How does a plaintiff prove that environmental contamination resulted in a trespass?

Generally speaking, the elements of a trespass cause of action are:

  • The claimant has a lawful right to possess the property;
  • The defendant physically enters the property;
  • The entry was intentional and voluntary;
  • The defendant’s trespass causes an injury to the claimant’s right of possession; and
  • The plaintiff did not consent to the entry. 

To constitute a trespass there must be some physical entry upon the land by some “thing.”  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. 

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. 

The Texas Supreme 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. 

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