dissenting.
The panel majority has, inter alia, mandated that the plaintiff-appellant Anthony J. Nieman (“Nieman”) may have advanced a valid and timely cause of action for a continuing trespass upon real property under the Price-Anderson Act (42 U.S.C. § 2011 et seq.) as informed by Ohio law. I disagree with the panel majority’s resolution that the subatomic trespass allegedly committed by the defendants may have constituted a “continuing” trespass under Ohio law which was not precluded by limitations.1 Because Nie-maris third cause of action instead clearly alleged a permanent trespass claim which accrued upon the initial unlawful intrusion upon the plaintiffs tract (or when the plaintiff obtained actual or constructive knowledge *1563of that trespass), see Louisville Brick & Tile Co. v. Calmelat, 6 Ohio App. 435, 437 (1917), despite his self-serving designation of that count as a continuing trespass charge, I respectfully dissent from the panel majority's disposition in part III.E. which speculates that Nieman’s third cause of action may have potentially alleged a continuing trespass. Whether the plaintiffs third cause of action clearly asserts a continuing versus a permanent trespass is a question of law. Because the plaintiffs third count averred a permanent trespass which accrued in 1985, in language which is beyond conjecture, the applicable Ohio four year statute of limitations (O.R.C. § 2305.09(A)) precluded its prosecution in this 1994 action.
Between 1952 and December 31,1985, as a government contractor, defendant-appellee National Lead of Ohio, Inc. (“NLO”), a subsidiary of defendant-appellee National Lead Industries, Inc. (“NL”), operated and managed the United States Department of Energy’s uranium processing plant located in Fer-nald, Ohio, known as the Feed Materials Production Center (“FMPC”). In re Fernald Litigation, No. C-1-85-149, 1986 WL 81380, at *1 (S.D.Ohio Sept.18, 1986). Nie-man owned several acres situated within five miles of that facility. On December 18,1984, the FMPC accidentally released at least 340,-000 pounds of uranium dust into the surrounding environment. Id.
On January 23, 1985, representatives of local residents inaugurated a class action against NL which sought damages and equitable relief corrective of resulting nuclear contamination. An amended complaint filed on or about October 28, 1985 listed Nieman and his spouse among the named class representatives. J.A. at 50. The amended complaint alleged six Price-Anderson Act causes of action partially derived from Ohio law,2 see 42 U.S.C. §§ 2014(hh) & 2210, and sought class certification, actual damages in the sum of $100,000,000, punitive damages totalling $200,000,000, an injunction prohibiting further -uranium processing at the FMPC, the “restoration of [the class members’] property to the pre-leak condition[,]” and other appropriate legal and equitable remedies.
On September 18, 1986, the district court excluded all NL employees, including Nie-man, from the plaintiff class. In re Fernald Litigation, No. C-1-85-149, 1986 WL 81380 (S.D.Ohio Sept.18, 1986). However, several relatives of Nieman, including his spouse, remained participants in the class action. Nieman elected not to pursue his individual remedies against the defendants at that time. On September 29, 1989, the trial court approved a settlement of the class action. In re Fernald Litigation, No. C-1-85-149, 1989 WL 267039 (S.D.Ohio Sept.29, 1989). The settlement agreement required the creation of a $73,000,000 fund to compensate class members for property value diminution and emotional distress. Id. at *10. However, the settlement included no provision for the environmental cleanup of anyone’s property; the parties had not actually litigated any claim for the restoration of any property to its pre-irradiation condition. Id. at *8-9.
On November 3, 1994, oyer eight years after Nieman’s exclusion from the class action and over nine years after his actual or constructive notice of the allegations charged against the defendants in that action, Nieman initiated his instant personal lawsuit against NLO and NL, alleging six causes of action. Counts 1, 2, 4, 5, and 6 were substantially similar to the correlating charges articulated in the amended class action complaint, whereas Nieman’s third cause of action (styled “Continuing Trespass”) materially diverged from the amended class action complaint’s third count (denominated “Private Nuisance”), as illustrated infra. Nieman’s complaint sought $1 million in actual damages, $1 million in punitive damages, costs, and attorneys fees, but did not request in-junctive relief or the restoration of his property to its pre-accident condition.
On January 3,1995, the defendants moved jointly for dismissal of Nieman’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, or in the alterna*1564tive for Fed.R.Civ.P. 56 summary judgment, asserting that limitations barred each substantive claim stated therein. Nieman countered that his third cause of action should survive because .it averred a continuing, or ongoing, tort, which purportedly was not precluded, as to injuries which impacted his property within four years preceding the complaint’s filing, by the four year limitations period governing realty trespasses (O.R.C. § 2305.09(A)), even though the trespass itself commenced more than four years prior to the complaint.3 See, e.g., City of Norwalk v. Blatz, 9 Ohio C.C. (n.s.) 417, 427, 1906 WL 677 (Ohio Cir.1906).
On May 16,1995, the trial judge dismissed Nieman’s entire complaint under Fed. R.Civ.P. 12(b)(6) as facially time barred. J.A. at 141. Rejecting Nieman’s proffered defense of his third cause of action, the lower court posited that the plaintiffs trespass cause of action accrued during, or prior to, 1985, because he indisputably possessed knowledge of the alleged radioactive contamination by that year. Nieman v. NLO, Inc., No. C-1-94-748 (S.D.Ohio May 16,1995) (Order) (citing Korgel v. United States, 619 F.2d 16, 18 & n. 4 (8th Cir.1980); Hamo v. Exxon Corp., No. 1143, 1982 WL 5760 (Ohio App. May 28, 1982)). Although the district judge questioned whether the alleged trespass could properly be characterized as continuing, he did not resolve that question but instead ruled that, even if the plaintiff had alleged a continuing trespass, this cause of action accrued in 1985 because all future damages to Nieman’s property from nuclear spoliation could have been estimated and prosecuted in a single action.4
On review, the panel majority has incorrectly mandated that a continuing trespass claim may be supported by allegations of continuing harm caused by a past trespass, regardless of the absence of continuing wrongful conduct by the defendant. Consequently, the panel majority has erroneously ruled that Nieman may sue for any injury impacted upon his parcel during the period not excluded by limitations, irrespective of the date or dates of the defendant’s tortious actions which generated such damage. However, a proper continuing trespass count requires allegation of ongoing wrongful conduct, rather than mere ongoing injury resulting from a past, completed misdeed.
It is axiomatic that “[a] continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, NOT by continual ill effects from an original violation, and for there to be a continuing tort there must be a continuing duty.” 54 C.J.S. Limitations of Actions § 177 (1987) (emphasis added & notes omitted).5 Because a continuing trespass is characterized by ongoing wrongful conduct which can be reasonably physically abated, continuing trespasses typically demand an injunctive remedy as a practical alternative to successive damage suits. See, e.g., Caldwell v. Goldberg, 43 Ohio St.2d 48, 330 N.E.2d 694, 696 (1975); Crawford v. Rambo, 44 Ohio St. 279, 7 N.E. 429, 434 (1886); City of Seven Hills v. City of Cleveland, 1 Ohio App.3d 84, 439 N.E.2d 895, 902 (1980); 88 O Jur.3d Trespass § 49 (1989). Generally, a trespass or nuisance can reasonably be abated where either (1) the defendant has deposited an intrusive, tangible ma*1565terial object, such as a structure or waste, upon the plaintiffs property, which can and should be removed by the defendant, see Franz, 4 N.E. at 90; Boll v. Griffith, 41 Ohio App.3d 356, 535 N.E.2d 1375, 1376-77 (1987) (citing Restatement (Second) of Torts, § 158(c) (1965)), or (2) the defendant’s actions have caused an offending substance, such as water or noxious fumes, to ceaselessly invade the plaintiffs property, which damaging flow can be physically terminated or diverted by reasonable practical means, Crawford, 7 N.E. at 434; Franz, 4 N.E. at 90. Cf. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153, 1162 (1993).
Nieman has alleged only continuing injury to his tract of real property caused by radioactive byproducts released by the defendants more than four years prior to his complaint, and has not averred that the removal of this material from his property would be realistically feasible. Paragraph 9 of his November 3, 1994 complaint asserted that almost 200,000 pounds of uranium dust had escaped the FMPC by some unspecified date. Paragraph 10 then averred that, specifically, “[o]n or about December 10, 1984, a massive leak of uranium occurred at the Fernald Plant.” Paragraph 11(A) vaguely alleged that additional discharges of radioactive agents from the FMPC may have occurred on unspecified dates after December 10, 1984. J.A. at 6. Nieman’s third cause of action, which inter aha incorporated paragraphs 9, 10, and 11, materially alleged that:
20. The Defendants, by and through releases of uranium into the air, into the groundwater, and into the underlying aquifer have created a trespass on the property of the Plaintiff that continues to this day and will continue into the foreseeable future.
21. As a direct and proximate result of the Defendants [sic] acts and omissions, the Plaintiff has been damaged in the amount of One Million Dollars ($1,000,-000.00).6
J.A. at 8.
Any uncertainty inhering in the complaint regarding the time frame of alleged harmful irradiation can be eliminated by converting, on review, this motion to dismiss under Fed. R.Civ.P. 12(b)(6) (as it was treated by the district court) to a summary judgment motion under Fed.R.Civ.P. 56, thus permitting judicial consideration of dispositive undisputed material facts.7 Because the October 1985 amended class action complaint included Nieman among the named representative class members, he necessarily had actual or constructive knowledge by that date of the December 10, 1984 massive radiation release and subsequent emissions from the FMPC alleged therein. In addition, because the defendants ceased operation of the FMPC *1566around December 31, 1985, Nieman’s claims against the defendants must all derive from nuclear emissions which occurred prior to that date.
Nieman has sought no injunctive relief, for the obvious reason that the defendants have produced no radioactive waste at the FMPC since December 1985; thus no injunction against these defendants could prevent the potential future contamination of Nieman’s soil by the release of additional atomic byproducts from the FMPC. Moreover, Nie-man has not sought elimination of the lingering residue of past nuclear trespasses caused by the defendants, nor has he even alleged (let alone offered evidence) that uranium dust which escaped from the FMPC over a decade ago could now be removed from his realty, or forestalled from entering his lot, by any reasonable means or currently available technology. Instead, Nieman has merely alleged in a conelusory fashion that his property continues to be tainted by radiation released during or prior to December 1985. This is not a continuing trespass but rather is a mere asserted persistent residual injury resulting from a past permanent trespass or trespasses.8
As conceded by the majority, Hamo v. Exxon Corp., 1982 WL 5760 (Ohio App. May 28, 1982), is “factually analogous” to the cause sub judice. Although Hamo was a nonpreeedential unpublished disposition, it (contrary to the majority’s characterization) correctly reflected and applied governing Ohio trespass law and pertinent general jurisprudential principles and, as such, is an instructive exposition on the Ohio law of permanent versus continuing trespass. In Hamo, Exxon’s subterranean gasoline tank ruptured in October 1972, spewing gasoline which subsequently leached into adjoining land leased by Hamo. Sometime thereafter, Hamo and his landlord presented an ultimately dishonored claim to Exxon for property damage incident to the 1972 spillage. In 1976, Hamo purchased the formerly leased land, then discovering additional permeation from the 1972 discharge and consequent additional property damage. Hamo sued Exxon for these damages in 1978. The Ohio appellate court rejected Hamo’s contention that the subject trespass had continued to the date of trial, mandating that the plaintiff had filed the 1978 complaint two years out of rule (O.R.C. § 2305.09), because the gasoline leak had been discovered by Hamo in 1972. Accordingly, even “assuming that the damage was continuing,” id. at *1 (emphasis added), the presence of Exxon’s gasoline on the subject realty did not constitute a continuing trespass; rather, the limitations period began running upon Hamo’s discovery of the initial seepage of gasoline from the 1972 spill onto the property at issue.
Hamo conforms to the controlling Ohio law of realty trespass. Because the plaintiff had sued only for continuing damage to his property caused by a tortious fait accompli finalized six years prior to the institution of his lawsuit, and apparently did not allege or evidence that gasoline seepage from a six year old underground spill could be practically abated, he had (tardily) alleged a permanent tort.9 No ongoing conduct by the de*1567fendant contributed to the ongoing damage caused by the past incident.
The authorities cited by the panel majority similarly support the conclusion that a permanent trespass exists where the defendant trespassed the plaintiffs property with radioactive dust only on finite past occasions and where the plaintiff has not alleged (and certainly has not evidenced) that the nuclear residue on his property from these discrete past emissions can now be readily removed as a matter of practical physics and extant technological capabilities. In Boll v. Griffith, 41 Ohio App.3d 356, 535 N.E.2d 1375 (1987), the primary precedent relied upon by the panel majority, the court found a continuing trespass where the defendant, upon razing his structure which had adjoined a building owned by the plaintiff, abandoned debris on the party wall which over time had weakened that wall. The defendant had a continuing duty to remove the offending remnant material which he had in effect wrongfully deposited on the plaintiffs edifice. As such, the defendant had continued to trespass the plaintiffs building during each day that he (the defendant) failed to remove the subject demolition waste. Stated differently, the defendant’s continual unlawful act was his failure to extract tangible, moveable matter from the plaintiffs real estate which he (the defendant) at all times had a duty to remove. Id., 535 N.E.2d at 1376-77.
The panel majority’s reliance upon Valley Ry. Co. v. Franz, 43 Ohio St. 623, 4 N.E. 88 (1885), was similarly misplaced. Plaintiff Franz had sought damages for the gradual erosion of his property caused by the defendant railroad’s diversion of the Cuyahoga River in 1874. After repeated dishonored assurances by the railroad of impending correction of the problem, Franz sued in 1881. Id., 4 N.E. at 89. The Ohio Supreme Court sustained the lower court’s ruling that the four year statute of limitations did not preclude Franz’s action because the defendant’s conduct created a continuing trespass or nuisance. Id. at 92. The defendant’s diversion of the river resulted in the continual damaging invasion of the plaintiffs land by water. The defendant bore a continuing obligation to terminate the aqueous trespass, and abatement of that continuing trespass was practically feasible.10
The panel majority has also misconstrued Wood v. American Aggregates Corp., 67 Ohio App.3d 41, 585 N.E.2d 970 (1990), wherein the Ohio court of appeals reversed a summary judgment for the defendant, resolving that a material question of fact remained whether the plaintiffs suffered damages by the continued unreasonable withdrawal of aquifer water by the defendant quarry. Id., 585 N.E .2d at 973. In Wood, the plaintiffs first noticed a decline in their well water supply shortly after the defendant quarry commenced operation in 1973. In 1982, the plaintiffs’ home was connected to city water lines. In 1988, six years after city water service commenced, the plaintiffs initiated litigation against the quarry. Id. at 972. The appellate court resolved that the tort asserted was “arguably ongoing” because the quarry allegedly continued to remove unreasonable quantities of subterranean water. Id. at 973.
The Wood court merely ruled that a fact question remained whether the defendant’s continuing unreasonable extraction of ground water had economically harmed the plaintiffs during the actionable four year period prior to the complaint, even though the plaintiffs’ house was supplied with city water during *1568that entire period. Id. Obviously, the value of the plaintiffs’ land might be diminished by the decline in the well’s productivity, even following the plaintiffs’ access to city water. However, the court did not rule that the plaintiffs could sue for continuing damage to their property occasioned solely by the defendant’s overuse of underground water more than four years prior to the filing of the complaint. Rather, wrongful conduct continuing into the period not restricted by limitations, coupled with continuing injury to the plaintiff caused by that continuing conduct, was necessary to support a continuing trespass claim.11
In Ohio, “[i]t has long been the policy of the law to require that actions involving allegations of tortious conduct be asserted promptly.” Lawyers Coop. Pub. Co. v. Muething, 65 Ohio St.3d 273, 603 N.E.2d 969, 975 (1992); Brown, 622 N.E.2d at 1162. The panel majority’s disposition unjustifiably licenses the plaintiff to assert a stale permanent tort claim which could and should have been litigated within four years of Nieman’s actual or constructive discovery of the alleged radiation emissions caused by the defendants. Instead, the plaintiff unjustifiably delayed prosecuting his cause for at least nine years after he had actual or constructive knowledge of the alleged nuclear contamination caused by the defendants.
The trespass alleged by Nieman was permanent, not continuing, because a trespass under Ohio law is “continuing” only if the trespass itself (as opposed to the harm caused by a past trespass) is continuing. Ongoing conduct is the key to a continuing tort. Where no continuing action by the defendant is necessary to effect the damage in controversy — that is, where the tort is an accomplished fact, such as when intangible pollutants have impacted the plaintiffs property and those contaminants cannot be physically removed as a practical matter — the tort is permanent; the defendant can have no ongoing duty to remove any substance which is physically impossible or impractical to remove.12 On the other hand, where the harm to the plaintiff depends upon continuing action (or inaction violative of a duty to act) by the defendant, such as the defendant’s perpetual failure to remove a physically removable offending object which the defendant has an ongoing duty to remove, the tort is continuing.
The most that Nieman could prove against the defendants is that his acreage continued to suffer harm on or after November 3, 1990 (the earliest date not excluded by the four year statute of limitations) consequent to the perdurable presence upon his real estate of toxic subatomic particles deposited consequent to pre-December 31, 1985 uranium dust emissions from the FMPC, which ongoing injury has not even been alleged to be realistically abatable. Nieman had actual or constructive notice of this permanent trespass prior to four years preceding the initiation of his complaint; hence his claim is *1569precluded by O.R.C. § 2305.09(A). The panel majority’s contrary disposition intrudes upon the Ohio legislature’s inviolable prerogative to restrict the permanent trespass action threshold to four years after the tort’s commission (or four years after actual or constructive discovery by the plaintiff).
Accordingly, I DISSENT from the majority’s construction of Nieman’s third cause of action as potentially alleging a continuing tort under Ohio law, and its reversal of the trial court’s dismissal of that count as prohibited by limitations. I would, therefore, affirm the trial court’s dismissal of Nieman’s entire complaint as untimely.
. Ohio law incorporates the generally recognized jurisprudential distinction between “continuing” trespass and "permanent" trespass. See, e.g., Louisville Brick & Tile Co. v. Calmelat, 6 Ohio App. 435, 437-39 (1917). Essentially, a "permanent” trespass occurs when the defendant’s tor-tious act has been fully accomplished but injury to the plaintiff's estate from that action persists in the absence of further conduct by the defendant, e.g. id. at 437; Hamo v. Exxon Corp., No. 1143, 1982 WL 5760 (Ohio App. May 28, 1982); whereas a "continuing” trespass transpires when the defendant’s tortious activity is ongoing, thus perpetually creating fresh violations of the plaintiff's property rights which the defendant is duty bound to cease, e.g., Valley Ry. Co. v. Franz, 43 Ohio St. 623, 4 N.E. 88, 90 (1885); Boll v. Griffith, 41 Ohio App.3d 356, 535 N.E.2d 1375 (1987).
See generally 54 C.J.S. Limitations of Actions § 176 (1987):
Generally, a cause of action for trespass accrues, so as to start the running of limitations, at the time the alleged trespass occurs. In the case of a continuing trespass, the statute of limitations does not begin to run from the date of the original wrong, but rather gives rise to successive causes of action each time there is an interference with a person’s property, and an action is barred as to so much only of the wrong as was committed prior to the term of the limitation. Furthermore, the statute of limitations will not bar an action in trespass, even where the trespass is discovered by plaintiff beyond the period of the statute, where the wrong continues to the present, and in such circumstances, the limitation period does not begin to run until the particular wrong ceases. However, where the result of a continuing trespass is a permanent harm, a single cause of action may be commenced to recover past and future damages and the statute of limitations runs against such cause of action from the time it first occurred, or at least from the date it should reasonably have been discovered.
(Notes omitted).
See also id., § 177:
[I]t may be broadly stated that, where a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begins to run from, the date of the last injury, or when the tortious overt acts cease. Where the tortious act has been completed, or the tortious acts have ceased, the period of limitations will not be extended on the ground of a continuing wrong.
A "continuing tort” is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation, and for there to be a continuing tort there must be a continuing duty.
(Notes omitted).
. The amended complaint charged counts of negligence, strict liability, private nuisance, willful and wanton misconduct, violation of 42 U.S.C. § 2210 (the Price-Anderson Act), and the existence of contractual guarantees which averredly exposed NL to liability for NLO’s actions.
. By acknowledging in part III.B. of the majority opinion that “the only potentially viable state law claim in [Nieman’s] complaint” was the purported claim for continuing trespass, the panel has ruled, correctly, that the other claims derived from Ohio law stated in Nieman’s complaint were each fatally tardy.
. This ruling need not be addressed on review because, as evolved forthwith, the alleged trespass clearly was permanent, not continuing, and hence was barred by limitations. An appellate court may affirm the lower court's judgment upon any basis supported by the law and the record. Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156 n. 6, 25 L.Ed.2d 491 (1970); Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985) (per curiam).
. Accord, Sable v. General Motors Corp., 90 F.3d 171, 176 (6th Cir.1996) (continuing pollution of the plaintiff’s property caused by the effects of past, completed acts of hazardous waste dumping constituted a permanent, not a continuing, trespass, because the plaintiff can only prove continuing harmful effects from a past tortious act but cannot prove continuing tortious conduct by the defendants); McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir.1988) ("a continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.").
. By comparison, the third cause of action (“Private Nuisance”) of the amended class action complaint filed in October 1985 had materially averred:
32. The Defendant NLO unreasonably interfered with the use and enjoyment of the property of the class by collecting and processing uranium at the Fernald plant.
33. Upon information and belief. Plaintiffs state that NLO was at all times herein under the complete direction, domination and control of Defendant NL and that the negligent acts of NLO were caused by such direction, domination and control.
34. As a direct and proximate result of the Defendants NLO and NL maintaining a private nuisance, Plaintiff class is seeking a temporary and permanent injunction prohibiting further processing of uranium at the Fernald plant, or in the alternative, compensation to the Plaintiff class for the diminution of value to the class members’ property, and restoration of their property to the pre-leak condition.
J.A. at 56-57.
. See Fed.R.Civ.P. 12(b):
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside of the pleading are presented to and not excluded by the court, the motion shall be treated as one for summaiy judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
An appellate court reviews a summaiy judgment award de novo, using the same Rule 56 standards as the district courts. Hansard v. Barrett, 980 F.2d 1059, 1061 (6th Cir.1992). Where uncontradicted facts prove that limitations forestall a particular claim, all other facts are rendered immaterial, and the case is ripe for summary disposition. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
. Ohio courts have adopted a similar principle in nuisance cases. For instance, in Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (1993), an Ohio appellate court mandated, inter alia, that an air pollution nuisance which was not practically abatable and was consistently produced is a permanent nuisance triggering limitations computation from “the time that the nuisance begins or is first noticed, provided that the permanent nature of the nuisance can be ascertained at that time.” Id., 622 N.E.2d at 1162. See also Olpp v. Hocking Valley Ry., 22 Ohio N.P. (n.s.) 433, 439-40, 1920 WL 594 (1920) ("If it is within the power of the person by the exercise of skill and labor to abate the nuisance, he must do so. If he fails in his duty, but allows the same to continue, he is responsible for maintaining a continuing nuisance.... [However, i]f one responsible for maintaining a nuisance is unable by the exercise of skill and labor to abate it, then it is to be regarded as permanent, because it will continue indefinitely without change.”) (Emphasis in original).
Accord, Mangini v. Aerojet-General Corp., 12 Cal.4th 1087, 51 Cal.Rptr.2d 272, 912 P.2d 1220 (1996) (contamination by toxic waste may be categorized as a "continuing trespass” only if that contamination is abatable; if it cannot be eliminated by reasonable means at reasonable cost, the trespass is permanent, and the statute of limitations is not tolled).
. Accord, Mangini, 51 Cal.Rptr.2d at 276-77, 912 P.2d at 1223-24; Union Oil Co. of Calif. v. Prof. Realty Inv., Inc., 72 F.3d 130 (Table), 1995 WL *1567717021, at *11 n .5 (6th Cir. Dec.5, 1995) (the tortious physical presence of underground gasoline storage tanks on the plaintiff's property constituted a continuing trespass, whereas the contamination caused by the seepage from the tanks constituted a permanent trespass); Korgel v. United States, 619 F.2d 16, 18 n. 4 (8th Cir.1980) (observing that most courts have concluded that a tort claim for seepage of water or petroleum accrues upon the date of the initial injury or the date upon which the initial injury became apparent or discoverable by due diligence) (citing Maher v. Cities Service Pipe Line Co., 286 F.2d 313 (10th Cir.I960)).
. Cf. Korgel, 619 F.2d at 18, in which the Eighth Circuit found the creation of a permanent trespass by the government's initial action which flooded the plaintiff's farmland, despite annual infusions of additional water, because the flood waters on the plaintiff’s estate had not significantly receded since the initial impact of flood waters thereon, thus creating a permanent tort completed on the initial flood date.
. Accord, Carter v. American Aggregates Corp., 82 Ohio App.3d 181, 611 N.E.2d 512, 514-16 (1992) (no continuing tort which tolls limitations exists where, despite alleged continuing wrongful conduct of a type which had injured the plaintiffs in the past, the plaintiffs conceded that the defendant's ongoing course of conduct had not actually injured them for over four years).
. Despite the panel majority’s assertion, the definition of “continuing trespass” articulated in section 161(1) of the Restatement (Second) of Torts (1965) is not to the contrary. That section provides:
A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.
However, comment c to this section explains that the defendant’s liability for the tortious placement of an object on the property of another continues "although through subsequent conduct on his part it has now become impossible or impractical to terminate the intrusion on the other’s land.” (Emphasis added). The supporting illustration in comment c reflects that a tort-feasor who builds an offending dam and then transfers it to another person remains liable for the ongoing flooding of the plaintiff's property even though the tortfeasor cannot now correct the problem without trespassing upon the property of the dam’s new owner. Section 161(1) and comment c accordingly establish that a tort-feasor may not escape ongoing liability for a continuing tort by taking voluntary actions which restrict his ability to abate the tort. This principle is irrelevant to the proposition that the defendant can have no duty (ongoing or otherwise) to perform the physically impossible or impractical.