Boll v. Griffith
| Decision Date | 05 August 1987 |
| Docket Number | No. 1819,1819 |
| Citation | 41 Ohio App.3d 356,535 N.E.2d 1375 |
| Parties | BOLL, Appellant, et al., v. GRIFFITH et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The four-year statute of limitations set forth in R.C. 2305.09(D) is not, necessarily, a bar to an action for continuing trespass. In this respect, the constant weight of debris, alleged to be gradually weakening a party wall, is not distinguishable from the eroding force of flowing water.
2. Adjoining landowners owe a duty to each other to use due care in the removal of structures attached to a party wall.
3. Adjoining landowners owe a duty to each other to protect the legal interest, akin to an easement, they each have in a party wall.
R. William Berry, for appellant.
Charles Cooper, Ironton, for appellee Robert E. Griffith.
James Waldo, Ironton, for appellee Edna Waldo.
This is an appeal from a judgment of the Lawrence County Court of Common Pleas granting defendants-appellees' motion to dismiss plaintiff-appellant's complaint. The court adopted the referee's findings and ruled that the complaint stated a cause of action in negligence which was barred by the statute of limitations found in R.C. 2305.09(D).
In 1978, appellant and appellee Robert E. Griffith were adjoining landowners. They each owned a series of row houses on their respective parcels of land, which were connected by a common brick wall erected directly on the property line between the two parcels. During the winter of 1978, Griffith hired a third party to raze the row houses on his parcel. In 1979, Griffith conveyed his property to appellee Edna Waldo.
Appellant alleges in his complaint that remnants of the razed structures are attached to the party wall, the weight of which has gradually damaged the wall. We reverse.
We will treat appellant's assignments of error together, as both assert the sufficiency of appellant's complaint to state a timely cause of action. Appellant contends that the constant presence of materials affixed to the brick wall, left over from the razing, constitutes a continuing trespass on his property. Further, appellant contends Ohio case law dictates that there is no statute-of-limitations bar to the intentional tort of continuing trespass. Thus, his complaint should not have been dismissed.
Appellee Griffith asserts that the brick wall in question is not a true party wall, but two separate walls that are adjacent to each other. Also, Griffith contends that appellant is actually alleging negligence in the razing of the buildings and is attempting to shape these facts into the tort of continuing trespass because the negligence statute of limitations has already run.
Appellees appear to have styled the motion to dismiss as a Civ.R. 12(B)(6) motion. Accordingly, the court considered only the parties' pleadings before making its ruling. We note, initially, a court may dismiss a complaint for failure to state a claim for which relief can be granted only when it appears beyond a doubt, from the wording of the complaint, that there exists no set of facts which would entitle plaintiff to a recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. Also, a court may not dismiss a complaint on statute-of-limitations grounds where the statute's bar is not clearly evident from the wording of the complaint. Durham v. Anka Research Limited (1978), 60 Ohio App.2d 239, 14 O.O.3d 222, 396 N.E.2d 799, paragraph three of the syllabus.
First, we believe appellant's complaint does allege a set of facts which constitutes a cause of action in continuing trespass. As such, we cannot agree that the bar of a statute of limitations is obvious from the face of the complaint. Second, appellant cites sound Ohio case law for the proposition that the statute of limitations is not a bar to the bringing of a suit in this intentional tort.
We believe that appellant states a cause of action in continuing trespass as found in 1 Restatement of the Law 2d, Torts (1965) 277, Section 158, which states in pertinent part:
According to Ohio case law, appellee Griffith owed a duty to appellant to use due care in the removal of his structures attached to the party (or common) wall. Zaras v. Findlay (1960), 112 Ohio App. 367, 16 O.O.2d 306, 176 N.E.2d 451, following Hieatt v. Morris (1860), 10 Ohio St. 523; Brucks v. Weinig (1929), 34 Ohio App. 1, 169 N.E. 827. Appellant alleges that Griffith breached that duty of due care in not completely removing the remnants of debris affixed to the party wall. This may well be the issue for appellant to attempt to prove at trial.
This is, however, a separate issue from that of...
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In re Co.
...causes of action). FN30. See Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 522–23 (6th Cir.1997) and Boll v. Griffith, 41 Ohio App.3d 356, 535 N.E.2d 1375, 1375–77 (1987). 31. Until the Ohio General Assembly adopted a specific statute of limitation governing such claims, the Supreme......
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Nieman v. NLO, Inc.
...longer than the statute of limitations. As indicated above, based on Huffman, we look to Ohio law on this issue. Boll v. Griffith, 41 Ohio App.3d 356, 535 N.E.2d 1375 (1987), supports Nieman's view that a showing of continuing damages will suffice. In Boll, defendant Robert Griffith hired a......
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