JUSTICE BOYD delivered the opinion of the Court.
This is a nuisance case, but that does not tell you much. As a legal concept, the word nuisance "has meant all things to all people." W. PAGE KEETON ET AL., Prosser AND KEETON ON TORTS § 86, at 616 (5th ed.1984) [hereinafter PROSSER AND KEETON]. Courts have used it to identify the cause or source of a harm, the harm suffered, and the resulting liability. RESTATEMENT (SECOND) OF TORTS § 821A cmt. b (Am. LAW. INST. 1979). The state of the nuisance doctrine some seventy years ago led Dean PROSSER to declare nuisance as the law's "garbage can." William L. PROSSER, Nuisance Without Fault, 20 TEX. L. REV. 399, 410 (1942) [hereinafter Nuisance Without Fault]. More recently, members of this Court and of the United States Supreme Court have been equally as critical.
Crosstex North Texas Pipeline, L.P., owns and operates a natural-gas pipeline that runs approximately 130 miles from Tarrant County to Lamar County in northeast Texas. When Crosstex was preparing to construct the pipeline in 2005, it purchased a 20-acre tract along the pipeline's projected path in a rural part of Denton County to use as a storage yard during construction and as a prospective site for a compressor station. Andrew and Shannon Gardiner own an undeveloped 95-acre ranch, and its southwest corner lies directly across a farm-to-market road from Crosstex's 20-acre tract. The Gardiners had previously purchased the ranch as an investment property and as a place to raise cattle, ride horses, and enjoy as a family until a future sale. A few days after Crosstex purchased the 20-acre tract, its agent contacted the Gardiners and offered to purchase an easement to run the pipeline across the southwest corner of the Gardiners' ranch. The Gardiners initially resisted but ultimately agreed to sell the easement after Crosstex's agent increased the offer price and threatened condemnation proceedings. The agent did not mention that Crosstex had purchased the adjacent 20-acre tract as a possible site for a compressor station. The Gardiners granted Crosstex an easement and right-of-way in January 2006.
Crosstex quickly completed construction and began operating the pipeline a few months later. Due to the high volume of natural-gas production occurring in the Barnett Shale at that time, Crosstex decided to install a compressor station along the line to increase the pipeline's capacity. Crosstex decided to construct the compressor station on the 20-acre tract because that location was about halfway along the pipeline, was easily accessible by good roads, and was surrounded by "quite a bit of open land." Although Crosstex concluded, based on area sound-level measurements, that noise-mitigation measures were unnecessary, it installed "hospital-grade" mufflers on the compressor-station engines, which are more effective in suppressing engine noise than "regular-grade" mufflers but not as effective as "critical or super-critical" mufflers.
The compressor station includes four diesel engines that are each "bigger than mobile homes." Typically, at least one of the engines runs continuously all day and night. The Gardiners testified that, before the compressor station began operating in May 2007, their ranch was "peaceful and quiet," with "just the usual country
The next month, the Gardiners and others sent a letter to Crosstex complaining about the noise and demanding that Crosstex enclose the engines within a building containing sound-absorbing insulation and construct a sound wall around the property. Later that month, Crosstex hosted a meeting with dozens of neighbors, including the Gardiners, and promised to take steps to mitigate the noise. Crosstex then hired a professional sound-control firm to conduct studies, and based on the firm's recommendations, began implementing a series of mitigation efforts. Over the next four years, Crosstex constructed a partially enclosed building around the engines (but not a fully enclosed building as the neighbors had demanded), installed sound blankets inside the building's walls, installed sound walls on three sides of the building, and planted vegetation around the building and walls. Crosstex believed these measure were enough to eliminate any unreasonable noise levels.
The Gardiners did not agree. Because Crosstex installed sound walls on three sides, but not on the side that faced the Gardiners' ranch, they complained that the walls merely funneled the noise toward their property. In January 2008, they sent an email complaining that the noise and vibrations remained like "a helicopter... hovering" above them. In March 2008, they sent another email complaining of the "constant deafening noise." At the end of March, the Gardiners' attorney sent Crosstex a letter asserting that the mitigation efforts Crosstex had made and still proposed to make were inadequate to "ameliorate the damages Crosstex has caused to [the Gardiners'] property."
In May 2008, the Gardiners filed this suit, asserting claims for private nuisance, ordinary negligence, and gross negligence. In response to Crosstex's special exceptions, they later amended their petition to allege that Crosstex had both intentionally and negligently created a nuisance. Meanwhile, Crosstex continued its efforts to mitigate the noise. In December 2010, its expert conducted another noise study and took recordings that he later played for the jury. Based on this study, the expert concluded that the noise in various locations around the station was either "compatible" or "marginally compatible" with neighboring agricultural land. He concluded the noise levels on the Gardiners' tract were acceptable and reasonable for agricultural tracts, compatible with the use of the ranch to graze livestock, and compatible in most of the ranch for residential use.
The Gardiners still did not agree. In September 2011, in response to continued complaints, Crosstex installed air intake silencers at the station. Two months later, it installed a fifteen-foot sound wall on the east side of the station, which faces the Gardiners' ranch. Nevertheless, when the case went to trial in January 2012, the Gardiners and several others testified that the noise remained a constant and unacceptable roar. The Gardiners testified that the noise had not significantly improved
After receiving the evidence at trial, the trial court directed a verdict for Crosstex on the Gardiners' ordinary-negligence claim but agreed to submit the intentional-nuisance and negligent-nuisance claims to the jury. The Gardiners requested that the court also submit a question on whether Crosstex non-negligently created a nuisance by engaging in an activity that was "abnormal and out of place in its surroundings," but the Gardiners had never pled that theory and the trial court refused to permit a trial amendment. The jury failed to find that Crosstex "intentionally and unreasonably created a nuisance as to" the Gardiners' ranch, but did find that Crosstex "negligently" created a nuisance. The jury found that the nuisance was permanent, as opposed to temporary, and caused the ranch's fair market value to decline by over $2 million. The trial court rendered judgment on the jury's verdict for the Gardiners on their negligent-nuisance claim.
Crosstex appealed, and the court of appeals held that the evidence was legally sufficient but not factually sufficient to support the jury's finding of a negligently created nuisance. 451 S.W.3d at 176. It also held that the trial court erred by denying the Gardiners' request for a trial amendment and should have submitted a jury question on whether Crosstex created a nuisance through conduct that was "abnormal and out of place." Id. at 177, 179. The court reversed the trial court's judgment and remanded the case "for a new trial and to allow the Gardiners to add the abnormal and out-of-place variation of their nuisance claim." Id. at 179. Both parties filed petitions for review, which we granted.
The law of "nuisance" seeks to balance a property owner's right to use his
This Court has previously declined opportunities to comprehensively describe the requirements and limits of a claim alleging nuisance under Texas law. In Oakes, the Court concluded that the question ultimately boils down to whether the defendant's use of its property "is a reasonable one, under all the circumstances," and explained that it was "unable to discover that the law does, or, from the nature of the subject, can, furnish a more definite rule" than that. Oakes, 58 S.W. at 1001. Similarly, the Court once observed that there is "general agreement that [nuisance liability] is incapable of any exact or comprehensive definition," and thus declared that "we shall attempt none here." Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 186 (Tex. 1971).
Dean PROSSER, however, has lamented that American jurisprudence on nuisance liability illustrates an unfortunate yet "familiar tendency of the courts to seize upon a catchword as a substitute for any analysis of a problem." PROSSER, 3d. ed. § 87, at 592. Whether that is true or not, we agree that the lack of a clear delineation of the circumstances in which the law imposes liability against one who creates a nuisance can lead to confusion, and has done so here. We will thus attempt to provide a more comprehensive, though certainly not exhaustive, explanation of the circumstances in which Texas law may hold a party liable for causing a private nuisance.
In its earlier years, this Court expressed no particular difficulty in defining or applying the term "nuisance." Relying on Blackstone's explanation that "whatsoever unlawfully annoys or doth damage to another is a nuisance," Allen v. State, 34 Tex. 230 (1870), the Court found the term to be both "well defined," Burditt v. Swenson, 17 Tex. 489, 502 (1856), and "well understood," Miller v. Burch, 32 Tex. 208, 210 (1869). Because the word "means, literally, annoyance," a private nuisance was simply "anything done to the hurt or annoyance of the lands, tenements, or hereditaments
The Court's early decisions, however, support Dean PROSSER'S observation that the term nuisance came "by a series of historical accidents to cover the invasion of different kinds of interests, and of necessity to refer to various kinds of conduct on the part of the defendant." PROSSER, 3d ed. § 87, at 593. This Court recognized early on that a nuisance could result from an array of actions by a wide variety of defendants,
Of course, the Court's early opinions did not rely solely on Blackstone's definition and impose liability for "anything that worketh hurt, inconvenience, or damage." Instead, they expounded on that definition by explaining that the defendant can be liable only if the defendant's "hurtful" or "annoying" conduct caused "an unnecessary and unreasonable interference" with the plaintiffs' use and enjoyment of their land. Oakes, 58 S.W. at 1001. But a defendant who created such an interference could be liable for harming a wide variety of the plaintiffs' interests by, for example, harming the plaintiffs' health, Burditt, 17 Tex. at 502, offending the plaintiffs' "senses," id., or interfering with the plaintiffs' enjoyment of, or operation of a business on, their land, Oakes, 58 S.W. at 1001. A defendant's conduct, in other words, could create liability "if it occasions that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable." Burditt, 17 Tex. at 502.
Ultimately, the early cases reflected the Court's ongoing effort to balance a property
In other cases, the Court considered the importance of the defendant's conduct to the defendant and to the community. Thus, "when expensive plants have been erected and are used in carrying on a useful business[,] adjacent property owners will not be permitted to maintain actions for every trifling annoyance which such business causes them." Storey, 226 S.W.2d at 618. But "the fact that the business is a useful or necessary one or that it contributes to the welfare and prosperity of the community is not determinative," and "the law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business." Id. Ultimately, although the Court made little effort in its early opinions to comprehensively delineate all of a nuisance claim's elements and requirements, it refused to narrow the claim to impose liability for only certain types of conduct or to protect only certain types of interests. Instead, it consistently considered a wide variety of scenarios and factors and emphasized that whether an interference was actionable as a private nuisance depended ultimately on what was "reasonable ... under all the circumstances." Oakes, 58 S.W. at 1001.
More recently, this Court has consistently used a more comprehensive definition of a private nuisance: "A `nuisance' is 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." Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003); see also Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 153 (Tex. 2012) (citing Schneider, 147 S.W.3d at 269) (stating same); Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011) (citing Schneider, 147 S.W.3d at 269) (stating same); Schneider, 147 S.W.3d at 269 (citing Holubec, 111 S.W.3d at 37) (stating same). This definition derives from this Court's early "hurtful-and-inconvenient" definition, but reflects Texas courts of appeals' efforts to incorporate the requirement that the hurt and inconvenience be "substantial" and "unreasonably" annoying or discomforting to a person of "ordinary sensibilities." See Holubec, 111 S.W.3d at 37 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 461-62 (Tex. 1993); Burditt, 17 Tex. at 503; Maranatha Temple, Inc. v. Enter. Products Co., 893 S.W.2d 92, 98-99 (Tex.App.-Houston
As noted, courts have used the term "nuisance" in a variety of ways, including as a reference to a particular legal cause of action, a defendant's conduct that gives rise to that cause of action, an event or activity or operation that is the "cause or source of a harm," the harm itself, and the liability that results from that harm. See RESTATEMENT (SECOND) OF TORTS § 821A cmt. b. To reduce the confusion that has resulted from these varied uses of the term, we believe the better approach is to utilize the term "nuisance" to refer not to a cause of action or to the defendant's conduct or operations, but instead to the particular type of legal injury that can support a claim or cause of action seeking legal relief. See City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997) (noting that private nuisance is "a kind of damage done, rather than any particular type of conduct" (quoting Nuisance Without Fault at 416)); see also PROSSER, 3d ed. § 88, at 594 (stating that private nuisance "has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion").
In other words, we clarify today that the term "nuisance" describes a type of injury that the law has recognized can give rise to a cause of action because it is an invasion of a plaintiff's legal rights. See, e.g., Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex. 1967) (quoting 54 C.J.S. Limitations of Actions § 168, pp. 122-23); Hous. Waterworks Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888). The law has recognized numerous types of legal injuries, including injuries to a person's body, reputation, property, right to privacy, or right to exclusive possession of property. See, e.g., Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973) (recognizing that "an unwarranted invasion of the right of privacy constitutes a legal injury"). The law of nuisance recognizes that certain injuries to a person's right to the "use and enjoyment of property" can also constitute a form of legal injury for which a legal remedy will be granted. Likes, 962 S.W.2d at 504.
A legal injury, however, is neither the breach of a duty that gives rise to liability for the legal injury nor the damages that may be awarded as compensation for the legal injury. A. Harris & Fox v. Finberg, 46 Tex. 79, 97 (1876) (describing "actual damages" as "legal compensation for the legal injury"). We have recognized, for example, that "a cause of action generally accrues when a wrongful act causes some legal injury, ... even if all resulting damages have not yet occurred."
By requiring a "substantial" interference with the plaintiffs' use and enjoyment of their property, our precedent sets a minimum threshold that confirms that the law "does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of every day life in a civilized community even from conduct committed with knowledge that annoyance and inconvenience will result." PROSSER AND KEETON § 88, at 626. Thus, for example, while noises or odors from a horse stable might occasionally or minimally "interfere" with the enjoyment of neighboring land, they can create a nuisance only if the stable is "so kept, or so used, as to destroy the comfort of persons owning and occupying adjoining premises, and impair their value." Burditt, 17 Tex. at 504. Similarly, a cemetery may be a nuisance only if its "locality or manner of use" substantially interferes with the plaintiffs' interests. Dunn v. City of Austin, 77 Tex. 139, 11 S.W. 1125, 1127 (1889). And because gunpowder must be stored somewhere, its storage can create a nuisance when it is a "constant source of apprehension and alarm," prevents the plaintiffs from renting their land "at any price," and substantially reduces the land's market value. Comminge, 13 S.W. at 557.
Of course, "what is substantial will vary, within limits, according to circumstances." HARPER § 1.24, at 122. Whether an interference is substantial or merely a "trifle" or "petty annoyance" necessarily depends on the particular facts at issue, including, for example, the nature and extent of the interference,
To support a claim for private nuisance, the condition the defendant causes may interfere with a wide variety of the plaintiffs' interests in the use and enjoyment of their property. It may, for example, cause physical damage to the plaintiffs' property, economic harm to the property's market value, harm to the plaintiffs' health, or psychological harm to the plaintiffs' "peace of mind" in the use and enjoyment of their property. See HARPER § 1.23, at 98-100; PROSSER, 3d ed. § 90, at 6113 ("[V]irtually any disturbance of the enjoyment of the property may amount to a nuisance."). But to rise to the level of nuisance, the interference must be "substantial" in light of all the circumstances.
Even a substantial interference, however, does not constitute a nuisance unless the effect of the interference on those who would otherwise use and enjoy their land is "unreasonable." Holubec, 111 S.W.3d at 37; PROSSER AND KEETON § 88, at 626. Only a substantial interference that has unreasonable effects constitutes "the kind for which the defendant should be liable in damages." PROSSER AND KEETON § 88, at 628; see RESTATEMENT (SECOND) OF TORTS § 829A (defining unreasonable invasion as when "the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation"). Regarding this unreasonableness requirement, we highlight three points. First, it focuses on the unreasonableness of the interference's effect on the plaintiff's comfort or contentment, not on the unreasonableness of the defendant's conduct or land use. Second, unreasonableness must be determined based on an objective standard of persons of ordinary sensibilities, not on the subjective response of any particular plaintiff. And third, as is typical with legal inquiries into reasonableness, the determination requires balancing a wide variety of factors, depending on the specific facts.
One area of confusion that has developed through the years, and which arises again in this case, is the question of whether, to prove a nuisance, the plaintiff must establish that the defendant's conduct or land use was unreasonable, or that the effect of the resulting interference with the plaintiff's use and enjoyment of land was unreasonable, or both.
This clarification is wholly consistent with our precedent, from our earliest decisions to our most recent. In Oakes, for example, the Court referred to a nuisance as an "unreasonable interference," and explained that a defendant's conduct that is "useful and lawful in itself" can nevertheless create a nuisance if the conduct creates an "unreasonable interference" with the plaintiffs' use and enjoyment of their land. 58 S.W. at 1001. In Anderson, the Court noted that the defendant's construction of an embankment and culverts "was not of itself a nuisance" and was "no invasion of plaintiff's rights," and only created a nuisance when they diverted destructive waters onto the plaintiff's land. 15 S.W. at 485. In Brewster, the Court explained that the defendant's otherwise-lawful plant was a nuisance only because "the condition created by the plant made plaintiff's place undesirable as a residence." 223 S.W. at
Despite this precedent, Crosstex contends that to prove a nuisance, the plaintiff must also establish that the defendant's conduct or land use was unreasonable. In support, Crosstex relies on Vestal v. Gulf Oil Corp., in which the Court held that plaintiffs alleging a nuisance bore the burden to "plead and prove and secure a jury finding that the use of the ... property by the [defendant] was unreasonable." 149 Tex. 487, 235 S.W.2d 440, 442 (1951). This statement, however, addressed the issue of whether the defendant could be legally liable for its interference with the plaintiffs' use and enjoyment of their property, not whether the interference itself was sufficient to constitute a nuisance.
The plaintiffs in Vestal sued Gulf Oil, alleging that fumes released from vent pipes in gasoline-storage tanks blew onto their adjacent property, "constantly menaced their safety and property," negatively "affected their health and their peace of mind," and constituted a private nuisance. Id. at 441. The defendant appealed an adverse judgment, arguing (among other things) that the evidence did not support the jury's finding of a nuisance and that the trial court erred by asking the jury whether the defendant's use of its property was reasonable because that question improperly shifted the burden onto the defendant to prove that it was. Id. at 442.
The court of appeals rejected the defendant's first argument, holding that sufficient evidence demonstrated that the "annoyance or inconvenience" was "material or substantial" enough to "constitute a nuisance." Gulf Oil Corp. v. Vestal, 231 S.W.2d 523, 525 (Tex.Civ.App.-Fort Worth 1950), aff'd, 149 Tex. 487, 235 S.W.2d 440 (1951). It sustained the defendant's second argument, however, noting that the trial court did not submit a question "inquiring as to any negligence on the part of [defendant]." Id. Because no question asked the jury whether the defendant's "negligence or wil[l]fulness" caused the interference, the court held that the challenged question was necessary because "there must be a finding ... that the act or acts complained of amounted to a nuisance." Id. at 526.
This holding, however, did not relate to the question of whether the interference the plaintiffs alleged was sufficiently substantial or its effects sufficiently unreasonable to constitute a nuisance. The court of appeals separately addressed that issue and concluded that it was, and the defendant did not complain to this Court about that conclusion. Id. at 441 (noting that the defendant's appeal related only to special issues involving damages and the burden of proof on liability). The issue this Court addressed was not whether the condition causing the interference constituted a nuisance, but whether the defendant could be liable for creating that condition, and we held that it could be liable only if the plaintiffs proved that the defendant's conduct was unreasonable. Id. at 442. We discuss below the standards under which a defendant may be liable for creating a nuisance, but for purposes of determining whether an alleged interference with the use and enjoyment of property is a nuisance, we confirm that the plaintiffs must prove only that the effects of the interference (the plaintiff's "discomfort or annoyance") are unreasonable, not that the defendant's conduct or land use was unreasonable.
Our precedent confirms that the standard for determining whether the effects of the interference are unreasonable is an objective one. As the Court explained long ago, to constitute a private nuisance, the effects of the defendant's conduct or land use must be "such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits." Sherman Gas, 123 S.W. at 120; see also City of Abilene v. Downs, 367 S.W.2d 153, 160 (Tex. 1963) (citing Sherman Gas, 123 S.W. at 120). The Court's modern definition of a nuisance expressly states this standard, Holubec, 111 S.W.3d at 37, and it is consistent with the view of commentators and other courts around the country, see RESTATEMENT (SECOND) OF TORTS § 821F cmt. d. ("The standard for the determination of significant character [of harm] is the standard of normal persons or property in the particular locality."); DOBBS § 399, at 619 ("[T]he interference is not a nuisance if it interferes only with especially sensitive persons or uses."); PROSSER AND KEETON § 88, at 627-28 (explaining that an interference is significant and its effect on the plaintiff unreasonable only if "normal persons living in the area
Thus, as HARPER explains, "It is not enough that plaintiff himself is offended or annoyed if he is peculiarly sensitive. The standard is what ordinary people, acting reasonably, have a right to demand in the way of health and comfort under all the circumstances." HARPER § 1.25, at 127; see RESTATEMENT (SECOND) OF TORTS § 821F cmt. d. ("Rights and privileges as to the use and enjoyment of land are based on the general standards of normal persons in the community and not on the standards of the individuals who happen to be there at the time."); see also DOBBS § 399, at 619 ("Proof that the nuisance has resulted in a diminution of the land's market value shows or tends to show that the harm is not merely the result of the plaintiff's sensitivity, since loss of market value necessarily means that potential buyers would also be affected by the nuisance.").
The determination of whether a defendant's interference with a plaintiff's use and enjoyment of land is substantial or whether any particular effect of that interference is unreasonable requires consideration and balancing of a multitude of factors, depending on the circumstances of the case at hand. These include, among others:
See RESTATEMENT (SECOND) OF TORTS §§ 827, 828; DOBBS § 401, at 626-31; HARPER §§ 1.24, at 110, 1.25, at 127; PROSSER AND KEETON § 88, at 630; PROSSER, 3d ed. § 91, at 628. Whether an interference is substantial or the effects of the interference unreasonable in any given case necessarily depends on these and potentially other factors. All of these factors must be "thrown into the scale," and the decision must be made on the basis of what is reasonable under the circumstances. PROSSER, 3d ed. § 90, at 619.
To summarize, we confirm today that the term "nuisance" refers to 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." Holubec, 111 S.W.3d at 37. It refers to a legal injury that may support a cause of action, but it is not itself the cause of action or the conduct that is necessary to support the cause of action.
"An injury without wrong does not create a cause of action." State v. Brewer, 141 Tex. 1, 169 S.W.2d 468, 471 (1943). To establish a cause of action for which the law provides a right to relief, at least in the absence of circumstances giving rise to strict liability, "there must not only be an injury or loss but it must have been occasioned by the commission of a legal wrong, that is, violation of legal right and a breach of legal duty." Id. (quoting 1 TEX. JUR. 627, § 20) (holding landowners had no legal right to recover damages allegedly resulting from state's widening of a highway across their land). The definition of "nuisance" that we have discussed does not specify whether, to be liable for creating a nuisance, the defendant must have acted illegally, intentionally, negligently, or otherwise. But one should not expect it to when its purpose is to describe a legal injury, not a cause of action.
Our prior decisions have consistently confirmed that a defendant's liability for creating a nuisance does not depend on a showing that the defendant acted or used its property illegally or unlawfully, and we confirm that rule today.
Although the First and Second Restatements of Torts generally supported these three categorizations,
The law's recognition of the three liability categories, however, has proven to be yet another source of confusion in the nuisance arena. Early editions of PROSSER'S commentary also described the three-category approach, see PROSSER, 3d ed. § 88, at 595, but even then PROSSER noted that "the dividing line between intent and negligence has not always proved easy to draw," id. § 92, at 630, and thus "the courts have seldom made the distinction," id. § 88, at 597. PROSSER reasoned that in cases in which the plaintiff seeks damages
When Keeton took over the commentary, however, he abandoned the three-category approach because "the utilization of the same label [`nuisance'] to describe all these types of actionable conduct brings about much confusion regarding when the conduct is actionable and what the defenses to such conduct should be." PROSSER AND KEETON § 87, at 623. Keeton observed that the Restatements' efforts "to label all actionable conduct interfering with the use and enjoyment of land as a nuisance" had "produced much confusion and some erroneous results." Id. § 91, at 652. He reasoned that nuisance law is designed to protect a wide variety of "distinct individual interests" that
PROSSER AND KEETON, § 91, at 652-53.
In light of this observation, Keeton concluded that the term "nuisance" should be used only to describe an intentional interference or invasion because plaintiffs who allege negligent interferences and invasions can simply assert traditional ordinary-negligence claims. Id. Because he believed that combining and overlapping claims based on intentional and negligent conduct under the "nuisance" label provides no benefit to the law or the parties
We are sympathetic to these concerns and do not quibble with Keeton's reasoning. To say that a "nuisance" may be created intentionally, negligently, or regardless of fault is to say only that fault is not the relevant inquiry at all. But we are not convinced that Keeton's proposed solution — limiting the term "nuisance" to refer only to intentional interferences with the use and enjoyment of land — is workable in light of our precedent or would do much to reduce confusion if it were. In the same way that a claim alleging a negligently created nuisance could be characterized simply as a traditional ordinary-negligence claim in which the legal injury involves interference with the use and enjoyment of land, a claim alleging an intentionally created nuisance could be characterized as a traditional intentional-tort claim involving the same type of legal injury. In either case, the law recognizes both the nuisance as a legal injury and the conduct as a basis for imposing liability for causing that injury. Deciding whether to use the term "nuisance" in connection with one, the other, or both is merely a matter of semantics. See HARPER § 1.23, at 101 ("In such situations[,] familiar principles of tort law will account for liability without any special regard to the peculiarities of nuisance.").
We think the better approach to reduce confusion is to clarify, as we do today, that the term "nuisance" refers not to a cause of action or to a defendant's conduct but to the legal injury that the conduct causes and that gives rise to the cause of action. See RESTATEMENT (SECOND) OF TORTS § 822 cmt. b ("Failure to recognize that private nuisance has reference to the interest invaded and not to the type of conduct that subjects the actor to liability has led to confusion."). Whether a defendant may be held liable for causing a nuisance depends on the culpability of the defendant's conduct, in addition to proof that the interference is a nuisance.
The authorities are consistently clear that there must be some level of culpability on behalf of the defendant; nuisance cannot be premised on a mere accidental interference. See RESTATEMENT (SECOND) OF TORTS § 822 cmt. b ("[A]n actor is no[t] liable for accidental interferences with the use and enjoyment of land but only for such interferences as are intentional and unreasonable or result from negligent, reckless or abnormally dangerous conduct."); id. § 822 cmt. c ("Liability for an invasion of interests in the use and enjoyment of land ... depends upon the presence of some type of tortious conduct."); HARPER § 12.1, at 130 ("[The fault principle] represents the notion that it is fair to make the actor compensate his victim where the actor is at fault, but not where he is innocent of wrongdoing."). We thus retain the three general categories of conduct that may support liability for creating a nuisance, and provide the following additional descriptions of those categories.
We first confirm that a defendant may be held liable for intentionally causing
Thus, a plaintiff may establish intent with proof that the defendant acted with a "specific intent to inflict injury," Reed Tool, 689 S.W.2d at 406, or a "malicious desire to so harm" by causing the actionable interference, PROSSER AND KEETON § 87, at 624; see HARPER § 1.24, at 109. But an intent to inflict injury or desire to do harm is not required to show intent; the plaintiff can establish intent with evidence that the defendant acted with the belief that the interference was "substantially certain to result from" the defendant's conduct. Reed Tool, 689 S.W.2d at 406; see PROSSER AND KEETON § 87, at 624 (explaining that the defendant acted intentionally if the defendant "created or continued the condition causing the interference with full knowledge that the harm to the plaintiff's interests are occurring or are substantially certain to follow"); HARPER § 1.24, at 109 (explaining that intent is established when the defendant "knows [the harm] is resulting or is substantially certain to result from his conduct"); see also RESTATEMENT (SECOND) OF TORTS § 825 cmt. c. (stating that an intentional invasion may be "an invasion that the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause harm").
Intent is thus measured by a subjective standard, meaning the defendant must have actually desired or intended to create the interference or must have actually known or believed that the interference would result. DOBBS § 29, at 75 ("Since intent is a state of mind, it is necessarily subjective."). It is not enough, in other words, that the defendant should have known that the interference would result because a reasonable person in the same or similar circumstances would have known that it would. In such circumstances, the defendant will have negligently caused the interference, but cannot be said to have intentionally caused it. See RESTATEMENT (SECOND) OF TORTS § 8A cmt. b.
However, to prove an intentional nuisance, the evidence must establish that the defendant intentionally caused the interference that constitutes the nuisance, not just that the defendant intentionally engaged in the conduct that caused the interference. Reed Tool, 689 S.W.2d at 406 (explaining that intent exists if the actor desires to cause the "consequences" of his act, or knows that the "consequences" are substantially certain to result). Thus, for example, if a defendant intentionally opens a valve with the desire to release contaminants onto the plaintiff's property or with the belief that the release onto the plaintiff's property is substantially certain to result, the defendant intentionally causes any resulting nuisance. On the other hand, if the defendant intentionally opens the valve but does not desire to release the contaminants onto the plaintiff's property and does not
But to be clear, a defendant who acts with the desire to create an interference or with knowledge that the interference is substantially certain to result is liable for intentionally causing the interference even if the defendant does not agree that the interference is substantial or that the effects on the plaintiffs are unreasonable. Thus, if the defendant intentionally opens the valve with the desire to release the contaminants onto the plaintiffs' property or with knowledge that the release is substantially certain to occur, but the defendant does not agree that the resulting interference with the plaintiffs' use and enjoyment of their land is substantial or its effects on the plaintiffs unreasonable, the defendant nevertheless intentionally creates the resulting nuisance. See PROSSER AND KEETON § 87, at 625 ("It has often been observed that liability, if imposed in such a case, is liability without fault. But this is a mistake. The harm is intentional.").
Finally, to establish an intentional nuisance, the plaintiff need not separately establish that the defendant's conduct was also "unreasonable." On first blush, the Restatement may appear to suggest the contrary by proposing that a defendant "is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is ... intentional and unreasonable." RESTATEMENT (SECOND) OF TORTS § 822 (emphasis added); see also id. § 826 (describing test for determining when an "intentional invasion of another's interest in the use and enjoyment of land is unreasonable"). But the Restatement characterizes a nuisance as an "invasion" of the plaintiff's legal "interest" in the "use and enjoyment of land," and it is this "invasion" — not the defendant's conduct — that must be intentional and unreasonable. Id. § 822; see id. § 822 cmt. a (distinguishing the "invasion" from the "conduct" that serves as the basis for liability). As the Restatement clarifies in comment b, the use of the term "invasion" refers to the ultimate interference with the use and enjoyment, not to the defendant's conduct. Id. § 822 cmt. b (explaining that defendants can be liable "only for such interferences... as are intentional and unreasonable or result from negligent, reckless or abnormally dangerous conduct" (emphasis added)).
By contrast, Texas precedent, which we confirm today, characterizes a nuisance not as an "invasion" of an "interest" but 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." Holubec, 111 S.W.3d at 37; see also Justiss, 397 S.W.3d at 153 (citing Schneider, 147 S.W.3d at 269) (same); Barnes, 353 S.W.3d at 763 (quoting Schneider, 147 S.W.3d at 269) (same); Schneider, 147 S.W.3d at 269 (quoting Holubec, 111 S.W.3d at 37) (same). In essence, whereas the Restatement conceptualizes conduct that causes an invasion that interferes with use and enjoyment, Texas law refers more simply to conduct that causes the interference. In either case, the requirement for an intentional nuisance is that the effects of the substantial interference be unreasonable (thus, that there be a nuisance), not that the defendant's conduct be unreasonable.
As discussed, Keeton and others have suggested that the term "nuisance"
In this category, the claim is governed by ordinary negligence principles. The elements the plaintiff must prove are "the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach." IHS Cedars Treatment Ctr., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). To establish the breach, the plaintiff must prove that the defendant's conduct constituted negligence, which is "simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done." Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998). That is, a nuisance may result from "a failure to take precautions against a risk apparent to a reasonable man." PROSSER 3d ed. § 88, at 596; see id. ("[N]egligence is the usual basis of liability where the defendant ... has only failed to ... repair or abate a condition ... which is under his control."). The only unique element, which derives from the nature of the legal injury on which the plaintiff bases the claim, is the burden to prove that the defendant's negligent conduct caused a nuisance, which in turn resulted in the plaintiff's damages.
The third category of nuisance-based claims to which the Court referred in Likes includes those based on "other conduct, culpable because abnormal and out of place in its surroundings, that invades another's interests." Likes, 962 S.W.2d at 503. As support for this category, the Likes Court quoted PROSSER'S assertion that a nuisance "may be inflicted by conduct ... which involves an unusual hazard or risk, in line with the principle of Rylands v. Fletcher." Id. at 504 (quoting Nuisance Without Fault at 418). PROSSER expanded on this category in his earlier commentary, explaining that, even in the absence of intent or negligence, "a nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous activity [that] necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed." PROSSER, 3d ed. § 88, at 596-97.
This theory derives from the early English court's decision in Rylands v. Fletcher, L.R. 1 Ex. 265 (1866), aff'd, L.R. 3 H.L. 330 (1868), in which the court held that a defendant who stored large volumes of water in a reservoir on his land was strictly liable for damage that resulted when the water escaped, "however skilfully and carefully the accumulation was made," because the otherwise-unrestrained water was a "dangerous substance." See Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 222 (1936) (discussing Rylands). As PROSSER has explained, however,
This Court's efforts to address the Rylands strict-liability theory, in both nuisance and non-nuisance cases, illustrate the confusion that PROSSER described. In Oakes, for example, the Court cited Rylands for the proposition that one "who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief ... must keep it in at his peril" and is liable if the thing "escape[s]." Oakes, 58 S.W. at 1000. But the Court questioned whether the Rylands rule is "a just one" and refused to apply it to a defendant who planted grass that spread through a neighbor's land. Id. In the Court's view, the fact that the rule, "as abstractly stated [in Rylands], cannot be justly applied to all subjects which its terms embrace, is enough to show that it is incorrect as a statement of a general principle of law." Id. The Court noted that the rule "has not met with general acceptance in this country," and "most of the authorities hold[ ] that liability for [a nuisance] must be based upon negligence or other culpability on the part of the person sought to be held responsible." Id.
In Turner, the Court again addressed the Rylands rule when considering whether a non-negligent landowner could be strictly liable "for the destruction or injury to property occasioned by the escape of salt water from ponds constructed and used by them in the operation of their oil wells." 96 S.W.2d at 221. Concluding that the landowner was not liable in the absence of negligence, the Court noted that American courts had expressed "differing views as to the correctness or applicability" of the Rylands rule, and that the Court had "long since repudiated" the basis of the Rylands rule in Oakes. Id. at 222. But confusingly, the Court then distinguished other cases, on which the plaintiffs relied to support their argument that they could recover even in the absence of negligence, on the ground that those cases were "nuisance cases, where the undisputed facts showed an actionable nuisance." Id. at 226.
In Wales Trucking, the Court acknowledged a "substantial body of law which says that a nuisance may arise where the defendant carries on an abnormally dangerous activity, or where he conducts, on his property, an enterprise such as a carbon black plant, a stockyard, or slaughterhouse." 474 S.W.2d at 186. The Court noted, however, that "PROSSER observes that most of those cases ... have been in equity and concerned the question of future damage, `so that the question is not really the nature of the defendant's original conduct but whether he shall be permitted to continue it.'" Id. at 187 (quoting Nuisance Without Fault at 418).
Ultimately, under the Rylands rule, the justification for imposing strict liability for abnormally dangerous activities is "the high degree of risk of injury caused by legitimate but dangerous activity." HARPER § 1.24, at 121. Strict liability, in other words, "is based on the idea that [the] defendant was engaged in some kind of activity exposing others to a risk of harm from an accidental invasion under circumstances that justify allocating certain losses from such risk to the defendant, even though the defendant acted with reasonable care." PROSSER AND KEETON § 91, at
As these cases illustrate, Texas jurisprudence on claims for strict liability under the Rylands rule is unclear, particularly when the plaintiffs allege a nuisance as the legal injury. Here, however, we need only note that, to the extent that a claim exists in Texas based on a nuisance created by "abnormal and out of place" conduct, it arises only out of conduct that constitutes an "abnormally dangerous activity" or involves an abnormally "dangerous substance" that creates a "high degree of risk" of serious injury. Turner, 96 S.W.2d at 222; Wales Trucking, 474 S.W.2d at 186; HARPER § 1.24, at 121; see also PROSSER, 3d ed. § 88, at 595 (classifying the "abnormal and out of place in its surroundings" theory "within the principle of strict liability").
Finally, with regard to liability for causing a nuisance, we briefly note that the questions of whether an interference with the use and enjoyment of property is substantial, whether the effects of such an interference on the plaintiffs are unreasonable, whether the defendant intentionally or negligently created the interference, and whether the interference results from abnormally dangerous activities generally present questions of fact for the jury to decide. See Justiss, 397 S.W.3d at 155 ("The point at which an odor moves from unpleasant to insufferable or when noise grows from annoying to intolerable `might be difficult to ascertain, but the practical judgment of an intelligent jury [is] equal to the task.'" (quoting Merrill v. Taylor, 72 Tex. 293, 10 S.W. 532, 534 (1888))); Vestal, 235 S.W.2d at 442 (holding that the plaintiff has the burden "to plead and prove and secure a jury finding that the use of the... property ... was unreasonable"); Comminge, 13 S.W. at 558 (approving jury charge because "the average Texas jury would understand" that the interference must injure the plaintiff's legal rights); Allen, 34 Tex. at 232 (stating that "the facts must be left to a jury to determine the question" of whether the defendant created a nuisance). A court may decide the issues as a matter of law only if the underlying facts are undisputed or, in light of all the evidence, "reasonable minds cannot differ." See, e.g., Hernandez v. Tokai Corp., 2 S.W.3d 251, 261 (Tex. 1999) (addressing product-liability claims).
As we are endeavoring here to provide more comprehensive guidance on
Unlike the determination of whether a nuisance occurred, the decision to enjoin the defendant's conduct or use is "a discretionary decision for the judge after the case has been tried and the jury discharged." Schneider, 147 S.W.3d at 286 (citing State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979)). A court "may decide to abate a nuisance whether it is temporary or permanent, and may choose not to abate either even if that is the only remedy requested." Id. at 286-87 (citing Rainey v. Red River T. & S. Ry. Co., 99 Tex. 276,89 S.W. 768, 772 (1905)).
When the nuisance is temporary, the claimant may recover "only such damages as have accrued up to the institution of the suit or (under our system) to the trial of the action." Baugh v. Tex. & N.O.R. Co., 80 Tex. 56, 15 S.W. 587, 587-88 (1891). Such damages are calculated as loss of rental value, Schneider, 147 S.W.3d at 276, or use value, HARPER § 1.30, at 144-45; PROSSER AND KEETON § 89, at 638; PROSSER 3d ed. § 91, at 623, or possibly the cost of restoring the land, DOBBS § 404, at 647.
"In the willing seller-willing buyer test of market value it is frequently said that all factors should be considered which would reasonably be given weight in negotiations between a seller and a buyer." Id. (citing 29 C.J.S., Eminent Domain, § 159 (1992)). Holding land as an investment is a legitimate use of land and a theory of market value that a jury may consider. See Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 828 n. 8 (Tex. 2014) (noting testimony that highest and best use of ranch was "rural recreational and hold for future investment"); In re State, 355 S.W.3d 611, 617 (Tex. 2011) (holding that the State was allowed to present evidence that the highest and best use of condemned land was "to hold as investment for future development"); County of Bexar v. Santikos, 144 S.W.3d 455, 458 (Tex. 2004) (noting expert testimony that land tract's "highest and best use was to hold it as an investment until population and traffic grew to support development for retail use").
The presumed highest and best use of land is that of its existing use. Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex. 2012). But ultimately the highest and best use of land is a fact question for the jury. See Windham, 837 S.W.2d at 77 ("If Windham is permitted to present evidence of the market value ... on its theory of the highest and best use of the property, then the State should be allowed to present evidence based on its competing theory of the highest and best use of the property. It is then for the jury to decide which evidence to accept and which to reject in deciding the ultimate issue of market value."). Expert testimony may aid the fact-finder, but a landowner is also competent to testify to the value of his property if he is familiar with its fair market value. See Justiss, 397 S.W.3d at 155.
The general calculation for determining the loss of market value is "the difference in the reasonable market value of the property immediately before and immediately after the injury." Downs, 367 S.W.2d at 161. However, when the damage results from an ongoing condition rather than a single event that results in a permanent nuisance, courts apply a "more flexible" rule. Robinson Mach. Co. v. Davis, 689 S.W.2d 286, 288 (Tex.App.-Waco 1985, writ ref'd n.r.e.) (noting that "the courts have recognized a more flexible rule" when damage to property is "the result of a continuing cause"); see Sherman Gas, 123 S.W. at 121 ("The trial judge instructed the jury to ascertain the value of the property for the purpose to which plaintiffs had dedicated it, just before, and such value, just after, the construction and operation of the plant. The charge was error upon a vital issue in the
We now turn to the arguments and evidence in this case. Generally, Crosstex argues that the court of appeals erred in holding that the evidence was legally sufficient to support the jury's finding that it negligently created a nuisance, while the Gardiners argue that the court applied the wrong standard of review when it determined that the evidence was factually insufficient to support that finding. Crosstex also challenges the court's holding that the trial court erred by denying the Gardiners a trial amendment to assert an "abnormal and out of place in its surroundings" claim, and its failure to address Crosstex's challenge to the jury's damages findings.
We begin by addressing the evidence in light of the definition of a nuisance we have confirmed today. Jury Question No. 2, which addressed the Gardiners' negligent-nuisance claim, asked, "Did Crosstex negligently create a nuisance as to the [Gardiners' property]?" With this question, the court instructed the jury by using the definition of "nuisance" we have approved today: "A `nuisance' is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities." To that question, the jury answered, "Yes."
Setting aside the question of whether sufficient evidence supports a finding that Crosstex engaged in legally culpable conduct, it is apparent from that definition and the jury's answer to Question 2 that the jury necessarily found that Crosstex created the kind of substantial interference and unreasonable effects that constitute a nuisance. We conclude that legally sufficient evidence supports that finding. The Gardiners presented evidence that the noise from the motors was extremely loud, caused vibrations across their land, and substantially interfered with their ability to enjoy their land. Crosstex's evidence that it had installed "hospital-grade" mufflers, hired sound engineers to conduct noise readings, hung sound-absorbing blankets inside the building, built three sound walls around on the south side of the building and another sound wall on the east side, and installed air-intake silencers may be evidence to the contrary, but it does not negate the Gardiners' evidence. In fact, it may tend to support the finding that Crosstex created, and then repeatedly sought to mitigate, a nuisance. We therefore agree with the court of appeals that the Gardiners presented legally sufficient evidence of the type of substantial and unreasonable interference that constitutes a nuisance.
Along with the definition of "nuisance," Question No. 2 also included an instruction that:
Crosstex maintains that the evidence is legally insufficient to support a finding that Crosstex breached the negligence standard of care, and thus no evidence supports the jury's "Yes" answer to Question No. 2. Conversely, the Gardiners contend that the court of appeals erred by applying the wrong standards when it concluded that the evidence was factually insufficient to support the jury's findings.
Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960). When determining whether legally sufficient evidence supports a finding, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). The evidence is legally sufficient if it constitutes more than a "scintilla" of evidence on which a reasonable juror could find the fact to be true. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).
After providing an extended and detailed description of the evidence, the court of appeals concluded here that legally sufficient evidence supports the jury's finding that Crosstex acted negligently because, "[b]ased on the evidence set out above, the jury could have found that ... during the four years since the compressor station had started operating, Crosstex had failed to use ordinary care, failed to do that which a person or party of ordinary prudence would have done under the same or similar circumstances, or did that which a person or party of ordinary prudence would not have done under the same or similar circumstances." 451 S.W.3d at 174. At the end of this sentence, the court added a footnote stating, "That is, the record reflects that there was no specific line item budgeted for sound mitigation when the station was approved but [Crosstex's director of Texas operations] said that all compressor stations are noisy." Id. at 174 n. 34.
Focusing on the footnote, Crosstex first argues that the court erred by finding evidence of negligence by imposing "a new duty" on pipeline operators to budget line-item expenses for sound mitigation. Crosstex contends that this "new duty" will have far-reaching implications on the Texas economy, that the court imposed the duty without conducting a proper legal analysis, and that the court provided no guidance on how operators can satisfy the duty. The Gardiners dispute that the court imposed any "new duty" on Crosstex, and contend instead that the court
Next, Crosstex argues that the Gardiners failed to submit any evidence of the negligence standard of care applicable to a pipeline operator that constructs and operates a compressor station. According to Crosstex, the Gardiners were required to provide testimony or other evidence of how a "similarly-situated natural gas pipeline operator of ordinary prudence would act in constructing and operating a compressor station near rural property used only for agricultural purposes." Crosstex further maintains that establishing such a "specialized" standard of care requires expert testimony. We disagree.
The duty that Crosstex owed to the Gardiners was the duty to do what a person of ordinary prudence in the same or similar circumstances would have done. See Timberwalk Apartments, 972 S.W.2d at 753; see also Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 563 (1948) ("In the conduct of one's business or in the use and exploitation of one's property, the law imposes upon all persons the duty to exercise ordinary care to avoid injury or damage to the property of others."); Rhodes v. Whitehead, 27 Tex. 304, 307 (1863) ("The great principle which seems to control all the modern cases is, that men must so use their own as not to injure the rights of others, or to incommode others; they must not endanger health or comfort, or produce inconvenience, and there can be no prescriptive right in a nuisance."). We agree with the Gardiners that the jury did not need expert testimony to understand that duty. See GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999) ("Where, as here, the issue involves only general knowledge and experience rather than expertise, it is within the province of the jury to decide, and admission of expert testimony on the issue is error."). The breach of that duty was building and continuing to operate the compressor station in such a way that its noise was beyond reasonable levels. The evidence of that breach included testimony that the noise was louder than even Crosstex anticipated, that the mitigation efforts Crosstex implemented did not lessen the noisome interference, and that Crosstex could have taken other steps to mitigate the noise but chose not to because of cost considerations. We agree with the court of appeals that some evidence supports the jury's finding that Crosstex acted negligently in creating the condition that the jury found to constitute a nuisance.
Relying on Vestal, Crosstex next argues that the Gardiners were required to prove and secure a jury finding that Crosstex's use of its property was unreasonable. See Vestal, 235 S.W.2d at 442 ("[T]he burden rested on the [plaintiffs] to... secure a jury finding that the use of the ... property by the respondent was unreasonable."). As discussed above, we did not hold in Vestal that a plaintiff who seeks to recover for a negligently-created nuisance must prove both that the defendant negligently created the nuisance and that the defendant's use of its land was unreasonable. In a claim alleging a negligently created nuisance, the jury must find both that the effects on the plaintiffs of the
We conclude that the trial court here properly asked the jury to find whether Crosstex negligently created a nuisance and properly defined both "nuisance" and "negligence" for the jury. And for the reasons explained, we agree with the court of appeals that the Gardiners presented some evidence, and therefore legally sufficient evidence, to support the jury's answer.
Although the court of appeals found the evidence legally sufficient to support the jury's negligent-nuisance finding, it then concluded that the evidence was factually insufficient, and it therefore remanded the cause to the trial court for a new trial. 451 S.W.3d at 174, 179. In their cross-petition, the Gardiners complain that in concluding that the evidence was factually insufficient, the court of appeals failed to conduct the proper analysis as required under Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986). While this Court has no jurisdiction to review the evidence for factual sufficiency, we can review whether the court of appeals properly conducted that analysis. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (citing Pool, 715 S.W.2d at 634-35).
The court of appeals announced the correct standard: When reviewing an assertion that the evidence is factually insufficient to support a finding, a court of appeals sets aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, it determines that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. 451 S.W.3d at 154-55 (citing Pool, 715 S.W.2d at 635; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965)). And the appeals court acknowledged that when it reverses for factual insufficiency, it must detail the relevant evidence and clearly state why the evidence is factually insufficient. Id. at 174-75.
After detailing the evidence and highlighting these facts, the court concluded that the evidence was "factually insufficient to support the jury's negligent nuisance finding." Id.
The dissenting justice took issue with the court of appeals' majority's brief conclusion, stating:
Id. at 181-82 (WALKER, J., dissenting). The dissent further complained that the majority "cherry-pick[ed] isolated snippets of evidence or testimony" and "substitute[d] its own credibility determinations... despite extensive, directly-conflicting evidence that the jury below found persuasive." Id.
Although the court of appeals' opinion may not be a model of clarity, we cannot say that the court did not consider and weigh all the evidence when half of its opinion was devoted to laboriously detailing that evidence. Further, although the court did not include a summary statement expressly explaining that the evidence was factually insufficient "because" of particular reasons, its opinion makes clear its
We do not, however, affirm the court of appeals' holding that the trial court abused its discretion by denying the Gardiners' request for a trial amendment. 451 S.W.3d at 179. At the jury charge conference, the Gardiners requested a jury question asking, "Was Crosstex's conduct abnormal and out of place in its surroundings such as to create a nuisance as to the Gardiners?" Crosstex objected, arguing that the Gardiners never pleaded such a theory. The trial court refused the question on that ground. The Gardiners then requested a trial amendment to add an allegation that "Crosstex's conduct was abnormal and out of place in its surroundings," which the trial court denied. The court of appeals held that the trial court abused its discretion by refusing the trial amendment because "the entire case was based on the Gardiners' underlying grievance that the compressor station's noise was abnormal and out-of-place in its surroundings." 451 S.W.3d at 177; see Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (stating that a trial court has no discretion to refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense and thus is prejudicial on its face, and the opposing party objects to the amendment).
As we have confirmed today, however, this strict-liability basis for a claim alleging a nuisance must be based on conduct that constitutes an "abnormally dangerous activity," and not just an activity that is "abnormal and out of place in its surroundings." See Turner, 96 S.W.2d at 222; Wales Trucking, 474 S.W.2d at 186. On the record as it currently exists in this case, we find no evidence that the compressor station was abnormally dangerous or that Crosstex engaged in the type of abnormally dangerous or ultrahazardous conduct that would support such a cause of action. We thus conclude that the trial court properly denied the Gardiners' request for a trial amendment to assert that claim.
Because the Court's judgment remands the case for a new trial, we need not and do not address Crosstex's additional arguments regarding the sufficiency of the evidence supporting the jury's damages award. The parties and trial court on remand, however, should find sufficient guidance on those issues in today's opinion.
Given the long and storied history of nuisance law, it is not surprising that the courts and parties in this case have struggled to articulate the elements of the Gardiners' nuisance claim. Even the most esteemed tort commentators do not agree. We hold today that the term "nuisance" describes a particular legal injury involving interference with the use and enjoyment of property but does not describe a cause of action; that a defendant can be liable for intentionally or negligently causing
The parties and the trial court did not have the benefit of today's decision at the time of trial. Because today's decision provides clarification of the law, we affirm the court of appeals' judgment remanding the case to the trial court for a new trial, to be governed by the principles we announce today. See Bacon v. Gen. Devices, Inc., 830 S.W.2d 106, 107 (Tex. 1992) (per curiam) (remanding to court of appeals so that it may "have the opportunity to reconsider [its] rulings in light of" this Court's intervening opinion); Welex, a Div. of Halliburton Co. v. Broom, 816 S.W.2d 340, 340 (Tex. 1991) (per curiam) (same); see also In re Doe 2, 19 S.W.3d 278, 283 (Tex. 2000) (applying Texas Rule of Appellate Procedure 60.2(f) to remand case to the trial court, instead of the appellate court, for a new hearing).
It is no surprise, then, that when Dean Keeton updated PROSSER'S hornbook twenty years later, after PROSSER'S death, Keeton clarified this point, specifically explaining that the unreasonable-interference requirement "does not mean that the defendant's conduct must be unreasonable." PROSSER AND KEETON § 87, at 623. Keeton explained that courts often treat "the interference as being unreasonable although the [defendant's] conduct is regarded as reasonable and socially desirable. The two concepts — unreasonable interference and unreasonable conduct — are not at all identical." Id. Keeton explained that confusion had resulted from the fact that "interference with the plaintiff's use of his property can be unreasonable even when the defendant's conduct is reasonable." Id. § 88, at 629. "This is simply because a reasonable person could conclude that the plaintiff's loss resulting from the intentional interference ought to be allocated to the defendant." Id.
Keeton's description more accurately reflects this Court's precedent, as well as that of other American courts and commentators. See, e.g., Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496, 507 (2002) ("While the reasonableness of a defendant's conduct is a factor in determining whether an interference is unreasonable, it is not an independent element that must be proven in order to prevail in all private nuisance causes of action. The inquiry is cast more appropriately as whether the defendant's conduct unreasonably interfered with the plaintiff's use and enjoyment of his or her land rather than whether the defendant's conduct was itself unreasonable."); State v. Lloyd A. Fry Roofing Co., 310 Minn. 535, 246 N.W.2d 692, 695 (1976) ("The general rule regarding nuisances is that `it is immaterial how innocent the intent was for the element of motive or intent does not enter into the question of nuisance.'" (quoting JOSEPH A. JOYCE & HOWARD C. JOYCE, TREATISE ON THE LAW GOVERNING NUISANCES § 43, at 77 (1906))); DOBBS § 399, at 619 n.5 ("Nuisance does not, however, require unreasonable actions by the defendant, only that the plaintiff cannot reasonably be expected to bear the harm.").
In short, even "a lawful business may become a nuisance in fact when it is operated in such a place or manner as seriously to interfere with the enjoyment of life and property," Storey, 226 S.W.2d at 617 (quoting TEX. JUR. 2D Nuisance § 21), and "the law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business," id. at 618; see also HARPER § 1.24, at 117-18 ("In a number of other American cases, defendants have been held liable in damages for substantial harm inflicted on plaintiff's property interest, although their operations have been lawful and carefully conducted in a suitable place."). We do not suggest that the unlawfulness of a defendant's conduct or property use cannot be relevant in some cases to the question of whether the defendant intentionally or negligently caused the nuisance, or even to whether the effects of the interference were sufficiently unreasonable to constitute a nuisance, but it is beyond well-established in Texas that the plaintiff need not prove that the defendant's conduct was illegal or unlawful, and the fact that the conduct was lawful provides no defense to the claim.
