Jesse B. Scott and Paula Scott v. Alexander R. Babb , 419 S.W.3d 531 ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00575-CV
Jesse B. SCOTT and Paula Scott,
Appellants
v.
Alexander R. BABB,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. 10-96-A
Honorable N. Keith Williams, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: October 30, 2013
REVERSED AND RENDERED
Appellants Jesse and Paula Scott appeal the trial court’s summary judgment ordering, inter
alia, removal of a fence erected in 2005. On appeal, the Scotts argue that Appellee Alexander R.
Babb’s suit was barred by limitations based on an almost five-year delay in filing. We reverse the
trial court’s judgment and render judgment in favor of the Scotts.
BACKGROUND
The facts in the case are not in dispute. The Scotts own fifteen acres of land bordered by
Bayless Road in Kerr County, Texas. Babb owns approximately 248 acres across the road and
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adjacent to the Scotts’ property. Both properties are subject to a sixty-foot easement which is
located entirely within the Hill Country Ranch Estates subdivision. Bayless Drive is a single-lane
dirt road, used regularly by only five residents. Babb uses Bayless Drive to reach his property
from a connecting county road.
Over a five-week period in the summer of 2005, the Scotts erected a fence running along
the side of their property on Bayless Drive. Although Babb acknowledges he saw the construction,
specifically the installation of the posts, he never expressed any concerns to the Scotts concerning
the location of the fence. In fact, when asked whether he had any objection at the time the fence
was erected, Babb replied
At the time I didn’t know what my rights were regarding, you know, whether—
whether there would be any problems or what my rights were regarding having—
you know, being able to have something moved. The thought never occurred to me
at the time.
In November of 2008, Babb first voiced his objections to the location of the Scotts’ fence
via a letter from his attorney. The letter claimed the Scotts’ fence encroached upon the sixty-foot-
wide easement dedicated in the 1970 plat for the Hill Country Ranch Estates subdivision. The
dedication bestows “to the public for public use forever all roads shown hereon.”
On January 17, 2010, Babb filed suit seeking (1) damages for the loss of value in his
property due to the Scotts’ “unlawful taking” and (2) a mandatory injunction requiring the Scotts
to remove the fence. In their First Amended Original Answer, the Scotts alleged Babb’s claim
was barred by the applicable two-year statute of limitations for permanent injury to land.
On competing motions for summary judgment, the trial court granted Babb’s motion for
summary judgment, ordered the Scotts to remove the fence, and denied the Scotts’ Motion to
Dismiss for Want of Jurisdiction. The Scotts filed this appeal.
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STATUTE OF LIMITATIONS
An action to prevent encroachment upon a private easement may be barred by limitations.
Eidelbach v. Davis, 99 S.W.2d 1067, 1073 (Tex. Civ. App.—Beaumont 1936, writ dism’d);
Auerbach v. Dall. Area Rapid Transit, No. 05-94-01207-CV, 1995 WL 447530, at *4 (Tex. App.—
Dallas July 26, 1995, writ denied). The defendant bears the burden to conclusively prove all
essential elements of an affirmative defense of statute of limitations. Diversicare Gen. Partner,
Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 220 (Tex. 2003). “Generally, when a cause of action accrues is a question of law.”
Provident, 128 S.W.3d at 221. A cause of action may accrue, and the statute begin to run, “when
a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all
resulting damages have yet to occur.” Id. (citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)).
A. Arguments of Parties
On appeal, the Scotts argue the trial court abused its discretion in three ways: (1) overruling
the limitations defense, (2) granting a mandatory injunction, and (3) granting impermissible relief.
The Scotts argue an encroachment upon an easement for permanent injury to land is
governed by a two-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003
(West Supp. 2013) (requiring a person to “bring suit for trespass for injury to the estate or to the
property of another, conversion of personal property, taking or detaining the personal property of
another, personal injury, forcible entry and detainer, and forcible detainer not later than two years
after the day the cause of action accrues”); Yancy v. City of Tyler, 836 S.W.2d 337, 339 (Tex.
App.—Tyler 1992, writ denied) (op. on reh’g). On the other hand, Babb asserts this is an action
affecting real property and five and ten-year statutes of limitations apply. See Keown v.
Meriwether, 371 S.W.2d 56, 57 (Tex. Civ. App.—Beaumont 1963, writ ref’d n.r.e.); see also
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Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990); Nevins v. Whitley, No. 13-04-486-CV, 2005
WL 2036213, at *9 (Tex. App.—Corpus Christi Aug. 25, 2005, no pet.) (mem. op.).
B. Temporary versus Permanent Injury to Land
The temporal bar on limitations is controlled by the type of injury. See generally TEX. CIV.
PRAC. & REM. CODE ANN. ch. 16 (West Supp. 2013). Neither party contests that the easement in
question is a private easement. Therefore, our inquiry is whether the encroachment (i.e., the fence)
is a permanent or temporary injury to the land. The Scotts contend it is a permanent injury.
The permanent or temporary nature of an injury is determined by its continuum. Schneider
Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 272–73 (Tex. 2004); Auerbach, 1995 WL 447530,
at *3. Permanent injuries are those that are “constant and continuous,” not intermittent or
recurrent. Auerbach, 1995 WL 447530, at *3; cf. Bates, 147 S.W.3d at 272 (defining a permanent
nuisance as “an activity of such a character and existing under such circumstances that it will be
presumed to continue indefinitely”). Temporary injuries are those that are not continuous but are
sporadic, are not likely to continue, and are usually tied to a specific occasion. Auerbach, 1995
WL 447530, at *3; cf. Bates, 147 S.W.3d at 276–80.
In Auerbach, the court held a billboard was a permanent injury because of the construction
involved, including the concrete footing and steel column. Auerbach, 1995 WL 447530, at *2–3.
Here, the fence took five weeks to complete and the testimony substantiated that moving the fence
off the easement would cost approximately $8,000.00. We therefore construe the fence as a
permanent injury to the land and the two year statute of limitations applies. See Yancy, 836 S.W.2d
at 339; cf. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 58 (describing a fence as a
permanent and valuable improvement on land).
Based on the fence’s characterization as a permanent injury to the land, the completion
date of the fence’s construction is dispositive for purposes of limitations. See Auerbach, 1995 WL
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447530, at *3 (“Where a building or permanent structure is placed on a private easement, the
limitations period on an action to abate the obstruction begins to run with the completion of the
obstruction.”); Eidelbach, 99 S.W.2d at 1073. The fence was erected in the summer of 2005 and
Babb did not file suit until January 17, 2010. Thus, the limitations contained in section 16.003
barred Babb’s suit. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003; see also Provident, 128
S.W.3d at 221. Accordingly, the trial court erred in denying the Scotts’ Motion to Dismiss for
Want of Jurisdiction. Because we sustain the Scotts’ first issue, their second and third issues are
moot.
We reverse the trial court’s judgment and render judgment that Babb take nothing in his
suit against the Scotts.
Patricia O. Alvarez, Justice
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