Water Disposal Issue Unanswered Despite Texas Supreme Court RulingWater Disposal Issue Unanswered Despite Texas Supreme Court Rulinghttps://www.recenter.tamu.edu/news/newstalk-texas/?Item=103622015-02-10T14:53:00Z2015-02-10T00:00:00Z

In the suit, FPL Farming Ltd. argued that a disposal well operated by Environmental Processing Systems LC (EPS) trespassed on FPL's subsurface property by pumping millions of gallons of nonhazardous wastewater 8,000 feet underground.

The Texas Supreme Court agreed with the jury’s trial court decision that the landowners get nothing and didn’t prove a trespass, but didn’t answer whether or not a trespass is possible thousands of feet below ground.

Justice Paul W. Green wrote:

"Lack of consent is a required element of a trespass cause of action that the plaintiff must prove, and the jury charge here correctly reflected the longstanding definition of trespass in Texas. Additionally, FPL Farming failed to conclusively establish that it did not consent to EPS’s alleged entry in connection with its motion for directed verdict, so the trial court did not err in denying the motion and submitting the issue to the jury. There was no harmful error in excluding the settlement agreement because the jury found for EPS without considering it. Finally, any error in submitting the question of trespass for deep subsurface wastewater migration was harmless because the jury found no such liability, which obviates the need to address whether this is a viable cause of action in Texas (editor's note: italics added for emphasis). Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s judgment that FPL Farming take nothing."

For a discussion of this case and the issue of trespassing subterranean fluids, read Real Estate Center attorney Judon Fambrough's latest Tierra Grande article, "Yours, Mine or Ours? The Rule of Capture and Subterranean Fluids."

http://blog.mysanantonio.com/eagle-ford-fix/2015/02/texas-supreme-court-leaves-water-disposal-issue-unanswered/Read more at {Source}

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