Civil Litigation
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Texas Trespass

© 2015 Mark J. Courtois and Diane S. Davis

A. TRESPASS TO REAL PROPERTY

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., No. 12-0905, 2015 Tex. LEXIS 113, at *10 (Tex. February 7, 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 *24.

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., 57 Tex. Sup. J. 1465, 2014 LEXIS 767, *11 (August 29, 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., 57 Tex. Sup. J. 1465, 2014 LEXIS 767, *11 (August 29, 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 *10.

B. TRESPASS TO PERSONAL PROPERTY.

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).