Synopsis of Rule of Law. A tort is considered â€œpermanentâ€ where it would continue indefinitely absent extraordinary measures, and its permanency is encouraged because it would benefit state development, such as irrigation ditches or railway lines.Â If the tort is deemed permanent, the claim accrues when the plaintiff learned or should have learned of the injury.Â A tort is considered â€œcontinuingâ€ where a defendant fails to cease his invasion or to remove the harmful condition therefrom, such as in the case of smells and noises emanating from a nearby slaughterhouse.Â If the tort is continuing, the plaintiff’s claim is not barred by the statute of limitations because a claim would only accrue once the defendant has abated the nuisance and removed the cause of damage.
Issue. Â Whether the United States’ chemical dumping is a continuing tort such that Plaintiff’s claim continues to accrue and is not barred by the statute of limitations.
Held. Â Yes.Â For â€œcontinuingâ€ intrusions, either by way of trespass or nuisance, each repetition or continuance amounts to another wrong, giving rise to a new cause of action.Â The practical significance of the continuing tort concept is that for statute of limitations purposes, the claim does not begin to accrue until the tortious conduct has ceased.Â By contrast, a â€œpermanentâ€ intrusion, often found in the context of irrigation ditches and railways, the trespass or nuisance continues indefinitely absent extraordinary measures, and in fact is encouraged to remain because it benefits the development of the state.Â Under the permanent intrusion theory, an action to recover for damages would accrue when the lands where first visibly affected.Â Because the record did not reflect that the continued presence of toxic pollution under Plaintiff’s land would continue indefinitely, and could be, but had not yet been, remediated by the United States, the court declined to apply a permanent theory and instead deemed the violation a continuing one.Â Accordingly, Plaintiff’s claim was not barred by the statute of limitations.
The failure of the United States to remove the pollution from Hoery's property which it wrongfully placed there constitutes a continuing property invasion for the entire time the contamination remains.View Full Point of Law