While there is considerable uncertainty about which nuisances are temporary or permanent, there is no uncertainty about the legal consequences. For guidance on how to make the distinction, it is important to look to the consequences that flow from it.
First, the distinction between temporary and permanent nuisances determines the damages that may be recovered. It has long been the rule in Texas that if a nuisance is temporary, the landowner may recover only lost use and enjoyment (measured in terms of rental value) that has already accrued. Conversely, if a nuisance is permanent, the owner may recover lost market value—a figure that reflects all losses from the injury, including lost rents expected in the future. Because the one claim is included in the other, the two claims are mutually exclusive; a landowner cannot recover both in the same action.
The second reason for distinguishing temporary and permanent nuisances stems directly from the first. If future harm can reasonably be predicted, the nuisance is a permanent one and a claimant must sue for all injuries in one suit. But if future harm is anyone’s guess, the nuisance is a temporary one and a claimant must bring a series of suits involving the same parties, pleadings, and issues as each injury occurs.
Third, characterizing a nuisance as temporary or permanent determines when limitation accrues, and thus when an injured party’s claims are barred. For instance, the statute of limitations for trespass, nuisance, and negligence for damages to land are governed by the two-year statute of limitations and are required to be brought within two years from the date of accrual.
An action for permanent damages to land accrues, for limitations purposes, upon the date of discovery of the first actionable injury—not on the date the damages to the land are fully ascertainable. Thus, an action to recover damages for permanent injury accrues when injury first occurs or is discovered. On the other hand, a temporary injury claim accrues anew upon each injury. With respect to nuisance claims, since plaintiffs usually know of unreasonable discomfort or annoyance promptly, application of the discovery rule is rare. But a different rule may apply when the nature of a nuisance has substantially changed. The continuing tort doctrine, which is an exception to the statute of limitations, does not apply to claims where the damages arise from permanent injury to the land. Several courts have also held that the limitations, as opposed to laches, does not bar a suit seeking only to enjoin a nuisance.
Finally, the distinction between temporary and permanent nuisances determines the damages that may be recovered. The general rule in cases involving injury to real property is that the proper measure of damages is the cost to restore or replace, plus loss of use for temporary injury, and loss in fair market value for permanent injury. However, this rule is applied with some flexibility, considering the circumstances of each case to ensure that an award of damages neither over–nor under-compensates a landowner for damage to his property. According to the Supreme Court, the purpose of the law “in every case, is to compensate the owner for the injury received, and the measure of damages which will accomplish this in a given case ought to be adopted.” For that reason, Texas courts have appealed to a number of exceptions to the general rule when it would compensate a landowner unjustly.
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