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Environmental Processing Systems, L.C. v. FPL Farming, Ltd.

ELR Citation: 45 ELR 20038
Nos. 12-0905, (Tex., 02/06/2015)

The Texas Supreme Court reinstated a jury verdict in favor of a waste disposal facility in a trespass case filed against it by a neighboring rice farm. At trial, the farm argued that deep subsurface wastewater from the facility trespassed beneath its property, but the jury returned a verdict in the facility's favor. The case was appealed and an appellate court reversed. But contrary to the appellate court's ruling, the jury instruction properly included "lack of consent" as an element of a trespass cause of action that a plaintiff must prove. The jury charge provided the well-established definition of a trespass, which includes lack of consent or authorization as an element of the cause of action. The court therefore did not decide whether Texas law recognizes a trespass cause of action for deep subsurface water migration. Because the charge provided the correct definition of trespass and resulted in a jury verdict and judgment in favor of the waste facility, any error in applying the trespass question to a possible deep subsurface water migration was harmless. In addition, the trial court properly denied the farm's motion for directed verdict on the issue of consent. The court therefore reversed the appellate court's judgment and reinstated the trial court's judgment that the farm take nothing.