When Your Land is Damaged by the Acts of Another, You have a Limited Time to Bring Suit.
By: Trey Wilson, real estate attorney and water rights lawyer in San Antonio.
INTRODUCTION
Like all claims recognized under Texas law, suits for damage to land are governed by statutes of limitations. “Limitations” refers ro the time within which suit upon a claim must be filed, and following which it will be barred.
The date that a claim arises is the “accrual date.” The accrual date is the day that the clock starts running on the injured party’s right to file suit. Suits filed after expiration of applicable limitations periods are subject to dismissal.
In Texas, Statutes of limitations:
afford plaintiffs what the legislature deems a reasonable time to present their claims and protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990).
Limitations periods can also be fatal to claims for damage to lands, so it is critical to understand when a claim accrues and the deadline for filing a suit for recovery.
WHEN DOES A CLAIM FOR DAMAGE TO LAND ACCRUE?
A claim for injury to land accrues when the injury occurs. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d 419, 424 (Tex. 2010) (citing Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888)).. This usually means the day on which the Defendant’s wrongful conduct was committed.
WHO CAN ASSERT A CLAIM FOR DAMAGE TO LAND?
The right to sue for damage to land belongs to the person who owns the land when the injury occurs. This right does not pass to a subsequent owner without an express assignment. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d at 424.
A subsequent lessee, including a mineral interest lessee, can stand in no better shoes than a subsequent owner. Id. at 425.
A party that lacks a right to sue lacks standing, which implicates the Court’s subject-matter jurisdiction. Id. at 425.
WHAT ABOUT JOINT OWNERS?
Where property is jointly owned, all co-owners are necessary parties to a suit for damages arising from a trespass or tort, both because “the law abhors a multiplicity of suits” and because, “though the estates of the cotenants or joint owners are several, yet the damages survive to all; and it would be unreasonable to allow several actions for damages for one single trespass.” Taylor v. Catalon, 166 S.W.2d 102, 105 (Tex. 1942).
WHAT ABOUT THE LEGAL INJURY AND SINGLE ACTION RULES?
Sometimes a party whose land has been damaged asserts multiple claims, with negligence, nuisance, and trespass being among the most frequent. Each of these claims have distinct limitations periods and actual dates:
(a) a negligence claim accrues when the conduct at issue causes any legal injury for which legal relief may be obtained;
(b) a nuisance claim accrues when the conduct first substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities;
(c) a claim for trespass to a mineral lessee’s rights accrues when “unauthorized conduct first invades or interferes with the claimant’s legal rights ‘to explore, obtain, produce, and possess the minerals subject to the lease'”; and
(d) a claim for trespass to a surface owner’s rights accrues “when the unauthorized entry occurs, even if the entry does not cause a discernible injury or damages.”
The legal-injury and single-action rules may affect when an injury-to-land claim accrues.
Notwithstanding these guidelines, under the legal-injury rule, a party’s claims based on wrongful conduct still accrue even if the claimant:
(1) does not yet know a legal injury occurred,
(2) has not yet experienced or gained knowledge of the full extent of the injury,
(3) does not yet know the specific cause of the injury or the party responsible,
(4) later suffers additional injuries, or
(5) has not yet suffered or cannot yet ascertain any or all of the resulting damages.
622 S.W.3d at 814.
Under the single-action rule, wrongful conduct gives rise to a single, indivisible action in which a claimant must pursue all claims for all damages from all resulting injuries, and those claims all accrue when the first such injury occurs. Id. at 814-15.
WHAT ABOUT FRAUD, CONCEALMENT AND THE DISCOVERY RULE?
In special and narrow circumstances, limitations can be tolled. This means that the clock is stopped for a period of time based upon the inherent inability to discovery the injury or the fraudulent concealment by the Defendant of the injury. In this way, accrual of a claim could be delayed under the discovery and fraudulent concealment rules.
bTake note, however, that these rules apply only to a party who owned the land when the injury occurred. Tolling most often does not apply to subsequent owners or lessees. See La Tierra de Simmons Familia, Ltd. v. Main Event Ent., LP, No. 03-10-00503-CV, 2012 Tex. App. LEXIS 1928, 2012 WL 753184, at *7 (Tex. App.—Austin Mar. 9, 2012, pet. denied) (mem. op.).
Some Texas courts have held that the discovery rule does not apply if the plaintiff lacks standing to bring the claim, reasoning that the discovery rule relates to limitations and “the question of limitations cannot arise unless the plaintiff has standing to come into court.” Senn v. Texaco, Inc., 55 S.W.3d 222, 225-26 (Tex. App.—Eastland 2001, pet. denied) (“The discovery rule cannot work to transfer the ownership of a cause of action from one person to another simply because the second person claims to have discovered the injury.”); see also Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d 752, 767 (Tex. App.—El Paso 2010, no pet.) (“The discovery rule is not applicable in cases where the subsequent property owner lacks standing to sue for an injury to land that occurred prior to passage of title.”); Brooks v. Chevron USA Inc., No. 13-05-00029-CV, 2006 Tex. App. LEXIS 4479, 2006 WL 1431227, at *9 (Tex. App.—Corpus Christi May 25, 2006, pet. denied) (mem. op.) (“Neither fraudulent concealment nor the discovery rule operate[s] to vest a cause of action in an individual [who otherwise lacks standing].”).
THE TAKEAWAY
If your land has been damaged by another, you should take prompt action to make a demand for repairs or compensation, and consult with an experienced real estate attorney familiar with applicable statutes of limitations.
ABOUT THE AUTHOR:
Trey Wilson has more than 25 years representing Texas landowners in real estate and water law issues and disputes.
