726 N.E.2d 612 | Ohio Ct. App. | 1999
Appellants, E. Peter Haas and Jane Haas, appeal a judgment of the Court of Common Pleas of Crawford County dismissing their complaint against Appellee, Sunset Ramblers Motorcycle Club, Inc., for failure to file the action within the time allowed by the appropriate statute of limitations. We reverse and remand the matter for further proceedings.
Appellants have owned and resided at 1675 Market Street, Galion, Ohio since April 1973. Appellee is an Ohio corporation that owns two parcels of land that *877 abut and adjoin Appellants' property. Appellee maintains a club house and flat oval motorcycle track on the property. In 1988, the usage of the track was significantly expanded to allow for frequent motorcycle races and practice sessions.
On May 19, 1992, Appellants commenced an action against Appellee claiming that the activities conducted on the two adjoining parcels of land constitute a continuing nuisance. The basis for such claim is that repeated trespasses occur on Appellants' land, and that the noise and dust from the motorcycles interferes with Appellants' use and enjoyment of their property. Appellants requested the court to issue a permanent injunction on the operation of the motorcycle track. Appellants also prayed for actual damages to the property and damages representing the depreciation of the property value.
On October 2, 1996, Appellants voluntarily dismissed the initial suit. The action was refiled on October 3, 1997, however, the complaint was again dismissed prior to obtaining service. On August 10, 1998, Appellants filed the same complaint for a third time. Appellee responded on October 8, 1998 with a motion to dismiss Appellants' complaint arguing that the statute of limitations had run. In a judgment entry issued on November 17, 1998, the trial court found Appellee's motion well-taken and dismissed Appellants' complaint. It is from this judgment that Appellants have filed the instant appeal.
We note initially that Appellants' claim for relief is based upon a private rather than a public nuisance. A private nuisance refers to an invasion of an individual's use and enjoyment of his land. Brown v.Scioto Cty. Bd. of Commrs. (1993),
With that clarification set forth, we find that our determination of this first assignment of error depends upon whether the private nuisance alleged in Appellants' complaint may properly be characterized as continuing or permanent *878 in nature. A continuing nuisance arises when the wrongdoer's tortious conduct is ongoing, perpetually generating new violations. Frisch v.Monfort Supply Co. (Nov. 21, 1997), Hamilton App. No. C-960522, unreported. Conversely, a permanent nuisance occurs when the wrongdoer's tortious act has been completed, but the plaintiff continues to experience injury in the absence of any further activity by the defendant. Id.
In applying these definitions, we find that the present case involves a continuing nuisance. The facts alleged in Appellants' complaint, if true, demonstrate that Appellee's conduct has been ongoing and that any resulting injury arises from each motorcycle race or practice session. Appellants have not alleged that they experience injury in the absence of Appellee's activity.
The determination that the alleged nuisance is continuing in nature, leads us to further conclude that the trial court incorrectly applied the four-year statute of limitations contained in R.C.
Based upon the foregoing, we find that Appellants are subject to the continuing nuisance rule as explained in Wood. Consequently, since Appellants' complaint alleges that they first began to experience injury from the motorcycle track in 1988, we conclude that the statute of limitations had not run at the time that the complaint at issue was filed. Appellants' first assignment of error is sustained.
In addition to its finding that the statute of limitations had run on Appellants' claim, the trial court also stated in its judgment entry that claims based on nuisance "are public claims to be prosecuted by the prosecuting attorney and on behalf of the township trustees." We disagree.
As explained in Brown v. Cty. Commrs. of Scioto Cty. (1993),
Although R.C.
Although Appellee concedes that Appellants may assert their claim for nuisance pursuant to R.C.
The trial court herein had the requisite jurisdiction over this matter regardless of whether it was a common-law claim or the statutory cause of action. Thus, we refuse to declare Appellants' complaint invalid for the reasons asserted.
Appellants' second assignment of error is sustained.
Due to our conclusion that Appellants filed their complaint well within the permissible time limits, Appellants' third assignment of error has been rendered moot.
Having found error prejudicial to the Appellants herein, in the particulars assigned and argued, we hereby reverse the judgment of the trial court and remand the matter for further proceedings.
*880BRYANT, P.J., and SHAW, J., concur.