PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FIRST VIRGINIA BANKS,
INCORPORATED,
Plaintiff-Appellant,

v.
                                                                     No. 99-1042
BP EXPLORATION & OIL,
INCORPORATED; STANDARD OIL
COMPANY; BP AMERICA,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-98-305-A)

Argued: December 2, 1999

Decided: March 14, 2000

Before WILKINSON, Chief Judge, and
WILKINS and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkinson joined. Judge Wilkins wrote an opinion
concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: George Franklin West, Jr., RICHARDS, MCGETTI-
GAN, REILLY & WEST, P.C., Alexandria, Virginia, for Appellant.
Joseph Dominic Lonardo, VORYS, SATER, SEYMOUR & PEASE,
L.L.P., Washington, D.C., for Appellees. ON BRIEF: Kathleen J.L.
Holmes, RICHARDS, MCGETTIGAN, REILLY & WEST, P.C.,
Alexandria, Virginia, for Appellant. M. Sean Purcell, VORYS,
SATER, SEYMOUR & PEASE, L.L.P., Washington, D.C., for
Appellees.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

In this diversity action, appellant First Virginia Banks, Inc.,
("FVBI") appeals from the district court's grant of summary judgment
to appellee BP America, Inc. ("BP") on the ground that FVBI's tres-
pass claim against BP was barred by the applicable Virginia statute
of limitations. FVBI also contests the district court's judgment after
a bench trial that FVBI was not a third-party beneficiary under Vir-
ginia law to a settlement agreement between BP and Eakin Properties,
Inc. (Eakin). For the reasons set forth below, we affirm.

I.

From 1977 to 1986, BP operated a gasoline station on a parcel of
land owned by Eakin in Falls Church, Virginia. In 1986, BP ceased
its operations at that site, and removed from the site the underground
tanks in which it had stored gasoline. In July 1988, Eakin discovered
that the former BP site contained petroleum contamination.

FVBI owns an undeveloped parcel of residentially-zoned land
located across the street from the former BP site, which it has divided
into fourteen contiguous lots. FVBI also owns two parcels of
commercially-zoned land adjacent to the former BP cite. In the fall
of 1988, Eakin alerted FVBI to the contamination on the former BP
site and, in January 1989, FVBI obtained test results confirming that
the contamination had reached the groundwater beneath its own com-
mercial and residential parcels.

Pursuant to an agreement with Eakin, BP took measures to mitigate
the damage to the site of its former gas station. Despite these mea-

                    2
sures, Eakin filed suit against BP, alleging that the contamination left
behind by BP damaged the property and that the delay involved in
decontaminating the property resulted in lost rent revenues for Eakin.
This lawsuit ended in a confidential settlement agreement, unsealed
after the present suit between BP and FVBI commenced, in which BP
agreed, inter alia, to "remediate as required by the State Water Con-
trol Board." J.A. 329-30.

On March 5, 1998, FVBI filed suit against BP, alleging trespass
and negligence claims against BP resulting from the migration of
petroleum hydrocarbons from the former BP site into the groundwater
beneath FVBI's property. FVBI also brought a breach of contract
claim against BP, asserting that it was a third-party beneficiary to the
settlement agreement between BP and Eakin. The district court
granted summary judgment to BP with respect to the negligence and
trespass claims, and entered a final judgment in BP's favor on the
contract claim after a bench trial. FVBI appeals the disposition below
of its trespass and contract claims.

II.

FVBI first asserts that the district court erred in granting summary
judgment to BP with regard to FVBI's trespass claim. The district
court concluded that FVBI's claim was barred under the applicable
statute of limitations. See Va. Code § 8.01-243(B) ("Every action for
injury to property . . . shall be brought within five years after the
cause of action accrues."). The court determined that FVBI's cause of
action accrued, at the latest, in January of 1989, when petroleum con-
tamination was discovered on its property. See J.A. 33-34. On appeal,
FVBI claims that petroleum hydrocarbons migrated onto its property
in intervals throughout the 1990s, and that each instance in which
petroleum migrated onto its property gave rise to a new cause of
action, with a new five-year limitations period. We disagree.

Under Virginia law, a cause of action "shall be deemed to accrue
and the prescribed limitation period shall begin to run from the date
the injury is sustained in the case of . . . damage to property." Va.
Code § 8.01-230. Data from tests conducted on FVBI's land in Janu-
ary of 1989 revealed that, by that date, the injury at issue here had

                    3
begun to be sustained: petroleum hydrocarbons from the former BP
site had entered the groundwater beneath FVBI's property.

It is true, as FVBI asserts, that the contamination at issue did not
cease in 1989; rather, petroleum hydrocarbons continued to migrate
onto FVBI's land throughout the 1990s. FVBI is also correct to point
out that, under Virginia law, if a series of discrete legal wrongs
occurs, each instance of wrongdoing gives rise to a separate cause of
action. See, e.g., Hampton Roads Sanitation Dist. v. McDonnell, 234
Va. 235, 239 (1987) (holding that nine separate discharges of sewage
onto the plaintiff's property gave rise to separate causes of action).
However, FVBI overlooks the fact that the migration of petroleum
hydrocarbons onto its land did not occur in distinct episodes, as in
Hampton Roads. Rather, the migration has occurred continuously
throughout the decade. In that regard, this case is indistinguishable
from Churchill Apartments Assocs. v. City of Richmond, 36 Va. Cir.
204 (1995), in which the Circuit Court of Virginia held that, in the
case of an injury caused by the continuing migration of methane gas,
the cause of action accrued when methane first migrated onto the
plaintiff's land. See id. at 207.

We thus conclude, as did the district court, that FVBI's trespass
claim had accrued by January of 1989, and that the statute of limita-
tions on that claim had expired by 1994, four years before FVBI filed
the present action. The district court therefore properly granted BP's
motion for summary judgment on FVBI's trespass claim.1

III.

FVBI also asserts that it was a third-party beneficiary to the settle-
_________________________________________________________________
1 On appeal, FVBI raises two arguments in support of its statute of lim-
itations claim for the first time. First, FVBI claims that, because it has
subdivided its land surrounding the former BP cite into sixteen lots, the
statute of limitations should begin to run with respect to each of the lots
only when contaminants entered that lot. Second, FVBI asserts that,
although the five-year statute of limitations applies to its claim for dam-
ages, it does not apply to its claim for injunctive relief. Because neither
of these arguments were raised below, we decline to consider them on
appeal.

                    4
ment agreement between BP and Eakin, and that BP failed to fulfill
its duties to FVBI under that contract. The district court ruled that,
because BP and Eakin did not express a clear intent to benefit FVBI
directly when they entered into the settlement agreement, FVBI was
not a third-party beneficiary to that compact under Virginia law. On
appeal, FVBI argues that the district court impermissibly prohibited
it from introducing certain evidence in support of its third-party bene-
ficiary theory. Alternatively, FVBI contends that, even on the evi-
dence it was permitted to introduce, the district court's conclusion
that BP and Eakin did not intend their agreement to benefit FVBI
directly was clearly erroneous. We reject both claims.

As to the district court's restriction on the amount of evidence
FVBI could introduce, Federal Rule of Civil Procedure 52 requires
that a party be "fully heard" before a judgment is rendered on a partic-
ular issue. However, the right to be "fully heard" does not amount to
a right to introduce every shred of evidence that a party wishes, with-
out regard to the probative value of that evidence. Indeed, the Advi-
sory Committee Note to Rule 52(c) states that the Rule "authorizes
the court to enter judgment at any time that it can appropriately make
a dispositive finding of fact on the evidence." Fed. R. Civ. P. 52 advi-
sory committee's note (1991 Amendment). In the present case, the
district court precluded FVBI from producing further evidence predat-
ing the settlement agreement between BP and Eakin, and concerning
whether BP and Eakin intended their agreement to benefit FVBI
directly. In so doing, the district court noted that it viewed evidence
predating the agreement as being of little relevance to its determina-
tion whether the agreement itself was intended to confer a direct ben-
efit on FVBI. See J.A. 49, 51. Moreover, the district court precluded
the further production of pre-agreement evidence only after it had
allowed FVBI to introduce into evidence all but 38 of the 101 exhibits
that FVBI wished to produce, and only after the court had warned
FVBI that it would not continue to endure a "letter by letter by letter"
presentation of pre-agreement evidence. J.A. 51. Under these circum-
stances, we cannot say that the district court abused its discretion in
placing some limitation on FVBI's introduction of pre-agreement evi-
dence.

As to the question whether the district court's determination on the
record before it was clearly erroneous, FVBI asserts that the evidence

                    5
it was permitted to introduce established that the provision of the
agreement requiring BP to "remediate as required by the State Water
Control Board," J.A. 329, was intended to benefit FVBI, given that
the Board required remedial measures that would limit the impact of
the petroleum contamination on FVBI's property. However, under
Virginia law, a party incidentally benefitted by an agreement does not
attain third-party beneficiary status; rather a party claiming that status
must show that the parties to the underlying agreement "clearly and
definitely intended to bestow a direct benefit" upon it. Obenshain v.
Halliday, 504 F. Supp. 946, 956 (E.D. Va. 1980) (citing Richmond
Shopping Center, Inc. v. Wiley N. Jackson Co., 220 Va. 135 (1979);
Valley Landscape Company, Inc. v. Rolland , 218 Va. 257 (1977)). In
concluding that the settlement agreement in the present case does not
evince such an intent on the part of BP and Eakin, the district court
observed that: (1) the agreement does not expressly mention FVBI,
(2) the agreement was kept confidential until after the present suit
commenced, suggesting the lack of a specific intent to benefit third
parties directly, and (3) the testimony of Charles Schneider, Eakin's
lawyer at the time of the settlement agreement, stating his view that
the agreement would have the effect of limiting the damage to FVBI's
property, not only failed to establish that the parties intended the
agreement to directly (as opposed to incidentally) benefit FVBI, but
also was lacking in credibility and appeared "defensive."2 See J.A. 44-
45. Given these considerations, and having reviewed the record on
appeal, we cannot conclude that the district court's factual determina-
tion that BP and Eakin did not intend their settlement agreement to
benefit FVBI directly was clearly erroneous.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED
_________________________________________________________________
2 Because the district court acted as the fact-finder with regard to
FVBI's contract claim, we decline, despite FVBI's protestations on
appeal, to disturb the district court's determination regarding the credibil-
ity of Schneider's testimony.

                     6
WILKINS, Circuit Judge, concurring in part and dissenting in part:

The majority opinion affirms the grant of summary judgment by
the district court on both FVBI's trespass claim and its third-party
beneficiary claim. I concur regarding the third-party beneficiary claim
but respectfully dissent regarding the trespass cause of action. I would
conclude that the trespass claim is not barred to the extent FVBI seeks
damages for migrations of contaminants that occurred during the five
years immediately prior to the filing of this action.

I.

In granting summary judgment against FVBI, the district court
stated that FVBI's entire trespass cause of action accrued when the
first invasion occurred. The court stated that the case turned on "a dis-
tinction between cases in which a single trespass continues over an
extended period of time, and those in which the tortious actions are
not continuous but occur only at intervals." J.A. 32. Concluding as a
matter of law that the migration of contamination from Eakin's prop-
erty to FVBI's had been continuous since it first began, the court
ruled that FVBI's entire cause of action accrued no later than the date
of the first invasion, more than five years prior to the filing of this
suit. The majority, relying largely on a single trial court opinion, see
Churchill Apartments Assocs. v. City of Richmond, 36 Va. Cir. 204
(1995), agrees with the district court that the continuous nature of the
trespass here completely bars FVBI's trespass claim.

II.

A trespass is an unauthorized entry onto property that causes an
interference with the property owner's possessory interest in the prop-
erty. See Cooper v. Horn, 448 S.E.2d 403, 406 (Va. 1994). Permitting
noxious matter to escape from one's land and injure the land of
another constitutes a trespass. See Akers v. Mathieson Alkali Works,
144 S.E. 492, 495 (Va. 1928). A cause of action for trespass accrues
when the injury is sustained. See Va. Code Ann. § 8.01-230 (Michie
Supp. 1999). Because it is a property damage claim, FVBI's trespass
action is subject to a five-year statute of limitations. See Va. Code
Ann. § 8.01-243(B) (Michie 1992); Vines v. Branch, 418 S.E.2d 890,
894 (Va. 1992).

                     7
When a trespass is short-lived, the cause of action accrues and the
statute of limitations begins to run when an injury is first sustained,
although the trespass may cause permanent injury to the plaintiff's
property. See W. Page Keeton et al., Prosser and Keeton on the Law
of Torts § 13, at 83 (5th ed. 1984). In such a case, a single cause of
action accrues. Cf. Hampton Roads Sanitation Dist. v. McDonnell,
360 S.E.2d 841, 843 (Va. 1987) (explaining that when trespasses
"occur only at intervals, each occurrence inflicts a new injury and
gives rise to a new and separate cause of action"). The same is true
in the case of a single entry that continues, as when a defendant
dumps waste onto the plaintiff's property and fails to remove it. See
Keeton, supra, § 13, at 83-84. In that case, the cause of action for
damages for both the past presence and the anticipated future pres-
ence of the waste accrues when the waste is dumped, on the theory
that "the defendant is not privileged to commit a second trespass to
remove" the invasion, and thus it is presumed that the waste will
remain indefinitely. Id. at 84. Stated another way, the failure to
remove waste that has been wrongfully placed on a plaintiff's land
does not give rise to separate or successive causes of action.

A different rule may apply when a condition on the defendant's
property--such as the uncontained contamination here--is the source
of a constant and continuing migration of contaminants onto the
plaintiff's property. See Hampton Roads Sanitation Dist., 360 S.E.2d
at 843-44. In the circumstance of an ongoing trespass, if the cause of
the migration of contaminants onto the plaintiff's property is perma-
nent and at once "produces `all the damage which can ever result
from it,'" then the plaintiff's injury is permanent and the plaintiff still
is relegated to a single cause of action that accrues when the invasion
begins. Id. (quoting Norfolk & W. Ry. v. Allen, 87 S.E. 558, 560 (Va.
1916) (opinion on rehearing)); cf. Keeton, supra, § 13, at 84 (stating
that when "the trespass results from a condition on the defendant's
own land," the date of accrual for damages for prospective invasions
"turn[s] upon the permanent nature of the condition").* However, if
_________________________________________________________________
*The closely related concepts of trespass and nuisance overlap in this
area. See Haywood v. Massie, 49 S.E.2d 281, 284 (Va. 1948). While a
trespass is an entry on or use of another's property without permission,
a nuisance is a nontrespassory interference with another's reasonable use

                     8
the cause--and therefore the injury--is not permanent, the continuing
invasion gives rise to new and separate causes of action that continue
to accrue for so long as the invasion continues to occur. See Virginia
Hot Springs Co. v. McCray, 56 S.E. 216, 218-19 (Va. 1907).

A permanent injury results when the condition causing it is not
likely to be abated. See id. at 218 (explaining that when a condition
on defendant's property that causes an interference with the plaintiff's
enjoyment of his property might not be continued, a single cause of
action encompassing future injury is not appropriate); cf. id. at 220
(noting that defendant's intentions are relevant to whether an injury
is considered permanent). In contrast, if the condition is likely to be
abated, i.e., if it "`is likely to be removed by any agency,'" the injury
is not considered permanent. Id. at 219 (quoting City of Paris v.
Allred, 43 S.W. 62, 63 (Tex. Civ. App. 1897, writ denied)); see
Richmond Fairfield Ry. v. Llewellyn, 157 S.E. 809, 818 (Va. 1931)
(holding that landowner's injury from sewer discharge on her prop-
erty was not permanent when the other party planned to discontinue
the discharge); cf. Keeton, supra,§ 13, at 84 (stating that "likelihood
that the defendant will terminate" the condition is relevant to the
question of whether "there must be a single recovery of all damages").
Whether an injury is permanent is generally a fact question for a jury.
See Virginia Hot Springs, 56 S.E. at 220.

Moreover, when the question of whether an injury is permanent is
a close one, a finding that it is not permanent is favored. See Norfolk
& W. Ry. v. Allen, 87 S.E. 558, 561 (Va. 1916) (opinion on rehear-
_________________________________________________________________

or enjoyment of his property. See Keeton, supra, § 13, at 70. The sce-
nario of a condition on a defendant's property causing continuing injury
to a plaintiff's property or to his enjoyment thereof can be common to
both trespass and nuisance causes of action. Not surprisingly, in such cir-
cumstances the rule to be applied in determining whether a plaintiff is
relegated to a single cause of action is not affected by which legal theory
is the basis for the suit. See Hampton Roads Sanitation Dist., 360 S.E.2d
at 843 (citing Norfolk & Western Railway v. Allen, a nuisance case, as
authority for the rules to be applied concerning the accrual of a trespass
cause of action for the ongoing discharge of sewage onto the plaintiff's
land).

                     9
ing). The reasons for the preference are twofold. First, the plaintiff
should not be compensated for a permanent injury when he may not
suffer a permanent injury. See Norfolk & W. Ry. v. Allen, 87 S.E. 558,
559 (Va. 1915) (stating that "it cannot be assumed that the defendant
will continue to illegally inflict injury upon the plaintiff" because
"[t]o indulge such a presumption might result in awarding the plaintiff
damages for an injury never suffered by him" (internal quotation
marks omitted)), aff'd on reh'g, 87 S.E. 558 (Va. 1916); id. at 561
(opinion on rehearing) (noting "the injustice of compelling the defen-
dant to pay for a perpetual wrong, which he would perhaps put an end
to" (internal quotation marks omitted)). Second, when a plaintiff fails
to bring suit concerning an ongoing trespass within five years of the
initial invasion, setting the accrual date for the entire cause of action
at the date of the initial invasion has a perverse effect: It not only
allows the defendant to avoid liability for his previous wrong, but
gives him a license to continue the wrongful conduct with impunity.
See id. at 561 (opinion on rehearing).

Applying these rules to the present case, to the extent that FVBI
seeks damages for the migration of contaminants onto its land that
occurred more than five years prior to this suit, its claim is time
barred because FVBI's causes of action for that migration accrued
when the migration occurred. See Keeton, supra, § 13, at 84.

FVBI's claim for injuries caused by the additional petroleum
migration that occurred during the five years immediately preceding
the filing of this suit is not so easily disposed of, however. I agree
with the majority that the migration of petroleum onto FVBI's prop-
erty has been continuous from the time of the first invasion. However,
the majority errs in failing to recognize that continuity of the trespass
is necessary but not sufficient to establish that FVBI is relegated to
a single cause of action. As I have explained, in addition to continuity
of the trespass, permanence of the injury is also necessary, and that
element has not been established as a matter of law. Whether the con-
tamination on Eakin's land caused a permanent injury was at least a
disputed question of fact because BP did not establish that the con-
tamination on Eakin's property would not likely be abated. Compare
Richmond Fairfield Ry., 157 S.E. at 818 (holding that sewer discharg-
ing waste onto plaintiff's property did not cause a permanent injury
because the other party intended to end the flow onto plaintiff's prop-

                    10
erty), with Virginia Hot Springs, 56 S.E. at 219 (citing with approval
City of Paris, which held that sewer that discharged into water run-
ning onto the plaintiff's land did cause a permanent injury because the
city considered the sewer to be permanent when it was constructed
and "[n]o move ha[d] been made by the city authorities to abate the
nuisance" (internal quotation marks omitted)). Holding that a cause of
action for damages for perpetual migration of contaminants onto a
plaintiff's land accrues immediately upon the first invasion, when it
has not been established that the migration will indeed continue indef-
initely, would "compel[] the defendant to pay for a perpetual wrong,
which he would perhaps put an end to." Norfolk & W. Ry., 87 S.E.
at 561 (opinion on rehearing) (internal quotation marks omitted).
Accordingly, a reasonable jury could find that FVBI timely asserted
its trespass cause of action to the extent that FVBI seeks damages for
the migration of contaminants onto its property during the five years
immediately preceding the filing of this suit.

III.

In sum, I concur in the majority's affirmance of the grant of sum-
mary judgment by the district court on FVBI's third-party beneficiary
claim. Regarding the trespass claim, I would affirm the grant of sum-
mary judgment against FVBI to the extent that FVBI seeks damages
for migrations that occurred more than five years prior to the filing
of this suit. I would reverse, however, to the extent that FVBI seeks
damages for migrations that occurred during the five years immedi-
ately prior to the filing of this action.

                    11
