PJC General Negligence 2022

T RESPASS

PJC 11.2

State-issued permit not a defense. A state-issued permit does not shield the per mit holder from civil tort liability for trespass. FPL Farming, Ltd. v. Environmental Processing Systems, L.C. , 351 S.W.3d 306, 310–11, 314 (Tex. 2011). Liability for pollution trespass. The mere migration of airborne particulates across one’s property can constitute an actionable trespass. See Coastal Oil & Gas Corp. , 268 S.W.3d at 21–22. However, claims for trespass concerning air particulates and emissions may be considered a toxic tort claim requiring Havner -like require ments for proof. See Cerny v. Marathon Oil Corp. , 480 S.W.3d 612, 621–22 (Tex. App.—San Antonio 2015, pet. filed) (discussing Merrell Dow Pharmaceuticals, Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997)). Such claims may also be affected by the Texas Civil Practice and Remedies Code, which limits liability for trespass by an “air con taminant” not produced by a natural process. See Tex. Civ. Prac. & Rem. Code §75.002(h). The Committee expresses no opinion about whether Havner standards would apply to trespass claims. Trespass related to oil and gas and production damages. Trespass in the con text of oil and gas law, including distinct measures of damages, is treated in the current edition of State Bar of Texas, Texas Pattern Jury Charges—Oil & Gas chs. 302 & 313. Criminal trespass. Trespass in a criminal action involves different requirements and elements. Practitioners should refer to State Bar of Texas, Texas Criminal Pattern Jury Charges Online and applicable sections of the Texas Penal Code. Trespass and nuisance not exclusive. The same act may constitute both a nui sance and a trespass, because the trespass may interfere with a property owner’s right to enjoy his or her property with or without substantial interference. See Allen v. Vir ginia Hill Water Supply Corp. , 609 S.W.2d 633, 636 (Tex. App.—Tyler 1980, no writ). Trespass to try title. Trespass and trespass to try title are not mutually exclusive and can be brought as separate claims in the same action. Coinmach Corp. v. Aspen wood Apartment Corp. , 417 S.W.3d 909, 927 (Tex. 2013). An action for trespass to try title involves a determination of which party has superior title to a piece of property. Coinmach Corp. , 417 S.W.3d at 921; Tex. Prop. Code § 22.001. Damages available in a trespass-to-try-title action include lost rents and profits, damages for use and occupa tion of the premises, and damages for any special injury to the property. See Coinmach Corp. , 417 S.W.3d at 921.

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