David v Bossy [1999] FMCSC 13; 9 FSM Intrm. 224 (Chk. S. Ct.Tr. 1999) (8 September 1999)

CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite case as David v Bossy, [1999] FMCSC 13; 9 FSM Intrm. 224 (Chk. S. Ct. Tr. 1999)

DOSAE DAVID,
Plaintiff,

vs.

BALTAZAR BOSSY et al.,
Defendants.

___________________________________

CSSC CIVIL ACTION NO. 28-99

FINAL JUDGMENT

Wanis R. Simina
Associate Justice

Decided: September 8, 1999

APPEARANCES:

For the Plaintiff:
Nelson Stephen, trial counselor
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants:
Maketo Robert, Esq.
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Statutes of Limitation
A sewer overflow case filed within six years of the first overflow is not barred by the statute of limitations. David v. Bossy, [1999] FMCSC 13; 9 FSM Intrm. 224, 225 (Chk. S. Ct. Tr. 1999).

Statutes of Limitation; Torts - Negligence
The two year limitation applies to tort actions for both negligence and wilful conduct. David v. Bossy, [1999] FMCSC 13; 9 FSM Intrm. 224, 225 (Chk. S. Ct. Tr. 1999).

Statutes of Limitation; Torts - Trespass
In the case of a continuing trespass the statute of limitation does not begin to run from the date of the original entry, but recovery may be had for a period of time not exceeding the statutory period immediately preceding the institution of the action. David v. Bossy, [1999] FMCSC 13; 9 FSM Intrm. 224, 226 (Chk. S. Ct. Tr. 1999).

Torts - Trespass
Where the act of a wrongdoer involves a course of action which is a direct invasion of the rights of another, such conduct is regarded as a trespass of a continuing character. David v. Bossy, [1999] FMCSC 13; 9 FSM Intrm. 224, 226 (Chk. S. Ct. Tr. 1999).

* * * *

COURT'S OPINION

WANIS R. SIMINA, Associate Justice:

This case comes before the Court after Notice and Hearing on the merits of Plaintiff's Complaint for Injunctive relief and money damages arising out of the Defendants' wrongfully allowing a sewer line across the Plaintiff's land to back-flow and discharge onto the premises of Plaintiff and to stagnate and contaminate the area. The Complaint alleges that all of the wrongful conduct of Defendants which resulted in the matters complained of occurred "on various occasions between March 23, 1993 and the date of the commencement of this action." The Complaint was filed on March 9, 1999.

There is little dispute, if any, relative to the fact of the over-flow onto Plaintiff's land and the other allegations in the Complaint. The Complaint alleges a cause of action against the Defendants upon which relief by this court can be granted. The Plaintiff's testimony during the proceedings held on August 18, 1999 adequately support the allegations of the Complaint by a preponderance of the evidence.

The only issue argued seriously by the Defendants goes to the question of whether the action is barred by the Statute of Limitations as provided for by 6 TTC 303 or 305. 6 TTC 305 states as follows: "§ 305. Limit of six years.-Als.-All actions other than those covered in the preceding sections of this chapter [§303] shall be commenced within six years after the cause of action accrues."

It is clear that § 305, supra, is without consequence to the case at bar. The complaint alleges that the first over-flow injury occurred on March 23, 1993. The Complaint was filed on March 9,1999, within six years, the limitation referred in § 305. Thus, 6 TTC 305, the six year statute of limitations, has no application to this case.

The other argument of Defendants is that 6 TTC 303, limits the filing of Plaintiff's action to two years after the original over-flow. Although § 303 does not list tort actions involving injury to land based on negligence or wilful conduct, both the FSM Supreme Court and the State Courts of the FSM have consistently held that the two year limitation applies to tort actions for both negligence and wilful conduct generally.

As previously stated, the Complaint alleges that the wrongful conduct of Defendants in allowing the over-flow first occurred on March 23, 1993 and continued until "the date of the commencement of this action." The only reasonable interpretation is that the Complaint alleges a continuing condition sounding in trespass. In such cases, the rule is well settled and stated as follows: "Continuing trespass. In the case of a continuing trespass the statute does not begin to run from the date of the original entry, but recovery may be had for a period of time not exceeding the statutory period immediately preceding the institution of the action." 87 C.J.S. Trespass § 71, at (1954) (footnote omie omitted).

And in 75 Am. Jur. 2d Trespass § 16 (19the rule is stated thed that: "Where the act of a wrongdoer involves a course of action whi a direct invasion of the rthe rights of another, such conduct is regarded as a trespass of a continuing character ...."

The annotation in [1926] ArgusLawRp 85; 32 A.L.R. 463, as early as 1924, cites over one thousand cases involving repeated or continuing trespass on real property.

Based on the foregoing and the record in the case and the evidence presented by Plaintiff, the Court finds that Plaintiff is entitled to Judgment against the Defendants, and

It is so ordered, and

Further ordered that Defendants, and each of them, are hereby permanently enjoined from maintaining sewer lines across the property of Plaintiff so as to allow back-flow or discharge of sewage upon the property of the Plaintiff, and

Further ordered that Plaintiff have and recover from Defendants, as damages, which the Court finds are the proximate result of Defendants wrongful acts, the sum of $15,000.00.