State v. Swartz - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Swartz, 88 Ohio St.3d 131, 2000-Ohio-277.]

THE STATE OF OHIO, APPELLANT, v. SWARTZ, APPELLEE.
[Cite as State v. Swartz (2000), 88 Ohio St.3d 131.]
Nuisances -- Limitation of criminal prosecution -- Where one creates a
"nuisance" as defined in R.C. 3767.13(C), the nuisance constitutes a
continuing course of conduct tolling the limitations period pursuant to R.C.
2901.13(D), when.
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).
(No. 98-2598 Submitted October 13, 1999 at the Pickaway County Session
Decided March 1, 2000.)
APPEAL from the Court of Appeals for Butler County, No. CA98-06-120.

In the summer of 1992, George Swartz, defendant-appellee, allegedly
erected a concrete bridge with a twenty-four-inch culvert over a stream that runs
both through his property and his neighbor's, Michael Cory. With each heavy
water flow, the bridge and culvert, about one hundred feet downstream from
Cory's property, allegedly catches debris, resulting in backup of water and ponding
on Cory's property. Cory filed a complaint on March 9, 1998, alleging that Swartz

had obstructed and impeded the passage of the stream and that this caused
continual damage to Cory's property. Cory averred that the backup of water over
the top of the drains for his home caused the drains not to function properly and
also raised the water table around the footer of his home, causing damage to the
underground furnace ducts. Based upon Cory's complaint, the state charged
defendant with violating R.C. 3767.13(C), unlawfully obstructing or impeding the
passage of a navigable river, harbor, or collection of water, or corrupting or
rendering unwholesome or impure, a watercourse, stream, or water, or unlawfully
diverting a watercourse from its natural course or state to the injury or prejudice of
others.

Defendant filed a motion to dismiss on the basis that the complaint on its
face was barred by the statute of limitations under R.C. 2901.13(A)(2) (now
2901.13[A][1][b]) because more than two years had passed since any activity or
since the supposed obstruction occurred. The trial court granted the motion to
dismiss on May 19, 1998. The state appealed the dismissal, and the Butler County
Court of Appeals affirmed.

This cause is now before this court upon the allowance of a discretionary
appeal.
__________________

2

John F. Holcomb, Butler County Prosecuting Attorney, and Scott N.
Blauvelt, Assistant Prosecuting Attorney, for appellant.

Holbrock & Jonson and Timothy R. Evans, for appellee.
__________________

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),

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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

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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 plaintiff's land, and the diverted water eventually damaged
plaintiff's 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 owner and

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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 plaintiff's 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.

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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

7

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 plaintiff's 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.

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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.

PFEIFER and COOK, JJ., dissent.
__________________

PFEIFER, J., dissenting. I dissent for three reasons: (1) the injury in this
case is the neighboring property's susceptibility to flooding, rather than each
individual flood; (2) the construction of a bridge does not constitute "a continuing
course of conduct" that tolls the statute of limitations for misdemeanors; and (3)
the majority's reliance on civil nuisance cases to support its finding of a continuing
course of criminal conduct is misplaced.

The statute at issue states that "[n]o person shall unlawfully obstruct or
impede the passage of a navigable river, harbor, or collection of water * * * to the
injury or prejudice of others." R.C. 3767.13(C). The injury to another is a key
aspect of the statute. The majority writes that every time a flood occurred, the
complainant, Cory, was injured anew. I disagree. The injury was not the flooded
yard--if that were the case, the cause of action would dry up with the water. The
injury to Cory was that his property became susceptible to flooding. That situation

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existed since 1992 when the bridge was built. Cory knew the cause of his
occasional flooding, at the very latest, in 1995, when a county engineer told Cory
that Swartz's culvert was to blame. Despite his knowledge of his injury and its
cause, Cory did not file a complaint with authorities until over two years had
passed.

I reject the notion that each time Cory's property flooded constituted a
continuing course of conduct by Swartz. Swartz's conduct ended when he
completed work on his bridge and culvert in 1992. An example of a continuing
course of conduct in a nuisance-related crime would be the continual piping of
pollutants into a stream. The statute of limitations would toll for as long as the
sludge was being dumped into the waterway. Active participation by the defendant
would be a part of that course of conduct--the defendant would have control over
the flow of pollutants.

Swartz does not control the rain. The periodic flooding that occurs on his
neighbor's property has nothing to do with a continued activity that he controls.
It's the result of how water reacts to an act he perpetrated six years earlier. Mother
Nature did engage in a continuing course of conduct--but she apparently ducked
her subpoena.

The passive act of having a bridge on one's property does not constitute
"conduct." The majority concludes that it is conduct based upon citations to civil
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nuisance cases. This is a criminal case. A violation of R.C. 3767.13(C) is a third-
degree misdemeanor, see R.C. 3767.99(C), with penalties that could include sixty
days in jail and a $500 fine. See R.C. 2929.21(B)(3) and (C)(3). This is not a civil
action between neighbors over who should have to pay for a leaking basement.
This case is about whether Mr. Swartz committed a crime. Under the majority's
reasoning, since a person can be found liable in a wrongful death case based on a
preponderance of the evidence, that standard should be good enough in a capital
murder case.

Swartz may ultimately have to pay the piper for his blocked culvert. But
that resolution should occur in a civil lawsuit, with damages paid to Cory. In that
context, the cases cited by the majority would have meaning. Cory still has the
opportunity to be compensated for any damages he suffered. But the state's
opportunity for criminal prosecution is water under the bridge.

COOK, J., concurs in the foregoing dissenting opinion.
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