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Hedgepath v. American Telephone and Telegraph Company12/10/2001
C. 447, 434 S.E.2d 296 (Ct. App. 1993)). A nuisance may be classified as continuing or permanent. Id.
A continuing nuisance is defined as a nuisance that is intermittent or periodical. Id. It is described as one which occurs so often that it is said to be continuing although it is not necessarily constant or unceasing. Id. A nuisance is continuing if abatement is reasonably and practically possible. Id. at 287, 543 S.E.2d at 567.
A permanent nuisance may be expected to continue but is presumed to continue permanently with no possibility of abatement. Id. at 286, 543 S.E.2d at 566-67. With respect to a permanent nuisance, the injury is fixed and goes to the whole value of the land. Id. at 286, 543 S.E.2d at 567.
As to the concept of a nuisance and application of the statute of limitations, where the nuisance is permanent and only one cause of action may be brought for damages, the statute of limitations bars the action if it is not brought within the statutory period after the first actionable injury . Id. Where the nuisance is deemed to be continuing and is abatable, the statute of limitations does not run merely from the original intrusion on the property and cannot be a complete bar. Id. A new statute of limitations begins to run after each separate invasion of the property. Id.
Where, however, the nuisance is classified as continuing, the expiration of the limitations period after the first actionable injury does not effect a complete bar as each new injury gives rise to a new cause of action and a landowner may at any time recover for an injury to his land which occurred within the statutory period. Id. at 287, 543 S.E.2d at 567, cert. denied; Cutchin v. South Carolina Dep't of Highways & Pub. Transp., 301 S.C. 35, 389 S.E.2d 646 (1990); McCurley v. South Carolina State Highway Dep't, 256 S.C. 332, 182 S.E.2d 299 (1971); Webb v. Greenwood County, 229 S.C. 267, 92 S.E.2d 688 (1956).
The plaintiffs' arguments on common law nuisance obfuscate the real issue: when did the plaintiffs know or, by the exercise of reasonable diligence, should have known they might have had a claim against someone for alleged environmental contamination of their property. Approximately 240 of the 278 remaining Banyard plaintiffs submitted affidavits in support of the 1993 motion to intervene in the Baughman litigation. By the affidavits, those plaintiffs affirmatively stated they believed their interests were being protected by the Baughman litigation. They admitted they knew by 1985 (i.e., the year the Baughman litigation was filed) that they might have a claim against someone for alleged environmental contamination. This is an inescapable conclusion. As for the remaining plaintiffs, the trial court correctly concluded the record is replete with uncontested evidence of widespread publicity and awareness of the alleged contamination prior to 1987. See generally United Klans of America v. McGovern, 621 F.2d 152 (5th Cir. 1980) (ruling that where events receive widespread publicity, plaintiffs may be charged with knowledge of their occurrence).
Additionally, Nassau ceased refining operations at the facility on August 13, 1990, in preparation for the sale to Gaston Copper. Assuming, arguendo, that environmental contamination by Nassau continued up to that day, the Banyard plaintiffs did not file their federal court action until September 1993, which is more than three years after Nassau ceased its operations. The plaintiffs' reliance upon Aurora National Bank v. Tri Star Marketing, 990 F. Supp. 1020 (N.D. Ill. 1998) to argue continuing liability by Nassau is misplaced. That case involved an action under the citizen suit provision of the Resource Conservation and R
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