Limitations for Private Nuisance
WHAT IS A NUISANCE?
“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) (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)), holding modified by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474 (Tex. 2014); accord Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 593, 606 (Tex. 2016).
While it has historically been considered as an independent cause of action, the Texas Supreme Court has recently declared nuisance to be “a legal injury” that may support a cause of action. However, nuisance, itself, is no longer recognized as the cause of action or the conduct that is necessary to support the cause of action. See Schneider, 147 S.W.3d 264.
CATEGORIZING NUISANCES: TEMPORARY vs. PERMANENT
“[A] nuisance is temporary if it is of limited duration, . . . occasional, intermittent, or recurrent, or sporadic and contingent upon some irregular force such as rain.” Schneider, 147 S.W.3d at 272 (footnotes and internal quotation marks omitted).
By contrast, a nuisance is permanent if it is “constant, regular, and likely to continue.” Schneider, 147 S.W.3d at 272 (footnotes omitted); see also Gilbert Wheeler, 449 S.W.3d at 480.
WHAT IS THE LIMITATIONS PERIOD FOR A PRIVATE NUISANCE CLAIM?
Section 16.003 of the Civil Practice and Remedies Code establishes a two-year period to bring certain suits.
(a) Except as provided by Sections 16.010, 16.0031, and 16.0045, a person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2017); see Schneider, 147 S.W.3d at 270 (“The limitations period for a private nuisance claim is two years.”).
“To [invoke the statute and] establish a limitations defense, the defendant must prove that a permanent nuisance occurred, if at all, more than two years before the landowner’s lawsuit.” Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 153 (Tex. 2012); see Scott v. Babb, 419 S.W.3d 531, 533 (Tex. App.—San Antonio 2013, no pet.).
The date the nuisance claim accrues “is a question of law for the courts.”Schneider, 147 S.W.3d at 270 (citing Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998)). “A court may decide the issues as a matter of law only if the underlying facts are undisputed or, in light of all the evidence, ‘reasonable minds cannot differ.’” Crosstex, 505 S.W.3d at 609.
