Joseph A. Lazelle
Division of Environmental Protection
Charleston, West Virginia
Attorney for the Appellee,
Barbara S. Taylor

William V. DePaulo
Ross & DePaulo, PLLC
Hurricane, West Virginia
and
Mary Anne Maul
Charleston, West Virginia
Attorneys for the Appellants

John Philip Melick
Brian C. Helmick
Jackson & Kelly
Charleston, West Virginia
Attorney for the Appellee,
West Virginia-American Water Company

Ronald J. Flora
Milton, West Virginia
Attorney for the Appellee,
Culloden Public Service District

JUSTICE ALBRIGHT delivered the Opinion of the Court.

    1. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. Pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

    2. “A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment.” Syl. Pt. 6, Aetna Cas. & Sur. Co. v. Fed. Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

    3. Recovery in a nuisance action is not limited to damages to plaintiff's property and its rental value, but the owner of a residence or dwelling house occupied by him as a home is entitled to just compensation for annoyance, discomfort, and inconvenience caused by a nuisance, even though he makes no showing of a monetary loss or of bodily injury or illness.

    4. “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.” Syl. Pt. 11, Graham v. Beverage, 211 W.Va. 466, 566 S.E.2d 603 (2002).

    5. Where the acts which constitute a nuisance are continuing in the sense that distinct instances of injury result from the nuisance, as opposed to a singular injury, and the acts of nuisance are capable of being abated or discontinued, the temporary nuisance continues until such time as those acts are abated or discontinued.

    6. The two year statute of limitations set forth in West Virginia Code § 55-2- 12(a) (1959) (Repl. Vol. 2000) does not begin to run in a nuisance action where the tort at issue is both temporary and continuing until the date of the last injurious act or when the acts constituting the nuisance have been abated or discontinued.

Albright, Justice:

    Appellants Bobby J. and Shirley Ball   (See footnote 1)  seek a reversal of the February 7, 2002, order of the Circuit Court of Cabell County granting summary judgment to Appellees, the Culloden Public Service District (“CPSD”) and the West Virginia-American Water Company (“WVAWC”) in connection with the nuisance and trespass action Appellants brought against Appellees stemming from the alleged discharge of effluents into waters that flow across Appellants' property. The lower court dismissed Appellants' action below on statute of limitations grounds and for failure to state a claim for which relief could be granted. Upon our review of this matter, we determine that the lower court erred in dismissing Appellants' causes of action and, accordingly, we reverse and remand.         

    In making its ruling, the lower court appears to have circumvented its obligation to give the benefit of the doubt to the nonmoving party and to “draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion.” Peavy, 192 W.Va. at 192, 451 S.E.2d at 758. Because Appellants were the non-moving parties with regard to the cross summary judgment motions raised by CPSD and WVAWC, they were entitled to the benefit of all reasonable inferences pertaining to when the applicable statute of limitations began to accrue. In this case, the lower court seems to have worked backwards and looked for a date which would definitively place the Balls outside a two-year period prior to the filing of the intervenor complaint,   (See footnote 16)  rather than affording Appellants the benefit of any factual inferences. Given our resolution of the statute of limitations issue, however, we find it unnecessary to identify a specific date by which the Balls were required to allege their common law claims.

    In this case, there is no disagreement by Appellees that the problem upon which the Balls predicated their nuisance claim has been ongoing over the years and that the act of dumping raw sewage into the Indian Creek Fork continues even unto this day due to the outdated wastewater treatment plant and the overall inability of CPSD, under operational management of WVAWC,   (See footnote 17)  to handle the volume of sewage influents it receives. Through the consent decree, CPSD and WVAWC both acknowledged that there have been past violations, as well as continuing violations,   (See footnote 18)  of the Act based on 

    failing to comply with the state water quality standards and effluent limitations, for discharging pollutants into waters of this State, for violating the West Virginia/National Pollutant Discharge Elimination System . . . permit issued to Culloden by the State, and for failing to comply with administrative enforcement orders. . . .

Mr. Ball produced both diary entries and corresponding calendar notations for 329 dates between July 1997 and March 1, 2001, on which he personally observed the dumping of raw sewage directly into the Indian Fork Creek, as well as videotape footage documenting these same events.   (See footnote 19)  Appellees do not dispute that these incidents took place. Instead, they seek to prevent Appellants from legal recourse based on the passage of time.

    In their effort to convince the lower court that this action was time barred, Appellees argued that Appellants sought damages solely for permanent injury to their property in connection with their nuisance claim. Contrary to this argument, however, and the trial court's specific finding on this issue, the record demonstrates that the Balls sought damages for injuries other than mere diminution in property value. Appellants clearly sought damages for annoyance; discomfort; loss of use and enjoyment of part of their property;   (See footnote 20)  and mental distress or aggravation associated with the periodic presence of effluents running on, over, or near their property. We observed in West v. National Mines Corp., 175 W.Va. 543, 336 S.E.2d 190 (1985):

    The prevailing view is that recovery is not limited to damages to plaintiff's property and its rental value, but the owner of a residence or dwelling house occupied by him as a home is entitled to just compensation for annoyance, discomfort, and inconvenience caused by a nuisance . . . even though he makes no showing of a monetary loss, or of bodily injury or illness.

Id. at 549, 336 S.E.2d at 197 (quoting 58 Am.Jur.2d, Nuisances § 123, at 692-93 (1971)). Accordingly, we find the lower court to be in error in its finding that the Balls only sought relief for permanent injury to their property through the filing of their nuisance action.

    We discussed the parameters of a temporary nuisance in O'Dell v. McKenzie, 150 W.Va. 346, 145 S.E.2d 388 (1965), a case in which the plaintiff was seeking compensation for damages to her property caused when waste materials from a strip mine would periodically float downstream, block the stream, and cause flooding of the plaintiff's property:

    [W]here the cause of injury is in the nature of a nuisance, and not permanent in character, but such that it may be supposed that the defendant would remove it rather than suffer at once entire damages, which it might inflict if permanent, then the entire damages, so as to include future damages, can not be recovered in a single action, but actions may be maintained from time to time as long as the cause of the injury continues.

Id. at 350, 145 S.E.2d at 391(citation omitted); see also Kermit Lumber, 200 W.Va. at 243, 488 S.E.2d at 923 (recognizing that “'[i]t has been said that a temporary nuisance is one where there is but a temporary interference with the use and enjoyment of property, and that, if a nuisance is a use which may be discontinued at any time, it is considered continuing in character'”) (quoting 58 Am.Jur.2d Nuisances § 28).

    In Kermit Lumber, we were asked to determine whether soil contamination that resulted from a business engaged in lumber pressure treating created a temporary or a permanent nuisance. In reaching our decision, we found helpful the analysis used in Arcade Water District v. United States, 940 F.2d 1265 (9th Cir. 1991), a case in which the Ninth Circuit Court of Appeals decided that the applicable two-year statute of limitations did not bar the water district's suit for contamination of its water well by a military laundry despite the closing of the laundry eight years prior to the suit's commencement. Applying California law, which defines a nuisance as permanent or temporary depending on “'whether the nuisance may be discontinued or abated,'” the Ninth Circuit held that the nuisance at issue could not be viewed as permanent because “the contamination may abate . . . and Well 31 may be restored.” Arcade Water, 940 F.2d at 1268 (quoting Mangini v. Aerojet-Gen. Corp., 230 Cal.App.3d 1125, 1146 (1991)). Extending that reasoning to the soil contamination at issue in Kermit Lumber, we determined that “[a]s long as the arsenic remains on the Kermit Lumber business site in amounts above the regulatory limits and as long as the arsenic is flowing into the Tug Fork River, the harm or nuisance continues and thus, is a continuing (or temporary) nuisance.” Kermit Lumber, 200 W.Va. at 245, 488 S.E.2d at 925.

    When we examine the allegations of nuisance in this case, it is not difficult to conclude that the acts of water pollution that constitute the core of the tortious acts at issue are temporary, rather than permanent, in nature. This is because the periodic dumping of effluents into the Indian River Fork, due to issues of the capacity of Culloden's wastewater treatment facility, should cease contemporaneous to CPSD's connection with the regional treatment plant. And, in contrast to most temporary nuisance cases where the temporal aspect of abatement remains uncertain, discontinuation of the nuisance under discussion appears likely in the near future since it is tied to the completion of and operation of the regional wastewater treatment plant. Consequently, this case simply does not present facts indicative of a permanent nuisance, one in which a single cause of action is required and damages are measured by the permanent diminution in the land's value. See Keene, 79 W.Va. at 724-25, 92 S.E. at 124.

    Where, as in this case, the acts which constitute a nuisance are continuing in the sense that distinct instances of injury result from the nuisance, as opposed to a singular injury, and the acts of nuisance are capable of being abated or discontinued, the temporary nuisance continues until such time as those acts are abated or discontinued. Consequently, the two year statute of limitations set forth in West Virginia Code § 55-2-12(a) does not begin to run in a nuisance action where the tort at issue is both temporary and continuing until the date of the last injurious act or when the acts constituting the nuisance have been abated or discontinued. Applying this holding to the case sub judice requires the conclusion that the Balls' nuisance action is not barred by the applicable statute of limitations, as their complaint was clearly filed during the period when the acts constituting the nuisance at issue were ongoing.   (See footnote 21) 

    We observe, however, that Appellees mistakenly conclude that the Balls are without standing to bring a public nuisance cause of action. While it is clear that the Act does not, unlike its federal counterpart, contain a citizen's suit provision, Appellees incorrectly assume that the absence of such provision bars private citizens, such as the Balls, from bringing lawsuits in connection with nuisances that are alleged to affect the corporate health and welfare of the public. The Act is clear that its provisions were enacted
    to provide additional and cumulative remedies to abate the pollution of the waters of the state and nothing herein contained shall abridge or alter rights of action or remedies now or hereafter existing. . . .

        The provisions of this article inure solely to and are for the benefit of the people generally of the state of West Virginia, and this article is not intended to in any way create new, or enlarge existing rights of riparian owners or others.

W.Va. Code § 22-11-27 (emphasis supplied). The enactment of our Water Pollution Control Act, the objective of which is to provide the State with an enforcement mechanism for keeping the waters of this State free of pollutants , clearly left intact all existing common law actions for public nuisance. See Hark v. Mountain Fork Lumber Co., 127 W.Va. 586, 595- 96, 34 S.E.2d 348, 354 (1945) (noting distinction between public and private nuisance is that former affects general public and latter affects limited number of persons and that public officials ordinarily are proper parties to bring public nuisance actions). Accordingly, the DEP's action in filing a claim under the Act did not stand as a bar to the filing of a public nuisance action by the Balls or any other affected citizens.   (See footnote 24) 

    In this Court's opinion, this case aptly demonstrates the need for common law remedies in addition to the Act, especially where it is arguable that the government agency charged with protecting the public's interests may not be acting with sufficient alacrity to eradicate the alleged nuisance which may be presenting serious public health concerns or posing a potential environmental hazard. The Balls had tried for years to get the situation resolved _ only when they were convinced that nothing short of legal action was going to make a difference did they file their notice of intent to sue. Even when the DEP got involved in this action, there was little indication that the gravity of what the Balls had been enduring for years was duly appreciated. Instead, everyone, including the trial court, agreed to look the other way until the regional wastewater treatment plant was built, based on the collective opinion that “there is no practical, immediate alternative to eliminate the plant's problems in the meantime.”   (See footnote 25) 

     Nuisance law, as we recognized in Sharon Steel Corp. v. City of Fairmont, 175 W.Va. 479, 334 S.E.2d 616 (1985), “has been particularly effective in addressing environmental problems.” Id. at 484, 334 S.E.2d at 621. Observing that “'[n]uisance theory and case law is the common law backbone of modern environmental and energy law,'” we offered this commentary:

    “There is simply no common law doctrine that approaches nuisance in comprehensiveness or detail as a regulator of land use and of technological abuse. Nuisance actions have involved pollution of all physical media _ air, water, land _ by a wide variety of means. . . . Nuisance actions have challenged virtually every major industrial and municipal activity which is today the subject of comprehensive environmental regulation _ the operation of land fills, incinerators, sewage treatment facilities, activities at chemical plants, aluminum, lead and copper smelters, oil refineries, pulp mills, rendering plants, quarries and mines, textile mills and a host of other manufacturing activities.”

Sharon Steel, 175 W.Va. at 484, 334 S.E.2d at 621 (quoting W. Rodgers, Jr., Handbook on Environmental Law § 2.1 at 100 (1977)). Were it not for the availability of nuisance actions as a remedy, it seems certain an inestimable number of business and private actions that have deleterious health and environmental results as a byproduct of their operations would have continued unabated.

    We take a dim view of WVAWC's suggestion that a reversal of the lower court's ruling will effectively halt other companies from ever agreeing to assume operation of utilities which are experiencing difficulties. We similarly find offensive the suggestion that the social value of providing a wastewater treatment plant so outweighs the gravity of the harm experienced by the Balls that there can be no recovery under nuisance law on the facts of this case. See generally, Hendricks v. Stalnaker, 181 W.Va. 31, 34-35, 380 S.E.2d 198, 201-02 (1989) (discussing use of balancing test for determining whether interference with landowner's private use and enjoyment of property is unreasonable and, therefore, a nuisance). Operating a business or providing a service that has societal benefits does not give a corporate entity license to freely pollute the waters of this State or to negatively affect the use and enjoyment of privately owned property.

        No evidence has been presented to show that Defendants [Appellees] committed a trespass or a private nuisance upon Intervenors' property. By their own testimony, Intervenors have suffered no physical or emotional injury to their person, have presented no evidence of an encroachment upon their land, nor presented any evidence of damage to their property. Additionally, by their own testimony, Intervenors have developed in recent years and continue to use and enjoy some of the very property they allege to have been denied the use and enjoyment of.

Rather than assessing the evidence presented to determine the existence of any material facts, as is the task of the trial court on a summary judgment motion, the court engaged in a weighing of the evidence. Under the trial court's reasoning, because the Balls had actually used their property for some recreational purposes, they cannot be said to have suffered a nuisance for which they would be entitled to damages.   (See footnote 27)  This is clearly a question more suited for the jury and not one that typically is answered by means of a summary judgment ruling. The court similarly engaged in a weighing of the evidence in stating that the Balls suffered no emotional injury. While it would be accurate to state that Appellants did not seek out psychological counseling or medical treatment for emotional trauma, to find that they had no emotional-related injury such as annoyance or discomfort arising from the presence of offensive odors or sights, which were allegedly present when effluents were dumped into the Indian Creek Fork, is simply not veracious. And, as to the ultimate issue of whether the Balls have demonstrated a nuisance as a result of the actions of Appellees, this too must be resolved by a jury. See Syl. Pt. 3, Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981) (holding that “[a]s a general rule, a fair test as to whether a particular use of real property constitutes a nuisance is the reasonableness or unreasonableness of the use of the property in relation to the particular locality involved, and ordinarily such a test to determine the existence of a nuisance raises a question of fact”).

    In view of the record of this case, which clearly includes evidence of acts that may be determined by a jury to have constituted a nuisance as regards the Balls, it was highly improper of the trial court to summarily conclude that Appellants had presented no evidence of a nuisance. While Appellees argue that the Balls cannot demonstrate trespass as a matter of law based on their failure to show that effluents actually invaded their property, rather than just the property of the State, this too should be a factual determination left for the jury's determination. When this matter proceeds to trial, Appellants are entitled to demonstrate how they have been effected by the ongoing release of effluents by Appellees in terms of annoyance, discomfort, inconvenience, and all other remediable damages arising from their allegations of nuisance.

    Based on the foregoing, the decision of the Circuit Court of Cabell County is reversed and this action is remanded for trial and other further proceedings.