, Compton,
          Eastaugh, Fabe, and Bryner, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          Property owners filed suit alleging injuries to real
property caused by petroleum contamination.  The superior court
dismissed the negligence and strict liability claims, on the ground
they were barred by the two-year statute of limitations, AS
09.10.070.  Because we conclude that these claims alleged "trespass
upon real property"and were subject to the six-year statute of
limitations, AS 09.10.050(2), we reverse and remand.
II.  FACTS AND PROCEEDINGS
          Sam E. McDowell and A. Joyce McDowell own certain real
property in Sterling. [Fn. 1]  Thomas L. Edwards and Rayme Gardner
Edwards formerly owned real property in Sterling.  John E. Cook and
Carol A. Cook, and C&R Enterprises d/b/a Sterling Tesoro Service
Station (Cooks) own and operate a service station near the McDowell
and former Edwards properties.  At some time, or over a period of
time, petroleum spilled or leaked at the service station.  The
State of Alaska became involved in the remediation and cleanup of
the spill or leakage.  The McDowells and the Edwardses
(collectively McDowells) learned that there was contaminant
migration from the service station, across the State highway, and
onto their properties.
          The McDowells filed a complaint against the Cooks, Tesoro
Alaska Petroleum Company (Tesoro), and the State of Alaska.  They
alleged various causes of action in a complaint that they now claim
asserted "primarily economic injuries as a result of the damage to
and consequential restricted use and lowered value of their real
property."[Fn. 2]  Count One claimed that Tesoro and the Cooks
negligently breached their duty to operate their petroleum business
so as not to damage the McDowells' property, and that this breach
proximately caused the McDowells to suffer damages. Count Two
claimed that the State of Alaska negligently breached the duty of
conducting remediation and clean-up without damaging the McDowells'
property, and that this breach proximately caused the McDowells to
suffer damages.  Count Three claimed that Tesoro and the Cooks were
strictly liable in tort for the escape and migration of petroleum
products that contaminated the McDowells' property.  
          The defendants sought summary judgment on the ground that
the tort claims were barred by the two-year statute of limitations,
AS 09.10.070.  The superior court granted partial summary judgment
for the defendants, dismissing the McDowells' negligence and strict
liability tort claims asserted in the first three counts of the
complaint.
          The McDowells filed a petition for review seeking
reversal of the superior court's dismissal of their claims.  We
granted their petition in order to review the issue of the
applicable period of limitations for negligence and strict
liability actions that allege injury to real property.  
III. DISCUSSION     

          We must decide whether the six-year statute of
limitations (AS 09.10.050) or the two-year statute of limitations
(AS 09.10.070) applies to the McDowells' strict liability and
negligence claims. [Fn. 3] 
          The McDowells characterize their negligence and strict
liability claims as "claim[s] for damages resulting from trespass
to real property."  They contend that damage to property sounds in
"trespass"for purposes of AS 09.10.050(2), regardless of whether
the property was harmed negligently or intentionally.  Because
their claims sound in trespass, they argue, this is an action for
"trespass upon real property"and is therefore governed by AS
09.10.050(2).  We agree. [Fn. 4]
          In determining which statute of limitations applies, we
look to the nature of the injury alleged, rather than to the
technical cause of action. [Fn. 5]  See, e.g., Breck v. Moore, 910
P.2d 599, 603 (Alaska 1996); see also Howell v. Ketchikan Pulp Co.,
943 P.2d 1205, 1208 (Alaska 1997).  Although the McDowells'
technical causes of actions sound in negligence and strict
liability, the nature of their injury is defendants' alleged
interference with property rights.  Interference with property
rights is trespass.  See Black's Law Dictionary 1502 (6th ed. 1990)
(defining trespass as "[a]n unlawful interference with one's
person, property, or rights"). [Fn. 6]  Because their claims allege
an invasion of the McDowells' protected interest in exclusive
possession, the "nature of the injury"of their claims sounds in
trespass.  The claims therefore should have been subject to AS
09.10.050(2) as an action for "trespass upon real property."
          Our conclusion that the McDowells' claims sound in
trespass is consistent with the results reached in other cases,
which have held that negligent contamination of real property is an
injury to land in the nature of trespass.  See, e.g., Sterling v.
Veliscol Chem. Corp., 647 F. Supp. 303, 319 (W.D. Tenn. 1986)
(stating that chemical company may be liable under common law
negligence for trespass; reasoning that company's dangerous
activity caused toxic substance to enter and harm plaintiffs'
property), aff'd in part and rev'd in part, 855 F.2d 1188 (6th Cir.
1988); Martin v. Reynolds Metals Co., 342 P.2d 790, 791-94 (Or.
1959) (stating that plaintiff landowner who alleged that airborne
fluoride compounds emitted from defendant's aluminum reduction
plant that settled upon and harmed plaintiff's land stated a claim
for trespass); Fortier v. Flambeau Plastics Co., 476 N.W.2d 593,
608 (Wis. App. 1991) (holding that claims of unintentional
intrusion of chemical compounds seeping into well water resulting
from reckless or negligent conduct stated a claim for trespass);
see also Scribner v. Summers, 84 F.3d 554, 558 (2d Cir. 1996)
(holding that metal treatment business was liable in trespass for
contamination of adjacent property, based on intentional washing
and demolishing of barium-tainted furnaces from which business had
good reason to know or expect that waste water would transport
barium particles to adjacent property); Ecreg v. Fairbanks
Exploration Co., 95 F.2d 850, 856 (9th Cir. 1938) (holding that
action for damages for injuries created by the discharge of debris
on gold mining claims was a "trespass to real property"); Burt v.
Beautiful Savior Luth. Church, 809 P.2d 1064, 1067 (Colo. App.
1990) (stating that the fact that the trespass action based on
property damage due to leakage from improperly installed drainpipe
may have been caused by a negligent act was irrelevant, and that
liability for trespass requires only an intent to do the act that
itself constitutes, or inevitably causes, the intrusion). 
          This conclusion is also consistent with previous
statements by this court to the effect that tortious injury to real
property is governed by AS 09.10.050(2).  In McKibben v. Mohawk Oil
Co., 667 P.2d 1223, 1229 (Alaska 1983), we held that AS
09.10.050(2) applied to tortious injuries to real property. 
Plaintiffs there claimed defendants committed waste and conversion,
engaged in unworkmanlike mining, and intentionally diluted the ore. 
Id. at 1227.  We stated that the claims of intentional dilution and
unworkmanlike mining were subject to AS 09.10.050 because they
alleged injuries to "personal and real property."  Id. at 1229.  In
Lee Houston, we noted that "[p]roperty torts are generally governed
by AS 09.10.050."  Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d
848, 854 & n.12 (Alaska 1991).
          The State, Tesoro, and the Cooks argue that the
McDowells' claims are really actions for "trespass on the case"
that sound in tort and are therefore governed by AS 09.10.070. [Fn.
7]  They contend that the word "trespass"as used in AS
09.10.050(2) is a technical term, and therefore does not apply to
the McDowells' claims.  We disagree.
          As an initial matter, the harm alleged in the McDowells'
negligence and strict liability claims may be characterized as a
direct invasion of their property rights.  To the extent that
"trespass on the case"implies an indirect invasion, the McDowells'
action is not for "trespass on the case."  See Martin, 342 P.2d at
797 ("Since the invasion in the instant case was direct it is not
necessary for us to decide whether the distinction [between direct
and indirect invasions] is recognized in [Oregon].").
          More importantly, AS 09.10.050(2) does not necessarily
distinguish between "trespass"and "trespass on the case."  The
historical origins of the words "trespass"and "trespass on the
case"do not foreclose a conclusion that AS 09.10.050(2)
encompasses negligence and strict liability actions based on injury
to real property. [Fn. 8]  As the Oregon Supreme Court has noted,
"[t]he distinction between direct and indirect invasions where
there has been a physical invasion upon the plaintiff's land has
been abandoned by some courts."  Martin, 342 P.2d at 797 (citations
omitted).  Rather than parse the historical distinctions between
"trespass"and "trespass on the case,"we look to the common usage
of the term "trespass"as it is used in AS 09.10.050(2).  As we
stated in Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 905 (Alaska 1987) (citations omitted):  
          The goal of statutory construction is to give
effect to the legislature's intent, with due regard for the meaning
the statutory language conveys to others.  In this respect, we have
repeatedly stated that unless words have acquired a peculiar
meaning, by virtue of statutory definition or judicial
construction, they are to be construed in accordance with their
common usage.
The term "trespass"is not defined by the statutes of limitations,
nor have we had occasion to examine whether the term "trespass"as
used in AS 09.10.050(2) reaches underground contamination that
invades the rights of a property owner.  Thus, the plain or common
meaning of the term "trespass"is controlling.  See id. 
          According to its common usage, the term "trespass"
encompasses the property invasions alleged by the McDowells in
Counts One, Two, and Three.  These counts each allege that the
defendants' actions interfered with the McDowells' exclusive
possession of their property. [Fn. 9]  This description of the harm
alleged fits the common usage of the term "trespass."  See
Webster's II New Riverside University Dictionary 1231-32 (1994)
(defining trespass as an invasion of "property, rights, or person
of another without his or her consent and with the actual or
implied commission of violence, especially to enter onto another's
land illegally"); Black's Law Dictionary 1502 (6th ed. 1990)
(defining trespass as "[a]n unlawful interference with one's
person, property, or rights").  As noted above, we interpret the
limitations statutes in terms of the nature of the injury rather
than the technical cause of action.  See, e.g., Breck, 910 P.2d at
603.  According to the common usage of the word "trespass,"AS
09.10.050(2) is not restricted to actions that allege technical
trespass, but instead includes actions that allege an interference
with the possessor's property rights. [Fn. 10]
          Finally, other considerations support application of AS
09.10.050 rather than AS 09.10.070 to the McDowells' claims. 
First, the defense of the statute of limitations is a legitimate,
but disfavored, defense.  We therefore have expressed a policy of
applying the longer of two limitations periods if two limitations
statutes apply to a claim.  See, e.g., Lee Houston, 806 P.2d at 855
("[D]oubts as to which of two statutes is applicable in a given
case should be resolved in favor of applying the statute containing
the longer limitations period."). 
          Second, policy reasons support selection of a longer
statute of limitations for actions alleging negligent injury to
real property.  For example, an action alleging economic injuries
caused by negligent damage to real property is likely to involve
"documentary evidence"which remains reliable after the passage of
time. [Fn. 11]  These policy reasons support application of AS
09.10.050(2)  to the McDowells' negligence and strict liability
claims.  
IV.  CONCLUSION
          Because the first three counts of the McDowells'
complaint expressly pled an invasion of property rights that would
be a "trespass upon real property,"those counts are subject to the
six-year limitations period of AS 09.10.050(2).  We therefore
REVERSE the order granting summary judgment to the defendants, and
REMAND with instructions to reinstate the McDowells' action with
respect to those three counts.


                            FOOTNOTES


Footnote 1:

     Because we are reviewing a partial summary judgment on a
limitations issue, allegations about the petitioners' ownership of
the property and the fact and source of contamination are accepted
for purposes of discussion.  


Footnote 2:

     Only Counts One, Two, and Three of the complaint are at issue. 
The McDowells' complaint also alleged claims for trespass,
nuisance, breach of duty to disclose (State only), and breach of
contract (State only), and sought punitive damages (Tesoro and
Cooks only), and compensatory damages applicable to all counts.


Footnote 3:

     The limitations statutes were revised in 1997.  As this action
accrued prior to 1997, we apply the pre-amendment statutes. As it
read at the pertinent time, AS 09.10.050 provided:

          Unless the action is commenced within six
years, a person may not bring an action
          (1) upon a contract or liability, express or
implied, excepting those mentioned in AS 09.10.040; (2) for waste
or trespass upon real property; or (3) for taking, detaining, or
injuring personal property, including an action for its specific
recovery.

Former AS 09.10.050 (emphasis added).  As amended in 1997, AS
09.10.050 now states in its entirety, "Unless the action is
commenced within six years, a person may not bring an action for
waste or trespass upon real property."

          AS 09.10.070(a) provided:

          A person may not bring an action
          (1) for libel, slander, assault, battery,
seduction, false imprisonment, or for any injury to the person or
rights of another not arising on contract and not specifically
provided otherwise; (2) upon a statute for a forfeiture or penalty
to the state; or (3) upon a liability created by statute, other
than a penalty or forfeiture; unless commenced within two years.

Former AS 09.10.070(a).  As amended in 1997, the pertinent part of
AS 09.10.070 now states: 

          (a) Except as otherwise provided by law, a
person may not bring an action (1) for libel, slander, assault,
battery, seduction, or false imprisonment[;] (2) for personal
injury or death, or injury to the rights of another not arising on
contract and not specifically provided otherwise; (3) for taking,
detaining, or injuring personal property, including an action for
its specific recovery . . . unless the action is commenced within
two years of the accrual of the cause of action. 


Footnote 4:

     We exercise our independent judgment when interpreting and
applying statutes of limitations.  See Pedersen v. Flannery, 863
P.2d 856, 857 n.1 (Alaska 1993).  "When considering questions of
law, we are 'not bound by the lower court's decision' and will
'adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.'"  Id. (quoting Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).

          "In interpreting any statute, 'our primary guide is the
language used, construed in light of the purpose of the
enactment.'"  Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116,
1121 (Alaska 1997) (quoting Commercial Fisheries Entry Comm'n v.
Apokedak, 680 P.2d 486, 489-90 (Alaska 1984)).  We apply a "sliding
scale approach"toward statutory interpretation.  Id. (quoting
Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 922 (Alaska 1991)). 
"Under the sliding scale approach, the plainer the language of the
statute, the more convincing contrary legislative history must be." 
Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 (Alaska
1995) (citations omitted).


Footnote 5:

     In this regard, our statute of limitations jurisprudence has
evolved over the last twenty years.  In Van Horn Lodge, we held
that the limitation period depends on whether the gravamen of the
plaintiff's complaint lies in tort or contract.  Van Horn Lodge,
Inc. v. White, 627 P.2d 641, 643 (Alaska 1981).  In Lee Houston, we
modified the gravamen analysis of Van Horn Lodge and "re-examine[d]
the scope of the so-called 'tort' and 'contract' statutes."  Lee
Houston & Assocs., Ltd. v. Racine, 806 P.2d 848, 854-55 (Alaska
1991).  As we stated recently, "Rather than attempting to
characterize the source of the plaintiff's rights in terms of the
common law distinctions between tort and contract, we now look to
the nature of the injury."  Breck v. Moore, 910 P.2d 599, 603
(Alaska 1996); see also Howell v. Ketchikan Pulp Co., 943 P.2d
1205, 1208 (Alaska 1997) (stating that nature of the injury
determines whether the complaint sounds in contract or in tort).


Footnote 6:

     See generally W. Page Keeton et al., Prosser and Keeton on the
Law of Torts sec. 13, at 67 (5th ed. 1984) ("Historically, the
requirements for recovery for trespass to land under the common law
action of trespass were an invasion (a) which interfered with the
right of exclusive possession of the land, and (b) which was the
direct result of some act committed by the defendant.");
Restatement (Second) of Torts sec. 165 (1986) cmt. c (stating that
one
who recklessly or negligently causes a person or thing to enter
another's land is liable for trespass if the presence of the person
or thing causes harm to the possessor's land or to a thing in whose
security the possessor has a legally protected interest).  See also
Wernberg v. Matanuska Elec. Ass'n, 494 P.2d 790, 793 (Alaska 1972)
(relying on Restatement (Second) of Torts sec.sec. 165, 166); Burt
v. Beautiful Savior Luth. Church, 809 P.2d 1064, 1067 (Colo. App.
1990) (defining trespass as "the physical intrusion upon property
of another without the permission of the person lawfully entitled
to the possession of the real estate"); Martin v. Reynolds Metals
Co., 342 P.2d 790, 794 (Or. 1959) (defining trespass as "any
intrusion which invades the possessor's protected interest in
exclusive possession"); Hughes v. King County, 714 P.2d 316, 318
(Wash. App. 1986) (stating that negligent or intentional intrusion
or some abnormally dangerous activity of the defendant may give
rise to liability for trespass). 


Footnote 7:

     The historical distinction between trespass and trespass on
the case has been articulated as follows:

          Trespass was the remedy for all forcible,
direct and immediate injuries, whether to person or to property. .
. .  Trespass on the case, or the action on the case, as it came to
be called, developed somewhat later, as a supplement to the parent
action of trespass, designed to afford a remedy for obviously
wrongful conduct resulting in injuries which were not forcible or
not direct.   The distinction between the two lay in the immediate
application of force as to the person or property of the plaintiff,
as distinguished from injury through some obvious and visible
secondary cause. . . .  The distinction was not one between
intentional and negligent conduct.  The emphasis was upon the
causal sequence, rather than the character of the defendant's
wrong.  Trespass would lie for all direct injuries, even though
they were not intended, and the action on the case might be
maintained for those which were intended but indirect.

Keeton, supra note 6, sec. 6, at 29-30. 


Footnote 8:

     We have recognized the distinction between "trespass"and
"action on the case"in previous cases.  See, e.g., Kodiak Elec.
Ass'n, Inc. v. Delaval Turbine, Inc., 694 P.2d 150, 155 (Alaska
1984).  The differences between these claims may be implicated when
a plaintiff seeks to establish the requisite elements of a claim on
the merits.  The distinction between trespass and trespass on the
case is not relevant, however, for purposes of determining which
statute of limitations applies to the claim alleging injury to real
property. 

          The limited nature of this holding should be recognized. 
Our decision goes only to the question of which statute of
limitations applies.  Although we hold that the McDowells'
negligence and strict liability claims are subject to AS
09.10.050(2) because they sound in "trespass,"the McDowells must
still show the distinct elements necessary to prove their
negligence, strict liability, and trespass claims on the merits. 
Because this case is before us on summary judgment, the parties
have briefed only the statute of limitations issue.  We are not
being asked to decide whether contamination resulting from
unintentional acts would satisfy the elements of a trespass claim. 
The battle over the appropriate statute of limitations need not be
coextensive with a battle on the merits. 


Footnote 9:

     The counts allege that Tesoro and the Cooks failed to maintain
their fuel lines and storage tanks so that they would not leak and
damage the McDowells' property (Count One); that the State failed
to conduct the remediation so as not to damage the McDowells'
property (Count Two); and that Tesoro and the Cooks are strictly
liable for the damages caused by the escape of the petroleum
products (Count III).

          Count II, which alleges that the State negligently failed
to prevent the contamination from reaching the McDowells' property,
is a trespass claim because the result of the State's omission was
a physical invasion.  Whether the State owed a duty to prevent the
contamination from reaching the McDowells' property is a separate
issue that does not resolve how the limitations issue must be
decided.  See Restatement (Second) of Torts ch. 7, at 276 (1965)
(stating that "'[t]respass [] on land' . . . includes not only
entries on land resulting directly or indirectly from the actor's
act, but also the presence on the land of a thing which it is the
actor's duty to remove"); see also River Valley Assoc. v. Consol.
Rail, 182 A.D.2d 974 (N.Y. App. Div. 1992) (stating that property
buyer had trespass action against a contractor hired to remove
railroad ties from property; the contractor had oral license to
store the ties by virtue of the previous owners' consent, but that
license terminated when the plaintiff purchased property and
notified contractor and railroad that it wanted the ties removed).


Footnote 10:

     Cf. Commonwealth, Dep't of Highways v. Ratliff, 392 S.W.2d
913, 914 (Ky. 1965) (holding that trespass limitations statute
applies to actions for damages to real property and is not limited
to a technical trespass; stating that it is unlikely that the
legislature intended to omit from the trespass statute suits for
damages to real estate not sounding strictly in trespass).


Footnote 11:

     As this court stated in Lee Houston:

          [Applying a longer statute of limitations] to
claims . . . involving economic loss is consistent with the primary
purpose of the statutes of limitations.  The statutes are intended
to encourage prompt prosecution of claims and thus avoid injustices
which may result from lost evidence, faded memories and
disappearing witnesses.  Actions . . . involving economic loss are
often based largely on documentary evidence[,] not unaided
recollections which quickly grow stale.  On the other hand, a
shorter limitations period is consistent with the more evanescent
nature of evidence which is frequently found in cases involving
personal, reputational or dignitary injuries.

Lee Houston, 806 P.2d at 855 (citations omitted); see also Breck,
910 P.2d at 603 (considering the economic or non-economic nature of
the injury to determine statute of limitations).