Plaintiffs and Appellants,
v.
VINTAGE ON THE RIVER HOMEOWNERS ASSOCIATION, INC.; BTS Investments, Inc.; and Scott McQuarrie,
Defendants and Appellees.
145 P.3d 1177 (Utah App. 2006)
Court of Appeals of Utah
September 21, 2006
SYCAMORE FAMILY, L.L.C.; and Leland Sycamore,
Plaintiffs and Appellants,
v.
VINTAGE ON THE RIVER HOMEOWNERS
ASSOCIATION, INC.; BTS Investments, Inc.; and Scott McQuarrie,
Defendants and Appellees.
145 P.3d 1177 (Utah App. 2006)
Court of Appeals of Utah
September 21, 2006
RKW Case
Summary:
Property owners brought trespass and nuisance action against
homeowners association regarding underground water and sewage pipes and a
manhole on property. The Court of
Appeals held that: (1) pipes and manhole were a permanent trespass, and not a
continuing trespass, for limitations purposes; (2) contents of pipes were a
permanent trespass, and not a continuing trespass, for limitations purposes;
and (3) requisite concealment did not exist to toll limitations period under
discovery rule.
---End of RKW
Case Summary
Fourth District, Provo Department, 040403075 The
Honorable Anthony W. Schofield
Gregory Hansen, Duval Haws & Frei, PC,
American Fork, for Appellants.
Clay W. Stucki, Bennett Tueller Johnson &
Deere, LLC, John D. Richards III, and Samuel E. Bell, Salt Lake City, for
Appellees.
Before Judges BILLINGS, DAVIS, and ORME.
MEMORANDUM DECISION
James Z. Davis, Judge
¶1 Plaintiffs Sycamore Family, L.L.C. and Leland
Sycamore appeal the trial court's order granting Defendants' motion to dismiss
for failure to state a claim under rule 12(b)(6) of the Utah Rules of Civil
Procedure. See Utah R. Civ. P.
12(b)(6). We affirm.
¶2 The trial court determined that the
underground pipes and manhole on Plaintiffs' property constitute a permanent
trespass and concluded that the three-year limitations period had run by the
time Plaintiffs filed their trespass and nuisance claims. See Utah Code Ann. § 78-12-26(1) (2002). Plaintiffs appeal the
order, contending that the pipes and manhole constitute a continuing trespass
that is not barred by the limitations period.[1] We review the trial court's
dismissal based on the running of the statute of limitations for correctness,
accepting Plaintiffs' factual allegations and construing all reasonable
inferences drawn from those allegations in a light most favorable to
Plaintiffs. See Clarke v. Living
Scriptures, Inc., 2005 UT App 225,¶6, 114 P.3d 602.
¶3 The distinction between a permanent and
continuing trespass in Utah is defined in Breiggar
Properties, L.C. v. H.E. Davis & Sons, Inc.: Page 1179
"When a cause of action for nuisance or trespass accrues for
statute of limitations purposes depends on whether the nuisance or trespass is
permanent or continuing. Where a nuisance or trespass is of such character that
it will presumably continue indefinitely it is considered permanent, and the
limitations period runs from the time the nuisance or trespass is created.
However, if the nuisance or trespass may be discontinued at any time it is
considered continuing in character .... [In such a case], the person injured
may bring successive actions for damages until the nuisance [or trespass] is
abated ...."
2002 UT 53,¶8, 52 P.3d 1133 (first and third
alterations in original) (quoting Walker
Drug Co. v. La Sal Oil Co., 902 P.2d 1229, 1232 (Utah 1995)). The court
noted that the distinction between a permanent and continuing trespass is
"purely semantic" and that the crux of the analysis is whether a
single act of trespass has occurred or whether multiple acts of trespass
continue to occur. Id. at ¶11. In Breiggar, the court concluded that
debris dumped on a property constituted a permanent trespass because the
trespass amounted to a single act of dumping. See id. at ¶14. Here, Plaintiffs contend that, unlike the pile of
debris in Breiggar, the underground
pipes constitute a continuing trespass because water and sewage from other
properties flow through them on a continual basis, albeit underground and out
of sight.[2]
¶4 Plaintiffs' contention requires us to consider
the nature of the two components of the trespass here: the pipes themselves and
the contents of the pipes. We first conclude that the pipes themselves are
permanent trespasses because, far from being an intermittent invader, they have
been a fixture on the land for several years, and their installation amounts to
a single act with a single impact on the land. Although the water and sewage
flowing through the pipes were not part of the single act of installation, we
conclude that such contents do not constitute a new trespass. "The
essential element of trespass is physical invasion of the land," Walker Drug Co. v. La Sal Oil Co., 972
P.2d 1238, 1243 (Utah 1998), or in other words, there must be an
"encroachment on the rights of another," Black's Law Dictionary 829 (7th ed. 1999) (defining
"invasion"). Absent an allegation that the contents of the pipes have
leaked or otherwise affected the land, the wholly enclosed contents of the
pipes do not constitute a new encroachment onto the land. Accordingly, regardless
of whether the pipes are empty or full, the encroachment on Plaintiffs' rights
to the property is the same. [3]
¶5 Because both the pipes and their contents
constitute a permanent trespass, we Page
1180 agree with the trial court's conclusion that the statute of
limitations has run.
¶6 Affirmed.
¶7 WE CONCUR: Judith M. Billings, Judge,
Gregory K. Orme, Judge
-Notes:
[1] Because we conclude the limitations period
has run, we need not address the other issues raised by Plaintiffs on appeal.
[2] We do not address the legal implications of a
future leak or access to the pipes and related manhole for future maintenance
because such issues, while touched upon in oral argument before this court,
were neither raised in nor considered by the trial court.
[3] Plaintiffs contend that the limitations
period should be tolled under the discovery rule because, as they claim, Defendants
sought to conceal the location of the pipes. Generally, "[m]ere ignorance
of the existence of a cause of action will neither prevent the running of the
statute of limitations nor excuse a plaintiff's failure to file a claim within
the relevant statutory period." Russell
Packard Dev., Inc. v. Carson, 2005 UT 14,¶20, 108 P.3d 741. Nonetheless,
the limitations period is tolled when a defendant affirmatively or fraudulently
conceals a plaintiff's cause of action. See
id. at ¶28.
In the present case, Plaintiffs allege that
Defendants sought to conceal the pipes by failing to properly record the
easement and by "engag[ing] in and/or commission[ing] road and bridge
construction along the side of [Plaintiffs'] land which concealed the existence
of the manhole on [Plaintiffs'] land." Even if we accept these allegations
as true, Plaintiffs fail to state a prima facie case for concealment.
Plaintiffs have not shown that they "did not know of and could not
reasonably have known of the existence of the [pipes] . . . within the
limitation period." Warren v. Provo
City Corp., 838 P.2d 1125, 1129-30 (Utah 1992). Their argument for
concealment is undermined by the fact that a map of the easements was on file
with the Provo City Public Works office, and they have provided no competent
authority or analysis establishing why the map would not provide constructive
notice. See Smith v. Four Corners Mental
Health Ctr., Inc., 2003 UT 23,¶46, 70 P.3d 904 (noting that we may decline
to review an argument imposing on us "the burden of argument and
research" (quotations and citation omitted)). Moreover, even if we accept
Plaintiffs' allegation that Defendants engaged in road and bridge construction,
we cannot assume or reasonably infer that such operations amounted to an effort
to affirmatively or fraudulently conceal the manhole from Plaintiffs.