The ability to sue for subsurface trespass remains unclear. This issue was recently before the Texas Supreme Court, but unfortunately it reversed the case on other grounds. Despite this ruling, there are at least three cases which suggest that subsurface trespass is a viable cause of action in Texas.
A few cases have also involved trespass claims related to the migration of air toxins. One court held that a trespass does not have to be committed in person but may be caused by allowing or causing air particulates to cross the boundary of another. However, this does not relieve the plaintiff of proving the remaining elements of his claim, namely causation.
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