Dr. Lee Roy Mathis v. H. E. "Buster" Barnes--Appeal from 87th District Court of Anderson County (majority)
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NO. 12-08-00340-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DR. LEE ROY MATHIS,
APPELLANT
§
APPEAL FROM THE 87TH
V.
§
JUDICIAL DISTRICT COURT
H. E. “BUSTER” BARNES,
APPELLEE
§
ANDERSON COUNTY, TEXAS
OPINION ON REMAND
Dr. Lee Roy Mathis brought suit against H.E. “Buster” Barnes alleging that Barnes
damaged his property and asserting that Barnes’s conduct constituted a nuisance, trespass,
negligence, and gross negligence. A jury determined that Barnes was not liable to Mathis, and
the trial court entered judgment in accordance with the jury’s verdict. We affirmed the trial
court’s judgment with regard to Mathis’s claims of negligence and gross negligence, but reversed
and remanded for a new trial on his claims of nuisance and trespass, holding that the evidence
was legally insufficient to support the jury’s verdict on those claims. See Mathis v. Barnes, 316
S.W.3d 795, 808 (Tex. App.—Tyler 2010). Barnes filed a petition for review with the Texas
Supreme Court. That court reversed our judgment with regard to Mathis’s nuisance and trespass
claims and remanded the cause for consideration of Mathis’s argument that the jury’s failure to
find nuisance and trespass was against the great weight of the evidence. Barnes v. Mathis, 353
S.W.3d 760, 766 (Tex. 2011). Mathis raises one issue on remand. We affirm.
BACKGROUND
Mathis and Barnes own adjoining property in rural Anderson County, Texas. Lake Creek
runs through the two properties with Mathis’s property being upstream from Barnes’s property.
For some time, Mathis had sought to cultivate “pristine wetlands” on the portion of his property
close to Barnes’s property. Due to multiple beaver dams on Mathis’s property and in spite of
seasonal rainfall variations, Mathis’s wetlands were covered by water with only limited seasonal
fluctuation. As a result, the property was a watering, nesting, and roosting place for waterfowl.
Barnes’s property was used predominantly as pastureland. In September 2006, Barnes
constructed an earthen road on his property so that he could more easily access his back pasture.
The road, in effect, served as a dam where it crossed Lake Creek. 1 Barnes initially incorporated
two twenty-eight inch culverts and a thirteen inch pipe into the road to accommodate the water
flow from Lake Creek.
By October 2006, Lake Creek’s water flow increased and water began to rise on Barnes’s
property upstream of the road. By November 3, 2006, the water had crossed the property line
between Mathis’s and Barnes’s properties. On November 4, 2006, Mathis contacted Barnes
concerning the rising water and asked him to modify the road to permit sufficient flow of the
water to alleviate the flooding. Barnes met with Mathis and his son, Rusty, about the problem.
The water continued to rise. By mid-December, the water had begun to crest at some of
the beaver dams. Rusty contacted Barnes about the problem, and Barnes responded that he
would add another culvert to the road. Thereafter, Barnes installed another twenty-eight inch
culvert in the road above the two previously installed culverts. In mid to late December 2006,
the road washed away. The waters retreated from Mathis’s property, but thereafter, the wetlands
retained a significantly smaller amount of water than they once did. Furthermore, the duck
sightings on or above the property were greatly reduced.
Mathis filed suit alleging that Barnes was liable to him for nuisance, trespass, negligence,
and gross negligence. Specifically, Mathis claimed that Barnes’s actions permanently damaged
409.27 acres of his land, thereby reducing its fair market value, which resulted in actual
damages.
Mathis further sought injunctive relief.
The trial court granted Mathis both a
temporary restraining order and, later, a temporary injunction, prohibiting Barnes from repairing
the breached road across Lake Creek. The matter proceeded to a jury trial. At trial, Barnes did
not dispute that he built the road across Lake Creek. The parties presented conflicting evidence
regarding the monetary value of the property before and after the flooding. The testimony can be
summarized as follows: Mathis put on testimony of various witnesses supporting that the value
1
The parties’ terminology varies with regard to Barnes’s construction across Lake Creek. For ease of
reference, we refer to Barnes’s structure as the “road.” The record reflects that at the time the road was constructed,
Lake Creek was dry at the construction site.
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of the property was greatly diminished; Barnes’s witness, a real estate appraiser, testified that the
value of the property was the same both before and after the incident.
Ultimately, the jury found that Barnes was not liable for nuisance, trespass, negligence,
or gross negligence. Thereafter, the trial court entered a take nothing judgment against Mathis.
Mathis filed a motion for new trial, which the trial court denied.
FACTUAL SUFFICIENCY
In his sole issue on remand, Mathis argues that the evidence is factually insufficient to
support the jury’s finding that Barnes was not liable for nuisance or trespass.
Standard of Review
When a party attacks the factual sufficiency of an adverse finding on an issue on which it
has the burden of proof, it must establish that the adverse finding is against the great weight and
preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In
making that determination, we consider and weigh all the evidence, not just that evidence which
supports the verdict. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). We
can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that
the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
When reviewing factual sufficiency issues, we are mindful that the factfinder is the sole
judge of the credibility of the witnesses. See Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557
(Tex. App.–Tyler 2007, pet. denied). Accordingly, we may not pass on the witnesses’ credibility
or substitute our judgment for that of the jury, even if the evidence would clearly support a
different result. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003);
Ellis, 971 S.W.2d at 407. If we conclude that the evidence is factually insufficient, we must
clearly state why the jury’s finding is insufficient or is so against the great weight and
preponderance of the evidence as to be manifestly unjust. See Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986).
Nuisance
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 and enjoy it. Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004);
Warwick Towers Council of Co-Owners v. Warwick, L.P., 298 S.W.3d 436, 444 (Tex. App.–
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Houston [14th Dist.] 2009, no pet.). “Nuisance” refers to a kind of damage done, rather than to
any particular type of conduct. City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997). A
private nuisance affects an individual or a small number of individuals rather than the public at
large. See Walker v. Tex. Elec. Serv., 499 S.W.2d 20, 27 (Tex. App.–Fort Worth 1973, no writ).
An actionable nuisance may arise from an invasion of another's interests attributable to activity
that is intentional, negligent, or abnormal and out of place in its surroundings. Warwick, 298
S.W.2d at 444.
Here, Mathis argues that Barnes’s actions created a nuisance in two ways––by (1)
flooding his wetlands and (2) draining his wetlands when the road was washed away.
Flooding the Wetlands
With regard to Mathis’s first allegation of nuisance, the record indicates that Barnes
constructed the road across Lake Creek that disrupted the creek’s natural flow and caused the
water from Lake Creek to eventually cross the Barnes-Mathis property line, flooding a portion of
Mathis’s land. However, Barnes disputed that the waters substantially interfered with Mathis’s
land to the point that it caused unreasonable discomfort or annoyance to persons of ordinary
sensibilities attempting to use and enjoy it. The jury agreed. While the evidence was contested,
it nonetheless supported Barnes’s argument. The record reflects that Mathis’s wetlands regularly
were subjected to some flooding. Mathis conceded that he had seen the water crest over the
beaver dams during previous flooding.
Draining the Wetlands When the Road Was Washed Away
Concerning Mathis’s second allegation of nuisance, the evidence further indicated that
after the flood waters receded, the beaver dams that once were located on the property were no
longer functional and the property retained a significantly smaller amount of water than it once
did. But the evidence was disputed with regard to whether the beavers were returning to
Mathis’s wetlands. Moreover, Barnes disputed whether some upstream event or the activity of
feral hogs, in fact, damaged the beaver dams.
Summation
We have examined the entirety of the record and have considered and weighed all of the
evidence. In so doing, we are mindful that we may not pass on the witnesses’ credibility or
substitute our judgment for that of the jury, even if the evidence would clearly support a different
result. See Hopkins, 238 S.W.3d at 558. Based on our review of the record, we have not
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determined that any evidence tending to contradict the evidence supporting the jury’s finding
that Barnes’s actions were not an actionable nuisance causes us to conclude that the jury’s
resolution of that issue is clearly wrong and unjust. Accordingly, we hold that the evidence is
factually sufficient to support the jury’s determination that Barnes is not liable to Mathis for
creating a nuisance.
Trespass
Trespass to real property is defined as an unauthorized entry upon the land of another.
See Cain v. Rust Indus. Cleaning Servs., 969 S.W.2d 464, 470 (Tex. App.–Texarkana 1998, pet.
denied); Stone Res. v. Barnett, 661 S.W.2d 148, 151 (Tex. App.–Houston [1st Dist.] 1983, no
writ). A trespass can be either by entry of a person on another’s land or by causing or permitting
a thing to cross the boundary of the premises. Aguilar v. Trujillo, 162 S.W.3d 839, 851 (Tex.
App.—El Paso 2005, pet. denied). As a general rule, any unauthorized entry upon land of
another is a trespass even when there is no or only slight damage. See Barnes, 353 S.W.3d at
764. However, we measure the sufficiency of evidence based on the jury charge. Id. Based on
the charge in this case, “the jury was entitled to believe that an affirmative answer to the trespass
question must be based on a finding of trespass and additional loss or injury.” Id. at 765.
Mathis established that Barnes’s road caused additional water to encroach on Mathis’s
land. Further, the record reflects that Barnes was aware that the waters of Lake Creek had
encroached on Mathis’s property upstream of the road he constructed.
Mathis presented
testimony that the trespass harmed the value of his land. Barnes presented testimony that
absolutely no damage was done. Ultimately, the jury agreed with Barnes’s argument.
Again, we have examined the entirety of the record and have considered and weighed all
of the evidence. The evidence is conflicting, not conclusive. Thus, we may not substitute our
judgment for that of the jury, even if the evidence would clearly support a different result. See
Hopkins, 238 S.W.3d at 558. Based on our review of the record, we have not determined that
any evidence tending to contradict the evidence supporting the jury’s finding that Barnes’s
actions were not actionable trespass causes us to conclude that the jury’s resolution of that issue
is clearly wrong and unjust. Therefore, we hold that the evidence is factually sufficient to
support the jury’s determination that Barnes is not liable to Mathis for trespass.
Holding
Mathis’s sole issue on remand is overruled.
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DISPOSITION
Having overruled Mathis’s sole issue on remand, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered August 15, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 15, 2012
NO. 12-08-00340-CV
DR. LEE ROY MATHIS,
Appellant
v.
H. E. “BUSTER” BARNES,
Appellee
_____________________________________________________________________________
Appeal from the 87th Judicial District Court
of Anderson County, Texas. (Tr.Ct.No. 87-10441)
_____________________________________________________________________________
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, DR. LEE ROY MATHIS, for which execution may issue, and that this
decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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