ARCHER.EIC2 3/15/2007 4:42:08 PM SHOO, ODORS AND POLLUTANTS! DON’T BOTHER ME!: THE IMPACT OF SCHNEIDER NATIONAL CARRIERS, INC. V. BATES ON PRIVATE NUISANCES IN TEXAS Brandon Archer* I. INTRODUCTION.......................................................................172 II. HISTORICAL BACKGROUND....................................................172 A. Elements of Private Nuisance.........................................172 B. Statute of Limitations......................................................173 C. The Test for Distinguishing Permanent and Temporary Nuisances......................................................175 III. THE RULE OF SCHNEIDER NATIONAL CARRIERS, INC. V. BATES.178 A. Facts of the Case.............................................................178 B. Procedural History..........................................................179 C. The Supreme Court’s Holding.........................................179 IV. CONSEQUENCES OF THE SCHNEIDER DECISION........................184 A. Difficulty of Prospective Application..............................184 B. The Permanent Source Rule............................................187 C. Abatability.......................................................................187 V. POSSIBLE RESOLUTIONS TO THE ISSUES CREATED BY SCHNEIDER..............................................................................189 A. Judicial Determination of Accrual..................................189 B. Legislative Remedy..........................................................190 C. Articulation of Specific Standards...................................191 VI. CONCLUSION...........................................................................191 *Candidate for J.D., Baylor Law School, April 2007; B.A. in Political Science, summa cum laude, Baylor University, 2004. Upon graduation, the author will join Shannon, Porter & Johnson, L.L.P. in San Angelo, TX. ARCHER.EIC2 3/15/2007 4:42:08 PM 172 BAYLOR LAW REVIEW [Vol. 59:1 I. INTRODUCTION The law of private nuisance gives landowners a cause of action for another’s interference with their property.1 The Texas Supreme Court has defined private nuisance as “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.”2 Unlike trespass, a nuisance cause of action does not require actual entry onto the land or an interference with possession thereof.3 Rather, the interests protected by nuisance law are use and enjoyment.4 A crucial issue in any nuisance case is whether the nuisance is permanent or temporary.5 The distinction is critical because of its effect upon the application of the statute of limitations.6 Noting that previous cases turning on this issue had been decided inconsistently and unpredictably, the Texas Supreme Court sought to clarify the applicable standards for determining whether a nuisance is permanent or temporary in Schneider National Carriers, Inc. v. Bates.7 The court held that when future damages can be estimated with reasonable certainty the nuisance is permanent, and when they cannot, the nuisance is temporary.8 This Note analyzes the practical effects of the Schneider decision on Texas law. Part II examines the historical application of private nuisance law in Texas. Part III discusses the analysis and holding of the Schneider court. Part IV considers the major consequences of Schneider and how it will affect future cases. Finally, Part V suggests possible solutions in order to ensure that future cases reach fair results. II. HISTORICAL BACKGROUND A. Elements of Private Nuisance In establishing a nuisance claim, the first requirement is that there is 1RESTATEMENT (SECOND) OF TORTS § 821D (1979). 2Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003). 3RESTATEMENT (SECOND) OF TORTS § 821D cmt. d (1979). 4Id. 5See Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564, 566 (1948). 6See id. 7147 S.W.3d 264, 274–75 (Tex. 2004). 8Id. at 281. ARCHER.EIC2 3/15/2007 4:42:08 PM 2007] THE IMPACT OF SCHNEIDER 173 some conduct or condition which substantially interferes with the use or enjoyment of the plaintiff’s land.9 An interference is substantial if it “involves more than slight inconvenience or petty annoyance.”10 Additionally, the condition must be one that would cause “unreasonable discomfort or annoyance to persons of ordinary sensibilities.”11 Typical examples include conditions that entail detrimental effects on the physical condition of the land itself,12 such as flooding,13 and other non-physical injuries that disturb the comfort or convenience of the occupant, such as unpleasant odors, smoke, dust, gas, loud noises, excessive light, high temperatures, or even repeated phone calls.14 Nuisances may arise under three standards of culpability.15 Intentional invasions of the occupant’s use or enjoyment of land are the most common.16 “Intent” includes a substantial certainty that the interference will occur.17 Next, nuisances may arise by a negligent interference.18 Finally, a nuisance may be found in the case of any “[o]ther conduct, which is abnormal, out of place in its surroundings, and substantially interferes with use and enjoyment” of property.19 B. Statute of Limitations The limitations period on a private nuisance claim is two years.20 Because the statute is silent as to when the cause of action accrues, accrual 9Lethu, Inc. v. City of Houston, 23 S.W.3d 482, 489 (Tex. App.⎯Houston [1st Dist.] 2000, pet. denied). 10City of Temple v. Mitchell, 180 S.W.2d 959, 962 (Tex. Civ. App.⎯Austin 1944, no writ). 11Lethu, 23 S.W.3d at 489. 12Mitchell, 180 S.W.2d at 962. 13See, e.g., Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564, 567 (1948) (finding a nuisance where the city erected a bridge which caused water to be diverted onto plaintiff’s land). 14W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 87 at 619–20 (5th ed. 1984). 1519 WILLIAM V. DORSANEO III, TEXAS LITIGATION GUIDE § 311.02[2][a] (2005). 16Id. 17See id. 18Id. 19Id. In Village of Euclid v. Ambler Realty Co., the U.S. Supreme Court noted “[a] nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” 272 U.S. 365, 388 (1926). 20TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon Supp. 2005). ARCHER.EIC2 3/15/2007 4:42:08 PM 174 BAYLOR LAW REVIEW [Vol. 59:1 is a question of law to be decided by the courts.21 The general and long- articulated rule is that a cause of action accrues at the time a legal injury is sustained.22 However, the cause of action accrues at the time a nuisance is constructed if this in itself is an invasion of the plaintiff’s rights, the natural sequence of which results in legal injury.23 The distinction between a temporary or permanent nuisance becomes critical in determining when the action accrues. The court has explained that “where a nuisance is permanent and continuing, the damages resulting from it should all be estimated in one suit, but where it is not permanent, but depends on accidents and contingencies so that it is of a transient character, successive actions may be brought for injury as it occurs.”24 Thus, if a nuisance is found to be temporary, the only available damages are compensation for injuries that have already happened.25 Specifically, the damages are measured by loss of reasonable rental value of the property.26 Upon each successive new injury, a new limitations period begins for the plaintiff to bring successive separate suits for recovery.27 Additionally, the plaintiff may be entitled to an injunction.28 In the case of a permanent nuisance, all damages, both past and probable future injuries, must be calculated in a single suit.29 It follows that there is only a single limitations period running from the initial injury during which the plaintiff must bring suit.30 Unlike the victim of a temporary nuisance, one who is injured by a permanent nuisance will be time-barred to bring a new suit upon a subsequent injury. Damages recoverable for permanent nuisance are measured by depreciation in the fair market value of the property.31 21Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). 22Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888). 23See Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564, 565–66 (1948). 24Id. at 566. 25Parsons v. Uvalde Elec. Light Co., 106 Tex. 212, 163 S.W. 1, 2 (1914). 26Gillespie v. Grimes, 577 S.W.2d 538, 540 (Tex. Civ. App⎯Tyler 1979, no writ). 27Parsons, 163 S.W. at 2. 28Burbridge v. Rich Props., Inc., 365 S.W.2d 657, 660 (Tex. Civ. App⎯Houston 1963, no writ) (citing Shuttles v. Butcher, 1 S.W.2d 661, 665 (Tex. Civ. App.—El Paso 1927, writ ref’d)). 29Rosenthal v. Taylor, Bastrop & Houston Ry. Co., 79 Tex. 325, 15 S.W. 268, 269 (1891) (citing Fowle v. New Haven & Northampton Co., 112 Mass. 334, 339 (1873)). 30Parsons, 163 S.W. at 2. 31Baugh v. Tex. & New Orleans Ry. Co., 80 Tex. 56, 15 S.W. 587, 587 (1891). ARCHER.EIC2 3/15/2007 4:42:08 PM 2007] THE IMPACT OF SCHNEIDER 175 In awarding damages for a permanent nuisance, courts are careful to avoid double recovery. The Texas Supreme Court indicated that recovery may implicate res judicata, explaining that “‘[i]f the damages recovered were for deterioration in the value of the plaintiff’s property, such recovery would be a bar to any further prosecution for the same cause . . . .’”32 In addition, courts have historically declined to enjoin a permanent nuisance. The first reason is that if the nuisance could be abated by injunction, it was treated as temporary, so there was no permanent nuisance to enjoin in the first place.33 The other reason is that granting both an injunction and future damages would necessarily constitute a duplicative reward.34 Thus, rather than letting plaintiffs have their cake and eat it, too, courts will only award damages for the property depreciation, denying injunctive relief.35 The accrual of a nuisance cause of action also affects subsequent landowners. When a permanent nuisance causes injury to property, the right of action accrues to the owner at the time the injury occurs.36 This right to sue does not run with the land, so a subsequent owner generally does not have standing to assert a nuisance claim.37 However, the subsequent owner can bargain for the seller to assign all possible claims for injuries to the land which occurred during the seller’s ownership.38 Still, after acquiring the seller’s claim, the subsequent owner must bring suit within the limitations period, which began to run at the time of the pre- existing injury, so the subsequent owner is also barred if the seller would have been.39 C. The Test for Distinguishing Permanent and Temporary Nuisances Texas courts have historically determined the character of the injury as either temporary or permanent by its place on a continuum between the 32Parsons, 163 S.W. at 2 (quoting Ill. Cent. R.R. Co. v. Grabill, 50 Ill. 241 (1869)). 33Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562, 571 (Tex. App.⎯Texarkana 2000, pet. denied). 34Eberts v. Businesspeople Pers. Servs., Inc., 620 S.W.2d 861, 864 (Tex. Civ. App.⎯Dallas 1981, no writ). 35See Baugh, 15 S.W. at 587. 36Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 562 (1936). 37See Senn v. Texaco, Inc., 55 S.W.3d 222, 225–26 (Tex. App.⎯Eastland 2001, pet. denied). 38Id. at 226. 39See Vann, 90 S.W.2d at 562; Senn, 55 S.W.3d at 225–26. ARCHER.EIC2 3/15/2007 4:42:08 PM 176 BAYLOR LAW REVIEW [Vol. 59:1 two.40 Nuisances have traditionally been held permanent if the injury is “constant and continuous,”41 “presumed to continue indefinitely,”42 or “regularly recurs.”43 For example, in Vann v. Bowie Sewerage Co., the conflict arose out of a septic tank which the sewerage company had constructed in 1916.44 The plaintiff purchased an adjoining tract in 1925, which included a creek.45 Six months later, he discovered noxious odors coming from the creek, apparently caused by an ongoing discharge of polluted water from the septic tank.46 The court held that plaintiff could not recover on his nuisance claim, pointing to evidence that polluted water had “been continually discharged from the septic tank ever since the tank was put in operation in 1916; and . . . ever since then, found its way, from time to time after each recurring rainfall, down the creek upon the land now belonging to [the plaintiff].”47 Holding that the nuisance was permanent, the court stated that only the previous landowner at the time of the original injury had standing to sue for injury.48 The nuisance was characterized as permanent because the injury had occurred continuously and regularly over a period of many years.49 On the other hand, injuries were traditionally found temporary if they were not continuous but were instead “sporadic and contingent upon some irregular force such as rain”50 or were “occasional, intermittent or recurrent.”51 In Atlas Chemical Industries v. Anderson, the defendant operated a plant for manufacturing activated carbon.52 Waste from the plant was discharged into a creek which ran into the plaintiff’s land, resulting in the deposit of carbon washwater on the entire tract of land.53 The court held 40Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984). 41See id. 42Id. 43See Rosenthal v. Taylor, Bastrop & Houston Ry. Co., 79 Tex. 325, 15 S.W. 268, 269 (1891). 4490 S.W.2d at 562. 45Id. at 561. 46Id. at 562. 47Id. 48Id. at 563. 49Id. at 562–63. 50Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984). 51Id. 52524 S.W.2d 681, 683 (Tex. 1975). 53Id. ARCHER.EIC2 3/15/2007 4:42:08 PM 2007] THE IMPACT OF SCHNEIDER 177 that the nuisance was temporary, and thus the statute of limitations did not bar the plaintiff’s action.54 The court reached this conclusion because normal flooding after rain would not (and did not) cause the same damage as did the abnormal winter floods resulting from more than three inches of rainfall.55 The dense accumulation, deposited in the previous two years, was abnormal and completely dissimilar to the usual and expected flooding resulting from average rainfall.56 Thus, the nuisance had to be temporary because the injury depended upon the irregular occurrence of an unusually heavy winter rain.57 The Texas Supreme Court has noted that it does not look at the structure creating the nuisance but the nuisance itself in determining the permanence of its character.58 Thus, a particular structure may itself be permanent but only create a temporary nuisance when no constant and continuous injury to the plaintiff exists.59 For instance, in Parsons v. Uvalde Electric Light Co., the defendant finished building its plant and began operating it more than two years before the lawsuit.60 The plaintiff complained that smoke, dust, and cinders from the plant reached his home, causing his family inconvenience, discomfort, and illness.61 The court held that the plaintiff’s claim was not barred by limitations because the nuisance was temporary.62 The plaintiff only suffered legal injury on the occasions when wind carried particles to his premises.63 The nuisance was temporary because “the electric light plant, its buildings and machinery, were permanent and continuing, but smoke, cinders, etc., the nuisance which caused the injury, were not continuous.”64 As previously noted, Texas courts historically considered nuisances temporary if they were abatable.65 Logically, “[a]n injury which can be 54Id. at 685. 55Id. at 686. 56Id. 57See id. at 685–86. 58See Austin & Nw. Ry. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484, 485 (1891). 59Id. 60106 Tex. 212, 163 S.W. 1, 1 (1914). 61Id. at 1. 62See id. at 2. 63Id. 64Id. 65See Baugh v. Texas & New Orleans Ry. Co., 80 Tex. 56, 15 S.W. 587, 587–88 (1891) (stating “when the nuisances complained of are of a temporary character, such as may be ARCHER.EIC2 3/15/2007 4:42:08 PM 178 BAYLOR LAW REVIEW [Vol. 59:1 terminated cannot be a permanent injury.”66 In Nugent v. Pilgrim’s Pride Corp., the defendants operated a chicken farm, from which they dumped chicken litter and toxic chemicals into a creek.67 Torrential rains then carried the waste to the plaintiff’s adjoining property, causing the destruction of grasses in her pastures and the death of her cattle which were poisoned by the polluted soil.68 In finding the nuisance temporary, the court explained that “Defendants did not build a facility . . . whose removal would have been economically impractical . . . .”69 Rather, the defendants’ method of stockpiling and disposing of chicken manure was “easily abatable” and “could be discontinued without unreasonable cost.”70 Relying on the commonsensical reasoning that activities which could be brought to a halt are necessarily not permanent, the court affirmed abatability as an important factor which usually results in a finding of temporary nuisance.71 III. THE RULE OF SCHNEIDER NATIONAL CARRIERS, INC. V. BATES A. Facts of the Case Andrea Bates, along with seventy-eight others, filed a nuisance suit in Harris County, Texas, against ten manufacturing companies, including Schneider National Carriers, Inc.72 The plaintiffs were all homeowners and renters residing near the Houston Ship Channel, where the defendant companies operated their respective firms.73 Specifically, the defendants operated firms engaged in trucking, painting, sandblasting, and manufacturing bleach, wood preservatives, polyesters, and chemical voluntarily removed or avoided by the wrongdoer, or such as the injured party may cause to be abated, only such damages as have accrued up to the institution of the suit . . . can be recovered”). 66Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978). 6730 S.W.3d 562, 565 (Tex. App.—Texarkana 2000, pet. denied). 68Id. at 566. 69Id. at 571. 70Id. 71See id. 72Bates v. Schneider Nat’l Carriers, Inc. (Bates I), 95 S.W.3d 309, 311 (Tex. App.⎯Houston [1st Dist.] 2002), rev’d, 147 S.W.3d 264 (Tex. 2004); Schneider Nat’l Carriers, Inc. v. Bates (Bates II), 147 S.W.3d 264, 268 (Tex. 2004). 73Bates II, 147 S.W.3d at 268. ARCHER.EIC2 3/15/2007 4:42:08 PM 2007] THE IMPACT OF SCHNEIDER 179 products.74 The plaintiffs alleged that resulting emissions of light, noise, odors, chemicals, dust, and other substances caused them physical discomfort and inconvenience and otherwise unreasonably interfered with the use and enjoyment of their property.75 All of the plaintiffs’ affidavits stated the conditions complained of were ongoing and frequent, existing for as long as they had lived in the area.76 The conditions occurred “each time the wind is out of the south, when conditions are humid, or when it rains.”77 Among their specific complaints, various plaintiffs alleged trouble breathing at night; headaches while spending time outside; black film covering outdoor furniture and cars; the sounds of loudspeakers, explosions, and equipment; sinus problems; unbearable smells outside; and blowing dust.78 B. Procedural History Because the plaintiffs’ affidavits established that they had all lived in the area for more than two years before filing the suit, the defendants moved for summary judgment, arguing that the nuisance was permanent and the statute of limitations had run.79 The trial court agreed and granted the motions.80 The First Court of Appeals considered certain contradictions in the affidavits regarding the frequency of the conditions81 as well as an expert’s affidavit suggesting that the nuisance might be abatable.82 The court held that these contradictions created a fact issue sufficient to defeat the motion for summary judgment and remanded the case.83 The Texas Supreme Court then granted the defendants’ petition for review. C. The Supreme Court’s Holding Justice Brister began the discussion of the case by developing the rule 74Id. 75Bates I, 95 S.W.3d at 311. 76Id. at 313. 77Id. (internal quotation marks omitted). 78Id. 79Bates II, 147 S.W.3d at 269. 80Id. 81Id. 82Bates I, 95 S.W.3d at 314. 83Bates II, 147 S.W.3d at 269. ARCHER.EIC2 3/15/2007 4:42:08 PM 180 BAYLOR LAW REVIEW [Vol. 59:1 that nuisances are distinguished as permanent or temporary based on whether they are constant and continuous or sporadic and contingent upon some irregular force, a rule which “has been in place for more than a hundred years.”84 The court went on to concede that “the line in Texas between temporary and permanent nuisances ‘can be plainly and simply stated,’ but ‘its application to the facts involved in each case has been a continuing problem.’”85 The problem stemmed from the lack of some standard of reference by which to draw a boundary line.86 After citing numerous Texas cases consisting of similar facts but reaching opposite results, the court concluded that “half of them must be wrong; they are simply unreconcilable.”87 It was therefore time to clarify the applicable standards.88 The court reasoned that the application of the distinction between temporary and permanent nuisances should correspond to the consequences of that designation.89 In particular, the court addressed three major consequences of the distinction: “(1) whether damages are available for future or only past injuries; (2) whether one or a series of suits is required; and (3) whether the claims accrue (and thus limitations begins) with the first or each subsequent injury.”90 First, the distinction affects whether future or only past injuries are compensable. Thus, the law should reflect that long-term loss of market value only occurs when “the damage cannot be remedied or is likely to occur again.”91 Injuries do not have to occur daily or even weekly to be sufficiently “constant and continuous” to calculate future damages since this is based on the expected impact over a period of years.92 Thus, the court determined that when “injury occurs often enough before trial that jurors can make a reasonable estimate of the long-term impact of the nuisance on the market value of a property, they ought to be allowed to do 84Id. at 272. 85Id. at 273 (quoting Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562, 569 (Tex. App.⎯Texarkana 2000, pet. denied)). 86Id. 87Id. at 274. 88Id. at 275. 89Id. at 276. 90Id. at 275. 91Id. at 276. 92Id.