Face Challenges Confidently

133 Senn v. Texaco, Inc.,

Friday, September 4th, 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.
Senn v. Texaco, Inc., 55 S.W.3d 222 (Tex. App.–Eastland, pet. denied), holds that purchasers of the surface estate have no standing to sue for a cause of action for a permanent nuisance which accrued to the prior owner of the land. Senn purchased the surface of the Covered “S” Ranch in 1997. Senn sued former and current operators for permanent and temporary injury to Senn’s land from contamination of the acquifer underlying the land. This appeal resulted from a summary judgment dismissing the claim as to the former operators for lack of standing. It was undisputed that the drilling and production activities of Texaco et al. ceased before the land was conveyed to Senn.
The court followed the well-established rule in Texas that:

Where injury to land results from a thing that the law regards as a permanent nuisance, the right of action for all the damages resulting from the injury accrues to the owner of the land at the time the thing that causes the injury commences to affect the land. Stated another way, a cause of action for injury to real property is a personal right which belongs to the person who owns the property at the time of the injury. The right to sue for injury to the land is not a right that runs with the land.

Senn argued that by application of the discovery rule, Senn and not Senn’s assignor, owned the cause of action, because Senn discovered the injury to the acquifer. The court refused to find that the discovery rule could work to transfer ownership of a cause of action. The court refused to alter the existing “bright line” rule for determining ownership of the cause of action. The conveyance into Senn was without warranty, except as to title, and Senn’s claim that his vendor had conveyed the vendor’s rights against Texaco et al. to Senn was summarily dismissed.