Nuisance claim against governmental entity (variant of takings claim)

  

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 – 5/3/2012

Here, 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

What is trespass, legally speaking? How about a nuisance?

TRESPASS AND NUISANCE DEFINED (Tex. 2011)

Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters—or causes something to enter—another’s property. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11 n.29 (Tex. 2008); Glade v. Dietert, 295 S.W.2d 642, 645 (Tex. 1956). "[E]very unauthorized entry upon land of another is a trespass even if no damage is done or injury is slight." Coastal Oil, 268 S.W.3d at 12 n.36 (quoting McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ. App.—Beaumont 1934, writ ref’d) (alteration in original)).

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. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004); see also Burditt v. Swenson, 17 Tex. 489 (1856).

The common definition of damage is "loss due to injury: injury or harm to person, property, or reputation." WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 571 (2002).

SOURCE: TEXAS SUPREME COURT - 10-0669 - 10/21/11 - Barnes v. Mathis (Tex. 2011)
(per curiam opinion) 

ELEMENTS OF TRESPASS TO TRY TILE ACTION 

The Texas Property Code provides in part, "A trespass to try title action is the method for determining title to lands, tenements, or other real property." TEX. PROP. CODE ANN. § 22.001(a) (West 2014). 

"To prevail in a trespass-to-try-title action, a plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned." Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex. App.-Dallas 2013, no pet.).  

Noise as Nuisance: How bad does it have to be before judicial relief can be granted?

  

NUISANCE DEFINED

  

What constitutes a nuisance, legally speaking?

  

 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.  Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004).  

  

Distinct types of nuisance claims: Excessive noise may qualify

 

Courts have divided actionable nuisance into three classifications:  (1) negligent invasion of another’s interest; (2) intentional invasion of another’s interest; or (3) other conduct, culpable because abnormal and out of place in its surroundings, that invades another’s interests.  See City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997).  

Noise, if sufficiently extreme, may constitute a nuisance.  See Schneider, 147 S.W.3d at 269; see also Kane v. Cameron Int’l Corp. 331 S.W.3d 145, 148 (Tex. App.–Houston [14th Dist.] 2011, no pet.) (nuisance may arise when person’s senses are physically assaulted).

   

A business that is lawful in and of itself may become a nuisance because of the locality in which it is carried on.  See Storey, 226 S.W.2d at 618.  A business may also be a nuisance because the place where it is located is uncongenial to that type of enterprise.  Id.   The law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business.  Id.  The right to acquire a known property and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921).  However, it is a right that takes into account the equal rights of others, for it is qualified by the obligation that the use of the property shall not be to the prejudice of others.  Id. 

SOURCE: Tyler Court of Appeals - 12-09-00291-CV  -7/13/11