THE STATE OF OHIO, APPELLANT, v. SWARTZ, APPELLEE.
No. 98-2598
SUPREME COURT OF OHIO
Decided March 1, 2000.
88 Ohio St.3d 131 | 2000-Ohio-277
LUNDBERG STRATTON, J.
Submitted October 13, 1999 at the Pickaway County Session. APPEAL from the Court of Appeals for Butler County, No. CA98-06-120.
Where one creates a nuisance as defined in
John F. Holcomb, Butler County Prosecuting Attorney, and Scott N. Blauvelt, Assistant Proseсuting Attorney, for appellant.
Holbrock & Jonson and Timothy R. Evans, for appellee.
LUNDBERG STRATTON, J.
{¶ 1} In the summer of 1992, George Swartz, defendant-appellee, allegedly erected a concrete bridge with a twenty-four-inch culvert over a stream that runs both through his property and his neighbor‘s, Michael Cory. With each heavy water flow, the bridge and culvert, about one hundred feet downstream from Cory‘s property, allegedly catches debris, resulting in backup of water and ponding on Cory‘s property. Cory filed a complaint on March 9, 1998, alleging that Swartz had obstructed and impeded the passage of the stream and that this caused continual damage to Cory‘s property. Cory averred that the backup of water over the top of the drains for his home caused the drains not to function properly and also raised the water table around the footer of his homе, causing damage to the underground furnace ducts. Based upon Cory‘s complaint, the state charged defendant with violating
{¶ 2} Defendant filed a motion to dismiss on the basis that the complaint on its face was barred by the statute of limitations under
{¶ 3} This cause is now before this court upon the allowance оf a discretionary appeal.
{¶ 4} Today we are asked to determine whether the statute of limitations in
{¶ 5} “The purpose of a statute of limitations is to limit еxposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves agаinst charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.” Toussie v. United States (1970), 397 U.S. 112, 114-115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161.
{¶ 6} This court reaffirmed these principles recently when we held that “the intent of
{¶ 7} Generally, statutes of limitations begin to run when the crime is complete. Toussie, 397 U.S. at 115, 90 S.Ct. at 860, 25 L.Ed.2d at 161. In Ohio,
“(A)(1) * * * [A] prosecution shall be barred unless it is commenced within the following periods after an offense is committed:
” * * *
“(b) For a misdemeanor other than a minor misdemeanor, two years;
” * * *
“(D) An offense is committed when every element of the offense occurs. In the case of an offense of which an element is a continuing course of conduct, the period of limitation dоes not begin to run until such course of conduct or the accused‘s accountability for it terminates, whichever occurs first.” (Emphasis added.)
{¶ 8} On appeal, the state acknowledged that the two-year limitations period set forth in
{¶ 9} In 1885, this court set fоrth the law of continuing trespass and nuisance in civil actions in Valley Ry. Co. v. Franz (1885), 43 Ohio St. 623, 4 N.E. 88. In 1874, the Valley Railway constructed a dam and an artificial channel on its own land in order to divert a river from its natural channel. This dam and channel were across the river from plaintiff‘s land, and the diverted water eventually damaged plaintiff‘s land. The plaintiff filed a complaint in 1881.
{¶ 10} The court, in determining that the cause of action was not barred by the four-year statute of limitations, held that “when the owner of land rightly and lawfully does an act entirely on his own land, and by means of such act puts in аction, or directs a force against, or upon, or that affects another‘s land, without such other‘s consent or permission, such owner and actor is liable to such other for the damages thereby so caused the latter, and at once a cause of aсtion accrues for such damages; and such force, if so continued, is continued by the act of such owner and actor, and it may be regarded as a continuing trespass or nuisance.” (Emphasis added.) Id., 43 Ohio St. at 627, 4 N.E. at 91. Although Franz involved a civil action, the language there is instructive as to the nature of an act of nuisance that is under the control of the actor and continues to cause damage.
{¶ 11} In a similar case, a plaintiff and defendant were adjoining landowners, each owning a series of row houses connected by a common brick wall. Boll v. Griffith (1987), 41 Ohio App.3d 356, 535 N.E.2d 1375. In 1978, thе defendant hired a third party to raze the row houses on his parcel. More than four years later, the plaintiff filed a civil complaint alleging that after the defendant removed the structures from the other side of the party wall, remnants of the razed structures remained attached to the common wall, and their weight gradually damaged the wall. The trial court dismissed the complaint, finding that the claims were time-barred under
{¶ 12} Likewise, the Kansas Supreme Court considered this issue in 1876, and held that “[t]here are cases in which the original act is considered as a continuing act, and daily giving rise to a new cause of action. Where one creates a nuisance, and permits it to remain, so long as it remains it is treated as a continuing wrong, and giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrongdoer is, that he has a legal right,
{¶ 13} The analysis in the above-cited cases, although involving civil causes of action, leads us to conclude that a continuing nuisance can constitute a continuing course of conduct, thus tolling the limitations periоd pursuant to
{¶ 14} In this case, Cory‘s complaint alleges that defendant‘s bridge and culvert caught debris in every heavy downpour, resulting in a backup of water and repeated flooding of Cory‘s property. The court of appeals held that the damage to Cory‘s property occurred when defendant built the bridge and culvert. Yet, the continuing existence of the bridge and culvert created a recurring condition of flooding. The statute refers to both the action (of obstruсting, impeding, diverting the watercourse) and the damage (injury or prejudice of others). For the period of time that these damages continued to occur, defendant allegedly continued to maintain control over the bridge and culvert and allegedly continued to аllow the bridge and culvert to cause damage to Cory‘s property.
{¶ 15} Therefore, where one creates a nuisance as defined in
{¶ 16} We must caution the parties that we are not determining whether the defendant has created a nuisance as defined in
{¶ 17} Accоrdingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER and COOK, JJ., dissent.
THE STATE OF OHIO, APPELLANT, v. SWARTZ, APPELLEE.
No. 98-2598
SUPREME COURT OF OHIO
Decided March 1, 2000.
88 Ohio St.3d 131, 135
PFEIFER, J., dissenting.
{¶ 18} I dissent for three reasons: (1) the injury in this case is the neighboring property‘s susceptibility to flooding, rather than еach individual flood; (2) the construction of a bridge does not constitute “a continuing course of conduct” that tolls the statute of limitations for misdemeanors; and (3) the majority‘s reliance on civil nuisance cases to support its finding of a continuing course of criminal conduct is misplaced.
{¶ 19} The statute at issue states that “[n]o person shall unlawfully obstruct or impede the passage of a navigable river, harbor, or collection of water * * * to the injury or prejudice of others.”
{¶ 20} I reject the notion that each time Cory‘s property flooded constituted a continuing course of conduct by Swartz. Swartz‘s conduct ended when he completed work on his bridge and culvert in 1992. An example of a continuing coursе of conduct in a nuisance-related crime would be the continual piping of pollutants into a stream. The statute of limitations would toll for as long as the sludge was being dumped into the waterway. Active participation by the defendant would be a part of that cоurse of conduct—the defendant would have control over the flow of pollutants.
{¶ 21} Swartz does not control the rain. The periodic flooding that occurs on his neighbor‘s property has nothing to do with a continued activity that he controls. It‘s the result of how water reаcts to an act he perpetrated six years earlier. Mother Nature did engage in a continuing course of conduct—but she apparently ducked her subpoena.
{¶ 22} The passive act of having a bridge on one‘s property does not constitute “conduct.” The majority concludes that it is conduct based upon citations to civil nuisance cases. This is a criminal case. A violation of
{¶ 23} Swartz may ultimately have to pay the piper for his blocked culvert. But that resolution should occur in a civil lawsuit, with damages paid to Cory. In that context, the cases cited by the majority would have meaning. Cory still has the opportunity to be compensated for any damages he suffered. But the state‘s opportunity for criminal prosecution is water under the bridge.
COOK, J., concurs in the foregoing dissenting opinion.