Shale Energy Law Blog
The issue before the Court was whether Plaintiffs’ claims constituted a permanent or continuing nuisance. The two-year statute of limitations for a permanent nuisance begins to run from the first date of injury. In contrast, for a continuing nuisance, the two-year statute of limitations begins to run with each separate occurrence. In deciding whether Plaintiffs’ nuisance claims were permanent or continuing, the Court considered three factors: (i) the character of the structure or thing which produced the injury; (ii) whether the consequences of the nuisance will continue indefinitely; and (iii) whether the past and future damages may be predictably ascertained.
The Court found that each of the three factors indicated that Plaintiffs’ nuisance claims were permanent in nature. The Court held that “under the first and second factors, both the character of the well pad and the indefinite nature of its operations, spells permanence.” The plaintiffs’ repeated and continual allegations of harm demonstrated that the alleged “nuisance occurred with such regularity that the third factor also weigh[ed] in favor of a permanence finding.” The Court held that to find the claimed injuries to be continual in nature would lead to the untenable result of the statute of limitations recommencing “each time an unpleasant smell wafted onto the Plaintiffs’ property or bright lights at the Pad kept the Plaintiffs awake at night.” The Court noted that it was the plaintiffs themselves who “decided to postpone filing a distinct lawsuit on any of the tortious incidents separately and opted instead to assert a plethora of disparate allegations under a unified theory of nuisance. In reaching this conclusion, the Court found the opinion of the United States District Court for the Middle District of Pennsylvania in Russell v. Chesapeake Appalachia, L.L.C. to be persuasive.