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1. Elements. Texas law recognizes a cause of action for trespass to real property.  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. Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex.  2011). There are three elements to a trespass cause of action: (1)  entry (2) onto the property of another (3) without the property owner's  consent or authorization. Envtl. Processing Sys., L.C. v. FPL Farming Ltd.,  457 S.W.3d 414, 419 (Tex. 2015).  It is  the plaintiff's burden to prove that the entry was wrongful, and the  plaintiff must do so by establishing that entry was unauthorized or without his consent. Id. at 425.

2. Standing. The  claim for injury to real property is a personal right, which belongs to  the person who owned the property at the time of the injury. See Gleason v. Taub, 180  S.W.3d 711, 713 (Tex. App.- Fort Worth 2005, pet. denied). Absent an  express provision, the right to sue for trespass does not pass to a  subsequent purchaser. Id.

3. Damages. Trespass damages are determined by whether the trespass injury to the land is permanent or temporary. Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P.,   449 S.W.3d 474, 480 (Tex. 2014).  The  general rule is that in cases involving permanent injury to real  property the measure of damages is the loss of fair market value, while  the cost to repair or restore is the proper measure in temporary  nuisance cases. Id. Although, in cases of temporary injury,  when the cost to repair or restore exceeds the diminution in the  property's market value to such a high degree that the repairs are no  longer economically feasible, then the injury may be deemed permanent  and damages are awarded only for the loss of market value. Id.

4. Statute of Limitations.  Actions for trespass to real property claims are governed by a two-year  statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2002); Graham v. Pirkey, 212  S.W.3d 507, 512 (Tex. App.--Austin 2006, no pet.). When the two-year  period begins to accrue depends on whether the trespass was temporary or  permanent in character. See Schneider Nat'l Carriers, Inc. v. Bates, 147  S.W.3d 264, 274-75 (Tex. 2004) (stating accrual of limitations is  question of law). The Texas Supreme Court has determined that "an injury  to real property is considered permanent if (a) it cannot be repaired,  fixed, or restored, or (b) even though the injury can be repaired,  fixed, or restored, it is substantially certain that the injury will  repeatedly, continually, and regularly recur, such that future injury  can be reasonably evaluated." Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P.,  449 S.W.3d 474, 480 (Tex. 2014).  Conversely, an injury to real property is considered temporary if (a) it  can be repaired, fixed, or restored, and (b) any anticipated recurrence  would be only occasional, irregular, intermittent, and not reasonably  predictable, such that future injury could not be estimated with  reasonable certainty." Id. Whether an injury is permanent or temporary is a question of law for the court to the decide. Id. at 480-481.  


1. Elements. Texas law also recognizes a cause of action for trespass to personal  property. The tort of trespass protects against interference with one's  possessory interest in personal property. The gist of the trespass to  personalty is an injury to, or interference with, possession,  unlawfully, with or without the exercise of physical force. See Mountain States Tel. & Tel. Co. v. Vowell Constr. Co.,  341 S.W.2d 148, 150 (Tex. 1960). Destruction of, or injury to, personal  property, regardless of negligence, may be a trespass. Id.

2. Damages. The commission of a trespass does not necessarily mean the actor will  be liable for damages. RESTATEMENT (SECOND) OF TORTS § 217, Comment a  (1965). Liability does not attach, unless the wrongful detention is  accompanied by actual damage to the property or deprives the owner of  its use for a substantial period of time. See Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945); RESTATEMENT (SECOND) OF TORTS § 218 (1965).

C.  Statute of Limitations.  There is a two statute of limitations on a trespass action. Tex. Civ. Prac. & Rem. Code Ann. §§ 16.003.  


© 2015 Mark J. Courtois and Diane S. Davis

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