535 Envtl. Processing Sys., L. C. v. FPL Farming Ltd.

Tuesday, December 8th, 2015

Richard F. Brown

The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.

Environmental Processing Systems, L.C. v. FPL Farming, Ltd. held that “lack of consent” is an element of the cause of action for trespass and not an affirmative defense. FPL Farming, LTD (“FPL”) farms rice in Liberty County, Texas. Environmental Processing System (“EPS”) leases and operates a five-acre wastewater disposal facility adjacent to FPL’s property. FPL brought a trespass claim against EPS for deep subsurface wastewater migration onto FPL’s property. The trial court judge presented the jury the following question on the issue of trespass:

Question 1: Did EPS trespass on FPL [Farming’s] property?

“Trespass” means an entry on the property of another without having consent of the owner. To constitute a trespass, entry upon another’s property need not be in person, but may be made by causing or permitting a thing to cross the boundary of the property below the surface of the earth. Every unauthorized entry upon the property of another is a trespass, and the intent or motive prompting the trespass is immaterial.

Answer yes or no.

The issues were: (1) Whether consent is an element of the cause of action of trespass, or an affirmative defense?; and (2) Who has the burden of proving consent in a trespass cause of action?

The Court reviewed a century and a half of trespass-related decisions to conclude that the Court has “never departed from the inclusion of lack of consent or authorization in the definition of a trespass.” A “[t]respass to real property is an unauthorized entry upon the land of another, and may occur when one enters—or causes something to enter—another’s property.”

Many Texas appellate courts have concluded that consent is an affirmative defense to be plead and proven by the defendant. However, Texas courts allocate the burden of proof of a particular claim by taking into consideration: (1) “‘[t]he comparative likelihood that a certain situation may occur in a reasonable percentage of cases’; and (2) the difficulty in proving a negative.” Typically, only a small fraction of trespass cases present a consent question due to the fact that landowners have no reason to suspect a trespass may occur and is rarely presented with an opportunity to consent to trespass. When consent is at issue, the Court determined that the landowner is in the best position to prove lack of consent or authorization because “only ‘someone acting with the authority of the landowner or one with rightful possession’ can authorize, or consent to, the entry.” To hold otherwise, the Court explained, would require plaintiffs only prove an entry upon their land, which would ignore the Court’s clear precedent requiring plaintiffs demonstrate that the entry was unauthorized.

Importantly, the Court’s resolution of the consent issue—coupled with the jury’s determination that EPS did not trespass upon FPL’s property—allowed the Court to decline FPL’s invitation to address the question of whether deep subsurface wastewater migration can constitute a cause of action for trespass under Texas law.

The significance of this case is the Court’s holding that unauthorized entry, or lack of consent, is an element of the cause of action for trespass with the burden on the plaintiff. It is also significant that the Court neither approved nor disapproved of the lower court’s analysis and holding on subsurface trespass.