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Holland v. City of Geddes5/31/2000
was only the "ill effect" of the broken valve. As the Hollands gave no written notice to the City until September 10, 1996, more than two and one half years after the valve was broken, their claim was held untimely.
[ ] A continuing tort suspends the running of the statute of limitations. Alberts v. Giebink, 299 NW2d 454, 456 (SD 1980). The primary rationale for this rule is that when no discrete occurrence in continually wrongful conduct can be singled out as the principal cause of damage, the law regards the cumulative effect as actionable, and allows the limitations period to begin when the wrongful conduct ends. Curtis v. Firth, 850 P2d 749, 754 (Idaho 1993). A continuing tort occurs when a wrongful act persists over time. 54 CJS Limitations of Actions § 177 (1987) (footnote omitted). On the other hand, a continual consequence from a solitary unlawful act is not a continuing tort. Brishky v. South Dakota, 479 NW2d 489, 492 (SD 1991) (citing Ward v. Caulk, 650 F2d 1144, 1147 (9thCir 1981)). In Brishky, the suspension of the plaintiff's driver's license was not a continuing wrong, but an injury from which he suffered a continuing aftereffect. Id.
[ ] A classic instance of a continuing tort occurs with prolonged or repeated flooding of land. In Holdner v. Columbia County, 627 P2d 4 (OrCtApp 1981), a landowner sued for damage caused by water running intermittently from a public road onto the landowner's property. The landowner saw the damage occurring in 1974 or 1975 and complained to the authorities, but they failed to resolve the problem. When the landowner eventually sued in 1977, the defendant argued that the suit was time-barred by the two-year statute of limitations. The court ruled that the "ongoing negligent conduct" was a continuing tort: "'Where the tort is continuing, the right of action is continuing. ... The rule that the statute runs from the last date of the continuous negligent is just and equitable.'" Id. at 8 (omissions in original) (quoting Reynolds Metals Co. v. Yturbide, 258 F2d 321, 333 (9thCir 1958)); but cf. Rygg v. United States, 334 FSupp 219, 220-21 (DND 1971) (damage to farmland from flooding caused by the government was not continuing tort).
[ ] A leaking water line was the basis for suit in Handley v. Town of Shinnston, 289 SE2d 201 (WVa 1982). After the Town installed a pipe on the plaintiffs' property, it began leaking and the plaintiffs complained. The Town negligently failed to repair the leak, and it continued, causing property damage. The Handley court reasoned that when wrongful conduct is continual or repeated, "the cause of action accrues at, and the limitations [period] begin to run from, the date of the last injury, or when the tortious overt acts cease." Id. at 202 (quoting 54 CJS Limitations of Actions § 169 (1948)). Similarly, in Eppling v. Seuntjens, 117 NW2d 820 (Iowa 1962) a landowner sought damages and injunctive relief for repeated flood damage to his property occurring after an adjacent landowner erected a dike. Id. at 821-22. The Iowa Supreme Court characterized the wrong as a continuing violation. Id. at 825.
[ ] A continuing tort occurs when all elements of the tort continue, not simply the damage element. In Defnet v. City of Detroit, 41 NW2d 539 (Mich 1950), the Defnets sued the City to recover damages to their property resulting from the City's failure to block off or repair a sewer drain. The sewer was constructed in 1901, and the Defnets purchased their home in 1924, a year after it was erected. The abstract did not mention the sewer, and the Defnets did not become aware of its existence until 1928. The next year, the house began to settle and cracks appeared. In 1941, the back yard caved in, but further damage
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