This section contains the nature of the case and procedural background.

The Empire mine is one of the nation’s largest iron ore mines. It operates 24 hours a day 365 days a year. Plaintiffs live in the village of Palmer near the mine. Plaintiffs sued in trespass for the dust, oil, noise, and poor quality of air from the mining operations. They contend that these constant conditions diminished the value of their homes rendering them unmarketable. At the close of proof, the trial court instructed for trespass and nuisance. A verdict was returned for some of them under the trespass claims with damages totaling $599,199. D moved for a new trial or j.n.o.v. That was denied. D appealed; they objected to the jury instruction for trespass emanating from emissions and dust, vibration and noise. Ds did not object on the record for the intrusions related to airborne particulate, noise, or vibrations. But in the interests of justice, the court heard the appeal.

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