dissenting.
{¶ 57} I dissent because the majority opinion’s excessive reliance on the lower court’s flawed analysis of Valley Ry. Co. v. Franz (1885), 43 Ohio St. 623, 4 N.E. 88, leads to a holding that is unjust and likely to result in the filing of many unnecessary-but-for-this-opinion lawsuits. The majority opinion concludes that a “defendant’s ongoing conduct or retention of control is the key to distinguishing a continuing trespass from a permanent trespass. We hold that a continuing trespass in this context occurs when there is some continuing or ongoing allegedly tortious activity attributable to the defendant. A permanent trespass occurs when the defendant’s allegedly tortious act has been fully accomplished.” This is a legitimate conclusion that other courts have reached, as the majority opinion discusses. But this conclusion is not supported by Valley Ry. Co., which the majority opinion does not overrule.
{¶ 58} Even though the events in Valley Ry. Co. occurred over 100 years ago, they are remarkably similar to the events in this case. In both cases, water was diverted, which initially caused little or no damage. Id. at 624, 4 N.E. 88. In both cases, the diversion of the water was permanent, required no ongoing action by the diverter, and ultimately caused considerable damages. Id. at 625, 4 N.E. 88. In both cases, the damaged party complained shortly after realizing that he had been damaged. Id. at 624, 4 N.E. 88. In both cases, the damaged party did not file suit because the initial damages were modest. Id. The only factual difference is that the trespasser in Valley Ry. Co. continued to own the land from which water had been diverted, whereas in this case, the trespasser sold the land *286from which water had been diverted. Id. Despite these factual similarities, the majority opinion concludes that Sexton may not proceed with a lawsuit even though Franz was allowed to.
(¶ 59} This conclusion derives from a flawed analysis of Valley Ry. Co. The majority opinion cites two statements from the lower court opinion to bolster its conclusion that the trespass in Valley Ry. Co. was continuing, not permanent. The majority opinion states that “a continuing trespass or nuisance exists when force is ‘ “continued by the act of [a defendant] owner or actor.” ’ 2007-Ohio-38, 2007 WL 53304, at ¶ 14, quoting Valley Ry. Co. at 627, 4 N.E. 88.” The majority opinion also states that “the defendant in Valley Ry. Co. ‘ “directed [the stream’s] course * * * and has ever since so controlled and directed the stream that has caused the damage complained of.” ’ 2007-Ohio-38, 2007 WL 53304, at ¶ 15, quoting Valley Ry. Co. at 628, 4 N.E. 88.” These statements, however, are not supported by Valley Ry. Co., which states that “the only act the railway company ever did to cause the injury, was done in November, 1874, by changing the channel of the river.” Valley Ry. Co. at 625, 4 N.E. 88. Valley Ry. Co. is not a continuing trespass case, as the majority opinion would have us believe; Valley Ry. Co. is a permanent trespass case in which damages but not tortious conduct were continuing.
{¶ 60} Some of the language from Valley Ry. Co. is confusing — for instance, the statement “where the act of trespass is a permanent trespass, * * * it may be said to be a continuing trespass or nuisance for which a cause of action accrues, and may be brought at any time.” 43 Ohio St. at 626, 4 N.E. 88. The beginning of the quote suggests that the court is discussing permanent trespass, but the remainder of the quote, the context, and the holding of the case reveal that the court is talking about a trespass that would otherwise be considered permanent (because the tortious conduct is complete) but that should be considered continuing because the damage is ongoing. See Kansas Pacific Ry. v. Mihlman (1876), 17 Kan. 224, 231, 1876 WL 947 (“There are cases in which the original act is considered as a continuing act, and daily giving rise to a new cause of action. Where one creates a nuisance, and permits it to remain, so long as it remains it is treated as a continuing wrong, and giving rise, over and over again, to causes of action”). See also Nieman v. NLO, Inc. (C.A.6, 1997), 108 F.3d 1546, 1555-1556.
{¶ 61} The majority opinion quotes the key passage from Valley Ry. Co., but attributes the wrong meaning to it. “And when the owner of land rightly and lawfully does an act entirely on his own land, and by means of such act puts in action, or directs a force against, or upon, or that affects another’s land, without such other’s consent or permission, such owner and actor is liable to such other for the damages thereby so caused the latter, and at once a cause of action *287accrues for such damages; and such force, if so continued, is continued by the act of such owner and actor, and it may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause of action; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action.” Id. at 627, 4 N.E. 88. It is possible to read this passage to support a conclusion that a trespass continues only if the conduct of the original actor also continues. But this reading is strained, and requires us to ignore the fact that in Valley Ry. Co. the conduct of the original actor did not continue. I conclude, as have other judges, that “under Ohio law, a claim for continuing trespass may be supported by proof of continuing damages and need not be based on allegations of continuing conduct.” Nieman, 108 F.3d at 1559; Wood v. Am. Aggregates Corp. (1990), 67 Ohio App.3d 41, 45, 585 N.E.2d 970 (statute of limitations did not bar suit because damages were ongoing even though allegedly tortious conduct was not). See Hoery v. United States (Colo. 2003), 64 P.3d 214, 222 (a continuing trespass occurred when the United States failed “to stop the toxic pollution plume that it created from entering Hoery’s property,” even though the last tortious act of the United States occurred outside the statute of limitations); Graham v. Beverage (2002), 211 W.Va. 466, 477, 566 S.E.2d 603 (claim allowed as not outside the statute of limitations because there were continuing injuries, even though there was no continuing conduct other than a failure to correct the problem).
{¶ 62} The majority opinion also relies on Reith v. McGill Smith Punshon, Inc., 163 Ohio App.3d 709, 2005-Ohio-4852, 840 N.E.2d 226. Reith is factually similar, but it doesn’t discuss or mention the seminal Valley Ry. Co. and therefore is of no consequence in helping us decide this case.
{¶ 63} The majority opinion also relies on State v. Swartz (2000), 88 Ohio St.3d 131, 723 N.E.2d 1084, from which I dissented. My seemingly contrary position in this case is based on the different principles undergirding a civil statute of limitations as opposed to a criminal statute of limitations. See R.C. 2901.04(A) and (B). In Swartz, this court stated that “where one creates a nuisance * * * and permits it to remain, so long as it remains, and is within the control of the actor, the nuisance constitutes a continuing course of conduct tolling the limitations period * * *. Thus, because the defendant permitted the nuisance to remain despite the plaintiffs repeated requests to abate, the period of limitations did not begin to run until the continuing course of conduct or the accused’s accountability for it terminated.” 88 Ohio St.3d at 135, 723 N.E.2d 1084. In Swartz, the court concluded that the statute of limitations was tolled; in this case, the statute of limitations is not tolled. But these disparate outcomes are not the result of the distinction between continuing and permanent trespass, as the majority would have us believe. Instead, the only apparent reason for the disparate outcomes is *288that Swartz retained control over his property, whereas in this case, the tortfea-sor sold the property. Thus, even though Swartz and the tortfeasor in this case did the same thing — they completed an act that affected the flow of water and then did not perform another substantive affirmative act with respect to the water flow — liability is different. Allowing tortfeasors to avoid responsibility for their bad acts by selling their property is not a proper foundation for a legal principle.
{¶ 64} Valley Ry. Co. allowed a lawsuit for trespass even though the act of trespass was not continuing. So should we. In this case, we should hold that the Sextons may go forward based on damages incurred within the statutory period from the day they filed their suit. They may have difficulty establishing fault, and they may be found partially at fault for building a bridge over a waterway, but they should have a chance to recover damages for the harm they have suffered.
{¶ 65} Much of this discussion is arcane, and many of the distinctions are fine, but one thing is clear: the rule espoused in the majority opinion will yield the following undesirable effects.
{¶ 66} (1) People will continue to suffer significant damages and have no recourse because they did not file suit when they incurred modest damages. In this case, the Sextons could have filed suit when the initial puddles formed in their driveway. Instead, they waited until after their basement flooded to file suit. Experience indicates that most people will not sue for modest damages or inconvenience, even when they suspect that another person is at fault. Most people understand that modest damages and inconvenience are a part of life. See Reith, 163 Ohio App.3d 709, 2005-Ohio-4852, 840 N.E.2d 226, at ¶ 5, 14 (the Reiths filed suit after their house flooded, not when water first pooled in their driveway).
{¶ 67} (2) Tortfeasors will be able to commit torts with impunity because most people do not pursue a lawsuit at the first occurrence of modest damages. Here, Sexton tried to resolve the flooding problem through the city of Mason. In Reith, the Reiths initially attempted to resolve their problem by contacting county agencies. Id. at ¶ 13. In each case, the attempt to resolve the problem outside the court system was part of the reason the lawsuit was not timely filed. In each case, the party at fault escaped liability even though it had performed an act that it should not have performed, thereby causing damage to another person. So much for justice.
{¶ 68} (3) Developers will have one more incentive to sell property quickly: to begin the running of the statute of limitations relating to their faulty drainage systems. Being able to avoid liability for a faulty drainage system based on the *289statute of limitations’ running may encourage developers to pursue cost savings by purposely designing or installing inadequate drainage systems.
Whitaker & Shade, L.L.C., and James A. Whitaker, for appellants. Reminger & Reminger Co., L.P.A., and B. Scott Jones, for appellee Rishon Enterprises, Inc. Herfel Law Firm, L.L.C., and Gary L. Herfel, for appellee McGill Smith Punshon, Inc. Dinsmore & Shohl, L.L.P., Gary E. Becker, and Melissa L. Korfhage, for appellee city of Mason. Vorys, Safer, Seymour and Pease, L.L.P., Richard D. Schuster, and Michael J. Hendershot, urging affirmance for amicus curiae, Ohio Manufacturers’ Association.{¶ 69} (4) Going forward, any person in Ohio who thinks that he or his property has been harmed or who thinks that he or his property might be harmed by the act of a neighbor will file suit first and ask questions later. There is no other lesson to take from this case. I dissent.
O’Donnell, J., concurs in the foregoing opinion.