Court of Appeals of Texas, Eighth District, El Paso
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[Copyrighted Material Omitted]
Appeal from 327th District Court of El Paso County, Texas. (T.C. # 2007-1526).
Before McClure, C.J., Rivera, and Rodriguez, JJ.
ANN CRAWFORD McCLURE,
Luis Salazar appeals a take-nothing judgment entered in favor of William and Patricia Sanders on Salazar's claims against them for private nuisance, trespass, loss of lateral support, breach of contract, and violations of the Texas Water Code. For the reasons that follow, we affirm.
STATEMENT OF FACTS
Luis Salazar has resided in the Upper Valley district of El Paso, Texas, on a three-acre property located on Boy Scout Lane since he purchased it on May 17, 2001. His neighbors, William and Patricia Sanders, have resided on adjacent property located on Boy Scout Lane immediately to the southeast of Salazar's property, since July 16, 1975. Although the area of the Upper Valley in which these properties are located is largely residential, many of the properties, including those of Salazar and the Sanderses, have irrigation rights.
An earthen irrigation ditch approximately six feet in width and two-and-a-half feet deep runs between the Salazar Estate and the Sanders Estate. The ditch is linked by floodgate to an EPCWID mainline canal serving several neighborhood properties. The Sanderses and a few other neighbors use this ditch to irrigate their property. The Salazar Estate is served by a different irrigation ditch. Mr. Sanders has served as the alcalde for the irrigation ditch on his property for approximately twenty years. The alcalde is the person who opens the floodgate and coordinates the irrigation with the neighbors.
In September 2005, a dispute arose between Salazar and the Sanderses over a flooding event that affected both properties. Salazar maintained that the Sanderses had left the floodgate open and the irrigation ditch had overflowed onto the Salazar Estate. Mr. Sanders disputed Salazar's version of the events. Mr. Sanders noticed irrigation water from Salazar's property was coming onto his pasture so he and his wife walked over and spoke to Salazar who was in front of his house. Mr. Sanders did not consider it a major issue but thought he should mention it to Salazar. Salazar told them he was not going to do anything about it and walked away. After they returned home, Salazar walked over and explained to Mr. Sanders that his neighbors were flooding him and he was not going to tell them to stop. In early 2006, Salazar spoke with Mr. Sanders about the property line and the irrigation ditch. Salazar pointed out a surveyor's pin laid as part of a survey performed by Manuel Calderon of Calderon Engineering (" the Calderon survey" and " the Calderon Line" ). He told Mr. Sanders that the surveyor's pin indicated that the northwest bank of the ditch was located partially on the Salazar Estate, and asked Mr. Sanders to relocate the ditch further inside the Sanders Estate. A second pin placed during an earlier survey by Robert Seipel (" the Seipel survey" and " the Seipel Line" ) indicated that the boundary line between the Salazar and Sanders properties was at a point two feet away from the northwest bank of the ditch, inside what Salazar claimed was part of the Salazar Estate. An old wire fence stood on the Salazar
Estate where the Seipel survey indicated the property line existed. Salazar was apparently aware of the location of the pin from the Seipel survey at the time he showed Mr. Sanders the pin from the Calderon survey, but did not tell Mr. Sanders of the second pin's existence. Salazar asked Mr. Sanders to share a fence along the Calderon Line but Mr. Sanders did not want to pay for it. Salazar volunteered to pay for the fence and he asked Mr. Sanders to let him know if he agreed. Salazar also asked him to relocate the irrigation ditch because he claimed it was located partially on the Salazar Estate. Mr. Sanders refused to move the irrigation ditch, but he agreed that Salazar could build a new fence along the Calderon line. Mr. Sanders left Salazar a voicemail on February 7, 2006, indicating his agreement about Salazar building the fence:
MR. SANDERS: Good morning, Luis. This is Bill Sanders, your back neighbor. I talked with Joseph Bencomo. And, you know, I mean, that's your property and -- and just go ahead -- I think we both agree you ought to just go ahead and put in your fence, and we'll figure out how we'll work around it. So we're fine with it. So do what you need to do. I mean, of course, I'd like for you to make sure not to mess up anything on my side of the fence. But do whatever you need to to [sic] put it in, and just go for it, and when it's done are we'll figure out how we're going to work around it. Okay. Call me if you've got any questions. Bye.
Salazar testified that he had a conversation with Mr. Sanders the day after receiving the voicemail. They " laid out a plan" where Salazar would build up his side of the property which had eroded and Mr. Sanders agreed to " re-establish the ditch bank on his side of the property where it wouldn't undermine the fence that [Salazar] would build." Salazar claimed that in March of 2006, Mr. Sanders refused to build a berm next to the irrigation ditch because he had changed his mind. According to Salazar, water from the Sanderses' irrigation ditch overflowed onto his property in March and April of 2006. Salazar's attorney sent the Sanderses a letter on March 22, 2006 stating that their irrigation ditch had " shifted" onto the Salazar Estate, and demanded that they either remove or stabilize it. The letter referenced the agreement between Salazar and the Sanderses' to " improve the banks of the ditch to eliminate the problem." Mr. Sanders responded in writing to the letter and informed counsel that there was a dispute about the boundary line because he had recently learned that Salazar's surveyor had used a different corner point than the one established in an earlier survey. He also disputed that there was an agreement to improve the banks of the ditch and stated his belief that Salazar might have created the problem " when he recently removed the ditch banks that contain my irrigation water." Mr. Sanders suggested that the first step was to identify the boundary line. Salazar's attorney wrote a second letter to the Sanderses on April 11, 2006 dismissing any question about a boundary dispute and demanding that the Sanderses move the ditch by April 25, 2006.
Salazar also reported the Sanderses to EPCWID which ordered them to suspend irrigation of the Sanders Estate until they had resolved the dispute with Salazar. Mr. Sanders disputed that water from his irrigation ditch ever went onto Salazar's property, but he did not want his neighbors to be deprived of water because of his dispute with Salazar. Consequently, he attempted to resolve the dispute by reconstructing the irrigation ditch. He dug a
vertical wall at a 90-degree angle into the ditch on the Sanders Estate side of the Calderon Line and lined the vertical wall with corrugated metal fixed into the soil bed.
At some point during the dispute, Salazar had put up a length of string meant to demarcate the boundary line between the Salazar Estate and the Sanders Estate as established by the Calderon survey. Salazar asserted that Mr. Sanders and his agents repeatedly trespassed onto the Salazar Estate during construction by crossing the Calderon Line, but Mr. Sanders expressly denied ever trespassing on Salazar's property. Salazar also took issue with the reconstructed irrigation ditch. Although he admitted that the reconstructed ditch fixed the flooding, Salazar alleged that water seeped between some of the metal panels onto his property so that the soil next to the irrigation ditch was saturated during irrigation season every year.
In addition to the flooding issues, Salazar and the Sanderses continued to dispute ownership of the two-foot strip of land between the Calderon Line and the Seipel Line. In an effort to resolve the dispute with Salazar, the Sanderses quitclaimed the disputed strip of land to Salazar on June 25, 2009. In the quitclaim deed, which Salazar accepted, there is language indicating that the irrigation ditch and its accompanying easement lie squarely within the boundary lines of the Sanders Estate.
In his fourth amended petition, the live pleading in this case, Salazar brought claims against William and Patricia Sanders for: (1) a declaratory judgment under Tex.Civ.Prac.& Rem.Code Ann. § 37.003 (West 2008); (2) interference with lateral support at common law; (3) trespass to real property; (4) private nuisance on the basis of intentional, negligent, and abnormal conduct; (5) public nuisance; (6) violations of Sections 11.086 and 11.088 of the Texas Water Code; (6) breach of oral contract; (7) promissory estoppel; and (8) attorney's fees. The trial court directed verdicts in favor of the Sanderses on interference with lateral support and the Texas Water Code causes of action. The court also directed verdicts in favor of the Sanderses sua sponte on the issues of public nuisance, private nuisance, declaratory relief, and promissory estoppel. The parties stipulated that the Sanderses' request for attorney's fees based on the Declaratory Judgment Act would be submitted to the trial court rather than the jury. Thus, only the issues of breach of contract and trespass were submitted to the jury. On those issues, the jury found in favor of the Sanderses. The trial court also awarded attorney's fees to the Sanderses in the amount of $20,000.
In Issues One through Three, Salazar challenges the directed verdict granted with respect to the private nuisance claim. He contends that there is more than a scintilla of evidence that the Sanderses interfered with his interest in his property through intentional, negligent, and abnormal conduct.
Standard of Review
A directed verdict may be properly granted in one of three instances. First, a directed verdict is proper where there is " no evidence" raised to support a material issue in the suit. Prudential Insurance Company of America v. Financial Review Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000). Second, the trial court may direct a verdict where evidence conclusively establishes a fact and " reasonable minds could reach but one conclusion under the available evidence." Vance v. My Apartment Steak House, 677 S.W.2d 480, 483 (Tex. 1984). Third, a directed verdict is an appropriate
procedural mechanism where a pleading defect renders judgment for the nonmovant on an issue legally impossible. Anderson v. Vinson Exploration, Inc., 832 S.W.2d 657, 665 (Tex.App.--El Paso 1992, writ denied).
In reviewing a directed verdict, we examine the evidence in the light most favorable to the person suffering an adverse judgment. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996). The appellate court must review the entire record to determine whether there is more than a scintilla of evidence that a fact question existed. Field v. AIM Management Group, Inc., 845 S.W.2d 469, 472 (Tex.App.--Houston [14th Dist.] 1993), citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). To meet the " more than a scintilla" threshold, evidence must demonstrate more than surmise or suspicion that a fact exists. Service Corporation International v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011).
Elements of Nuisance and Analysis
A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use or enjoy it. Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003); Aguilar v. Trujillo, 162 S.W.3d 839, 850 (Tex.App.--El Paso 2005, pet. denied). A nuisance may arise by causing (1) physical harm to property, such as by the encroachment of a damaging substance or by the property's destruction, (2) physical harm to a person on his property from an assault on his senses or by other personal injury, and (3) emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind. Aguilar, 162 S.W.3d at 850. For an actionable nuisance, a defendant must generally engage in one of three kinds of activity: (1) intentional invasion of another's interests; (2) negligent invasion of another's interests; or (3) other conduct, culpable because abnormal and out of place in its surroundings, that invades another's interests. Id. at 850-51.
To avoid a directed verdict, Salazar had to present evidence on these elements. See Cecil v. T.M.E. Investments, Inc., 893 S.W.2d 38, 49 (Tex.App.--Corpus Christi 1994, no writ)(stating that the appellant was required to present evidence on each element of her product liability and negligence causes of action in order to avoid a directed verdict). A court of appeals must affirm the trial court's granting of a directed verdict if the appellant fails to present some legally sufficient evidence on each element of the cause of action it raised below. Cadle Company v. Bankston & Lobingier, 868 S.W.2d 918, 921 (Tex.App.--Fort Worth 1994), writ denied, 893 S.W.2d 949 (Tex. 1994).
The trial court, on its own motion, granted the directed verdict on the private nuisance cause of action. It did so without specifying which elements were not supported by legally sufficient evidence. To prevail on appeal, Salazar must demonstrate that he presented more than a scintilla of evidence on each element of his private nuisance cause of action. Issues One through Three are directed exclusively to whether there is more than a scintilla of evidence that the Sanderses' activity was an intentional, negligent, or abnormal invasion of Salazar's interest. Salazar has failed to raise any issue ...