Whether dust and vibrations can be considered valid trespass will be considered Wednesday, Feb. 10 before the Maine Supreme Judicial Court.

The oral arguments rest on a 6-year-old dispute between Stephen and Kathy Darney of Thomaston and their neighbor, cement manufacturer Dragon Products LLC, which also operates a nearby limestone quarry.

The Maine law court will consider the question at the request of U.S. District Court, which hopes the Maine justices will determine whether Maine recognizes that trespass based on intangible invasions of dust and vibrations can be valid, and if so, if that trespass requires proof of actual and substantial damages.

“The Supreme Judicial Court disposition of the certified questions will ultimately determine the viability of the Darneys trespass claims,” wrote U.S. District Court Judge George Z. Singal on Aug. 6 before placing the request before the law court.

The arguments by lawyers for Stephen Darney of Thomaston as well as lawyers for Dragon Products Company LLC will begin at 1 p.m. on Wednesday, Feb. 10.

The certification, the court said, arises from the Darneys’ initial complaint, “alleging that the waste products and vibrations emitted by Dragon Products’ cement facility constitute common law trespass on their property. Dragon Products argues that the law in Maine does not recognize trespass actions for intangible invasions to property, either statutorily or at common law.”

The case, which was initially filed six years ago in county court and has since landed in federal court, originally claimed that dust and vibrations from cement plant operations at Dragon Products LLC invaded the Darneys’ property, causing physical harm and property damage, and disturbing peace of mind.

The Darneys and Dragon have been at odds since 2004 when neighbors — the Darneys, as well as a group of residents organized as Neighbors for a Safe Dragon — pursued county and federal court action against the cement manufacturer, citing environmental and health concerns from cement manufacturing and quarrying of limestone.

Dragon Products continues to counter, according to court documents, that the Darneys are unable to prove essential elements of their claims.

U.S. District Court is asking the Maine Supreme Court to discuss and decide whether dust and vibrations are to be considered under the traditional view of trespass — that smoke, gas, noise or other invisible particles are not actionable — or under the modern theory of trespass, which considers invasions of intangible matter as actionable if they cause property damage sufficient to infringe upon property owners’ rights.

U.S. District Court is raising these points, citing cases from around the country against smelting and refining companies, and aluminum manufacturers.

Dragon is urging U.S. District Court to adhere to a traditional perspective while the Darneys prefer the modern theory. Dragon lawyers Peter Culley and Eric Wycoff of the Portland firm Pierce Atwood said that even if Maine recognized trespass of dust, the state would still require proof of actual and substantial damages.

“If this court were to recognize a common law trespass claim for intangible intrusions, then this court should also require proof of actual and substantial damages,” wrote the lawyers in October. “To do otherwise would permit litigants to file trespass actions to recover for, as alluded to above, unpleasant cooking odors, loud music, or bright lights on the exterior of a neighbor’s house, to name a few.”

Attorneys for the Darneys counter that the modern view of trespass has been adopted by courts of other states.

“Modern scientific advances have caused many courts to abandon the notion that an invasion by smoke, dust, particles or forces is not physical,” wrote attorney Peggy McGehee of the Portland firm Perkins Thompson. “They have instead allowed plaintiffs to claim trespass by invisible contaminants and forces, while at the same time limiting such claims by requiring proof of actual or substantial damage.”

“Despite the rather fundamental opposition, both parties agree that the Supreme Judicial Court of Maine has not answered the question at hand,” wrote Judge George Zingal.

Because the modern theory “works fundamental changes to the doctrine of trespass, which changes extend beyond the principal question here regarding tangible versus intangible invasions,” Zingal recommended that the changes are best made by the Maine Supreme Judicial Court.

The case

The Darneys purchased their home in 2002 on Old County Road, and in November 2004 filed a case against Dragon, alleging that Dragon operations had clouded the Darneys’ home with dust, shaken and cracked the walls of their house, and contributed to the family’s respiratory problems.

Dragon is owned by Giant Cement of South Carolina, which in turn is owned by Spanish company Cementos Portland Valderrivas. Dragon has been operating in Thomaston since 1928 and has grown in operation and size during the last decade. In 2004, the Maine State Chamber of Commerce bestowed its annual Maine Investor Award on Dragon, commending the company for its $50 million plant modernization, which began in 2003 and included environmental improvements.

The company also received the Governor’s Award for Pollution Prevention presented by the Maine Chamber and Business Alliance, and the Governor’s Award for Environmental Excellence presented by the Maine Department of Environmental Protection.

That same year, the grassroots Neighbors for a Safe Dragon turned to the state’s environmental agency following a blast of fugitive dust from the plant’s stack, and questioned the DEP’s slow processing of Dragon waste permits. The latter issue was resolved last year when the state gave conditional approval to the company to close its two waste piles.

The Darney case, meanwhile, crawled through Knox County Superior Court, and in October 2007, Justice Jeffrey Hjelm dismissed three of the six Darney counts – nuisance, strict liability and personal injury – of that 2004 suit, leaving two remaining counts in the suit – trespass and injunction – to go to trial.

In February 2008, the Darneys filed a new complaint against Dragon in Knox County Superior Court, saying dust and vibrations from cement plant operations had invaded the Darneys’ property on Old County Road on a continuing basis since 2004, causing physical harm and property damage, and disturbing peace of mind.

“The earthquake-like vibrations and booming sounds shake their walls, glassware and light fixtures,” wrote McGehee.

The complaint said the dust from the plant, including the quarry, cement manufacturing facility, waste piles and roads, migrates off Dragon property to residential property, including that of the Darneys.

McGehee said the Darneys obtained in 2007 “expert testimony on the structural damage to their home and barn from Dragon’s approaching blasting operations since Nov. 12, 2004, and the cost (in the range of $80,000) to repair such damage.” She asked the court to consolidate the 2008 case with the 2004 case.

Then Dragon asked federal judges to move the Darney case from Knox County Superior Court to U.S. District Court in Portland. In making the request, Dragon cited federal statutes that say, in part, that corporations are citizens of the states by which they have been incorporated.

In Dragon’s case, the company said it is a Delaware limited liability company.

“At all relevant times, the sole member of Dragon Products Company, LLC, is Giant Cement Company, which is a Delaware corporation with its principal place of business in South Carolina,” Dragon told the court. “Thus, Dragon Products Company, LLC, is a citizen of Delaware and/or South Carolina, and not a citizen of Maine.”

According to court documents, of Giant’s shares, 85.74 percent are owned by Cementos Portland Valderrivas, S.A.; 6.65 percent are owned by Cementos Lemona, S.A.; and 7.61 percent are owned by Telsa S.A. Y Compania, SRC. All three of Giant’s shareholders are Spanish companies. All of Telsa’s shares are owned by Lemona. Of Lemona’s shares, 98.5 percent are owned by CPV. The remaining shareholders of Lemona are believed to be Spanish citizens, the documents said. CPV is a publicly traded company, traded on the Madrid stock exchange.

In 2008, Dragon asked the federal court to take over the case, saying the civil action arose between citizens of different states in which the matter in controversy against Dragon exceeds the sum of $75,000, exclusive of interest and costs.

While the Darneys and McGehee initially opposed moving the 2008 case to federal court, they changed position when Knox County Superior Court refused to consolidate what was left of the 2004 case with the Darneys’ new 2008 case, and the Darneys asked the court to dismiss their 2004 court case altogether.

Judge Zingal wrote in his 2009 order that while Dragon said the Darneys complained of the same continuing harms — allegations of constant noise, disruptive blast vibrations and toxic odors — and sought redress for the same injuries in their 2004 and 2008 cases, the company was ignoring the Darneys’ effort to restrict their complaints to claims arising since Nov. 12, 2004.

He wrote that the 2008 case included new factual allegations and new evidence and ordered that the Darneys could proceed with claims that arose after Nov. 12, 2004.