Governmental liability for nuisance arises from Article I, section 17 of the Texas Constitution. Gotcher v. City of Farmersville, 139 S.W.2d 361, 362–63 (Tex. Civ. App.—Dallas 1940), aff'd, 151 S.W.2d 565 (Tex. 1941). A city may be held liable for a nuisance that rises to the level of a constitutional taking. Jennings, 142 S.W.3d at 316 (citing City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex. 1963)).
A “nuisance” is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003). For an act of a governmental entity to qualify as a nuisance without being defeated by the doctrine of governmental immunity, the condition created by the entity must in some way constitute an unlawful invasion of property or the rights of others beyond that arising merely from its negligent or improper use. Shade v. City of Dallas, 819 S.W.2d 578, 581–82 (Tex. App.—Dallas 1991, no writ) (reversing summary judgment for the city on the plaintiff’s nuisance claim because the city failed to prove that its act was negligent and, therefore, shielded by sovereign immunity). Nonnegligent or intentional nuisance is actionable, and the City is not immune under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (West 2011 & Supp. 2011). See Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.—Waco 1993, writ denied).
SOURCE: EASTLAND COURT OF APPEALS - 11-11-00137-CV – 5/3/2012Here, appellee has not shown or otherwise pleaded that the City created or maintained a nuisance in the course of nonnegligent performance of governmental functions. As discussed above, appellee did not allege an intentional act and has at most alleged that the City acted negligently. Furthermore, appellee did not allege that the line itself was inherently subject to frequent breaks or that the City kept the water system running in bad repair. Rather, appellee alleged only that the City continued the “intentional running of the water system for the public use when they knew it was harming Plaintiff’s property.” The water system itself was not a nuisance. It did not create the condition that caused discomfort and annoyance to appellee. This was done by the leak in appellee’s toilet cutoff pipe. Viewed in the light most favorable to appellee, the pleadings fail to establish a claim for nuisance that rises to the level of a constitutional taking. The trial court erred when it denied the City’s plea to the jurisdiction as it related to appellee’s constitutional nuisance claims. We sustain the City’s second issue on appeal.
The judgment of the trial court is reversed, and judgment is rendered that appellee take nothing by her claims.
SOURCE: EASTLAND COURT OF APPEALS - 11-11-00137-CV – 5/3/2012