The State of Ohio, Appellant, v. Swartz, Appellee, 88 Ohio St. 3d 131

Lundberg Stratton, J. Today we are asked to determine whether the statute of limitations in R.C. 2901.13(A)(1)(

b) barred defendant’s prosecution for nuisance pursuant to R.C. 3767.13(C). For the reasons that follow, we find that it did not. Accordingly, we reverse the judgment of the court of appeals. “The purpose of a statute of limitations is to limit exposure 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 against 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. This court reaffirmed these principles recently when we held that “the intent of R.C. 2901.13 is to discourage inefficient or dilatory law enforcement rather than to give offenders the chance to avoid criminal responsibility for their conduct.” State v.

Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A. (1999), 85 Ohio St.3d 582, 586, 709 N.E.2d 1192, 1195, citing State v. Hensley (1991), 59 Ohio St.3d 136, 138, 571 N.E.2d 711, 714. However, R.C. 2901.04(

A) dictates that “[s]ections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.” 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, R.C. 2901.13 sets forth the various limitations periods for criminal prosecutions. It states: “(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 does not begin to run until such course of conduct or the accused’s accountability for it terminates, whichever occurs first.” (Emphasis added.) On appeal, the state acknowledged that the two-year limitations period set forth in R.C. 2901.13(A)(1)(

b) applies, but claimed that Cory’s damage is ongoing and that a new offense occurs each time the damage caused by the flooding repeats. The court of appeals disagreed and, instead, concluded that the damage to Cory’s property occurred when defendant first built the bridge and culvert. Thus, the court of appeals held that the tortious act was completed when the bridge and culvert were built, or at the least in 1995, when Cory testified that he first tried to find out why the water was backing up and he contacted the county engineer. We disagree.

In 1885, this court set forth 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 plaintiffs land, and the diverted water eventually damaged plaintiffs land. The plaintiff filed a complaint in 1881.

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 action, 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 action accrues for such damages; and such force, if so continued, is continued by the act of such oumer 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. 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, the 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 R.C. 2305.09(D).

However, the court of appeals reversed and remanded, holding that the claim was a continuing trespass, even though the defendant’s last act preceded the lawsuit by more than four years, the relevant limitations period for that tort, and even though the defendant had sold the property in the interim. The court of appeals also reinstated the plaintiffs action against the new owner who had allowed the condition to continue to exist. Id., 41 Ohio App.3d at 358, 535 N.E.2d at 1377.

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, and is under a legal duty, to terminate the cause of the injury.” Kansas Pacific Ry. Co. v. Mihlman (1876), 17 Kan. 224, 231.

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 period pursuant to R.C. 2901.13(D). However, unlike in civil cases, R.C. 2901.13(

D) requires that in the case of a continuing course of conduct, the limitations period does not begin to run until the course of conduct, “or the accused’s accountability for it,” terminates, whichever occurs first. If the course of conduct remains under the control of the accused, the statute of limitations does not begin to run. 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 obstructing, 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 allow the bridge and culvert to cause damage to Cory’s property.

Therefore, where one creates a nuisance as defined in R.C. 3767.13(

C) and permits it to remain, so long as it remains, and is within the control of the actor, the nuisance constitutes a continuing course of conduct tolling the limitations period pursuant to R.C. 2901.13(D). Thus, because the defendant permitted the nuisance to remain despite the plaintiffs repeated requests to abate, the period of limitations did not begin to run until the continuing course of conduct or the accused’s accountability for it terminated. R.C. 2901.13(D).

We must caution the parties that we are not determining whether the defendant has created a nuisance as defined in R.C. 3767.13(C), nor are we judging the lawfulness of defendant’s actions in general. We are merely holding that due to the continuing nature of the damage alleged, the case is not time-barred by the statute of limitations as set forth in R.C. 2901.13(A)(1)(b). R.C. 3767.13(

C) also requires that the conduct be “unlawful,” a finding that the trial court specifically did not make because its finding on the statute of limitations disposed of the case. Accordingly, 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. Peeifer and Cook, JJ., dissent.