93 Va. Cir. 275
Campbell Cir. Ct.2016Background
- Plaintiff TLP, L.L.C. owns land in Campbell County; underground power lines were installed in 1982 pursuant to a VDOT permit later discovered to be erroneous.
- CenturyLink’s predecessor installed lines believing VDOT’s permit authorized placement; no valid easement or owner permission in fact existed for some placements.
- In 2011 a VDOT condemnation proceeding revealed the error; CenturyLink acknowledged some unlawfully placed lines and abandoned them but did not remove them at Plaintiff’s request.
- Plaintiff alleges (1) continuing trespass causing $92,600 diminution in value and (2) inverse condemnation for an uncompensated taking; Plaintiff sued in 2015 (amended complaint filed Feb. 17, 2016).
- CenturyLink demurred, asserting statutes of limitation bar both claims (5 years for trespass; 3 years for inverse condemnation).
- Court considered whether trespass accrued in 1982 (initial entry), upon withdrawal of permission, or as a continuing tort; and whether the inverse-condemnation claim was time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual of trespass claim (continuing trespass) | Trespass is continuing while lines remain; each day creates a new cause of action so limitations did not start in 1982 | Cause of action accrued at initial installation in 1982; five-year statute expired in 1987 | Placement was a single, permanent act in 1982; statute accrued then and barred claim |
| Trespass accrual via withdrawal of permission | Statutory/contractual permission (VDOT grant) made CenturyLink a licensee until Plaintiff revoked consent in 2011; limitations run from revocation | Invalid VDOT grant conferred no lawful permission; entry was trespass ab initio and limitations ran from 1982 | Invalid grant did not create lawful permission; entry was trespass from 1982, so limitations bar applies |
| Accrual/time bar for inverse condemnation | Claim tolled until discovery (2011); if accrual in 2011, three-year period might apply | Accrued at installation in 1982 (or in any event claim discovered in 2011); three-year statute expired before filing in 2015 | Inverse-condemnation claim is time-barred under applicable three-year limitation irrespective of accrual theory |
Key Cases Cited
- McDermott v. Reynolds, 260 Va. 98 (demurrer standard; pleadings must state a valid cause of action)
- Hampton Roads Sanitation District v. McDonnell, 234 Va. 235 (continuing tort vs. single permanent act accrual rule)
- Cooper, 248 Va. 423 (definition and elements of trespass; possession requirement)
- Franconia Associates v. Clark, 250 Va. 444 (withdrawal-of-permission principles in trespass contexts)
- Glazebrook v. Board of Supervisors, 266 Va. 550 (demurrer admits pleaded facts but not legal conclusions)
- Friends of the Rappahannock v. Caroline County Bd. of Supervisors, 286 Va. 38 (demurrer-stage limits; court tests sufficiency of pleaded facts)