Crosstex N. Tex. Pipeline, L.P. v. Gardiner

• Decision Date: 24 June 2016
• Docket Number: No. 15–0049,15–0049
• Citation: 505 S.W.3d 580
• Parties: CROSSTEX NORTH TEXAS PIPELINE, L.P., n/k/a Enlink North Texas Pipeline, LP, Petitioner, v. Andrew GARDINER and Shannon Gardiner, Respondent
• Court: Texas Supreme Court

505 S.W.3d 580

CROSSTEX NORTH TEXAS PIPELINE, L.P., n/k/a Enlink North Texas Pipeline, LP, Petitioner,

v.Andrew GARDINER and Shannon Gardiner, Respondent

No. 15–0049

Supreme Court of Texas.

Argued March 29, 2016

Opinion delivered: June 24, 2016

Rehearing Denied December 16, 2016

Brett David Kutnick, Jennifer Alane Stagen, Hankinson LLP, Dallas, TX, Kevin J. Muenster, Taber Estes Thorne & Carr PLLC, Melanie Irene Kemp, Estes Okon Thorne & Carr, PLLC, Dallas, TX, John H. Cayce Jr., Joseph ‘Joe‘ R. Greenhill III, Kelly Hart & Hallman LLP, Fort Worth, TX, for Petitioner.

Joel Wilson Reese, Reese Gordon Marketos LLP, Dallas, TX, Arthur J. Anderson, David F. Johnson, J. David Brown, Winstead PC, Dallas, TX, for Respondents.

JUSTICE BOYD delivered the opinion of the Court.

This is a nuisance case, but that does not tell you much. As a legal concept, the word nuisance "has meant all things to all people." W. PAGE KEETON ET AL., Prosser AND KEETON ON TORTS § 86, at 616 (5th ed.1984) [hereinafter PROSSER AND KEETON ]. Courts have used it to identify the cause or source of a harm, the harm suffered, and the resulting liability. RESTATEMENT (SECOND) OF TORTS § 821A cmt. b ( AM. LAW. INST. 1979). The state of the nuisance doctrine some seventy years ago led Dean PROSSER to declare nuisance as the law's "garbage can." William L. PROSSER , Nuisance Without Fault, 20 TEX. L. REV. 399, 410 (1942) [hereinafter Nuisance Without Fault ]. More recently, members of this Court and of the United States Supreme Court have been equally as critical.¹

Today we again face the challenge of determining what constitutes a "nuisance" that gives rise to liability under Texas law. Taking this opportunity to clarify the law, we hold that the term "nuisance" refers not to a defendant's conduct or to a legal claim or cause of action but to a type of legal injury involving interference with the use and enjoyment of real property. We further clarify that a defendant can be liable for causing a nuisance if the defendant intentionally causes it, negligently causes it, or—in limited circumstances—causes it by engaging in abnormally dangerous or ultra-hazardous activities. We affirm the court of appeals' judgment remanding this case to the trial court for a new trial, in which the parties and court should apply the guidance we provide today.

I.Background

Crosstex North Texas Pipeline, L.P., owns and operates a natural-gas pipeline that runs approximately 130 miles from Tarrant County to Lamar County in northeast Texas. When Crosstex was preparing to construct the pipeline in 2005, it purchased a 20–acre tract along the pipeline's projected path in a rural part of Denton County to use as a storage yard during construction and as a prospective site for a compressor station. Andrew and Shannon Gardiner own an undeveloped 95–acre ranch, and its southwest corner lies directly across a farm-to-market road from Crosstex's 20–acre tract. The Gardiners had previously purchased the ranch as an investment property and as a place to raise cattle, ride horses, and enjoy as a family until a future sale. A few days after Crosstex purchased the 20–acre tract, its agent contacted the Gardiners and offered to purchase an easement to run the pipeline across the southwest corner of the Gardiners' ranch. The Gardiners initially resisted but ultimately agreed to sell the easement after Crosstex's agent increased the offer price and threatened condemnation proceedings. The agent did not mention that Crosstex had purchased the adjacent 20–acre tract as a possible site for a compressor station. The Gardiners granted Crosstex an easement and right-of-way in January 2006.

Crosstex quickly completed construction and began operating the pipeline a few months later. Due to the high volume of natural-gas production occurring in the Barnett Shale at that time, Crosstex decided to install a compressor station along the line to increase the pipeline's capacity. Crosstex decided to construct the compressor station on the 20–acre tract because that location was about halfway along the pipeline, was easily accessible by good roads, and was surrounded by "quite a bit of open land." Although Crosstex concluded, based on area sound-level measurements, that noise-mitigation measures were unnecessary, it installed "hospital-grade" mufflers on the compressor-station engines, which are more effective in suppressing engine noise than "regular-grade" mufflers but not as effective as "critical or super-critical" mufflers.

The compressor station includes four diesel engines that are each "bigger than mobile homes." Typically, at least one of the engines runs continuously all day and night. The Gardiners testified that, before the compressor station began operating in May 2007, their ranch was "peaceful and quiet," with "just the usual country sounds." Immediately after Crosstex activated the compressor station, the Gardiners and others began complaining to Crosstex about the station's "constant roar." Multiple witnesses described the noise as being as loud as a jet airplane or "an engine of a locomotive sitting on [the] driveway." Crosstex's own public relations specialist, who visited the station a few days after the complaints began, wrote in her notes that the noise was "BAD" throughout the area and "VERY LOUD" in the areas closest to the station. She reported that a person standing near the road by the station would have to "scream" to be heard, and she agreed that the noise was louder than it should have been and louder than Crosstex intended it to be. Id. at 161.

The next month, the Gardiners and others sent a letter to Crosstex complaining about the noise and demanding that Crosstex enclose the engines within a building containing sound-absorbing insulation and construct a sound wall around the property. Later that month, Crosstex hosted a meeting with dozens of neighbors, including the Gardiners, and promised to take steps to mitigate the noise. Crosstex then hired a professional sound-control firm to conduct studies, and based on the firm's recommendations, began implementing a series of mitigation efforts. Over the next four years, Crosstex constructed a partially enclosed building around the engines (but not a fully enclosed building as the neighbors had demanded), installed sound blankets inside the building's walls, installed sound walls on three sides of the building, and planted vegetation around the building and walls. Crosstex believed these measure were enough to eliminate any unreasonable noise levels.

The Gardiners did not agree. Because Crosstex installed sound walls on three sides, but not on the side that faced the Gardiners' ranch, they complained that the walls merely funneled the noise toward their property. In January 2008, they sent an email complaining that the noise and vibrations remained like "a helicopter ... hovering" above them. In March 2008, they sent another email complaining of the "constant deafening noise." At the end of March, the Gardiners' attorney sent Crosstex a letter asserting that the mitigation efforts Crosstex had made and still proposed to make were inadequate to "ameliorate the damages Crosstex has caused to [the Gardiners'] property."

In May 2008, the Gardiners filed this suit, asserting claims for private nuisance, ordinary negligence, and gross negligence. In response to Crosstex's special exceptions, they later amended their petition to allege that Crosstex had both intentionally and negligently created a nuisance. Meanwhile, Crosstex continued its efforts to mitigate the noise. In December 2010, its expert conducted another noise study and took recordings that he later played for the jury. Based on this study, the expert concluded that the noise in various locations around the station was either "compatible" or "marginally compatible" with neighboring agricultural land. He concluded the noise levels on the Gardiners' tract were acceptable and reasonable for agricultural tracts, compatible with the use of the ranch to graze livestock, and compatible in most of the ranch for residential use.

The Gardiners still did not agree. In September 2011, in response to continued complaints, Crosstex installed air intake silencers at the station. Two months later, it installed a fifteen-foot sound wall on the east side of the station, which faces the Gardiners' ranch. Nevertheless, when the case went to trial in January 2012, the Gardiners and several others testified that the noise remained a constant and unacceptable roar. The Gardiners testified that the noise had not significantly improved since Crosstex built the station four years earlier, that it still sounded like a train and was "really loud[ ]," that it still interfered with their use and enjoyment of the ranch, and that Crosstex's expert's testimony that the noise was inaudible in some areas "was not true." Multiple neighbors and other witnesses also testified that the noise remained extremely loud at the time of trial.² The Gardiners acknowledged that Crosstex had made many mitigation efforts over the years and had not consciously disregarded their concerns, but they believed the efforts were simply ineffective. They complained that the compressor station had greatly diminished their ranch's value and ruined both their financial investment and their ability to use and enjoy their land.

After receiving the evidence at trial, the trial court directed a verdict for Crosstex on the Gardiners' ordinary-negligence claim but agreed to submit the intentional-nuisance and negligent-nuisance claims to the jury. The Gardiners requested that the court also submit a question on whether Crosstex non-negligently created a nuisance by engaging in an activity that was "abnormal and out of place in its surroundings," but the Gardiners had never pled that theory and the trial court refused to permit a trial amendment. The jury failed to find that Crosstex "intentionally and unreasonably created a nuisance as to" the...