too lateWhen must a neighbor sue for nuisance and trespass or else be barred by limitations? It’s a tricky question. In Town of Dish et al v. Atmos Energy et al, the Texas Supreme Court concluded that the claims were time-barred. The limitations train had left the station.

The rules

Here are factors considered by the court that govern when these cases must be brought:

  • Limitations runs two years from the time the claim accrues.
  • When a claim accrues (and the limitations clock begins to tick) is a question of law for Her Honor, not the jury.
  • Trespass and nuisance claims accrue once a “known injury begins.”
  • Normally, such claims don’t accrue when the source is under construction. However, once operations begin and interference occurs, the clock starts.
  • Once a claimant learns of a wrongful injury, limitations begins to run even if the claimant doesn’t yet know the specific cause of the injury, the party responsible, the extent, or the chances of avoiding it.
  • A claimant’s subjective belief as to the accrual date doesn’t matter. A nuisance is a condition causing unreasonable annoyance to persons of ordinary sensibilities. Its an objective test.

Why did they wait so long?

Here are the events leading to the suit:

  • 2005 to 2008 – Compressor stations owned by four defendants come on line.
  • Fall 2006 – Residents invite an Atmos representative to a town meeting to discuss noise and odor complaints.
  • January 2007 – The person who eventually became mayor emails council members discussing civil litigation.
  • Early 2007 – That same person emails Atmos, copying media outlets, claiming that the noise produced by their engines has caused severe complaints and threatens to look at ways to force Atmos to “do what you should have done months ago”.
  • January 2007 – Another citizen notifies Atmos that it is interfering with his rights.
  • March 2008 – That same person emails several recipients that the defendants have “transformed the area into a living hell … with unbearable, unending noise from thundering compressor engines, noxious fumes, blazing alarms, and the roaring blasts of gases released into the air louder than a jet engine at maximum takeoff thrust.” Soaring rhetoric. Should have sued then.
  • September 2009 – The “Wolf Eagle Report” asserted the presence of “noise, odors … and hazardous chemicals” emanating from the facilities.
  • February 2011 – Suit filed.

The analysis

The residents said that it was not until summer 2009 when the Ponder Station (as the four stations were collectively known) was completely finished and the problems got substantially worse.  It was then that they felt that a nuisance was occurring and a substantial interference with their use and enjoyment began. While the noises were occasionally loud and annoying the plaintiffs did not feel they rose to the level of a nuisance until September 2009. The court found that as a matter of law the claims were barred by limitations.

Tomorrow is a long time … in  love, but not in litigation.

Lagniappe: The town of “Dish” used to be “Clark”, but changed its name in exchange for complimentary satellite television service for its citizens. Now you know.