How is a permanent nuisance distinguished from a temporary nuisance?

In Schneider Nat. Carriers v. Bates, the Texas Supreme Court stated that for more than a century, Texas courts have defined temporary and permanent nuisances along lines that are somewhat closer to the plain meaning of the words.  Texas courts have defined a permanent nuisance as one that involves “an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely.”   Thus, a nuisance is permanent if it is “constant and continuous,” and if “injury constantly and regularly recurs.”

Conversely, a nuisance is temporary if it is of limited duration.   Thus, a nuisance may be considered temporary if it is uncertain if any future injury will occur, or if future injury “is liable to occur only at long intervals.”  A nuisance is also temporary if it is “occasional, intermittent or recurrent,” or “sporadic and contingent upon some irregular force such as rain.”   However, according to the court, 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.” 

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