[Cite as Bend

- Fast, Inc. v. SBA Monarch Towers III, L.L.C. , 2024

- Ohio

- 2036.]



## IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY

BEND

- FAST, INC.,

Plaintiff

- Appellant,

- vs

-

SBA MONARCH TOWERS III, LLC, et
al.,

Defendants

- Appellees. CASE NO. 2023

- A

- 0053

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2023 CV 00014

O P I N I O N

Decided: May 28 , 2024 Judgment : Reverse d and remand ed

Dennis D. DeCamillo , 4414 North Ridge Road, W., Ashtabula, OH 44004 (For Plaintiff

Appellant).

Steven K. Kelley

, Edmond Z. Jaber

, Mary Beth Klemencic , and Frank H. Scialdone

, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant

- Appellee SBA Monarch Towers III, LLC).

Tracey L. Turnbull and McDaniel M. Kelly , Porter, Wright, Morris & Arthur, LLP, 950 Main Avenue, Suite 500, Cleveland, OH 44113 (For Defendant

- Appellee T

- Mobile Central LLC).

Kyle B. Smith , Smith & Miller, Attorneys at Law, 36 West Jefferson Street, Jefferson, OH
44047; Tonya J. Rogers

, Gregory A. Beck , and Brittany A. Bowland , Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For

Defendants

- Appellees Geneva Township, Tim Mills, Dennis Brown, Tiffany Miller, Tammy Caya, Robert Russell and Richard Pruden).

ROBERT J. PATTON, J.

{¶1} The instant case concerns an access road and cables that a ppellant, Bend

Fast Inc. (“ Bend

- Fast ”) found buried on i t s property. The adjacent property was leased2

Case No. 2023

- A

- 0053 by appellee, Geneva Township (“Geneva”) to appellee T

- Mobile Central, LLC (“T

Mobile”), who after building a cellular tower on Geneva’s property assigned the lease to

appellee SBA Monarch Towers III, LLC (“SBA”) (collectively “appellees”).

{¶2} Bend

- Fast appeals the judgments of the Ashtabula County Court of

Common Pleas that granted the appellees’ motions for judgment on the pleadings, finding

Bend

- Fast ’s claims for trespass, criminal trespass (civil liability for criminal acts) , unjust

enrichment, and eminent domain (as against Geneva), were barred by the statute of

limitations.

{¶3} Bend

- Fast raises five assignments of error on appeal, contending in its first

four assignments of error that the trial court erred by failing to find that a continuous

trespass existed with respect to the buried cables and the access road on its property

,

thus finding the statute of limitations had run on its claims of civil trespass, criminal

trespass, and unjust enrichment . I n its fifth assignment of error

, Bend

- Fast contends the

trial court erred by failing to constru e all the allegations in its complai nt as true pursuant

to Civ.R. 12(C)

.

{¶4} We review Bend

- Fast ’s errors collectively since they concern whether the

trial court erred in finding Bend

- Fast alleged a permanent trespass that was “fully

accomplished,” instead of a contin uing trespass, which tolls the statute of limitations.

After a careful review of the record and pertinent law, we find Bend

- Fast ’s assignments

to be with merit.

{¶5} Accepting all of the factual allegations of the complaint as true and drawing

all inferences in favor of Bend

- Fast

, we find Bend

- Fast has sufficiently stated a claim of

continuing trespass, having alleged that the access road and buried cables were3

Case No. 2023

- A

- 0053 unauthorized, intentional acts placed on Bend

- Fast ’s property by appellees ; are an

intrusion by appellees, which is interfering with Bend

- Fast ’s rights of exclusive possession

of its property ; and appellees’ control and conduct of the cellular tower are ongoing

.

Bend

- Fast ’s remaining claims of criminal trespass and unjust enrichment are based on

the same underlying conduct of appellees. Thus, the trial court erred in determining the

statute of limitations had run on Bend

- Fast ’s claims.

{¶6} The judgment of the Ashtabula County Court of Common Pleas is reversed

and remanded in accordance with this opinion.

Substantive and Procedural History

{¶7} In January 2023, Bend

- Fast filed a complaint in the Ashtabula County Court

of Common Pleas against appellees as well as individual Geneva Township Trustees,

officers

, and employees ; unknown XYZ entities 1

- 10, and unknown John Doe XYZ

employees 1

- 20.

{¶8} Bend

- Fast alleged that in June 2005, it purchased certain real property

located at 218 N. Cedar Street, Geneva, Ohio (the “property”). Adjacent to the property

is a property located at 256 N. Cedar Street, Geneva, Ohio, ( on the southwest corner of

N. Cedar Street and North Avenue ) . It is owned by Geneva (the “Geneva property”).

{¶9} In June 2006, Geneva and T

- Mobile entered into a lease agreement to allow

T

- Mobile to build and maintain a cellular tower on the Geneva property. At various times

during 2006 (or earlier) Geneva established an access road over and a cross Bend

- Fast ’s

property. In December 2006, Geneva was issued a zoning permit for construction of the

cellular tower on the Geneva property.4

Case No. 2023

- A

- 0053 {¶10} T

- Mobile contracted with XYZ entities to construct the cellular tower on the

Geneva property. V arious items, including electrical power and fiber optic cabling (the

“cables”) were installed and buried on Bend

- Fast’s property.

{¶11} In June 2016, T

- Mobile assigned its interest in the lease to SBA.

{¶12} In June 2019, Bend

- Fast discovered the presence of the cable s and access

road and notified Geneva, later notifying SBA

, and through SBA, T

- Mobile.

{¶13} Bend

- Fast pleaded claims of civil trespass, criminal trespass, and unjust

enrichment against all the appellees, and a claim of eminent domain solely against

Geneva.

{¶14} Attached to the complaint were a map of the properties, the site lease

between Geneva and T

- Mobile, an amendment to the lease agreement made in 2006,

and an amendment to the lease agreement in 2016

, transferring the lease from T

- Mobile

to SBA.

Geneva’s Motion for Judgment on the Pleadings

{¶15} Geneva filed an answer and a motion to dismiss pursuant to Civ.R. 12(C),

as well as a site map of the construction and the lease agreement. In its motion, Geneva

contended, as the site map indicated, the tower, access road, and utilities are located

only on the Geneva property.

{¶16} Geneva further contended that Bend

- Fast ’s claims were barred by the

statute of limitations, ha d no legal basis and/or were barred by governmental immunity.

Geneva argued Bend

- Fast should have discovered the alleged taking no later than 2007

since the tower and the access road were clearly visible from Bend

- Fast ’s property

, and

Bend

- Fast does not have standing to allege criminal trespass and failed to prove intent5

Case No. 2023

- A

- 0053 to trespass and/or recklessness. In addition, Bend

- Fast failed to file a mandamus claim,

which is the appropriate action in a taking claim that cannot be circumvented by filing an

unjust enrichment claim

.

{¶17} Bend

- Fast filed a response, arguing that Geneva failed to draw all

reasonable inferences in its favor pursuant to the standard for a Civ.R. 12(C) motion for

a judgment on the pleadings

. Bend

- Fast further argued that contrary to Geneva’s

contentions, t he statute of limitations is tolled because the access road and cables

constitute a continuous trespass , and it has standing to bring a claim for damages for the

act of criminal trespass pursuant to R.C. 2307.60(A)(1). In addition, its claim for unjust

enrichment was not based on a contract, rather it was seeking monies wrongfully

collected by Geneva. Lastly, governmental immunity does not apply to equitable relief.

SBA’s Motion for Judgment on the Pleadings

{¶18} SBA filed an answer and a motion for judgment on the pleadings

,

contending Bend

- Fast does not have standing to bring a claim of criminal trespass in a

civil case.

{¶19} Bend

- Fast filed a response, contending it was claiming damages for

criminal trespass, pursuant to R.C. 2307

. 60(A)(1)

.

{¶20} In its reply, SBA noted that Bend

- Fast never pleaded a claim pursuant to

R.C. 2307.60(A)(1) ; it simply pleaded a claim entitled “criminal trespass

. ”

Trial Court’s Judgment as to Geneva (all counts) and SBA (criminal trespass)

{¶21} In April 2023, the trial court held a hearing on the motions for judgment on

the pleadings , and shortly after issued a judgment entry granting Geneva’s motion on all

four counts of Bend

- Fast ’s complaint, and granting SBA’s motion on count two, criminal6

Case No. 2023

- A

- 0053 trespass. The underlying finding for the court’s judgment was that the access road and

cables buried on Bend

- Fast ’s property did not constitute a continuing trespass , rather

appellees’ conduct constituted a permanent trespass since it was “fully accomplished

. ”

{¶22} More specifically, on count one, civil trespass, the trial court found the

statute of limitations had run because Bend

- Fast should have discovered the alleged

trespass in 2007, once construction was completed and the access road was built

.

{¶23} On count two, criminal trespass, the trial court found regardless of whether

a one

- year statute of limitations applied (pursuant to R.C. 2307.60(A)(1)) or a two

- year

statute of limitations (pursuant to 2744.04(A)), and regardless of which date is used,

January 2007 (when construction was completed) or June 2019 (when Bend

- Fast

allegedly discovered the access road and cables), the action is time barred because it

was not filed within the statute of limitations.

{¶24} On count three, unjust enrichment, the trial court found that the statute of

limitations had run, and that even if it had not , Geneva could not be found liable because

it is a municipal corporation.

{¶25} On count four, eminent domain, the trial court found that a mandamus action

should have been filed

, and that the statute of limitation s had run.

SBA’s Second Motion and T

- Mobile’s Motion for Judgment on the Pleadings

{¶26} SBA filed a second motion for judgment on the pleadings on Bend

- Fast ’s

remaining counts against it, count one (civil trespass) and count three (unjust

enrichment). SBA contended that the four

- year statute of limitations had run on the claim

of civil trespass since Bend

- Fast alleged it had discovered the access road and cables

on its property in 2019. Further, it should have reasonably discovered the access road7

Case No. 2023

- A

- 0053 and cables in 2007 since the access road was visible and the lease agreement and any

other records related to the cell tower were public records. SBA similarly contended that

the six

- year statute of limitations for unjust enrichment ha d expired.

{¶27} T

- Mobile also filed a motion for judgment on the pleadings

, similarly

contend ing the four

- year statute of limitations had run on Bend

- Fast’s claim of trespass,

and the six

- year statute of limitations had run on its claim of unjust enrichment. In

addition, T

- Mobile contended Bend

- Fast ’s criminal trespass claim fails to state a

cognizable private cause of action and further, is untimely since the statute of limitation s

is one year.

{¶28} In its response s

, Bend

- Fast argued that the access road and the cables

were a continuous trespass, which tolled the statute of limitations so long as the trespass

continued. In 2021, Bend

- Fast built a fence around the property, stopping the appellees

from using the access road. Bend

- Fast argued that even if the continuous trespass

ceased in 2021, this was still within the four

- year statute of limitations for trespass.

Further, the cables are still a continuous trespass since the appellees continue to use

them and they are within the appellees’ control. Similarly, the statute of limitations for its

claim of unjust enrichment has not expired since appellees continue to use Bend

- Fast ’s

property for its benefit.

Trial Court’s Judgment as to SBA and T

- Mobile

{¶29} In July 2023, the trial court held a hearing on the motions for judgment on

the pleadings , and shortly after

, issued a judgment entry that was based on the same

underlying finding that the access road and buried cables w as a “fully accomplished”8

Case No. 2023

- A

- 0053 permanent trespass

, and that grant ed SBA’s motion as to the count one (civil trespass)

and count three (unjust enrichment) and T

- Mobile’s motion as to all three counts.

{¶30} Bend

- Fast raises five assignments of error for our review:

{¶31} “[1.] The trial court committed legal error in finding the statute of limitations

for civil trespass ran with respect to buried cables on Plaintiff

- Appellant’s land and not

finding a continuous trespass existed, tolling the statute of limitations.

{¶32} “[2.] The trial court committed legal error in finding the statute of limitations

for civil trespass ran with respect to the use of the access road on Plaintiff

- Appellant’s

land and not finding a continuous trespass existed, tolling the statute of limitat ions.

{¶33} “[3.] The trial court committed legal error in finding the statute of limitations

for a civil claim of criminal trespass ran and not finding a continuing trespass existed,

tolling the statute of limitations.

{¶34} “[4.] The trial court committed legal error in finding the statute of limitations

for unjust enrichment ran and that none of the benefits received by Defendants

- Appellees

are outside of that limitation.

{¶35} “[5.] The trial court committed legal error in not construing all of the

allegations in Plaintiff’s Complaint as true.”

Standard of Review

{¶36} Because a Civ.R

. 12(C) motion for judgment on the pleadings tests the

legal basis for the claims asserted in a complaint, our standard of review is de novo. State

ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

{¶37} In ruling on the motion, a court is permitted to consider the complaint and

the answer as well as any documents attached as exhibits to those pleadings. Orwell9

Case No. 2023

- A

- 0053 Nat. Gas Co. v. Fredon Corp.

, 2015

- Ohio

- 1212, 30 N.E.3d 977, ¶ 18 (11th Dist.). In so

doing, the court must construe the material allegations in the complaint, with all

reasonable inferences drawn therefrom, as true and in favor of the non

- moving party. Id.

A court granting the motion must find that the plaintiff can prove no set of facts in support

of the claims that would entitle him or her to relief. Id. “[A] motion for judgment on the

pleadings has been characterized as a belated Civ.R. 12(B)(6) mo tion for failure to state

a claim upon which relief can be granted.” Id.

, quoting Gawloski v. Miller Brewing Co., 96

Ohio App.3d 160, 163, 644 N.E.2d 731 (9th Dist.1994).

{¶38} At the outset we note that pursuant to Civ.R. 8(A), “[a] pleading that sets

forth a claim for relief * * * shall contain (1) a short and plain statement of the claim

showing that the party is entitled to relief, and (2) a demand for judgment for the relief to

which the party claims to be entitled.” Civ.R. 8(A); Jochum v. State ex rel. Mentor , 11th

Dist. Lake No. 2020

- L

- 032, 2020

- Ohio

- 4191, ¶32. “When ruling on a motion to dismiss,

‘a plaintiff is not required to prove his or her case at the pleading stage .’” Mohat v.

Horvath , 11th Dist. Lake No. 2013

- L

- 009, 2013

- Ohio

- 4290, ¶14, quoting York v. Ohio

State Highway Patrol

, 60 Ohio St.3d 143, 144

- 145 , 573 N.E.2d 1063 (1991) . “Rather, a

plaintiff is only required to allege a set of facts, which, if proven, would plausibly allow for

recovery.” Id. “The plausibility standard does not impose a probability requirement at

the pleading stage; it simply calls for enough facts to raise a reasonable expectation that

discovery will reveal evidence in support of a claim.” Id. Accord Briggs v. Link , 11th Dist.

Geauga No. 2022

- G

- 0004, 2022

- Ohio

- 4249, ¶ 16.10

Case No. 2023

- A

- 0053 Continuing Trespass

{¶39} We address Bend

- Fast ’s assignments of error collectively

. In Bend

- Fast ’s

first four assignments of error, Bend

- Fast contends the trial court erred by finding the

access road and buried cables constitute a permanent trespass that was “fully

accomplished,” from which the trial court found the statute of limitations had run on i ts

claims of civil trespass, criminal trespass, and unjust enrichment. Lastly, Bend

- Fast

contends the trial court failed to construe the factual allegations in its complaint, and all

inferences drawn therefrom, in its favor. Bend

- Fast contends the trial court should have

found that it sufficiently alleged in i t s complaint that the access road and buried cables

are a contin uing trespass, thus tolling the statute of limitations.

{¶40} “ To state a cause of action in trespass, the property owner must prove two

elements: an unauthorized, intentional act by the defendant, and an intrusion by

defendant which interferes with the property owner's right of exclusive possession of the

property. ” McNabb v. Ottawa Cty. Commrs. , 6th Dist. Ottawa No s . OT

- 17

- 036 and OT

18

- 24 , 2019

- Ohio

- 1487, ¶ 30.

{¶41} There are several types of trespass, including ordinary trespass,

permanent trespass and continuing trespass. Id. at ¶ 31; Valley Ry. Co. v. Franz

, 43 Ohio

St. 623, 4 N.E. 88 (1885). An ordinary trespass occurs “[w]hen a man commits an act of

trespass upon another's land, and thereby injures such other at once and to the full extent

that such act will ever injure him and all its effects and the time of statute of limitations

runs from the time of such act of trespass .” Valley Ry. at 625. A permanent trespass

happens when the defendant's allegedly tortious act has been fully accomplished. Sexton

v. City of Mason

, 117 Ohio St.3d 275, 2008

- Ohio

- 858, 883 N.E.2d 1013, ¶ 45. A11

Case No. 2023

- A

- 0053 continuing trespass occurs when there is some continuing or ongoing allegedly tortious

activity or retention of control attributable to the defendant. Id. In other words, a trespass

is continuing only if the trespass itself is continuing, as opposed to the harm caused by a

past trespass. Id. at ¶ 41.

{¶42} We disagree with the trial court’s finding that the access road and buried

cables constitute a permanent trespass, which was “fully accomplished” at the time the

road was buil t and the cables buried.

{¶43} In Valley Ry.

, 43 Ohio St. 623

, the Supreme Court of Ohio explained

“ [W]hen the owner of land rightly and lawfully does an act entirely on his own land, and

by means of such act puts in action or directs a force against or upon, or that affects,

another's land, without such other's consent or permission, such owner and actor is liable

to such other for the damages thereby so caused the latter, and at once a cause of action

accrues for such damages; and such force, if so continued, is continued by the act of

such owner and actor, and it may be regarded as a continuing trespass or nuisance; and

each additional damage thereby caused is caused by him, and is an additional cause of

action; and, until such continued trespass or nuisance by adverse use ripens into and

becomes a presumptive right and estate in the former, the latter may bring his action.” Id.

at 627.

{¶44} In that case, the railway company built a dam and an artificial channel to

divert the river from its natural channel. This construction was completed in 1874. The

diverted water damaged the plaintiff’s land

, and the plaintiff filed suit in 1881. Id. at 625.

The Supreme Court held that the four

- year statu t e of limitations was tolled because of the

continuing nature of the company’s trespass. “The company remained upon its own land,12

Case No. 2023

- A

- 0053 and cut the new channel, and took control of the stream, and directed its course when the

same passed from its land and its control, and has ever since so controlled and directed

the stream that has caused the damage complained of. The amended petition states a

cause of action that is not barred by the statute of limitations provided for such cases.”

Id. at 628.

{¶45} Similarly, in State v. Swartz

, 88 Ohio St.3d 131, 723 N.E.2d 1084 (2000),

the defendant was charged with creating a nuisance by erecting a bridge and culvert on

his property that caused damage to his neighbor’s property. Id. at 134

- 135. Although

construction was complete almost six years before the suit commenced, the Supreme

Court of Ohio held that the two

- year limitations period did not expire because the nuisance

remained in control of the defendant. Id. at 135.

{¶46} The court explained, “ [t]herefore, where one creates a nuisance as

defined in R.C. 3767.13(C) and permits it to remain, so long as it remains, and is within

the control of the actor, the nuisance constitutes a continuing course of conduct tolling

the limitations period pursuant to R.C. 2901.13(D). Thus, because the defendant

permitted the nuisance to remain despite the plaintiff's repeated requests to abate, the

period of limitations did not begin to run until the continuing course of conduct or the

accuse d's accountability for it terminated. R.C. 2901.13(D).” Id.

{¶47} The Supreme Court of Ohio further clarified i n Sexton

, 117 Ohio St.3d

275

, that “ defendant's ongoing conduct or retention of control is the key” to distinguishing

a continuing trespass, which tolls a statute of limitations, from a permanent trespass,

which does not. We hold that a continuing trespass in this context occurs when there is

some continuing or ongoing allegedly tortious activity attributable to the defendant. A13

Case No. 2023

- A

- 0053 permanent trespass occurs when the defendant's allegedly tortious act has been fully

accomplished.” Id. at ¶ 45. In that case, the defendants had finished their work on a

subdivision development and had ceded control by 1995. The neighboring homeowners

did not bring suit until 2003, well after the statute of limitations had expired. Thus, their

trespass claim was barred. Id. at ¶ 55.

{¶48} Appellees cite to State ex rel. Nickoli v. Erie Metroparks , 124 Ohio St

. 3d

449, 2010

- Ohio

- 606, 923 N.E.2d 588 , in support

. That case stemmed from property that

originated from canal property in the 1800s. T he canal company leased some of its

property to a r ailroad in 1881 for 99 years, and then again in 1980 for another 99 years.

The railroad company’s successor eventually quitclaimed its interest to the respondents,

the Erie Metroparks Park District

, in 1995. Id. at ¶ 4. The canal company dissolved in

1904 and its property interests devolved to a testamentary trust that eventually sold

parcels of land to the relators beginning in 2000. Id. at ¶ 4, 5.

{¶49} By the end of 1998, Erie Metroparks began construction of a recreational

trail known as the Huron River Greenway that opened to the public in 2003 , part of which

was located within the relator’s properties. Id. at ¶ 8. There was much litigation between

landowners and the park district in state (declaratory judgment , writ of mandamus ) and

federal court ( unconstitutional takings)

. Id. at ¶ 9

- 15.

{¶50} In this second writ of mandamus action, t he Supreme Court of Ohio declined

to apply a “continuous violations” theory to the governmental taking of certain portions of

the relator’s property, remarking “ [t]he relators' request, in effect, seeks a ruling that the

recreational trail constitutes a continued taking until the respondents' decision to open the14

Case No. 2023

- A

- 0053 trail to the public is reversed. If we were to adopt this position, we would eviscerate the

statute of limitations, which would be an untenable result.” Nikoli, 2010

- Ohio

- 606 at ¶ 35.

{¶51} One year later, however, the Supreme Court of Ohio decided State ex rel.

Doner v. Zody

, 130 Ohio St.3d 446, 2011

- Ohio

- 6117, 958 N.E.2d 1235, which expanded

the Sexton, Valley Ry., and Swartz cases to governmental takings case under

circumstances more similar to those in the instant case

. In that case, the Ohio

Department of Natural Resources built a new spillway, which it completed in 1997, for the

Grand Lake St. Mary ’ s, a man

- made lake located in Mercer and Auglaize counties. Id. at

¶ 2. The redesigned spillway permanently established a four

- inch increase in the lake,

which expanded the lake’s recreational value, making it more attractive to boaters. Id. at

¶ 7. It also considered the lake to be “self

- regulating,” whereas before the redesign,

ODNR would regulate the lake level every winter by lowering the water level of the lake

by 12 inches through the old spillway’s gated outlets. Id. Th e redesign resulted in more

frequent , persistent, and severe flooding of downstream landowners , including farmers

and businesses, on the western side of the lake. Id. at ¶ 8

- 11. In 2009, more than 80

landowners filed a writ of mandamus to compel ODNR to initiate appropriation

proceedings for the taking of their propert ies

. Id. at ¶ 16.

{¶52} The court determined that: “ Sexton, Valley Ry., and Swartz lead

inexorably to the conclusion that when an act carried out on the actor's own land causes

continuing damage to another's property and the actor's conduct or retention of control is

of a continuing nature, the statute of limitations is tolled. There is no logical rationale for

refusing to apply this rule to takings cases and R.C. 2305.09(E). Otherwise, a person15

Case No. 2023

- A

- 0053 whose property is damaged * * * caused by another's actions might have a cause of action

against a private person or entity but not against a governmental entity. ” Id. at ¶ 45.

{¶53} Further, the court distinguished Nickoli

, finding that “[i]n Nickoli, the act

constituting the taking

— the construction and opening of a recreational trail

— occurred on

the relators' property rather than on the respondents' property. Unlike the relators here,

the relators in Nickoli thus had direct and immediate notice of any alleged taking as well

as the cause of the taking. * * * Moreover, as we observed in Nickoli at ¶ 34, quoting

Hopland Band of Pomo Indians v. United States (Fed.Cir.1988), 855 F.2d 1573, 1577, a

cause of action against the government does not accrue until ‘“all the events which fix the

government's alleged liability have occurred and the plaintiff was or should have been

aware of their existence.” (Emphasis omitted.) ’ See also United States v. Dickinson

(1947), 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789 ( ‘ when the Government chooses

not to condemn land but to bring about a taking by a continuing process of physical

events, the owner is not r equired to resort either to piecemeal or to premature litigation to

ascertain the just compensation for what is really “ taken ” ’ ). ” Zody

, 2011

- Ohio

- 6117, ¶ 46,

48.

{¶54} We recognize that at first blush appellees’ access road may seem akin to

a recreational trail, permanently constructed, however, the access road and the cables,

at this early pleading stage are part and parcel of appellees’ cellular tower operation. T he

appellees ’ acts

, continue to cause damage to Bend

- Fast ’s property and the appellees’

“conduct or retention of control is of a continuing nature

. ”

{¶55} Accepting all of the factual allegations of the complaint as true and drawing

all inferences in favor of Bend

- Fast

, we find Bend

- Fast has sufficiently alleged appellees’16

Case No. 2023

- A

- 0053 conduct constitutes a continuing trespass, having alleged that: (1) the access road and

buried cables were unauthorized, intentional acts placed on Bend

- Fast ’s property by

appellees, (2) are an intrusion by appellees, which is interfering with Bend

- Fast ’s rights

of exclusive possession of its property , and (3) appellees’ control and conduct are

ongoing ; t hus, tolling the statute of limitations. See e.g. Quelette v. Columbia Gas of

Ohio, Inc. , 10th Dist. Franklin No. 76AP

- 615, 1977 WL 199926 (Feb. 15, 1977) (action for

illegal installation of a gas line upon appellant’s premises was a continuing trespass with

a 21

- year statute of limitations pursuant to R.C. 2305.04).

{¶56} Bend

- Fast ’s remaining claims of criminal trespass and unjust enrichment

are based on the same underlying conduct of appellees , and the resulting damage

therefrom. 1

{¶57} In light of the foregoing, Bend

- Fast ’s assignments of error are with merit.

{¶58} The judgment of the Ashtabula County Court of Common Pleas is reversed

and remanded in accordance with this opinion.

EUGENE A. LUCCI, P.J.,

MATT LYNCH, J.

,

concur.

1. a We note that the trial court applied a one

- year statute limitations to Bend

- Fast ’s claim of civil liability for criminal acts pursuant to R.C. 2307.60(A)(1). At least one court has found the statute of limitations for this claim to be six years. See Harris v. Cunix , 2022

- Ohio

- 839, 187 N.E. 3d 582, ¶ 27 (10th Dist.). It is sufficient

for the moment that Bend

- Fast pleaded these claims in light of a continuing trespass, and it is possible for

relief to be awarded. See Medical Mutual of Ohio , 2023

- Ohio

- 243, 207 N.E.3d 16 (6th Dist.) (It would be imprudent to decide whether such a claim is subject to a six

- year or one

- year statute of limitations, particularly when we would be doing so for the first time on appeal and with out the benefit of argument by the parties).