{12} Further, Defendants assert that, even were Plaintiffs to have otherwise assertable claims, the continuing trespass theory cannot assist Plaintiffs because, under that doctrine, each injury gives rise to a new-cause of action allowing a plaintiff to recover only for injuries that occurred within the statutory period. See Valdez v. Mountain Bell Tel. Co., 107 N.M. 236, 239-40, 755 P.2d 80, 83-84 (Ct.App. 1988) (holding causes of action for damage to home from water seepage caused by placement of utility pole in drainage ditch arose with each new, successive injury, with the statute of limitations beginning to run from the date of each injury); Breiggar Props., L.C v. H.E. Davis Sons, Inc., 52 P.3d 1133, 1135 (Utah 2002) (involving debris dumped on land, and stating "[i]n the case of a continuing trespass or nuisance, the person injured may bring successive actions for damages until the nuisance [or trespass] is abated, even though an action based on the original wrong may be barred, but recovery is limited to actual injury suffered within the three years prior to commencement of each action" (internal quotation marks and citation omitted) (alteration in original)). {13} Defendants similarly assert that the continuing wrong theory does not assist Plaintiffs because their right to sue for installment payments commences to run from the time each installment is due.
{4} In response, Plaintiff asserted that evidence established the existence of disputed material facts as to whether she had notice of the damage and the potential claim against Defendants before the statutes of limitations ran. Plaintiff also argued that summary judgment was inappropriate because her property suffered successive injuries from the pond's seepage, for which new statutes of limitations accrued under Valdez v. Mountain Bell Telephone Co., 107 N.M. 236, 239, 755 P.2d 80, 83 (Ct.App.1988) (holding that the plaintiff could sue for successive seepage injuries caused by a utility pole, even though the statute of limitations expired on his initial claim, if the pole could be removed or the nuisance could be abated at a reasonable cost, or if the extent of the damages were not necessarily ascertainable when the plaintiff purchased the property). Following briefing by the parties and a hearing on Defendant's motion, the district court granted the motion.
Under New Mexico law, Plaintiffs may avoid the statute of limitations bar if they suffer from either a successive or continuous injury, which extends into the statute of limitations period. For successive injuries, the statute of limitations begins to run from the date of each injury. Valdez v. Mountain Bell Tel. Co., 107 N.M. 236, 755 P.2d 80, 83 (N.M. Ct. App.1988) (citations omitted); see also McNeill v. Rice Eng'g & Operating, Inc., 2006-NMCA-015, 139 N.M. 48, 55-56, 128 P.3d 476, 483 (N.M. Ct. App. 2006) ("The accrual date is the date of each particular injury which, for an intermittent injury, is the date of that discrete injury, or for a continuous injury, each new day.") However, under a successive injury theory, a plaintiff's recovery is limited to those injuries incurred within the relevant statute of limitations. Yurcic v. City of Gallup, 2013-NMCA-039, 298 P.3d 500, 507 (N.M. Ct. App. 2013).
To the contrary, New Mexico courts have consistently considered the applicability of the continuing wrong doctrine in a variety of cases. See, e.g., Martinez, 884 P.2d at 514 (doctrine did not apply where plaintiff sued priest in 1991 for sexual misconduct which ended in 1977); Valdez v. Mountain Bell Telephone Co., 755 P.2d 80, 84 (N.M.App. 1988) (recognizing the doctrine); Ealy v. Sheppeck, 669 P.2d 259 (N.M.App. 1983); cert. quashed, 669 P.2d 735 (N.M. 1983) (doctrine did not apply in malpractice case where physician had not continuously treated plaintiff). Thus, although it has not been applied in every possible case, we believe that New Mexico recognizes the doctrine.
The common-law rule is that "a new and separate cause of action arises in inverse condemnation with each new injurious occurrence." Townsend, 1994-NMSC-014, ¶ 13, 871 P.2d at 961 (citing Valdez v. Mountain Bell Telephone Co., 1988-NMCA-039, ¶ 21, 755 P.2d 80, 84 ). LAW REGARDING THE NMTCA STATUTE OF LIMITATIONS
The common-law rule is that "a new and separate cause of action arises in inverse condemnation with each new injurious occurrence." Id. ¶ 13 (citing Valdez v. Mountain Bell Telephone Co., 1988-NMCA-039, ¶ 21, 107 N.M. 236, 755 P.2d 80). As such, a new cause of action arose every time NMDAC or NMMNH trespassed or removed physical property from Plaintiff's property, and the statute of limitations began to run on each occurrence as to that cause of action alone.
The few cases that do apply it do so in different circumstances from personal injury claims. See Plaatje v. Plaatje, 95 N.M. 789, 626 P.2d 1286, 1287-88 (N.M. 1981) (the right to receive retirement benefits accrued with each monthly installment, rather than at the time of the divorce when the benefits were divided); Valdez v. Mountain Bell Tele. Co., 755 P.2d 80, 84 (N.M. Ct. App. 1988) (new cause of action accrued on a negligently built utility pole which caused injury to plaintiff's property each time it rained or snowed). Thus, the doctrine of continuing violations does not apply to any of Plaintiff's claims against any Defendant.
This case also raises issues of continuing trespass, similar to but distinct from the "continuing wrong" concept. The Kysars citeValdez v. Mountain Bell Telephone Co., 107 N.M. 236, 755 P.2d 80 (Ct.App. 1988), in arguing that they sustain new injury each time BP trespasses on the roads, and the trespass therefore constitutes a continuing injury, triggering a new limitations period each time the roads are used to access the Sullivan E-1 well. Valdez involved a nuisance rather than a trespass, but the analysis nevertheless applies in this case.
Under New Mexico law, "damages may be awarded for successive injuries, and a new statute of limitations begins to run from the date of each injury." Valdez v. Mountain Bell Tel. Co., 755 P.2d 80, 83 (N.M.Ct.App. 1988) (citations omitted). However, "[f]or purposes of determining when the statute of limitations began to run" for an injury that was of a continuing nature, the court is "concerned only with the point at which the [plaintiff] knew or should have known that [it] was damaged by" the injury.
New Mexico has recognized, in the context of tort liability, that a continuing harm gives rise to a new cause of action each time an injury occurs. Valdez v. Mountain Bell Telephone Co., 107 N.M. 236, 755 P.2d 80 (Ct.App. 1988). However, in the context of a claim for a breach of contract, New Mexico law is clear that the cause of action accrues at the time of the breach.