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FPL Farming Ltd. v. Environmental Processing Systems, L.C.

Based on the reasoning applied by the Texas Supreme Court in Texas v. Manziel, we conclude that under the common law, when a state agency has authorized deep subsurface injections, no trespass occurs when fluids that were injected at deep levels are then alleged to have later migrated at those deep levels into the deep subsurface of nearby tracts. Beaumont Court of Appeals, No. 09-08-00083-CV, 10-29-2009

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Submitted on January 15, 2009

OPINION

This case involves a non-hazardous, wastewater injection well operated by Environmental Processing Systems, L.C. (“EPS”) and located near two tracts of land owned by FPL Farming Ltd. (“FPL”). FPL sued EPS, and the case was tried before a jury, which found against FPL on all of its submitted causes of action: trespass, negligence, and unjust enrichment. On appeal, FPL raises four issues: (1) the trial court improperly denied FPL’s motion for a directed verdict, (2) the jury charge’s instructions on trespass misplaced the burden of proving lack of consent, (3) the charge erroneously failed to instruct the jury that injury is not a necessary element of trespass, and (4) the evidence supporting the jury’s verdict is factually insufficient. Because we find that an actionable trespass, under the circumstances presented here, did not occur, and that the evidence is factually sufficient to support the jury’s verdict, we affirm.

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