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finding that the "only exception" to the continuing nuisance doctrine is "where the property invasion will and should continue indefinitely because defendants, with lawful authority, constructed a socially beneficial structure intended to be permanent"
Summary of this case from Crosson v. Carrollton City Sch. Dist.Opinion
No. 02SA241.
February 24, 2003.
On Appeal from the United States District Court for the District of Colorado, No. 99-D-864.
CERTIFIED QUESTIONS ANSWERED
Trespass and Nuisance — Continuing and Permanent Torts
Answering two certified questions from the United States Court of Appeals for the Tenth Circuit, the supreme court holds that the ongoing presence and continued migration of toxic chemicals on the plaintiff's property, allegedly caused by toxic chemicals released by the United States, each constitutes a continuing trespass and nuisance. The toxic pollution plume originally released by the United States remains on the plaintiff's property and continues to migrate onto the property on a daily basis. The supreme court holds that under Colorado law, the tortious conduct of the United States is not limited to its initial release of those chemicals into the ground, but also includes its failure to remove the toxic chemicals and to abate the spread of toxic pollution onto the plaintiff's property.
The Hannon Law Firm, LLC, Tearle W.T. Harlan, Kevin S. Hannon, Denver, Colorado, Attorneys for Plaintiff-Appellant
Henry T. Miller, Trial Attorney, United States Department of Justice, Torts Branch, Civil Division, Washington, D.C., Attorneys for Defendant-Appellee
I. INTRODUCTION
In this case, we agreed to answer two certified questions from the United States Court of Appeals for the Tenth Circuit regarding continuing trespass and nuisance under Colorado law. Pursuant to C.A.R. 21.1, the Tenth Circuit certified the following state law questions pertinent to an appeal pending in that court:
(1) Does the continued migration of toxic chemicals from defendant's property to plaintiff's property, allegedly caused by chemical releases by the defendant, constitute continuing trespass and/or nuisance under Colorado law?
(2) Does the ongoing presence of those toxic chemicals on plaintiff's property constitute continuing trespass and/or nuisance under Colorado law?
We answer both questions in the affirmative.
The plaintiff, Robert Hoery, brought suit under the Federal Tort Claims Act against the defendant, the United States, asserting claims for, among other things, continuing trespass and nuisance. Hoery claimed that the United States negligently released toxic chemicals from Lowry Air Force Base into the ground which contaminated his nearby residential property. The United States District Court dismissed the case, concluding that Hoery failed to state a claim for continuing trespass or nuisance under either federal or Colorado law. On appeal, the Tenth Circuit determined that there was no controlling Colorado precedent to determine whether Hoery stated a claim for continuing trespass and nuisance under Colorado law and thus certified the questions to this court for our resolution.
Upon considering our precedent and other jurisdictions that have considered these questions, we hold that the alleged migration and ongoing presence of toxic chemicals on Hoery's property each constitutes a continuing trespass and nuisance under Colorado law. The alleged tortious conduct of the United States includes its failure to abate and to remove the toxic chemicals it placed beneath Hoery's property. In addition, we hold that this tortious conduct is not limited to the initial release of those chemicals from Lowry.
Thus, we answer both certified questions in the affirmative and return this case back to the Tenth Circuit for further proceedings.
II. FACTS AND PROCEEDINGS
We rely on the Tenth Circuit's rendition of a substantial portion of the underlying facts of this case, which we accept as true for our purposes here.
Robert Hoery and his wife bought a residence in the East Montclair neighborhood of Denver, Colorado in 1993. The property has a groundwater well in the backyard to irrigate the lawn and vegetable garden. Hoery's well is located seven blocks north of Lowry Air Force Base.
The well is approximately 48 feet deep and pumps underground water in the alluvial material above the Denver Aquifer.
The United States operated Lowry as an active military base between the 1940s and September 1994. During that time period, the United States disposed of trichloroethylene ("TCE") and other toxic chemicals at Lowry. These releases created plumes of toxic pollution underneath property extending several miles north of Lowry, including the area underneath Hoery's property in the Montclair neighborhood. In 1997, the United States tested Hoery's irrigation well and found it was contaminated with TCE.
TCE was detected in groundwater samples in Hoery's well at 20 micrograms per liter. The State of Colorado maximum contaminant level for TCE in drinking water is 5 micrograms per liter. See Memorandum from Versar Inc. to Lowry Air Force Base (Aug. 19, 1997).
Although the United States stopped all operations at Lowry related to the use of TCE in 1994, the toxic plume continues to migrate underneath the Montclair neighborhood. TCE remains on Hoery's property and enters his groundwater and soil on a daily basis, unabated by the United States.
Even though the United States retained an ownership interest in the property, we assume for our purposes here that the release of TCE from Lowry ceased in September 1994.
Hoery's expert, a hydrogeologist, testified in his affidavit that based upon the information available in November 1999, the contamination was not permanent and there were remediation strategies that could restore Hoery's property. The United States did not address this factual issue.
Hoery brought suit under the Federal Tort Claims Act ("FTCA") in 1998 against the United States asserting claims for, among other things, continuing trespass and nuisance and sought unspecified damages. See 28 U.S.C. § 2671-80. Hoery alleged that the United States negligently released the TCE and caused contamination of his property, including groundwater, soil, and a well.
The District Court granted the United States's motion to dismiss all of Hoery's claims for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The District Court held that Hoery presented permanent tort claims that were time-barred. Federal law governs when a cause of action under the FTCA accrues. Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987) ("federal law controls questions relating to accrual of federal causes of action."). For permanent torts, the claim accrues the later of when the injury first occurs or when the plaintiff learned or should have learned of his injury and its cause. See, e.g., Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998); Arvayo v. United States, 766 F.2d 1416, 1419 (10th Cir. 1985). For continuing torts, however, federal law provides that the claim continues to accrue as long as the tortious conduct continues. In this event, plaintiff's recovery is limited to the statute of limitations period dating back from when plaintiff's complaint was filed. United States v. Hess, 194 F.3d 1164, 1177 n. 12 (10th Cir. 1999).
Because a two-year statute of limitations applies to FTCA claims,see 28 U.S.C. § 2401(b), the District Court held that Hoery's 1998 claims were untimely because Hoery knew or should have known his property might be contaminated by TCE from Lowry as of 1995. Hoery did not appeal that ruling.
In addition to the ruling construing federal statutes, the District Court further held that its ruling was consistent with Colorado law. Under the FTCA, the United States is liable "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, and "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Because the acts alleged here occurred in Colorado, our precedent controls as to whether the allegations constitute a continuing trespass and nuisance.
The Court reasoned that the only "wrongful act" alleged by Hoery was the actual release of toxic chemicals by the United States, and that no continuing tort had been alleged because this act had ended in September 1994 when the United States stopped operating Lowry. Citing two of Colorado's "irrigation ditch cases," see Middelkamp v. Bessemer Irrigating Co., 46 Colo. 102, 103 P. 280 (1909) and Hickman v. North Sterling Irrigation Dist., 748 P.2d 1349 (Colo.App. 1987), the District Court concluded that the nuisance and trespass was limited to the actual release of TCE by the United States and not the continued migration or ongoing presence of pollution on Hoery's property. Hoery appealed this ruling.
On appeal, Hoery argued that the migration and presence of toxic chemicals on his property were in themselves wrongful acts for which the United States was responsible and constituted continuing torts under our decision in Wright v. Ulrich, 40 Colo. 437, 91 P. 43 (1907). In the alternative, the United States asserted that Mr. Hoery's claims were permanent torts under our irrigation ditch cases and time-barred under the FTCA's statute of limitations. The Tenth Circuit, after reviewing these Colorado cases, determined that none of them indicated how we would rule on whether Hoery alleged continuing trespass and nuisance claims, and suspended the proceedings pending our response to the certified questions presented here.
III. ANALYSIS
As background to our discussion of the certified questions, we briefly describe the underlying torts of trespass and nuisance and the distinctions between "continuing" and "permanent" torts under Colorado law.
A. Trespass and Nuisance
The elements for the tort of trespass are a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property. Public Serv. Co. of Colorado v. Van Wyk, 27 P.3d 377, 389 (Colo. 2001); Gerrity Oil Gas Corp. v. Magness, 946 P.2d 913, 933 (Colo. 1997). The intrusion can occur when an actor intentionally enters land possessed by someone else, or when an actor causes something else to enter the land. For instance, an "actor, without himself entering the land, may invade another's interest in its exclusive possession by . . . placing a thing either on or beneath the surface of the land." Restatement (Second) of Torts §§ 158(a) cmt. i, 159(1) (1965). A landowner who sets in motion a force which, in the usual course of events, will damage property of another is guilty of a trespass on such property. Miller v. Carnation Co., 33 Colo. App. 62, 68, 516 P.2d 661, 664 (1973) (citing Fairview Farms, Inc. v. Reynolds Metals Co., 176 F. Supp. 178 (D.Or. 1959); see also Restatement (Second) of Torts § 158(a) cmt. i ("It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.").
Another type of property invasion is a nuisance. A claim for nuisance is predicated upon a substantial invasion of an individual's interest in the use and enjoyment of his property. Public Serv. Co. of Colorado, 27 P.3d at 391. Liability for nuisance may rest upon any one of three types of conduct: an intentional invasion of a person's interest; a negligent invasion of a person's interest; or, conduct so dangerous to life or property and so abnormal or out-of-place in its surroundings as to fall within the principles of strict liability. Id.;Lowder v. Tina Marie Homes Inc., 43 Colo. App. 225, 227, 601 P.2d 657, 658 (1979). Like a trespass, conduct constituting a nuisance can include indirect or physical conditions created by defendant that cause harm. Restatement (Second) of Torts § 834 cmt. b.
A private nuisance is distinguishable from a public nuisance. A private nuisance is a tort against land and the plaintiff's actions must always be founded upon his interest in the land. A public or common nuisance covers the invasion of public rights, that is, rights common to all members of the public. See Restatement (Second) of Torts §§ 821B, 821D. Here, we refer only to a private nuisance.
B. Continuing and Permanent Torts
Having delineated the elements of the underlying torts of trespass and nuisance, we must determine what makes them "continuing" or "permanent." The typical trespass or nuisance is complete when it is committed; the cause of action accrues, and the statute of limitations beings to run at that time. But in cases, for example, when the defendant erects a structure or places something on or underneath the plaintiff's land, the defendant's invasion continues if he fails to stop the invasion and to remove the harmful condition. In such a case, there is a continuing tort so long as the offending object remains and continues to cause the plaintiff harm. See W. Page Keeton et al.,Prosser and Keeton on The Law of Torts § 13 (5th ed. 1984).
In the context of trespass, an actor's failure to remove a thing tortiously placed on another's land is considered a "continuing trespass" for the entire time during which the thing is wrongfully on the land. Restatement (Second) of Torts § 161 cmt. b. Until the thing tortiously placed on the land, or underneath the land, is removed, then liability for trespass remains. See 75 Amer. Jur.2d Trespass § 26 (2002).
The same is true for nuisance. If the defendant causes the creation of a physical condition that is of itself harmful, even after the activity that created it has ceased, a person who carried on the activity that created the condition is subject to continuing liability for the physical condition. Restatement (Second) of Torts § 834 cmt. e.
For continuing intrusions — either by way of trespass or nuisance — each repetition or continuance amounts to another wrong, giving rise to a new cause of action. See Fowler V. Harper et al., The Law of Torts § 1.7 (3d ed. 1996). The practical significance of the continuing tort concept is that for statute of limitation purposes, the claim does not begin to accrue until the tortious conduct has ceased. Id.
We recognized claims for continuing torts in Wright, 40 Colo. 437, 91 P. 43. In Wright, the plaintiff's house was adjacent to the defendant's slaughterhouse. We held that the harmful noises and stenches emanating from the slaughterhouse to the plaintiff's property constituted a continuing nuisance. We reasoned that the defendant was liable until the "nuisance was abated and the cause of damage removed." 40 Colo. at 440, 91 P. at 44 (citing Consol. Home Supply Ditch Co. v. Hamlin, 6 Colo. App. 341, 40 P. 582 (1894)). The plaintiff's claim was not barred by the statute of limitations because "the continuing of a trespass or nuisance from day to day is considered in law a several trespass on each day." Id. In other words, for statute of limitations purposes, a claim would only accrue once the defendant abated the nuisance and removed the cause of damage.
In Consol. Home Supply Ditch Co., the court of appeals found that seepage from defendant's irrigation ditch onto plaintiff's farm lands constituted a continuing trespass or nuisance. 6 Colo. App. at 347, 40 P. at 584. Upon rehearing, the court of appeals reconsidered and found that seepage from ditches was unabatable and would continue indefinitely, and thus constituted a permanent tort. Id. at 356, 40 P. at 587. Although our opinion in Wright relied upon the earlier decision in Consol. Home Supply Ditch Co., we reaffirmed the continuing tort concept and the viability of Wright in Middelkamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 121 P. 280 (1909).
In Wright, the plaintiff sued for injunctive relief. 40 Colo. at 439, 91 P. at 43. This is consistent with the concept of continuing trespass or nuisance because the defendant's tortious acts or omissions have not ceased. Damages are available for continuing torts but are limited to injuries sustained up to the time of suit. See Denver City Irrigation Water Co. v. Middaugh, 12 Colo. 434, 443-44, 21 P. 565, 569 (1889).
Since Wright, Colorado courts have applied the concept of continuing trespass to various factual contexts; however, these cases reflect little additional analysis. See Steiger v. Burroughs, 878 P.2d 131, 136 (Colo.App. 1994) (defendant's house remaining on plaintiff's property constituted continuing trespass); Cobai v. Young, 679 P.2d 121, 123-24 (Colo.App. 1984) (snow sliding from defendant's roof to plaintiff's house constituted continuing trespass); Docheff v. City of Broomfield, 623 P.2d 69, 71 (Colo.App. 1980) (defendant's storm drainage system flooding plaintiff's adjacent property constituted continuing trespass). Notably, we have also held a defendant liable for continuing nuisance for discharging pollution into a creek used by farmers downstream to irrigate land and crops. See Wilmore v. Chain O'Mines, Inc., 96 Colo. 319, 327, 44 P.2d 1024, 1028 (1935).
Although continuing trespass and nuisance remain viable concepts in Colorado under Wright and its progeny, not every trespass or nuisance that continues is necessarily regarded as one. Harper et al., The Law of Torts § 1.7. Colorado courts have embraced the concept of "permanent trespass and nuisance" to distinguish those unique factual situations — primarily in the context of irrigation ditches and railway lines — where the trespass or nuisance would and should continue indefinitely. See Middelkamp, 46 Colo. 102, 103 P. 280; Seven Lakes Reservoir Co. v. Majors, 69 Colo. 590, 196 P. 334 (1921); Hickman, 748 P.2d at 1350.
For example, in Middelkamp, the defendant built an irrigation ditch in loose, porous soil. As a result of the loose soil, water seeped through the bottom and sides of the ditch, causing flooding damage to plaintiff's adjacent properties. 46 Colo. at 104, 103 P. at 280. We found that the irrigation ditch, as a permanent improvement, was distinguishable from the abatable nuisance we analyzed in Wright (house adjacent to cattle slaughterhouse).
We reasoned that irrigation ditches were intended to be permanent structures and seep by necessity. Id. at 107-09, 103 P. at 282. Because the irrigation ditches were permanent, the seepage would continue indefinitely absent extraordinary measures. Id. at 115, 103 P. at 283.
Other jurisdictions have attempted to clarify the distinctions between continuing and permanent torts by focusing either on the "cause" of the harm, see Breigger Prop., L.C. v. H.E. Davis Sons, Inc., 52 P.3d 1133, 1135 (Utah 2002) (looking solely at the act constituting trespass, not the harm resulting from the act), or the "harm" resulting from that cause. See Wood v. Amer. Aggregates Corp., 585 N.E.2d 970, 973 (Oh. App. 1990) (focusing on continuing damages, not conduct). We do not find these classifications helpful to our analysis, particularly in the context of this case where it is difficult to determine whether the toxic pollution plume is the cause of Hoery's alleged harm or the harm itself. As we held in Middelkamp, they are usually linked: because the cause of the injury was a permanent structure that was intended to last indefinitely, the injury itself was permanent. 46 Colo. at 109, 103 P. at 282.
Even if the seepage was abatable, we declined to require it for defendants who lawfully constructed irrigation ditches because they represented a class of enterprises "so vital to the future development of our state." Id. at 115, 103 P. at 284; see also Ft. Lyon Canal Co. v. Bennett, 61 Colo. 111, 123, 156 P. 604, 609 (1916) (declining to find that seepage from an irrigation ditch constituted a continuing nuisance because maintenance of the siphon was a "laudable occupation authorized by the laws and statutes of the state."). The practical impact of theMiddelkamp decision was that an action to recover for present and future damages would accrue when the lands were first visibly affected. 46 Colo. at 112, 103 P. at 283.
In addition to irrigation ditches, we have applied the concept of permanent tort to the construction and maintenance of railway lines. See Denver Santa Fe Ry. Co. v. Hannegan, 43 Colo. 122, 127, 95 P. 343, 345 (1908). In Denver Santa Fe Ry. Co., the city authorized the defendants to construct railway lines and run trains on a street abutting the plaintiffs' property. Because of the permanent nature of the railway line and the legal authorization required to construct a railway track, we held that plaintiffs could only recover for permanent interference with their land. Thus, we held that the statute of limitations would begin to run from the first occupancy of the street for railway purposes. Id. at 127, 95 P. at 345. Similar to the context of irrigation ditches, defendants who lawfully constructed and maintained railway lines represented an enterprise that was vital to the future development of the state.
In sum, Colorado law recognizes the concepts of continuing trespass and nuisance for those property invasions where a defendant fails to stop or remove continuing, harmful physical conditions that are wrongfully placed on a plaintiff's land. The only exception is a factual situation — such as an irrigation ditch or a railway line — where the property invasion will and should continue indefinitely because defendants, with lawful authority, constructed a socially beneficial structure intended to be permanent.
We have held that holders of water rights may employ underground, as well as surface water bearing formations in Colorado, for the placement of water into, occupation of water in, conveyance of water through, and withdrawal of water from the natural water bearing formations in the exercise of water use rights. Bd. of County Comm'rs v. Park County Sportsmen's Ranch, 45 P.3d 693, 710 (Colo. 2002). In that case, we rejected the claim of landowners that the artificial recharge and storage of water migrating through aquifers that extended under the surface of their land constituted a trespass. Id. at 715. We reserved, for future decision, cases alleging tortious interference with the "use and enjoyment of the Landowners' surface or subsurface estate."Id. at 714-15 n. 36 n. 39. In the case before us, Hoery alleges that chemicals the United States introduced into the groundwater tortiously interfere with his use and enjoyment of the water he pumps from his well for lawn and garden irrigation.
C. Whether the Ongoing Presence and Continued Migration of Toxic Chemicals Each Constitutes a Continuing Trespass and Nuisance under Colorado Law
Having reviewed our cases regarding continuing and permanent torts, we turn to the certified questions before us. Specifically, we must determine whether the continuing migration and ongoing presence of toxic pollution on a plaintiff's property constitutes a continuing trespass and/or nuisance, even though the condition causing that pollution has ceased.
Hoery contends that he asserted continuing trespass and nuisance claims under Wright because the United States remains liable for any harmful conditions it causes as long as those conditions continue to exist and cause injury. Under his theory, the migration of toxic chemicals and their continued presence on his property are still wrongful acts by the United States, which should be responsible until it stops the migration and removes the toxic chemicals.
In response, the United States argues that the claims alleged here cannot be continuing because any "wrongful conduct" that may have constituted a trespass or nuisance ceased in 1994, when the United States stopped operating Lowry as a military base. Because the tortious acts have stopped, the United States claims, the continued migration and ongoing presence of toxic chemicals on Hoery's property represent the damage caused by that tortious activity, but not the activity itself. In other words, the continued migration and ongoing presence of chemicals represent property damage caused by past acts. Therefore, the United States claims there is no continuing trespass and nuisance.
In support of its argument, the United States claims that our irrigation ditch cases hold that upon cessation of the negligent or wrongful act that caused the seepage, the claim accrues upon the discovery of the alleged property damage. In essence, the United States argues that we should extend our permanent tort concept to the facts alleged here.
Technically speaking, this is an issue of first impression in Colorado. Although we have recognized the concepts of continuing and permanent torts, we have not addressed an environmental contamination case where the contamination remains and continues to migrate daily onto a plaintiff's property, but where the cause of the contamination has ceased.
The United States asserts that Kohler v. Germain Inv. Co., 934 P.2d 867, 870 (Colo.App. 1996) is analogous because the court of appeals held that for statute of limitations purposes, any claim for property damage arising from migration of groundwater contaminated with petroleum accrued upon the property owner's discovery that the contaminated groundwater had migrated under his property. Kohler is not helpful to our analysis because there was no evidence in that case that the contamination was ongoing or that it remained on plaintiff's property after the defendant's petroleum storage tanks stopped leaking. Id. at 870.
While we have not addressed this issue, other jurisdictions have. A number of jurisdictions have determined that the cessation of the condition causing the contamination is not material. These jurisdictions have held that even if the condition causing the contamination has ceased, provided the contamination remains on the plaintiff's land, or continues to migrate onto the plaintiff's land, the defendant remains liable for a continuing tort. See Nieman v. NLO Inc., 108 F.3d 1546, 1559 (6th Cir. 1997) (nuclear processing facility stopped operating but uranium contamination remained on plaintiff's property); Arcade Water Dist. v. United States, 940 F.2d 1265, 1266 (9th Cir. 1991) (laundry facility closed but contamination continued to leach into plaintiff's well); In re ASARCO/Vashon-Maury Island Litig., No. C00-695Z, 2001 U.S. Dist. LEXIS 7154, at *11-13 (W.D.Wash. May 23, 2001) (smokestack no longer operational but contaminated soil remained on plaintiff's property); Taygeta Corp. v. Varian Assoc. Inc., 763 N.E.2d 1053, 1065 (Mass. 2002) (although defendant stopped dumping hazardous material years earlier, the remaining presence of the hazardous material on plaintiff's property was an ongoing source of groundwater contamination that continued to flow unabated onto the site); Kulpa v. Stewart's Ice Cream, 534 N.Y.S.2d 518, 520 (N.Y.App.Div. 1988) (contamination remained in plaintiff's well, even though underground gasoline storage tanks were drained and stopped leaking years earlier).
Arcade is particularly instructive because the facts are analogous to this case. In Arcade, the United States operated an army laundry facility from 1941 until 1973. During that time period, the laundry discharged waste residues into the ground. A domestic-use water well, operated by the Arcade Water District, was located approximately 2,000 feet from the laundry facility. Arcade, 940 F.2d at 1266. Although the United States closed the laundry facility in 1973, subsequent testing of Arcade's well revealed that it was contaminated and that ground contamination from the laundry continued to leach into Arcade's well. In 1984, Arcade filed a FTCA suit against the United States, alleging that the release of laundry wastes constituted a continuing nuisance. The District Court dismissed the complaint as time-barred.
On appeal the Ninth Circuit reversed, holding that it was not material that the laundry facility was no longer operational. In determining under California law whether the nuisance was continuing, the Ninth Circuit reasoned that the most salient allegation was that contamination continued to leach into Arcade's well. Id. at 1268. That court concluded that because Arcade presented an engineer's affidavit stating that he could not say the contamination was permanent, it could not hold as a matter of law that the nuisance was permanent. Thus, the court held that Arcade alleged a set of facts which constituted a continuing nuisance.
We find the analysis in Arcade and other cases that have considered this issue persuasive and consistent with Wright and our continuing tort concept. Therefore, we agree with Hoery that the ongoing presence and continued migration of toxic chemicals originally emanating from Lowry constitute a continuing trespass and nuisance and decline to extend the permanent tort concept of the irrigation ditch cases to the facts alleged here.
For purposes of answering the certified questions before us, no dispute exists about whether the United States released TCE into the ground and by doing so, invaded Hoery's property. The property invasion constituted a trespass because the toxic pollution released by the United States physically intruded upon Hoery's property without his permission.See Public Serv. Co. of Colorado, 27 P.3d at 389. It also constituted a nuisance because the toxic pollution released by the United States substantially invaded Hoery's interest in the use and enjoyment of his property. See id. at 391.
We also hold that these property invasions by way of trespass and nuisance are continuing. The allegations in this case support such a finding on two grounds. First, TCE pollution remains on Hoery's property. The failure of the United States to remove the pollution from Hoery's property which it wrongfully placed there constitutes a continuing property invasion for the entire time the contamination remains. Wright, 40 Colo. at 440, 91 P.3d at 44; Restatement (Second) of Torts §§ 161 cmt. b, 834 cmt. e; Nieman, 108 F.3d at 1559; ASARCO, 2001 U.S. Dist. LEXIS 7154 at *11-13; Kulpa, 534 N.Y.S.2d at 520. Second, the toxic pollution continues to migrate onto his property on a daily basis. The failure of the United States to stop the toxic pollution plume that it created from entering Hoery's property also constitutes a continuing property invasion. Wright, 40 Colo. at 440, 91 P.3d at 44;Arcade, 940 F.2d at 1268; Taygeta, 763 N.E.2d at 1065.
Pursuant to the fundamental principles of tort law, the United States's failure to act, or its omissions, can be the basis for tortious conduct. As the Restatement explains, "The word `actor' is used merely for convenience, and is used not only in its primary sense of denoting one who acts, but also as denoting one who deliberately or inadvertently fails to act." Restatement (Second) of Torts § 3 cmt. a; § 158 cmt. l ("A trespass on land may be by a failure of the actor to leave the land of which the other is in possession."); Graham v. Beverage, 566 S.E.2d 603, 614 (W.Va. 2002) ("[W]e hereby hold that where a tort involves a continuing or repeated injury, the cause of action accrues at and the statute of limitations begins to run from the date of the last injury or when the tortious overt acts or omissions cease.")
This is consistent with federal law. Under the FTCA, the United States is liable "in accordance with the law of the place where the act or omissions occurred." 28 U.S.C. § 1346(b) (emphasis added).
These continuing property invasions are not dependent upon whether the United States still releases TCE into the ground. We decline to hold, as urged by the United States, that its wrongful conduct has ceased and that the contamination of Hoery's property represents only the product of that prior conduct. Taygeta, 763 N.E.2d at 1058, 1065 (rejecting the trial court's finding that the ongoing contamination was only a product of the previously terminated tortious conduct of dumping hazardous wastes and thus not itself a continuing nuisance); ASARCO, 2001 U.S. Dist. LEXIS 7154 at *13 (rejecting defendant's argument that although contamination remained in plaintiff's soil, its tortious conduct ceased years earlier when it stopped operating its smokestack). The daily migration and presence of those chemicals on Hoery's property constitute the continuing torts of trespass and nuisance in this case. While these continuing property invasions remain, it is immaterial whether the United States continues to release toxic pollutants from Lowry.
The irrigation ditch cases do not change our conclusion. In those cases, we held that defendants lawfully constructed permanent improvements that would and should continue indefinitely. See Middelkamp, 46 Colo. at 107-09, 103 P. at 283. Indeed, such defendants represented an enterprise that was vital to the development of our state. Id. The record does not indicate that the continued migration or ongoing presence of toxic pollution plumes underneath Hoery's residential property will or should continue indefinitely. Rather, the record at this stage of the litigation indicates that the contamination is not permanent — that is, it is remediable or abatable. Although the United States did not address the factual issue, Hoery's expert opined under oath that Hoery's property could be remediated. See supra n. 4.
We express no opinion nor were we asked to define the legal standards to apply to a factual determination of whether the continued migration and ongoing presence of the toxic pollution can be abated.
We also note that the continued contamination does not benefit the development of our state. In contrast to our policy supporting our holding that the seepage from irrigation ditches constituted a permanent property invasion, there exists no sound public policy supporting the classification of contamination from the release of toxic chemicals as a permanent property invasion. One basis for classifying a property invasion as permanent is whether public policy favors the continuation of the invasion. See Dan B. Dobbs, Law of Torts § 57 (2000). Irrigation ditches or railway lines are permanent improvements that help develop the state and should be encouraged. This rationale comports with the underlying principles of tort law. See Denver Publ'g Co. v. Bueno, 54 P.3d 893, 897-98 (Colo. 2002) ("Torts are designed to encourage socially beneficial conduct and deter wrongful conduct."); Restatement (Second) of Torts § 901(c). Although plaintiffs still suffered a property invasion in such cases, we limited their recovery to one action for all present and future damages.
Here, we find that public policy favors the discontinuance of both the continuing migration and the ongoing presence of toxic chemicals into Hoery's property and irrigation well. Under Colorado law, a tortfeasor's liability for continuing trespass and nuisance creates a new cause of action each day the property invasion continues. Hence, the alleged tortfeasor has an incentive to stop the property invasion and remove the cause of damage.
V. CONCLUSION
For the reasons stated above, we answer both certified questions in the affirmative and return this case back to the Tenth Circuit for further proceedings.
JUSTICE KOURLIS dissents, and JUSTICE COATS joins in the dissent.