Tag Archive for: law

Recent Texas Supreme Court Ruling Clarifies Your Property Rights Versus Another’s

Sand miners may argue that their property rights give them an absolute right to do what they want on their own property. However, such claims ignore a 2016 Texas Supreme Court ruling that clarified nuisance law. The very word “nuisance” may conjure up images of “trivial or petty annoyances.” However, people often use nuisance laws to settle serious environmental and property-damage claims.

Texas Supreme Court Case No. 15-0049, Crosstex North Texas Pipeline L.P. v. Andrew and Shannon Gardiner, resulted in guidelines for deciding property rights conflicts in such nuisance claims.

I have summarized the 54-page decision below for convenience, but am not a lawyer and do not offer legal advice. Also, inevitably, editing involves selective omissions. After reading this, if you are interested, I urge you to review the full text of the decision by clicking on the link above.

Details of Case

This case applies to private (individual) nuisance cases. In Crosstex v. Gardiner, the Gardiners claimed that Crosstex built a compressor station adjacent to their ranch that made living there unbearable and diminished the value of their property. Up to four compressors, each the size of mobile homes, ran constantly; at least one ran at all times. According to the Gardiners, they literally shook the ground, caused vibrations, and created as much noise as jet engines or railroad locomotives. They asked the pipeline company to reduce the noise by enclosing the compressors in a building. The pipeline company instead built three walls around the compressors and planted foliage. However, it left the side facing the Gardiners open. A jury awarded the Gardiners $2 million.

Defendants appealed the case. The Texas Supreme Court ruled on it in 2016. The Court’s decision has been lauded nationally because of the clarity it brought to conflicting and confusing precedents in this area of the law. Googling the case shows more than 18,000 references to it, most by law firms, other court decisions, and national media.

What the Decision Includes

In the decision, the Court:

  • Defines “nuisance”
  • Explains that nuisance is a type of legal injury – not a cause of action
  • Discusses types of conduct that create nuisances and legal liability
  • Confirms that whether a defendant is liable presents fact issues for a jury to decide.

Court’s Definition of Nuisance

A nuisance, says the Court, can result from such things as “water, stones, rubbish, filth, smoke, dust, odors, gases, noises, vibrations, and the like.”

Early cases examined by the Court reflected efforts to balance a property owners’ rights. One person’s desire to use his property as he desires should not unreasonably injure a neighbors’ rights to the use and enjoyment of his property. The following passage could have been written about sand mines:

“…When expensive plants have been erected and are used in carrying on a useful business[,] adjacent property owners will not be permitted to maintain actions for every trifling annoyance which such business causes them.” Storey, 226 S.W.2d at 618. But “the fact that the business is a useful or necessary one or that it contributes to the welfare and prosperity of the community is not determinative,” and “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.

More recently, however, the Texas Supreme Court has consistently used a more comprehensive definition of 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 attempting to use and enjoy it.”

The term “nuisance,” they say, does not refer to the “wrongful act” or to the “resulting damages,” but only “to the legal injury—the interference with the use and enjoyment of property—that may result from the wrongful act and result in the compensable damages.”


The Court defines nuisance as a legal injury only if:

  • The interference is “substantial” and …
  • Causes “discomfort or annoyance”
  • That is “unreasonable.”


Further, the Court says, “[T]he duration or recurrence of the interference is merely one—and not necessarily a conclusive—factor in determining whether the damage is so substantial as to amount to a nuisance.”

Support for “Substantial”

“To support a claim for private nuisance, the condition the defendant causes may interfere with a wide variety of the plaintiffs’ interests in the use and enjoyment of their property. It may, for example, cause:

  • Physical damage to the plaintiffs’ property
  • Economic harm to the property’s market value
  • Harm to the plaintiffs’ health
  • Or psychological harm to the plaintiffs’ ‘peace of mind’ in the use and enjoyment of their property.”

“But to rise to the level of nuisance, the interference must be ‘substantial’ in light of all the circumstances.”

“Even a substantial interference, however, does not constitute a nuisance unless the effect of the interference on those who would otherwise use and enjoy their land is ‘unreasonable.'”

Support for Unreasonable

Unreasonable means “the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.”

Regarding this unreasonableness requirement, the Court highlighted three points.

  • First, it focuses on the unreasonableness of the interference’s effect on the plaintiff’s comfort or contentment, not on the unreasonableness of the defendant’s conduct or land use.
  • Second, unreasonableness must be determined based on an objective standard of persons of ordinary sensibilities, not on the subjective response of any particular plaintiff.
  • Third, as is typical with legal inquiries into reasonableness, the determination requires balancing a wide variety of factors, depending on the specific facts.

In summary, the court said, “Today we clarify that to prove a nuisance (that is, a legal injury based on interference with use and enjoyment of land), a plaintiff must establish that the effects of the substantial interference on the plaintiff are unreasonable—not that the defendant’s conduct or land use was unreasonable.”

Factors That May Be Considered

Determining whether a defendant’s interference with a plaintiff’s use and enjoyment of land is substantial or whether any particular effect of that interference is unreasonable requires consideration and balancing of a multitude of factors. Depending on the circumstances of the case at hand, these may include, among others:

  • the character and nature of the neighborhood, each party’s land usage, and social expectations;
  • the location of each party’s land and the nature of that locality;
  • the extent to which others in the vicinity are engaging in similar conduct in the use of their land;
  • the social utility of each property’s usage;
  • the tendency or likelihood that the defendant’s conduct will cause interference with the plaintiff’s use and enjoyment of their land;
  • the magnitude, extent, degree, frequency, or duration of the interference and resulting harm;
  • the relative capacity of each party to bear the burden of ceasing or mitigating the usage of their land;
  • the timing of each party’s conduct or usage that creates the conflict;
  • the defendant’s motive in causing the interference; and
  • the interests of the community and the public at large.

To summarize and repeat, “nuisance” refers to a “condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.”

“To establish such a legal injury, the plaintiff must prove that the interference is substantial and the resulting discomfort or annoyance is unreasonable, but need NOT establish that the defendant’s conduct or land use was unreasonable. That issue goes to whether the defendant can be legally liable for creating a nuisance and we turn to that question next,” said the court. (Emphasis added.)

Three Types of Conduct that Create Liability

The Court recognized three types of nuisance claims based on defendant’s actions:

  • Intentional Nuisance
  • Negligent Nuisance
  • Strict-liability Nuisance

Distinction Between Negligence and Nuisance

Negligence is one way that a defendant can create a nuisance. “To put it bluntly, a nuisance claim based on negligence is merely a negligence claim with harm to interests in use and enjoyment.”); HARPER§§ 1.23, at 102 (although “negligence is one way in which a nuisance may be caused, . . . where that is the case there is no distinction—the two coalesce”), 1.24, at 109 (“To the extent that one fails to take reasonable precautions to minimize the harmful effects of one’s activity, there is a case of common negligence.”)

“We think the better approach to reduce confusion is to clarify, as we do today, that the term ‘nuisance’ refers not to a cause of action or to a defendant’s conduct, but to the legal injury that the conduct causes and that gives rise to the cause of action.”

“We have no difficultly concluding that a defendant can be liable for ‘negligently’ causing a ‘nuisance,'” says the court. “In this category, the claim is governed by ordinary negligence principles. The elements the plaintiff must prove are ‘the existence of a legal duty, a breach of that  duty, and damages proximately caused by the breach.’”

Inappropriate Place or Abnormally Dangerous Activities

Even in the absence of intent or negligence, “a nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous activity [that] necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed.’ PROSSER, 3d ed. § 88, at 596–97.” (Emphasis added.)

As I read this section of the decision, I thought about sand mining on point bars along the San Jacinto. Numerous academic studies cite river capture of the pits during floods as a “virtual certainty” over time. In fact, many of the pits were captured during several recent floods, not just Harvey. And as a result, much sediment was carried downstream which contributed to flooding that damaged homes and businesses.

Given the location of most of the West Fork mines:

… one could argue that pit capture and its consequences were eventually inevitable.

Sand mine pit capture during Harvey. The river took a shortcut across a point bar through the mine, sweeping sediment downstream. 

During Harvey, floodwaters swept through this complex and breached dikes in multiple locations. 

Some of that sediment now is likely part of this giant sand bar that was deposited during Harvey. It blocks the drainage ditch that empties the western third of Kingwood. Approximately 650 homes above this one blockage flooded during Harvey. While the sandbar looks small from the air, it is up to 15 feet high.

Liability Possible Even When Not Negligent

One precedent cited in the decision was a defendant who stored large volumes of water in a reservoir on his land. He was strictly liable for damage that resulted when the water escaped, “however skillfully and carefully the accumulation was made,” because the otherwise-unrestrained water was a “dangerous substance.” Later, the court observed, “the question is not really the nature of the defendant’s original conduct but whether he shall be permitted to continue it.”

“The mere fact that the defendant’s use of its land is “abnormal and out of place in its surroundings” will not support a claim alleging a nuisance; instead, in the absence of evidence that the defendant intentionally or negligently caused the nuisance, the abnormal and out-of-place conduct must be abnormally ‘dangerous’ conduct that creates a high degree of risk of serious injury.”


“It is well-settled,” says the Court, “that three different remedies are potentially available to a claimant who prevails on a private-nuisance claim: damages, injunctive relief, and self-help abatement.”

However, not all remedies are available in every case. “Unlike the determination of whether a nuisance occurred, the decision to enjoin the defendant’s conduct or use is “a discretionary decision for the judge after the case has been tried and the jury discharged.” Damages could even include the cost of restoring land, says the Court.

Temporary vs. Permanent Damages

When the nuisance is temporary, the claimant may recover “only such damages as have accrued up to the institution of the suit or … to the trial of the action.”

When the nuisance is permanent, the claimant may recover lost market value.

Decision in Crosstex v. Gardiner Case

Said the Court: “The duty that Crosstex owed to the Gardiners was the duty to do what a person of ordinary prudence in the same or similar circumstances would have done. See Timberwalk Apartments, 972 S.W.2d at 753; see also Elliff v. Texon Drilling Co., 210 S.W.2d 558, 563 (Tex. 1948) (“In the conduct of one’s business or in the use and exploitation of one’s property, the law imposes upon all persons the duty to exercise ordinary care to avoid injury or damage to the property of others.”); Rhodes v. Whitehead, 27 Tex. 304, 307 (1863) (“The great principle which seems to control all the modern cases is, that men must so use their own as not to injure the rights of others, or to incommode others; they must not endanger health or comfort, or produce inconvenience, and there can be no prescriptive right in a nuisance.”)

Further, the court observed that: “The evidence of that breach included testimony that the noise was louder than even Crosstex anticipated, that the mitigation efforts Crosstex implemented did not lessen the noisome interference, and that Crosstex could have taken other steps to mitigate the noise but chose not to because of cost considerations. We agree with the court of appeals that some evidence supports the jury’s finding that Crosstex acted negligently in creating the condition that the jury found to constitute a nuisance.”

Net Takeaway on Nuisance

The court concluded:

“We hold today that the term “nuisance” describes a particular legal injury involving interference with the use and enjoyment of property but does not describe a cause of action; that a defendant can be liable for intentionally or negligently causing a condition that constitutes a nuisance; and that neither claim requires a separate finding that the defendant unreasonably used its property when creating a nuisance.”

My observations about sand mining within this review are matters of opinion on public policy and not intended to be legal advice. They are protected by the First Amendment of the United States Constitution and the Anti-SLAPP statute of the great State of Texas.

Posted by Bob Rehak on November 24, 2018

452 Days since Hurricane Harvey

More About Sand Mining than You Ever Wanted to Know

Regular readers of this site will notice something new today – a top-level page that contains links to information about sand mining best practices.

The page features four categories of information about sand mining:

  • Best management practices from other states and countries
  • Academic articles and case studies
  • Texas laws and regulations
  • Observations

The material within each category ranges from easy-to-understand to for-experts-only. Descriptions beneath each link hint at the nature, content and authorship of the entry along with its degree of difficulty.

I hope to expand the page over time. If you know of additional valuable references, please send me links.

Knowledge: Your Best Defense

People who have closely followed the sand mining debate in the Lake Houston area know that the Texas Aggregate and Concrete Association and others have pushed back against this website.

Sand mine in Porter next to Caney Creek covers approximately 600 acres as of Hurricane Harvey. Kingwood’s East End Park, just downstream from here, had 30 acres covered with sand up to 10 feet high after Harvey.

I believe that such debate is healthy. I also believe that informed people can make better decisions about what’s in the public interest and their own self-interest.

Start with Louisiana

If you want to learn more, the Louisiana Best Management Practices represent a great place to start. Louisiana has geology, topology, weather, climate and vegetation much like ours. Beyond that, the document is clear, concise, well-illustrated and well researched…and balanced. It contains sections that explain why we need sand mining and how it’s done. It also contains good descriptions of the dangers. Then it describes best management practices and explains how they can help mitigate those dangers.

Similarities Around the World

As you explore best practices, notice their similarity throughout the world. Our problems are not unique.

Pay particular attention to recommendations pertaining to:

  • Setbacks from the river
  • Slopes of dikes
  • Location and protection of stockpiles
  • Vegetative ground cover
  • Buffer zones
  • Remediation
  • Erosion control

Huge Gaps Exist Between Desired, Required, and Actual Practices

Be mindful of the distinctions between desired, required and actual practices. Best practices lead to best outcomes. Required practices usually lead to minimally acceptable outcomes. Actual practices sometimes fall short of even those. That’s why I’ve also included the section on laws.

Statewide, sand mine operators received more than 600 fines for violations in the last five years.

After reviewing laws and best practices, browse through the aerial photos of sand mines on this site and ask yourself, “Are they complying with laws and observing the industry’s best management practices?”

If your answer is “No”, ask “Why?” And DEMAND answers.

Finding the Solution to Pollution

Sand comes at us from many sources, some natural and some man-made. We can’t stop nature, but we can stop harming ourselves.

  • Our lake and river are rapidly filling with sediment.
  • Drainage ditches are backing up into neighborhoods.
  • Water filtration costs are high.
  • Turbidity is high.
  • Oxygen in the water is low.
  • Recreation, boating and fishing are impaired.
  • Dredging will cost tens, if not hundreds, of millions of dollars.
  • Maintenance dredging will cost even more.

Demand Excellence, Not Just Compliance

We must hold the mines to the highest standards if they want a license to operate next to the source of drinking water for millions of people. Violations are simply not acceptable.

Also, any solution must acknowledge that this region is prone to repetitive flooding. We’ve had FIVE five-hundred year storms in the last 24 years (1994, 2001, 2015, 2016, 2017). During each, we also had huge releases from Lake Conroe that exacerbated flooding.

If mine design cannot withstand these types of events, we invite disaster. The most sediment transport happens during floods; it’s time we started planning for them.

How You Can Help

All of us are smarter than one of us. You may see things that I missed. Please review the aerial photos, best practices and laws. If you see opportunities for improvement, send them to me.

Example: Alaska, I noticed, discourages mining within 1000 feet of a public water source. Here, the sand mines operate right next to ours and even drive trucks through it.

Sand mines on the west fork of the San Jacinto adjacent to Kingwood. Note how close they are operating next to the source of our drinking water. Also note what appears to be a breach of the dike between the mine on the left and the river about two-third of the way up the left side of the photo. Photo taken after Harvey on 9/14/2017.


Sand mine on the West Fork of the San Jacinto adjacent to Kingwood. Industry best practices elsewhere discourage running vehicles through water sources. Here the operator built a road right through the river. Also notice the steepness of the dikes. Most best management practices recommend setting them back from the river, sloping them at 3:1 to 10:1 and planting them with vegetation such as grass to retard erosion. 


Fresh sand deposits after Harvey coming out of the sand mines on the west fork of the San Jacinto adjacent to Kingwood. Note that the height of the dune is engulfing several medium sized trees on the right. Also note the road leading to the river on the left and machinery at work in an area unprotected by dikes.

Let’s compile of list of such observations, then start a dialog with the sand mining industry to encourage voluntary compliance with best practices and improve disaster planning.

Posted on 6/15/18 by Bob Rehak

Day 290 since Hurricane Harvey