The term ‘trespass’ when used in a statute of limitations context encompasses any unlawful interference with one’s person, property, or rights[i].
Once an act of trespass has occurred, the statute of limitations begins to run[ii]. Limitations period in an action for trespass to real property commences running at the occurrence of the first actual damages[iii].
If there are multiple acts of trespass, then there are multiple causes of action, and the statute of limitations begins to run anew with each act.
When a cause of action for trespass accrues for statute of limitations purposes depends on whether the trespass is permanent or continuing[iv]. Where a trespass is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the trespass is created, and the trespass may not be challenged once the limitations period has run.
However, if the trespass may be discontinued at any time it is considered continuing in character. In the case of a continuing trespass, the person injured may bring successive actions for damages until the trespass is abated, even though an action based on the original wrong may be barred. In a continuing trespass, the trespass may be challenged at any time, but recovery is limited[v].
An action predicated upon a continuous trespass is barred only by the expiration of such time that would create an easement by prescription or change title by operation of law[vi].
A continuing trespass upon real property creates separate causes of action, which are barred only by the running of the statute against the successive trespasses, and not by the running of the statute from the time of the original trespass[vii].
So, even if the trespass is followed by injury constituting a continuing nuisance, the damages for the original trespass must all be recovered in one action, but successive actions may be brought to recover damages for the continuation of the wrongful conditions. In successive actions, the damages are estimated only to the date of the bringing of each suit, and the statute of limitations does not begin to run from the date of the original trespass.
Under some jurisdictions, damages for a continuing trespass should be brought in one action[viii]. In other words, those jurisdictions do not recognize successive causes of action for continuing trespass.
Offending structures causing continuing trespasses and recurring damages are not susceptible to a simplistic application of a statute of limitations[ix].
An action for trespass does not accrue until the property owner has withdrawn his/her consent to the privileged use, and the statute of limitations does not run during the period of permitted use[x].
In the case of a continuing trespass which began more than five years prior to filing suit, the statute of limitations does not bar a trespass action entirely, but limits recovery to a period of five years immediately prior to suit[xi].
[i] Fernandes v. Portwine, 56 P.3d 1 (Alaska 2002).
[ii] Breiggar Props. v. H.E. Davis & Sons, 2002 UT 53 (Utah 2002).
[iii] Butler v. Lindsey, 293 S.C. 466 (S.C. Ct. App. 1987).
[iv] Breiggar Props. v. H.E. Davis & Sons, 2002 UT 53 (Utah 2002).
[vi] Carr v. Fleming, 122 A.D.2d 540 (N.Y. App. Div. 4th Dep’t 1986).
[vii] Cook v. De Soto Fuels, Inc., 169 S.W.3d 94 (Mo. Ct. App. 2005).
[viii] Williams v. South & South Rentals, Inc., 82 N.C. App. 378 (N.C. Ct. App. 1986).
[ix] Wimmer v. Ft. Thomas, 733 S.W.2d 759 (Ky. Ct. App. 1987).
[x] Merrill Stevens Dry Dock Co. v. G & J Invs. Corp., 506 So. 2d 30 (Fla. Dist. Ct. App. 3d Dist. 1987).
[xi] Rosenthal v. Crystal Lake, 171 Ill. App. 3d 428 (Ill. App. Ct. 2d Dist. 1988).