A cause of action is a set of facts sufficient to justify a right to sue. The cause of action usually accrues on the date that the injury to the plaintiff is sustained. In cases where the injury is not readily discoverable, the cause of action accrues when the plaintiff in fact discovers the injury.
Cause of action and its accrual varies before different authorities. For example in the case of Hahl v. Sugo[i], it was held that an encroaching wall gives rise to only one cause of action. However, in the case of Barberi v. Bochinsky[ii], an encroaching wall was held to constitute a continuing trespass for which successive actions were found to lie. These continuing trespass remain actionable until the wrongdoer has pressed his/her unlawful and adverse use to the point where it becomes a prescriptive right.[iii]
There also exists a difference between “permanent” and “continuing” intrusions for the purposes of finding out the time of accrual of cause of action. The time of accrual of cause of action will in turn help in finding out the application of the statute of limitations to actions for damages from or for the abatement of encroachments.[iv]
Generally, an encroaching building or wall is placed in the class of permanent intrusion. Therefore in case of such encroachments, the action is held to accrue when the trespass occurs.[v]
On the other hand, encroaching roots, branches of trees, and fallen trees are put in the class of “continuing” intrusions. In case of continuing intrusions, each repetition or continuance amounts to another wrong. Therefore in such cases, within the statute of limitations, there arises a new cause of action each time. Similarly, in case of a continuing unknown encroachment, it is generally held to give rise to successive causes of action.[vi]
[i] 169 N.Y. 109, 62 N.E. 135 (1901)
[ii] 43 N.J. Super. 186, 128 A.2d 1 (App. Div. 1956)
[iii] Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833 (1923)
[iv] Mattos v. Mattos, 162 Cal. App. 2d 41, 328 P.2d 269 (1st Dist. 1958)
[vi] L’Enfant Plaza East, Inc. v. John McShain, Inc., 359 A.2d 5 (D.C. 1976).