CRAVEN, Circuit Judge.
Chester and Paul Railing began this action on June 28, 1961, for injuries to their business and property alleged to have been caused by unfair labor practices of the officers, agents, representatives and members of the United Mine Workers of America.1 Jurisdiction rests upon 29 U.S.C. § 187 (1964).
[781] The Railings conducted a nonunion coal strip-mining operation and coal tipple at Berry Run, West Virginia. In April of 1958, Railings’ employees, allegedly instigated by the Union, struck and picketed these operations. The Union’s purpose was said to be: (1) to force the Railings to recognize the Union as exclusive bargaining representative, and (2) to force the Railings to cease-doing business with other employers or to cease using, selling or otherwise handling the products of other employers, thereby forcing these other employers to recognize the Union as the bargaining representative of their employees. Additionally, the Railings allege that UMW maliciously destroyed specific items of equipment and property2 and induced employees of other employers to engage in a concerted refusal to handle or otherwise work on any coal produced by Railing. On July 14, 1959, there was a complete cessation of all strike activity and picketing pursuant to an injunction issued by the National Labor Relations Board; however, the Railings did not institute this action until June 28, 1961, one year and approximately eleven and one-half months after such cessation.
The Railings appeal from the partial grant of UMW’s motion for summary judgment as it related to the application of the two-year statute of limitations prescribed by W.Va.Code, ch. 55, art. 2, § 12 (Michie 1966). The district court held that the statute of limitations began to run on the alleged illegal activities of UMW from each day of their occurrence and not from the time when all such activities ceased.3 The result is to bar many claims that would be viable if the statute of limitations were adjudged to run from the date of cessation of illegal activity.
In its discussion of the issue now before us, the district court addressed itself to two basic questions: (1) what period of limitation was to be applied, and (2) when the cause of action being sued upon accrued and when the period of limitations began to run.
Section 303 of the Labor Management Relations Act contains no statute of limitations. The district court referred to state law to determine the pertinent period of limitation to be applied. Plaintiffs originally instituted this action in the District Court for the Eastern District of Kentucky, but the action was transferred to the District Court for the Northern District of West Virginia upon motion of UMW. The court below, the transferee district court, determined that it must look to the law of the State of Kentucky, the state from which the transfer was made, including Kentucky’s “borrowing statute,” KRS 413.060, to determine the statute of limitations applicable to the cause of action sued upon. See Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947). The Kentucky statute required the application of the West Virginia two-year period of limitation, since it was shorter than the period of limitation prescribed by Kentucky. The Railings do not challenge the correctness of this ruling.
It is the district court’s disposition of the problem relating to accrual of the cause of action that is the subject of appeal. In treating this issue of accrual the district court correctly determined that federal and not state law must be applied. Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605 (1941). This is so even though the period of limitation is “borrowed” from the appropriate state. Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L. Ed. 1602 (1947). Although it is clear that federal law is to be applied, it is not so clear what that law may be. Since neither the statute nor the report[782] ed decisions determine when a cause of action accrues under Section 303, we are faced, as was the court below, with the necessity of fashioning a rule of decision to be applied in determining when such cause of action “accrues.”
In undertaking to fashion such a rule we have examined cases involving private causes of action arising under the federal antitrust laws. In such cases as Highland Supply Corp. v. Reynolds Metals Co., 327 F.2d 725 (8th Cir. 1964); Crummer Co. v. Du Pont, 223 F.2d 238 (5th Cir. 1955); and Delta Theaters Inc. v. Paramount Pictures, Inc., 158 F. Supp. 644 (E.D.La.1958), it has been held that where private causes of action under the antitrust laws are based upon continuous invasions of one’s rights, the causes accrue from day to day as the injured party’s rights are invaded and damages result. The Union urges us to adopt the principle of the antitrust cases here.
On the other hand, the Railings contend that under the facts of the instant case, where the same illegal activity continued on a daily basis over a definite period, a cause of action should not be held to accrue and the limitation period should not commence to run until cessation of the acts complained of;4 that it would be impossible to compute damages on a day-to-day basis, and that the decision of the district court requires of a prospective plaintiff “an attempt at prophecy or projecting into the future how long the alleged illegal activities would continue and what their future effect would be;” that it is unfair to put the injured party in the difficult position of having to protect himself from the running of the statute of limitations while the illegal activities continue.
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CRAVEN, Circuit Judge.
Chester and Paul Railing began this action on June 28, 1961, for injuries to their business and property alleged to have been caused by unfair labor practices of the officers, agents, representatives and members of the United Mine Workers of America.1 Jurisdiction rests upon 29 U.S.C. § 187 (1964).
[781] The Railings conducted a nonunion coal strip-mining operation and coal tipple at Berry Run, West Virginia. In April of 1958, Railings’ employees, allegedly instigated by the Union, struck and picketed these operations. The Union’s purpose was said to be: (1) to force the Railings to recognize the Union as exclusive bargaining representative, and (2) to force the Railings to cease-doing business with other employers or to cease using, selling or otherwise handling the products of other employers, thereby forcing these other employers to recognize the Union as the bargaining representative of their employees. Additionally, the Railings allege that UMW maliciously destroyed specific items of equipment and property2 and induced employees of other employers to engage in a concerted refusal to handle or otherwise work on any coal produced by Railing. On July 14, 1959, there was a complete cessation of all strike activity and picketing pursuant to an injunction issued by the National Labor Relations Board; however, the Railings did not institute this action until June 28, 1961, one year and approximately eleven and one-half months after such cessation.
The Railings appeal from the partial grant of UMW’s motion for summary judgment as it related to the application of the two-year statute of limitations prescribed by W.Va.Code, ch. 55, art. 2, § 12 (Michie 1966). The district court held that the statute of limitations began to run on the alleged illegal activities of UMW from each day of their occurrence and not from the time when all such activities ceased.3 The result is to bar many claims that would be viable if the statute of limitations were adjudged to run from the date of cessation of illegal activity.
In its discussion of the issue now before us, the district court addressed itself to two basic questions: (1) what period of limitation was to be applied, and (2) when the cause of action being sued upon accrued and when the period of limitations began to run.
Section 303 of the Labor Management Relations Act contains no statute of limitations. The district court referred to state law to determine the pertinent period of limitation to be applied. Plaintiffs originally instituted this action in the District Court for the Eastern District of Kentucky, but the action was transferred to the District Court for the Northern District of West Virginia upon motion of UMW. The court below, the transferee district court, determined that it must look to the law of the State of Kentucky, the state from which the transfer was made, including Kentucky’s “borrowing statute,” KRS 413.060, to determine the statute of limitations applicable to the cause of action sued upon. See Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947). The Kentucky statute required the application of the West Virginia two-year period of limitation, since it was shorter than the period of limitation prescribed by Kentucky. The Railings do not challenge the correctness of this ruling.
It is the district court’s disposition of the problem relating to accrual of the cause of action that is the subject of appeal. In treating this issue of accrual the district court correctly determined that federal and not state law must be applied. Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605 (1941). This is so even though the period of limitation is “borrowed” from the appropriate state. Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L. Ed. 1602 (1947). Although it is clear that federal law is to be applied, it is not so clear what that law may be. Since neither the statute nor the report[782] ed decisions determine when a cause of action accrues under Section 303, we are faced, as was the court below, with the necessity of fashioning a rule of decision to be applied in determining when such cause of action “accrues.”
In undertaking to fashion such a rule we have examined cases involving private causes of action arising under the federal antitrust laws. In such cases as Highland Supply Corp. v. Reynolds Metals Co., 327 F.2d 725 (8th Cir. 1964); Crummer Co. v. Du Pont, 223 F.2d 238 (5th Cir. 1955); and Delta Theaters Inc. v. Paramount Pictures, Inc., 158 F. Supp. 644 (E.D.La.1958), it has been held that where private causes of action under the antitrust laws are based upon continuous invasions of one’s rights, the causes accrue from day to day as the injured party’s rights are invaded and damages result. The Union urges us to adopt the principle of the antitrust cases here.
On the other hand, the Railings contend that under the facts of the instant case, where the same illegal activity continued on a daily basis over a definite period, a cause of action should not be held to accrue and the limitation period should not commence to run until cessation of the acts complained of;4 that it would be impossible to compute damages on a day-to-day basis, and that the decision of the district court requires of a prospective plaintiff “an attempt at prophecy or projecting into the future how long the alleged illegal activities would continue and what their future effect would be;” that it is unfair to put the injured party in the difficult position of having to protect himself from the running of the statute of limitations while the illegal activities continue.
The district court, in holding that the cause of action accrued from day to day, relied directly on the reasoning of the court in Delta Theaters, Inc. v. Paramount Pictures, Inc., 158 F.Supp. 644 (E.D.La.1958). That case involved a suit under the Clayton Act for damages resulting from conspiracy to destroy competition. The conspiracy had allegedly been going on for ten years before the suit was filed. The plaintiff argued that because the actions of the defendants constituted a continuing conspiracy for a single purpose, the applicable statute of limitations should not be construed to run against the plaintiff’s single cause of action as long as the conspiracy continued. As the court viewed plaintiff’s argument, if the conspiracy constituted a single cause of action, the statute of limitations would either have run from the first “impact” of the conspiracy, in which case the cause of action would have been barred some nine years before, or from the last, which would mean it had not yet accrued. The plaintiff sought to avoid this result by arguing that it should be able to sue on any part of its claim at any time during the conspiracy, but that defendant should not be able to take advantage of the statute until the conspiracy had ceased. The court rejected plaintiff’s position, stating that the conceptual difficulties in attempting to split the type of claim involved were not a sufficient reason for refusing to give effect to the principles underlying the statutes of limitation. “The lapse of time obscures the facts of a continuing conspiracy just as much as those of an intermittent one.” 158 F.Supp. at 648.
On its facts, Delta Theaters does not reach an unreasonable result. Conspiracy, at best, is an ephemeral concept, and the conspiracy in Delta Theaters had allegedly continued over a decade. Certainly the prospect of trying to determine correctly facts spread out over a decade is formidable enough to give pause to any court. The “lapse of time —fading memory — stale claim” arguments underpinning every statute of limitations were, indeed, sufficient reasons for the result the court reached.
[783] But whatever justification existed for applying the day-to-day accrual principle in Delta Theaters, we think it does not apply here. The Railings are not charging UMW with conspiracy, but with the virtual destruction of their business through illegal labor activities, including acts of violence. Moreover, the alleged activities continued for only 16 months, from April 1958 to July 14, 1959, and the action was commenced less than two years after the illegal activities ceased. As the Railings point out, the total eventual damage to the business could not be ascertained after each day of illegal activity. Even if all the illegal activity could be broken down into severable, day-to-day “acts,” the sum of the damage directly attributable to those acts would likely be less than the total damage resulting from the combination of the acts over 16 months. Thus, for instance, illegal activity during the first month may have caused ascertainable damage at that time, but it may have also caused cumulative damage in the sixteenth month by operating in concert with other illegal activities.
When one views the continuing cause or causes of action in this light, it becomes clear that application of a day-today accrual principle is inapposite. Not only would the total damage have been unascertainable before the illegal strike ceased, but also adequate inclusion of all damages resulting from individual, day-to-day acts would have been difficult and cumbersome. To fully protect themselves, plaintiffs would have been forced either to move to amend their complaint frequently to include newly accrued damages, or to speculate as to the total damages that would eventually result from the strike, or both. It would require an unusual degree of prescience to determine when the strike would end and what damage would ultimately result.
Since this is a tort case, it seems to us more sensible to refer to rules of limitation for torts than for antitrust:
If the continuing nature of the tort and injury is such that damages cannot be determined until cessation of the wrong, the right of action is deemed as continuous as the tort on which it is based so that it accrues at, and limitations begin to run from, the last date rather than from the first date of the wrong, or, as otherwise expressed, limitations do not apply to such a tort so long as it subsists.
54 C.J.S. Limitations of Actions § 169, at p. 128 (1948).
Under the circumstances present here, we think the rule most appropriate is that the cause of action accrues on the last date of continuing illegal conduct for purposes of application of a state statute of limitations, but that for separate injury for which damages are earlier ascertainable suit may be brought at the date of ascertainment. In other words, the victim of the illegal activity should be entitled to bring suit as soon as he can do so, but should not be required to bring suit until the illegal activity has ceased. Cf., e. g., Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809 (2d Cir. 1960); Fowkes v. Pennsylvania R. R. Co., 264 F.2d 397 (3rd Cir. 1959); Essex Wire Corp. v. M. H. Hilt Co., 263 F. 2d 599 (7th Cir. 1959); Reynolds Metals Co. v. Yturbide, 258 F.2d 321 (9th Cir. 1958), cert. denied, 358 U.S. 840, 79 S.Ct. 66, 3 L.Ed.2d 76 (1958); Goodall Co. v. Sartin, 141 F.2d 427 (6th Cir. 1944), cert. denied, 323 U.S. 709, 65 S. Ct. 34, 89 L.Ed. 571 (1944). But see, e. g., R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir. 1963); Hilton v. Duke Power Co., 254 F.2d 118 (4th Cir. 1958), rehearing denied, 255 F.2d 840 (1958). Under this rule the West Virginia statute of limitations did not begin to run until the UMW finally ceased its illegal strike activities. We hold the district 'court erred in ruling that the statute of limitations began to run on the day each unfair labor practice occurred.
[784] The judgment will be reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.