Peter Hamo v. Exxon Corp.

• Decision Date: 28 May 1982
• Docket Number: 1143,82-LW-3007
• Parties: PETER HAMO, SR., et al., Plaintiff-Appellant, v. EXXON CORPORATION, Defendant-Appellee. COURT OF APPEALS CASE
• Court: Ohio Court of Appeals

PETER HAMO, SR., et al Plaintiff-Appellant, v. EXXON CORPORATION, Defendant-Appellee.

No. 1143.

82-LW-3007 (11th)

Court of Appeals of Ohio, Eleventh District, Portage County.

May 28, 1982

WILLIAM G. SIMON, 200 West Main St., Ravenna, Ohio 44266 COUNSEL FOR APPELLANT.

ORVILLE L. REED, P.O. Box 1500, One Cascade Plaza, Akron, Ohio 44309 COUNSEL FOR APPELLEE.

OPINION

Before HON. EDWIN T. HOFSTETTER, P.J., HON. ROBERT E. COOK, J., HON ALFRED E. DAHLING, J.

DAHLING J.

This is an appeal from a judgment of the Court of Common Pleas Portage County, wherein after trial before the court judgment was rendered for Exxon.

Peter Hamo did not request findings of fact so we do not know for certain the court's reasoning. However, from the judgment entry it appears the court determined there was no privity between Hamo and Exxon and/or assumption of risk.

The facts are that in October, 1972, a gas tank of Exxon broke. The break allowed gasoline to seep underground and into the next door property where Hamo was a tenant. The owner and Peter Hamo Presented a claim to Exxon which was not paid. Hamo discovered further seepage in 1976 when he bought the property. He claimed the drain tile had corroded and collapsed. Hamo claims $15,630.00 damages.

The Assignments of Error are as follows:

I. A CAUSE OF ACTION ACCRUES ON A CONTINUING TRESPASS FOR DAMAGES WHICH ARE SEPARABLE FROM THE ORIGINAL TRESPASS UPON DISCOVERY OF THOSE ADDITIONAL DAMAGES.

II. A CONTINUING TRESPASS IS ESTABLISHED WHEN A TRESPASSER HAS SET IN MOTION A FORCE ON HOW (sic) OWN LAND DERECTED AT THE LANDS OF ANOTHER AND EACH ADDITIONAL DAMAGE CAUSED BY THE TRESPASSER IS AN ORIGINAL CAUSE OF ACTION.

III. WHEN DAMAGE TO A BUILDING IS INVOLVED THERE IS NO SPECIFIC FORMULA FOR DETERMINING DAMAGES. GENERALLK, IF THE DEFECT CAUSED IS RESTORABLE, THE REASONABLE COST TO RESTORE OR REPAIR CAN BE RECOVERED.

IV. THE TRIAL COURT ERRED IN NOT HEEDING THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.

These are not with merit.

ASSIGNMENT OF ERROR NO. I

In this Assignment of Error, Hamo argues that the trespass continued up to the date of trial. However, the seepage was discovered in 1972 when the gas tank broke. Assuming that the damage is continuing, this still would not extend the four year Statute of Limitations. The Statute of Limitations, 2305.09, provides that in an action for trespassing underground, the cause accrues when the wrongdoer is discovered. Suit was commenced in 1978 or about six years after discovery of the trespass or two years too late.

ASSIGNMENT OF ERROR II

This...