Typical Common Law Claims: Trespass

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.


Trespass is also a very common claim asserted in typical environmental lawsuits.  For instance, in Scoma v. Chesapeake Energy Corp., the plaintiffs claimed that the defendant trespassed upon their land because defendant’s drilling related activities resulted in contamination of plaintiffs’ subsurface well water.[1] Plaintiffs claimed that defendant physically, intentionally, and voluntarily caused and permitted petroleum byproducts to cross plaintiffs’ property boundaries and enter into plaintiffs’ land which contaminated their well water.[2]  In Abundiz v. Explorer Pipeline Co., the plaintiffs claimed the defendant trespassed onto their land following the release of 60,000 gallons of gasoline containing MTBE from a pipeline in Hunt County.[3] In Mitchell v. Encana Oil & Gas (USA), the plaintiff claimed that defendant’s drilling activities led to a subsurface trespass which contaminated their drinking water.[4] Generally speaking, 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;
  4. The defendant’s trespass causes an injury to the claimant’s right of        possession; and
  5. The plaintiff did not consent to the entry.[5]

The Texas Supreme Court recently held that “lack of consent” was also an element of a trespass claim, rather than an affirmative defense, and thus the plaintiff had the burden to prove its lack of consent to the alleged trespass as well.[6]  The court reasoned that its holding was consistent with the definition of trespass as an unauthorized entry onto the property of another, and the issue of consent was rarely contested and should not be difficult for a landowner to prove.[7]

Things work out best for those who make the best of

how things work out.” John Wooden

To constitute a trespass there must be some physical entry upon the land by some “thing.[8] The entry upon another’s land need not be in person, but may be made by causing or permitting a thing to cross the boundary of the premises.[9] While some Texas courts have described the gist of an action for trespass to realty to be the injury to the right of possession, the Texas Supreme Court has indicated that the focus should be on the injury caused rather than the nature of the interference.[10] The court held that there should be something more than the naked crossing of property lines by someone or something—namely, actual permanent harm to the property which affects the value of the property owner’s interest.[11]

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[1] Scoma v. Chesapeake Energy Corp., No. 3:10-cv-01385 (N.D. Tex., July 15, 2010) (Doc. 9, page 6).

[2] Id.

[3] Abundiz v. Explorer Pipeline Co., 2003 WL 23096018 at *1 (N.D. Tex. 2003)

[4] Mitchell v. Encana Oil & Gas (USA), No. 3:10-cv-02555 (N.D. Tex., Dec. 15, 2010) (Doc. 1, page 5).

[5] Sciscoe, 2015 WL 3463490 at * 6; Environmental Processing Systems, L.C. v. FPL Farming, Ltd., 457 S.W.3d 414, 425 (Tex. 2015)

[6] See Environmental Processing Systems, L.C., 457 S.W.3d at 424-25.

[7] See id.

[8] Id.

[9] Id.

[10] Id. (citing Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 9 (Tex. 2008)).

[11] Id.

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