CCP §338(b). This is a three year statute of limitation. The issue pertaining to the measurement of time under the statute rests upon whether the trespass is of a continuing or permanent nature. The case Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1483 defines the distinction between permanent and continuing nuisances. The Court states: "A nuisance law, two classifications have emerged which determine the remedies available to injured parties and the applicable statute of limitation. The two primary classifications are permanent and continuing nuisances. Clear cut distinctions between permanent and temporary nuisances are elusive at best."

The Court went on to review the legal precedents that evolved in California jurisprudence. Supra at 1484. The Court also went on to find that there was a permanent nuisance/trespass by reason of a "long standing permanent nature of underground utility lines." Supra at 1486.

As cited by Pacific Bell, supra, California Supreme Court in Kafka v. Bozio (1923) 191 Cal. 746, 750-751 upheld "When a trespass consists of a physical entry upon lands of another and taking possession thereof under such circumstances as to indicate an intention that the trespass shall be permanent, the law may regard the wrong done in such cases as complete at the time of the entry and allow a recovery in a single action of all damages resulting there from, including prospective as well as past damages ellipsis in such a case the statute of limitations runs from the time of original entry."

The more recent case of Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228 involved a buried sewer line running through the Plaintiff's property. In that circumstance, the trespass was deemed to be permanent.

Also, in the case of Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862 determined that property contaminated by the hazardous waste by a prior owner was a permanent trespass.

However, in circumstances that differentiates between permanent and continuing trespass the case of Spalding v. Cameron (1952) 38 Cal.2d 265, 267 further states that above ground pipes for private use should be determined to be a continuing nuisance and not a permanent one. In the Spalding case it was determined that a permanent nuisance is of such a character as it will be reasonably certain or will be presumed to continue indefinitely or affect the value of property permanently.

In fact, in the cases which have been examined by the Spar v. Pacific Bell court, the one relevant factor enabling a determination of the permanency of a trespass is where a condition of a public utility is involved. Supra at 1484-1486.