dissenting.
I dissent from the majority decision to the extent it reverses the trial court and holds that Graybill’s claims against the Findleys and the Township which accrued in 1983 are not barred by the two-year statute of limitations. The essential issue here is whether development of the Findleys’ lot by 1983 without provision for proper drainage of surface water as alleged, effected a permanent physical change in the condition of Graybill’s land or whether the injuries sustained by Graybill can be characterized as separate and recurrent to support a continuing trespass theory. To reverse the trial court, the majority develops an analysis heretofore never recognized in this jurisdiction and relies upon cases from other states to overrule the sound decision entered by this Court in Leggieri v. Township of Haverford, 98 Pa.Commonwealth Ct. 646, 511 A.2d 955 (1986).
I
The concept of a “continuing trespass” is defined under the Restatement (Second) of Torts § 161, comment b. (1965) which provides:
The actor’s failure to remove from land in the possession of another a structure, chattel or other thing which he has tortiously erected or placed on the land constitutes a continuing trespass for the entire time during which the thing is wrongfully on the land and ... confers on the possessor of the land an option, to maintain a succession of actions based on the theory of continuing trespass or to treat the continuance of the thing on the land as an aggravation of the original trespass.
A “permanent trespass” is defined by the Restatement (Second) of Torts § 162, comment e. (1965) as follows:
A continuing trespass must be distinguished from a trespass which permanently changes the physical condition of the land. Thus, if one, without a privilege to do so, enters land of which another is in possession and destroys or removes a structure standing upon the land, or digs a *516well or makes some other excavation or removes earth or some other substance from the land, the fact that the harm thus occasioned on the land is a continuing harm does not subject the actor to liability for a continuing trespass. Since his conduct has once [and] for all produced a permanent injury to the land, the possessor’s right is to [a] full redress in a single action for the trespass, and a subsequent transferee of the land, as such, acquires no cause of action for the alteration of the condition of the land.
Pennsylvania courts have adopted the above definitions. See Mancia v. Department of Transportation, 102 Pa.Commonwealth Ct. 279, 517 A.2d 1381 (1986); County of Allegheny v. Merrit Construction Co., 309 Pa.Superior Ct. 1, 454 A.2d 1051 (1982).
In Leggieri, this Court found a permanent trespass under facts similar to the case sub judice. The Leggieris experienced surface water runoff from an adjacent house, constructed on a hill in 1979, during rains beginning in 1980. In 1984, more than two years from the first occurrence of flooding, the Leggieris filed an action against the township alleging that it was negligent in approving the developer’s subdivision plan with an improperly designed water drainage system. The trial court granted the township’s motion for summary judgment on the basis of the statute of limitations defense. The Leggieris argued that the flow of water onto their property was a continuing trespass causing a new trespass and new injury to them with each heavy rain. This Court, however, found a permanent change in the condition of the land and held that the two-year statute of limitations began to run from the time of the original trespass, relying upon Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 328, 197 A.2d 44, 46-47 (1964), which held:
[A] continuing trespass must be distinguished from a trespass that effects a permanent change in the condition of the land. The latter, while resulting in a continuing harm, does not subject the trespasser to liability for a *517continuing trespass____ If a nuisance at the time of creation is a permanent one, the consequences of which in the normal course of things will continue indefinitely, there can be but a single action therefor 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. (Citations omitted; emphasis added.)
See also Canfield Appeal, 83 Pa. Commonwealth Ct. 76, 476 A.2d 489 (1984) (the statute of limitations runs from the first time a particular dam spilled or at least from the time it should reasonably have been discovered); Manda (cause of action due to drainage of water as a result of improper replacement of a drainage pipe accrued when trespass first occurred as drainage caused permanent change in the adjoining land); Merrit Construction (landslide caused by excavation results in a permanent trespass).
Therefore, under the record developed in the matter sub judice and according to precedent, a permanent change occurred in 1983 from the completion of construction on the Findleys’ lots or when Graybill experienced the first flooding. Since there was a permanent change in Graybill’s property, the statute of limitations began to run in 1983. Leggieri; Sustrik. Consequently, Graybill’s action against the Findleys must be barred as untimely filed, and the trial court’s decision granting summary judgment in favor of the Findleys on counts 1 through 4, 7 and 8 and in favor of the Township on counts 13 and 14 must be affirmed.
II
The majority concludes that the decision of this Court in Leggieri must be overruled because it represents “a misapplication of Sustrik and an incorrect analysis of cases involving overflow of water.” 140 Pa.Commonwealth Ct. at 510, 593 A.2d at 1316. The majority further concludes that since Sustrik, unlike the case sub judice, involved the defendant’s entry onto the plaintiff’s land and installation
*518of an underground sewer line causing injuries to the plaintiffs land itself, Sustrik may not be relied upon in determining whether a permanent change occurred to Graybill’s land. According to the majority, the Findleys’ construction on their own land therefore did not directly and immediately cause injuries to Graybill’s land. In other words, there must be an entry onto the plaintiff’s land to find a permanent injury. Such a conclusion is neither supported by the case law of this Commonwealth nor the Restatement (Second) of Torts. Section 161 of the Restatement (Second) of Torts defines a continuing trespass as a “failure to remove from land in the possession of another a structure, chattel or other thing which he has tortiously erected or placed on the land____” Thus, to follow the majority’s logic, the alleged facts in this case would negate a finding of continuing trespass as well since the harm to Graybill’s land did not involve a failure to remove from Graybill’s property any structure, chattel or other thing which the Findleys “tortiously erected or placed” on Graybill’s land. The record as developed unequivocally falls outside the concept of continuing trespass.
In Piccolini v. Simon’s Wrecking, 686 F.Supp. 1063 (M.D.Pa.1988), the plaintiff alleged that the defendant, by operating a landfill, had seriously contaminated the plaintiff’s land resulting in, among other things, increased runoff of surface water and soil erosion in plaintiff’s property. Even though the facts did not involve defendant’s direct physical entry onto the plaintiff’s land, the court in Piccolini did not view such fact as dispositive of whether there was a permanent as opposed to continuing trespass to the land. In the matter sub judice, however, the majority unfortunately focuses upon the factual distinctions between Sustrik and the present case rather than on the effects of the Findleys’ development on the physical condition of Gray-bill’s land.
Ill
The majority has determined that Graybill’s allegations of occasional flooding and “consequential” damages are insuf*519ficient to establish a permanent change and that there must be some allegation “that the [Findleys’] actions resulted in permanently submerging [Graybill’s] land, or even that they caused such regular flooding as to have the same effect as submergence, causing him to abandon his house and to seek damages for its full value.” 140 Pa.Commonwealth Ct. at 512, 593 A.2d at 1317. Nothing in the law compels this interpretation.
Nonetheless, Graybill alleges more than occasional flooding and “consequential” damages. In his complaint, Gray-bill sets forth the defendants’ alleged negligence as follows:
19. Prior to Findley’s subdivision, the natural flow of surface water never flowed over the banks of the waterway onto Plaintiff’s property or flooded Plaintiff’s home.
20. Since the time Findley subdivided the property and continuing to the present time, the quantity of water flowing upon Plaintiff’s land has been substantially and unreasonably increased causing water to enter the basement of Plaintiff’s dwelling and causing the flooding of the undeveloped land making Plaintiff’s property unfit for habitation and causing damage.
21. Findley as the former owner and subdivider of the property identified in paragraph 8 and shown on Exhibit ‘A’ had a duty not to unreasonably or unnecessarily change the quantity or quality of surface water flowing across Plaintiff’s land.
22. Findley failed to provide for effective drainage of surface water when subdividing the property.
23. The continuing inundation of Plaintiff’s property is believed and therefore averred to be originating from surface water flowing from the subdivided land.
Graybill seeks, in addition to damages for various appliances and repair costs from two separate floodings, the decrease in the fair market value of his house which would include the other damages the majority characterizes as “consequential.” If the majority view prevails, does this mean that Graybill’s claims for damages including the decrease in the fair market value of his house will be allowed *520every time he alleges damages short of “permanent submergence” of his land? This view will undoubtedly lead to endless litigation between the parties and will be extremely unjust to unsuspecting potential defendants. Merrit Construction. See also Miller v. C.P. Centers, Inc., 334 Pa.Superior Ct. 623, 483 A.2d 912 (1984) (measure of damages for injury to property is cost of repairs where that injury is repairable; however, where injury is characterized as permanent, measure of damages becomes the decline in the fair market value of the property). Thus, as the Piccolini court observed, “where all damages, both past and future, can be presently estimated and recovered in one action, successive actions cannot be brought for recurring or continuing damages and the Statute runs from the time the original cause of action accrues.” Id., 686 F.Supp. at 1073.
IV
In determining whether surface water runoff creates a continuing trespass or permanent change to property, the majority adopts a new analysis based upon ascertainability of future damages or predictability of injury to be determined by reviewing allegations set forth in the complaint. The majority relies upon Clawson v. Garrison, 3 Kan. App.2d 188, 592 P.2d 117 (1979); Naylor v. Eagle, 227 Ark. 1012, 303 S.W.2d 239 (1957); and Archer v. J.S. Compton, Inc., 238 Iowa 1182, 30 N.W.2d 92 (1947). While decisions from other jurisdictions are not controlling in Pennsylvania, and the cases relied upon by the majority do not support overruling Leggieri, I conclude however that even under the new analysis adopted by the majority, there was a permanent change in the physical condition of Graybill's land.
The majority states that it would be impossible for Gray-bill to calculate all past, present and future damages in a single action because of the intermittent and unpredictable nature of the injury involved. I disagree. In Clawson, the court held that if an injury is permanent or if the causative structure or condition is of such a character that injury will *521inevitably result, and the amount of damages can be determined or estimated, a single action for both past and future damages should be brought. The Kansas court, after noting that not all of the Kansas authority was in harmony and that each case must be decided on its own facts, concluded the evidence demonstrated that flooding was infrequent and virtually an unpredictable occurrence. The court cited another Kansas case where the evidence showed that the plaintiffs land had been flooded only twice in the last twenty-four years.1 Moreover, assessment of damages in a single action is for the fact finder and its difficulty should not be a controlling factor in determining the nature of the trespass. Difficulty in assessing future damages is present in other proceedings as well. See, i.e., Baccare v. Mennella, 246 Pa.Superior Ct. 53, 369 A.2d 806 (1976) (in personal injury cases, jury may reasonably infer from evidence what probable future consequences of injury will be and award damages accordingly).
Graybill asserts that he did not have a surface water runoff problem prior to the Findleys’ development and that he experienced the first flooding of his property in the fall of 1983 and every year thereafter: May/June, 1984; *522July/August, 1985; September, 1986; May, 1987; July 10, 1987; July 4, 1987. He further stated that the surface water runoff problem worsened each year. Graybill’s Answers to Findleys’ Interrogatories, Nos. 5-6. In light of these undisputed facts, the majority cannot validly dispute that flooding of Graybill’s property was a predictable or regular event. Thus, applying the majority’s new approach, there was clearly a permanent change in Graybill’s property caused by the Findleys’ development inasmuch as the alleged flooding occurred with frequency and predictability allowing for calculation of damages in a single action.
Further examination of decisions in other jurisdictions in the area of trespass to real property merely demonstrates that the law is unsettled. For example, the Federal District Court in Dobbs v. Missouri Pacific Railroad Co., 416 F.Supp. 5 (E.D.Okla.1975), reviewed Oklahoma law and stated that a cause of action based upon trespass to real property caused by the construction of permanent improvements on other property accrues under the following circumstances:
Where a trespass is the natural result of, or obviously consequential from, the construction of a permanent improvement, the cause of action arising from a resulting trespass accrues upon the construction of the improvement, and in an action for that trespass an aggrieved landowner must recover for all damages which he has or will thereby sustain. Where a trespass is not the natural result of, or obviously consequential from the construction of a permanent improvement, a cause of action arising from a resulting trespass does not accrue until a specific trespass occurs, or a specific injury is sustained, and in an action for that trespass an aggrieved landowner may recover for injuries which he has already sustained, and he may bring as many successive actions as there are successive injuries.
Id., 416 F.Supp. at 8. For a similar position taken in other jurisdictions, see also Baskett v. United States, 8 Cl.Ct. 201 (1985), aff'd, 790 F.2d 93 (Fed.Cir.1986), cert. denied, 478 *523U.S. 1006, 106 S.Ct. 3300, 92 L.Ed.2d 714 (1986); and Carbo v. Hart, 459 So.2d 1228 (La.App. 1st Cir.1984), cert. denied, 462 So.2d 654 (La.1985). In view of the unsettled and contrasting positions taken by courts in deciding the question of permanent versus continuing trespass to land, I seriously question the wisdom of this Court in overruling Leggieri which appropriately follows Sustrik and the law of this Commonwealth.
PALLADINO, J., joins in this dissent.. Further, neither Naylor nor Archer supports the majority’s position. In Naylor, the owner of farmland located three miles upstream and north of a dam claimed damages allegedly caused by overflowing backwaters from the dam. The Arkansas court stated that if the certainty, nature and extent of this damage may be reasonably ascertained and estimated at the time of construction, then the damage is original and there can be but a single recovery, and that the statute of limitations is set in motion on the completion of the construction. Naylor, however, concluded that the preponderance of the evidence showed the nature and extent of the damages could not be reasonably known and estimated at the time the dam was built based upon the defendant’s testimony that he did not know whether installation of the spillway would cause damage to Naylor’s land and the fact that after the dam was built, the weather had been unusually dry and the rainfall insufficient to test the flooding effect of the dam. Although the Iowa court in Archer observed apparent confusion and inconsistency in Iowa authority on the subject, it found defendant’s damages in that case continuing and not permanent in character because the evidence showed that the ditch was probably adequate in ordinary times to carry the normal flow of water, but inadequate only in times of flood and high water.