Tag Archive for: negligence

Plum Grove Sues Colony Ridge Developer Over Floodwater, Sewage Leaks

The City of Plum Grove on the San Jacinto East Fork has sued the developer of Colony Ridge over alleged breaches of an agreement that governs development in the City’s extra territorial jurisdiction. Colony Ridge is the world’s largest trailer park. Specifically, the City claims that Colony Ridge:

  • Allowed stormwater runoff from the development to flood the City
  • Failed to contain sewage that overflowed into neighborhoods and waterways

The City wants the developer to fix the problems and live up to the terms of their agreement (see Exhibit 1, Page 15). Plum Grove’s lawsuit cites several instances of both flooding and sewage spills. Only some have previously been covered in ReduceFlooding.com posts.

Parallels with Elm Grove Lawsuit against Woodridge Village Developer

This lawsuit has many parallels with a lawsuit by Elm Grove Village homeowners in Kingwood. They are suing Perry Homes, its subsidiaries and contractors for flooding hundreds of homes last year. Similarities include:

  • Neighboring homeowners vs. a developer that…
  • Clearcut land
  • Filled in wetlands
  • Without allegedly installing adequate detention or drainage

More than $1 Million in Damage to City Hall, Roads and Other Property

Plum Grove seeks damages for Colony Ridge’s “repeated and serious damage to City-owned or maintained buildings, roadways and other property.” The City claims more than $1 million in damages to date. But the City is not seeking compensation for damages. It wants the developer to fix the problems that are causing repeated flooding and sewage spills.

Causes of Action

Lawyers for Plum Grove cite several “causes of action” to support their claims and damages:

  • Breach of Contract
  • Negligence
  • Private Nuisance
  • Violation of Texas Water Code § 11.086
  • Trespass

“The fundamental breach of the Agreement arises from the fact that Defendant has paved over wetland area and/or diverted the flow of surface water without construction of adequate drainage or detention facilities. Because of developments by Defendant without conforming to applicable drainage standards and regulations, Plum Grove and the surrounding area are now experiencing significant flooding after major rainfall events,” says the lawsuit on pages 6 and 7.

Wetlands that used to exist on Colony Ridge Property. Source: USGS National Wetlands Inventory.
From Liberty County Stormwater Regulations. Plum Grove’s agreement with the developer specified that the developer had to comply with these regulations.

A defendant’s actions rise to the level of negligence under Texas law if 1) the defendant “owed a duty” to plaintiffs (had an obligation); 2) the defendant breached that duty; and 3) the breach caused the plaintiff’s damages.


Private nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance. In that regard, the suit mentions both flooding and the repeated overflow of sewage into creeks, ditches and property.

Water Code Violation

The Texas Water Code, Chapter 11.086, prohibits a person from diverting the natural flow of surface water in a manner that damages the property of another.

“Because of the increased stormwater runoff from Defendant’s developments during significant rain events like Hurricane Harvey, Tropical Storm Imelda, and the May 7, 2019 storm,” says the suit, “City Hall was flooded, City-owned/maintained roads, and residential areas have been inundated and City-owned/maintained bridges and culverts have experienced significant damage. Defendant’s actions constitute the wrongful diversion of surface water onto City property.”

Plum Grove residents allege that Colony Ridge cleared forests, filled in wetlands and re-routed runoff without adequate detention. And as a result, flood risk has increased within tiny Plum Grove which has only several hundred residents left. Many have been driven off already.


The most interesting legal theory is that the stormwater “trespassed” on neighbor’s property. A defendant commits “trespass to real property,” claims the suit, “where there is an unauthorized entry upon the land of another, and may occur when one enters—or causes something to enter—another’s property.”

Problems Became Apparent in 2015

Further, the suit alleges that Colony ridge was aware of drainage violations since at least 2015 (Page 7). Finally, it alleges that had Colony Ridge followed County regulations and standards as required by the agreement with Plum Grove, that flooding and its impact on the City and nearby properties would have been significantly reduced.

Long-Time Resident Verifies City Claims

Resident Michael Shrader says that his property never flooded before Colony Ridge started clearing land upstream from his home on Maple Branch. He has lived in Plum Grove since 1987 and weathered huge storms in 1994 and 2001 (Tropical Storm Allison) without flooding. “The extreme flooding in my yard and home during more recent storms,” said Shrader, “was clearly a result of the Camino Real Colonia’s stormwater run-off that’s all directed to the head of Maple Branch that then runs behind my back yard. Colony Ridge is the only major change to the landscape since I’ve lived here. All the wetlands that were there are now gone!”

Area the way it existed in 2011, before Colony Ridge
Same area in 2019. Colony Ridge is still expanding today. See area at right.
Shrader’s house as water was still rising during Harvey. Shrader says it eventually got up to the windows in the foreground.

Maria Acevedo, another local land owner and activist has seen firsthand the construction practices at Colony Ridge. “Their lack of Best Management Practices has sent silt downstream. That silt as clogged drains and ditches, causing water to back up and overflow. The TCEQ has documented these practices. The longer such abuses continue, the more pushback this developer will get from Plum Grove residents and also residents of Colony Ridge.”

“We are not going away until they comply with the law.”

Maria Acevedo

More on that TCEQ report tomorrow. It’s 184 pages long and deserves its own post.

Posted by Bob Rehak on 10/15/2020

1143 Days since Hurricane Harvey and 392 since Imelda

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Elm Grove Lawsuit Names Perry, Concourse Development As New Defendants; Trial Delayed

Attorneys for owners of 304 flooded homes in Elm Grove have named Perry Homes, LLC and Concourse Development, LLC as additional defendants in their lawsuit. Plaintiff’s lawyers filed their 287-page, sixth amended petition on 6/16/2020. Today, they also filed a request for a new trial date of 3/1/2021.

For the complete 287-page filing, click here. For a summary, read below.

New Information May Tie Perry, Concourse Directly to Floods

Based on allegations made in the lawsuit, it appears that attorneys may now have evidence that Concourse (the developer of Woodridge Forest) was also part owner of Woodridge Village. Wording within the allegations also suggests that Perry Homes was directly involved in the actions of its subsidiaries PSWA and Figure Four Partners, which in turn were telling contractors what to do and not to do.

This is potentially good news for plaintiffs because companies, such as PSWA and Figure Four are only subsidiaries of Perry. Such subsidiaries often act as shell companies that shield the parent company from liability. With few assets, the subsidiaries simply declare bankruptcy if they lose a large lawsuit. Then, life goes on as normal for the parent company. However…

Both Perry Homes and Concourse Development have substantial assets. Perry claims to be close to a billion dollar company.

Concourse developed the adjacent Woodridge Forest, where Perry also built homes. It bought Woodridge Village land and then held it for six days before selling it to Perry. Evidently, they didn’t sell their entire interest. Before the May 7th flood, Concourse bragged about its role in Woodridge Village. But after the flood, the company removed all mentions of Woodridge from its web site.

Screen Capture from Concourse Development website before lawsuits filed.

Allegations in Sixth Amended Petition

The big news: The plaintiff’s sixth amended petition now names Perry and Concourse as additional defendants. Previous petitions named only Perry subsidiaries, contractors and LJA Engineering.

In the new petition, defendants allege that:

  • LJA used an outdated version of Montgomery County’s Drainage Criteria manual when it designed drainage for Woodridge Village.
  • Figure Four failed to properly review the plans, catch the error, oversee LJA, or make construction decisions.
  • As a group, Figure Four, PSWA, Perry Homes and Concourse (referred to as “Developer Defendants” in the amended petition) hired contractors and directed them to fill in existing creeks and drainage channels, and to remove a levee or berm on the south side of Taylor Gully that had previously protected Elm Grove. The existence of this berm was not mentioned in LJA’s engineering plans, they say.
  • Even after the first flood on May 7th, when developers were aware of the danger, they failed to take corrective actions that would have prevented the September 19th flood.
  • As a direct consequence of their actions and inactions, the developers flooded hundreds of homes in Elm Grove.
  • The inactions of Perry and Concourse following the May 7th flood justify punitive damages.

Key Elements of Agreement Between Developers

The petition also claims that the four developer defendants entered into an agreement that called for them to:

  • Make exhaustive or continuous on-site inspections to check the quality and quantity of work
  • Be responsible for the techniques and sequences of construction, and safety precautions
  • Take responsibility AND liability for the contractors’ failure to construct the project in accordance with the contract documents.

However, the plaintiffs also accuse the developer defendants (through negligence or omissions) of:

  1. Failing to make exhaustive or continuous on-site inspections to check the quality or quantity of the work
  2. Failing to properly monitor the techniques and sequences of construction or the safety precautions to ensure Elm Grove would not flood during construction
  3. Failing to ensure the contractors performed the construction work in accordance with the contract documents
  4. Failing to incorporate drainage studies prior to initiating construction on the Development
  5. Failing to properly direct and supervise the means, methods, and techniques of the sequence in which the contractors performed the work on the Development
  6. Removing drainage from the Development
  7. Removing a levee and/or berm from the Development
  8. Failing to implement a proper construction schedule
  9. Failing to follow the construction schedule
  10. Blocking the drainage channels
  11. Filling in existing drainage channels
  12. Failing to properly install box culverts
  13. Failing to create temporary drainage channels
  14. Failing to allow adequate drainage after construction
  15. Failing to install silt barriers
  16. Allowing the Development to force rainfall toward Plaintiffs’ homes’
  17. Diverting surface water towards Plaintiffs’ homes
  18. Failing to pay proper attention
  19. Failing to provide notice or warning
  20. Failing to have a proper rain event action plan
  21. Failing to have a proper storm water pollution prevention plan
  22. Failing to follow a proper storm water pollution prevention plan
  23. Failing to coordinate activities and/or conduct
  24. Failing to supervise the activities of the Development and engineering
  25. Failing to instruct in proper construction and/or drainage requirements
  26. Failing to train in proper construction and/or drainage requirements
  27. Failure to review engineering plans
  28. Failing to comply with the Terracon Consultants, Inc. geotechnical report
  29. Failing to construct the emergency release channel
  30. Failing to timely implement the detention ponds
  31. Allowing inadequate construction to take place
  32. Failing to hire an adequate engineer to implement the project plan
  33. Failing to protect runoff from flooding homes
  34. Failing to protect Elm Grove from flooding during construction.

Basis for Exemplary Damage Claim

Paragraph 42 contains some of the strongest language in the complaint. It alleges that the Developer Defendants knew of the risks, and both the probability and magnitude of the potential harm to others. The complaint asserts, “These acts and omissions were more than momentary thoughtlessness, inadvertence, or error of judgment. Rather, the Developer Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”

“Such acts and/or omissions,” the paragraph continues, “were a proximate cause of the flooding and the resulting injuries and damages sustained by Plaintiffs. Accordingly, Plaintiffs hereby seek an award of exemplary damages.”

Having said all that, the plaintiffs seek BOTH ordinary and exemplary damages (defined below).

Location of plaintiffs’ flooded homes in relation to Perry/Concourse property.

8 Defendants, 9 Counts, 2 Floods, 3 Degrees of Negligence

Altogether, the petition alleges nine counts against eight defendants in two floods. Spelling out who is being sued for what and why involves a lot of overlap and redundancy. But some of the Counts specify subsets of defendants, floods, allegations and degrees of negligence. So you may want to read the entire document.

The petition splits the defendants into three groups: Contractors, Developers, and LJA Engineering, with specific charges against each. The basis for charges sometimes varies also. For instance, charges against LJA include (in addition to many of those above) failure to:

  • Adequately report the modeling
  • Use the correct hydrology method
  • Adequately model the development
  • Notify the developers and contractors of the importance of the existing berm.

Plaintiffs say LJA was aware of the risks, but nevertheless proceeded with willful and conscious indifference to the rights safety and welfare of the victims.

As a result, plaintiffs are suing LJA for negligence, negligence per se and gross negligence for BOTH floods.

Differences Between Degrees of Negligence

Black’s Law Dictionary describes the differences:

  • Negligence is the failure to do something which a reasonable and prudent man would do, or doing something which a reasonable and prudent man would not do.
  • Negligence Per Se is the form of negligence that results from violation of a statute. The violation of a public duty enjoined by law for the protection of people and property. So palpably opposed to the dictates of common prudence that no careful person would be guilty of it.
  • Gross Negligence is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It is a conscious and voluntary act of omission which is likely to result in grave injury when in the face of clear and present danger of which the defendant is aware.

Nuisance Claim

In addition to negligence, plaintiffs also claim nuisance…”When Defendants unlawfully diverted … water onto Plaintiffs’ homes.”

Black’s Law Dictionary defines nuisance as “…that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another…and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage.”

Seeking Damages, Exemplary/Punitive Damages

The ordinary damages, plaintiffs claim, consist of one or more of the following:

  1. Cost of repairs to real property;
  2. Cost of replacement or fair market value of personal property lost, damaged, or destroyed during such event;
  3. Loss of use of real and personal property;
  4. Diminution of market value of Plaintiffs’ properties;
  5. Loss of income and business income;
  6. Consequential costs incurred, inclusive of but not limited to alternative living conditions or accommodations and replacement costs;
  7. Mental anguish and/or emotional distress;
  8. Prejudgment interest;
  9. Post judgment interest;
  10. Attorneys’ fees
  11. Costs of Court.

However, as a result of alleged gross negligence, plaintiffs also seek exemplary damages as punishment. Black’s Law Dictionary defines exemplary damages as “Damages on an increased scale awarded to a plaintiff over and above actual or ordinary damages, where wrong done to a plaintiff was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct.”

Defendants’ Responses Not Yet Filed

As of this writing, the Harris County District Clerk’s website does not show responses filed by either Perry or Concourse to new allegations.

March 1 Preferential Trial Date Requested

Because of the number of plaintiffs, expert witnesses, defendants and law firms involved in this case, the plaintiffs have requested a “preferential trial setting” of March 1, 2021. A preferential trial setting eliminates the possibility of numerous continuances due to scheduling conflicts between the court, parties, attorneys and witnesses.

The plaintiffs have also requested a proposed Amended Docket Control Order that shows alternative dispute resolution (mediation) happening on 1/29/2021.

Net: If the judge accepts the new timetable, it will likely be another 7 to 8 months before this case sees any resolution.

As new developments happen, read about them here.

Posted by Bob Rehak on 6/19/2020

1025 Days since Hurricane Harvey and 274 since Imelda

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