concurring in part and dissenting in part:
The majority opinion affirms the grant of summary judgment by the district court on both FVBI’s trespass claim and its third-party beneficiary claim. I concur regarding the third-party beneficiary claim but respectfully dissent regarding the trespass cause of action. I would conclude that the trespass claim is not barred to the extent FVBI seeks damages for migrations of contaminants that occurred during the five years immediately prior to the filing of this action.
I.
In granting summary judgment against FVBI, the district court stated that FVBI’s entire trespass cause of action accrued when the first invasion occurred. The court stated that the case turned on “a distinction between cases in which a single trespass continues over an extended period of time, and those in which the tortious actions are not continuous but occur only at intervals.” J.A. 32. Concluding as a matter of law that the migration of contamination from Eakin’s property to FVBI’s had been continuous since it first began, the court ruled that FVBI’s entire cause of action accrued no later than the date of the first invasion, more than five years prior to the filing of this suit. The majority, relying largely on a single trial court opinion, see Churchill Apartments Assocs. v. City of Richmond, 36 Va. Cir. 204, 1995 WL 1055826 (1995), agrees with the district court that the continuous na*409ture of the trespass here completely bars FVBI’s trespass claim.
II.
A trespass is an unauthorized entry onto property that causes an interference with the property owner’s possessory interest in the property. See Cooper v. Horn, 248 Va. 417, 448 S.E.2d 403, 406 (Va.1994). Permitting noxious matter to escape from one’s land and injure the land of another constitutes a trespass. See Akers v. Mathieson Alkali Works, 151 Va. 1, 144 S.E. 492, 495 (Va.1928). A cause of action for trespass accrues when the injury is sustained. See Va.Code Ann. § 8.01-230 (Mi-chie Supp.1999). Because it is a property damage claim, FVBI’s trespass action is subject to a five-year statute of limitations. See Va.Code Ann. § 8.01-243(B) (Michie 1992); Vines v. Branch, 244 Va. 185, 418 S.E.2d 890, 894 (Va.1992).
When a trespass is short-lived, the cause of action accrues and the statute of limitations begins to run when an injury is first sustained, although the trespass may cause permanent injury to the plaintiffs property. See W. Page Keeton et al.,‘ Prosser and Keeton on the Law of Torts § 13, at 83 (5th ed.1984). In such a case, a single cause of action accrues. Cf. Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235, 360 S.E.2d 841, 843 (Va.1987) (explaining that when trespasses “occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action”). The same is true in the case of a single entry that continues, as when a defendant dumps waste onto the plaintiffs property and fails to remove it. See Keeton, supra, § 13, at 83-84. In that case, the cause of action for damages for both the past presence and the anticipated future presence of the waste accrues when the waste is dumped, on the theory that “the defendant is not privileged to commit a second trespass to remove” the invasion, and thus it is presumed that the waste will remain indefinitely. Id. at 84. Stated another way, the failure to remove waste that has been wrongfully placed on a plaintiffs land does not give rise to separate or successive causes of action.
A different rule may apply when a condition on the defendant’s property — such as the uncontained contamination here — is the source ■ of a constant and continuing migration of contaminants onto the plaintiffs property. See Hampton Roads Sanitation Dist., 360 S.E.2d at 843-44. In the circumstance of an ongoing trespass, if the cause of the migration of contaminants onto the plaintiffs property is permanent and at once “produces ‘all the damage which can ever result from it,’ ” then the plaintiffs injury is permanent and the plaintiff still is relegated to a single cause of action that accrues when the invasion begins. Id. (quoting Norfolk & W. Ry. v. Allen, 118 Va. 428, 87 S.E. 558, 560 (Va.1916) (opinion on rehearing)); cf. Keeton, supra, § 13, at 84 (stating that when “the trespass results from a condition on the defendant’s own land,” the date of accrual for damages for prospective invasions “turn[s] upon the permanent nature of the condition”).* However, if the cause — and therefore the injury — is not permanent, the continuing invasion gives rise to new *410and separate causes of action that continue to accrue for so long as the invasion continues to occur. See Virginia Hot Springs Co. v. McCray, 106 Va. 461, 56 S.E. 216, 218-19 (Va.1907).
A permanent injury results when the condition causing it is not likely to be abated. See id. at 218 (explaining that when a condition on defendant’s property that causes an interference with the plaintiffs enjoyment of his property might not be continued, a single cause of action encompassing future injury is not appropriate); cf. id. at 220 (noting that defendant’s intentions are relevant to whether an injury is considered permanent). In contrast, if the condition is likely to be abated, ie., if it “ ‘is likely to be removed bjr any agency,’ ” the injury is not considered permanent. Id. at 219 (quoting City of Paris v. Allred, 17 Tex.Civ.App. 125, 43 S.W. 62, 63 (Tex.Civ.App. 1897, writ denied)); see Richmond Fairfield Ry. v. Llewellyn, 156 Va. 258, 157 S.E. 809, 818 (Va.1931) (holding that landowner’s injury from sewer discharge on her property was not permanent when the other party planned to discontinue the discharge); cf. Keeton, supra, § 13, at 84 (stating that “likelihood that the defendant will terminate” the condition is relevant to the question of whether “there must be a single recovery of all damages”). Whether an injury is permanent is generally a fact question for a jury. See Virginia Hot Springs, 56 S.E. at 220.
Moreover, when the question of whether an injury is permanent is a close one, a finding that it is not permanent is favored. See Norfolk & W. Ry. v. Allen, 118 Va. 428, 87 S.E. 558, 561 (Va.1916) (opinion on rehearing). The reasons for the preference are twofold. First, the plaintiff should not be compensated for a permanent injury when he may not suffer a permanent injury. See Norfolk & W. Ry. v. Allen, 118 Va. 428, 87 S.E. 558, 559 (Va.1915) (stating that “it cannot be assumed that the defendant will continue to illegally inflict injury upon the plaintiff’ because “[t]o indulge such a presumption might result in awarding the plaintiff damages for an injury never suffered by him” (internal quotation marks omitted)), aff'd on reh’g, 118 Va. 428, 87 S.E. 558 (Va.1916); id. at 561 (opinion on rehearing) (noting “the injustice of compelling the defendant to pay for a perpetual wrong, which he would perhaps put an end to” (internal quotation marks omitted)). Second, when a plaintiff fails to bring suit concerning an ongoing trespass within five years of the initial invasion, setting the accrual date for the entire cause of action at the date of the initial invasion has a perverse effect: It not only allows the defendant to avoid liability for his previous wrong, but gives him a license to continue the wrongful conduct with impunity. See id. at 561 (opinion on rehearing).
Applying these rules to the present case, to the extent that FVBI seeks damages for the migration of contaminants onto its land that occurred more than five years prior to this suit, its claim is time barred because FVBI’s causes of action for that migration accrued when the migration occurred. See Keeton, supra, § 13, at 84.
FVBI’s claim for injuries caused by the additional petroleum migration that occurred during the five years immediately preceding the filing of this suit is not so easily disposed of, however. I agree with the majority that the migration of petroleum onto FVBI’s property has been continuous from the time of the first invasion. However, the majority errs in failing to recognize that continuity of the trespass is necessary but not sufficient to establish that FVBI is relegated to a single cause of action. As I have explained, in addition to continuity of the trespass, permanence of the injury is also necessary, arid that element has not been established as a matter of law. Whether the contamination on Eakin’s land caused a permanent injury was at least a disputed question of fact because BP did not establish that the contamination on Eakin’s property would not likely be abated. Compare Richmond Fairfield Ry., 157 S.E. at 818 (holding that *411sewer discharging waste onto plaintiffs property did not cause a permanent injury because the other party intended to end the flow onto plaintiffs property), ivith Virginia Hot Springs, 56 S.E. at 219 (citing with approval City of Paris, which held that sewer that discharged into water running onto the plaintiffs land did cause a permanent injury because the city considered the sewer to be permanent when it was constructed and “[n]o move ha[d] been made by the city authorities to abate the nuisance” (internal quotation marks omitted)). Holding that a cause of action for damages for perpetual migration of contaminants onto a plaintiffs land accrues immediately upon the first invasion, when it has not been established that the migration will indeed continue indefinitely, would “compel[ ] the defendant to pay for a perpetual wrong, which he would perhaps put an end to.” Norfolk & W. Ry., 87 S.E. at 561 (opinion on rehearing) (internal quotation marks omitted). Accordingly, a reasonable jury could find that FVBI timely asserted its trespass cause of action to the extent that FVBI seeks damages for the migration of contaminants onto its property during the five years immediately preceding the filing of this suit.
III.
In sum, I concur in the majority’s affir-mance of the grant of summary judgment by the district court on FVBI’s third-party beneficiary claim. Regarding the trespass claim, I would affirm the grant of summary judgment against FVBI to the extent that FVBI seeks damages for migrations that occurred more than five years prior to the filing of this suit. I would reverse, however, to the extent that FVBI seeks damages for migrations that occurred during the five years immediately prior to the filing of this action.
The closely related concepts of trespass and nuisance overlap in this area. See Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281, 284 (Va.1948). While a trespass is an entry on or use of another's property without permission, a nuisance is a nontrespassory interference with another's reasonable use or enjoyment of his property. See Keeton, supra, § 13, at 70. The scenario of a condition on a defendant’s property causing continuing injury to a plaintiff's property or to his enjoyment thereof can be common to both trespass and nuisance causes of action. Not surprisingly, in such circumstances the rule to be applied in determining whether a plaintiff is relegated to a single cause of action is not affected by which legal theory is the basis for the suit. See Hampton Roads Sanitation Dist., 360 S.E.2d at 843 (citing Norfolk & Western Railway v. Allen, a nuisance case, as authority for the rules to be applied concerning the accrual of a trespass cause of action for the ongoing discharge of sewage onto the plaintiff's land).