Daily Development for Monday, November 17, 2003 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu NUISANCE; EMOTIONAL DISTRESS: Where landowners claim only fear and apprehension of possible harm due to defendant's lawful business operations, no viable claim for nuisance is established. Union Pacific Resources Co. v. Cooper, 109 S.W.3d 557 (Tex. Ct. App. 2003). Plaintiff landowners leased the mineral rights in a fifty acre parcel that included plaintiffs' home. Defendant, the assignee of those mineral rights, drilled a well on an adjoining landowner's property. Prior to drilling, defendant was required by state law to develop a comprehensive evacuation plan which would be utilized in the event defendant encountered poisonous gases during the drilling process. One of defendant's employees explained the plan to the plaintiffs in detail. The plaintiffs did not feel comfortable staying in their home, so they arranged to rent a vacant farmhouse further away from the defendant's drilling activities. The defendant agreed to pay the cost of having a water meter hooked up to the farmhouse, $1,500.00 per month for the time the defendants lived in the farmhouse, and $1,020.00 for the cost of labor in cleaning the farmhouse prior to occupancy. In addition, the defendant agreed to purchase a freezer for the plaintiffs to use in the farmhouse. When the defendant tried to make payments to the plaintiffs pursuant to this arrangement, the plaintiffs informed the defendant that they had filed suit against the defendant and had been instructed by their attorney to refuse the defendant's payments. Under Texas law, a plaintiff may state a cause of action for nuisance based on "emotional harm to a person from the deprivation of the enjoyment of his or her property, such as fear, apprehension, offense, or loss of peace of mind." The court held, however, that in the absence of any physical harm to person or property, the plaintiffs could not state a nuisance claim against defendant based solely on fear and apprehension where the defendant was operating its business in full compliance with Texas law. Comment: The case is important as a comparison to cases in other jurisdictions that have considered this issue in connection with the fear of a dam collapse and the fear of electromagnetic emanations. Some of these cases involve inverse condemnation claims, but the standard applied is similar. See Public Service Co. of Colorado v. Van Wyck, 27 P.3d 377 (Colo. 2001). (The DIRT DD for 7/17/02) (nuisance, but not trespass, action available as a consequence of "interference with livability" resulting from electromagnetic emanations.); re plaintiff in trespass action can demonstrate that toxic materials from neighboring property penetrated only some of plaintiff's property, and the property consists of three "historically separate" parcels, damages will be permitted for injury resulting from "stigma" due to the leakage only to the parcels actually touched by the trespass, even though a third parcel suffers injury in form of "stigma" resulting from the neighboring trespass that is identical to collectible stigma damages of the invaded parcels. Compare: Walker Drug Co., Inc. v. La Sal Oil Co., 972 P.2d 1238 (Utah 1998) (The Dirt DD for 10/15/99) ("stigma" damages for fear from further environmental pollution available to owner of property where earlier pollution invaded, but not to neighboring landowner.) Comment 2: Also, compare: Western Farmers Elec. Coop v. Enis, 993 P.2d 787 (Okla. Ct. App. 1999) (cert. denied 11/20/99).(The DIRT DD for 12/04/00) (Property owner may recover compensation in condemnation action for loss in value of property as a result of high voltage electric transmission lines erected on property based on fear of dangers posed by lines without proving the reasonableness of the fear. Owner of property burdened by easement still enjoy noninterfering uses adjacent to the easement, including trees.); Carter v. City of Porterville, 22 Cal. Rptr. 2d 76 (Cal. App. 1993) (in an opinion muddied by procedural complexity, court appears to hold that a landowner has an actionable takings claim if it can show that its property has been reduced in value substantially because of concerns that a dam built on adjacent state land may burst and cause injury to persons or property on plaintiff's land.) Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues. ABOUT DIRT: DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 - 15 messages per work day. Daily Developments are posted every work day. To subscribe, send the message subscribe Dirt [your name] to listserv@listserv.umkc.edu To cancel your subscription, send the message signoff DIRT to the address: listserv@listserv.umkc.edu for information on other commands, send the message Help to the listserv address. DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions. To subscribe to BrokerDIRT, send the message subscribe BrokerDIRT [your name] to listserv@listserv.umkc.edu To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address: listserv@listserv.umkc.edu DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors. DIRT has a WebPage at: http://www.umkc.edu/dirt/ Members of the ABA Section on Real Property, Probate and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org ----- To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF DIRT. Please email manager@listserv.umkc.edu if you run into any problems. See for more information.