Continuing Trespass a Continuing Conundrum  

09.10.2019

Claims for property damage, like all other legal actions, are subject to a statute of limitations that extinguishes the claim if it is not timely filed.  A five-year statute of limitations applies to actions for injury to property, and the clock starts running upon injury.  This seems simple enough, but the application of this rule in Virginia to property damage claims arising from environmental factors leads to some unexpected results, as illustrated by the recent decision in Robinson v. Nordquist, No. 180631, 2019 Va. LEXIS 82 (July 18, 2019).     

The Robinson decision highlights the difference between a “continuing” trespass and an “intermittent” trespass—the key takeaway being that a cause of action for a continuing trespass accrues when the damage first occurs, even if there is subsequent compounding or aggravating damage.  If more than five years have passed from the date of the original injury, a plaintiff alleging a continuing trespass is without a remedy.  By contrast, if the trespass is “intermittent,” each occurrence inflicts a new injury that gives rise to a new cause of action.

Robinson, the owner of real property located at the corner of Duke Street and South Royal Street, sued her neighbors, the Nordquists, for water damage allegedly caused by the Nordquists’ underground sprinkler system.  Robinson alleged that, following the installation of the sprinkler system, she began seeing water damage on her property.  Robinson described the encroachment of water as “on-going,” “continuous,” and “intermittent,” and claimed that it was both an intentional trespass and a private nuisance that entitled her to compensatory damages and injunctive relief.  The Nordquists argued that the trespass and nuisance claims were time-barred by the five-year statute of limitations that applies to actions for injury to property because the water damage claims arose from a sprinkler system that was installed seven years before the filing of the complaint.  The circuit court agreed, finding that Robinson had alleged an “ongoing continuous encroachment” of water, and thus her trespass and nuisance claims were barred by the five-year statute of limitations. 

The Supreme Court reversed and remanded the case, holding that because Robinson described the water encroachments as “on-going” and “continuous,” but also “repeated and intermittent,” it was not clear from the face of the amended complaint whether the water encroachments were continuous or intermittent.  Further, because the amended complaint did not specify when Robinson’s home was first damaged or when the Nordquists installed the sprinkler system, the trial court had no way of knowing when the damage first occurred.  The Supreme Court held that Robinson was entitled to a jury trial on the statute of limitations issue.

The Robinson opinion summarizes two of the Supreme Court’s prior decisions that address when a cause of action for injury to property accrues.  In Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235 (1987), the Supreme Court concluded that multiple discharges of wastewater from a sewage plant onto private property each gave rise to a new cause of action.  Id. at 239.  In that case, the sewage plant had initially discharged wastewater onto the McDonnell’s property in 1969, followed by at least nine separate occasions of wastewater discharge between 1980 and 1981.  Id. at 237, 239, 241.  Because the original discharge did not produce all of the damage to the property, and because the subsequent discharges occurred only at intervals, the Court held that each discharge inflicted a new injury for which McDonnell had a separate cause of action.  Id. at 239. 

In Forest Lakes Cmty. Ass’n, Inc. v. United Land Corp. of Am., 293 Va. 113 (2017), the Court reached the opposite conclusion.  In that case, the plaintiffs claimed that sediment basins in a shopping center had discharged sediment into a lake owned by the plaintiffs.  Id. at 116.  The plaintiffs alleged that the sediment began flowing into the lake in 2003 or 2004 and continued to the day they filed their complaint in 2011.  Id. at 118-19.  Although the plaintiffs argued that each new release of sediment constituted a new and independent trespass, the trial court disagreed, finding that the discharge was continuous and thus barred by the statute of limitations.  Id. at 122.           

Robinson’s claims lived to see another day because her pleading was inconsistent and contradictory on the issue of whether the water encroachments were “continuous” or “intermittent,” and so the case was sent back to the trial court for clarification.    

Robinson teaches that when it comes to trespass to real property, the nature of the trespass is of paramount importance, and the law is somewhat counter-intuitive.  The statute of limitations clock for an ongoing, continuous wrongful act may start much earlier than the statute of limitations on wrongful acts that occur intermittently and thus give rise to new and separate causes of action.  Robinson is a textbook example of the pitfalls of alleging a “continuing” or “continuous” trespass.