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Airborne Particles Can Be the Basis for a Trespass Claim in Texas

Given the increase in production of natural gas in Texas, some residents end up living close to a gas compressor stations. These stations are necessary to pump natural gas under pressure over long distances, but they can be large, noisy and produce offensive odors. Some Texans who live close to these stations have sued the oil and gas producers claiming nuisance or trespass.

In Texas, the elements of a trespass cause of action are: (1) the claimant has a lawful right to possess the property, (2) the defendant physically enters the property, (3) the entry was intentional and voluntary, and (4) the defendant‟s trespass causes an injury to the claimant‟s right of possession.  The Texas Supreme Court has noted a trespass of aerial space above the complainant‟s property may be committed by causing something to physically enter or crossover the land, such as the discharge of pollutants, soot, or carbon.

A cause of action for nuisance requires evidence of  a regularly recurring condition that “substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to a person of ordinary sensibilities.”

In Sciscoe v. Enbridge Gathering (North Texas), L.P.  before the Amarillo Court of Appeals, a group of property owners in the town of DISH, a residential community in Denton County, Texas, began smelling offensive odors and hearing loud noise produced by natural gas compressor stations and a metering station about one half to one quarter mile from their homes. These stations were operated by Enbridge Gathering (North Texas) L.P., Atmos Energy Corp., Energy Transfer Fuel L.P., Texas Midstream Gas Services LLC, and Enterprise Texas Pipeline LLC. In 2008, the residents of DISH filed a complaint with the Texas Commission on Environmental Quality (TCEQ), but tests conducted by TCEQ showed that the stations were operating within state regulations.

Dissatisfied with the findings of the TCEQ, the residents of DISH hired an independent environmental testing firm to test samples of air above their properties, and discovered that there was a presence of benzene, ethyl benzene, toluene, xylene, and other dangerous chemicals. Based on this information, the residents sued because the noise and air particles produced by the stations were diminishing the value of their properties, and thus the tax base of the town of DISH. Other forms of recovery sought by the residents of DISH included:

  • Damages for the loss of their property values.           
  • Damages for annoyance and discomfort.
  • Damages for injury to personal property.
  • Damages for mental anguish.
  • Exemplary damages

The Court held that airborne chemical particulates, originating from the stations and migrating to the residents’ properties, could form the basis of a trespass claim, because these particles physically entered the airspace of the residents and could cause injury to the residents (i.e., in the form of diminished the value of their property). The Court also held that just because the oil companies were operating their compressors within applicable state and federal laws did not mean that the property owners did not suffer injury as a result of the compressors’ operation.  As the Court put it: “…just because you are allowed by law to do something, does not mean that you are free from the consequences of your action.”

Ultimately, the Court sent this case back to the trial court to determine whether the statute of limitations had expired prior to the filing of the suit. As many of you know, the case was ultimately decided against the homeowners on that basis. However, this case remains important as an example of how the law of trespass, which once applied only to physical intrusions, has morphed into a more modern application in which odors and airborne particles can constitute a trespass.

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