Background
Pat Black Properties, LLC owned a 35-acre tract in Crosby, Texas, that allegedly began receiving runoff after drainage patterns changed on neighboring property. Its evidence included declarations from owner Pat Black and engineer Alejandro Flores indicating that runoff previously flowed elsewhere but was later concentrated onto the tract, causing flooding. A berm temporarily stopped the problem, but flooding resumed after the berm eroded.
PBP sued in 2018 for negligence, breach of contract, and violation of Texas Water Code section 11.086, then nonsuited that action in 2021. Its replacement suit expressly alleged fraud based on a neighbor’s statement that the berm would be rebuilt, sought damages, and requested a permanent mandatory injunction against the continuing diversion of surface water. The trial court granted the defendants’ traditional and no-evidence summary-judgment motion and ordered that PBP take nothing. On appeal, PBP abandoned its fraud theory and argued only that limitations could not bar an injunction to abate a continuing nuisance.
The Court’s Holding
The First Court of Appeals affirmed. It concluded that the petition’s allegation that the defendants continued to divert surface water adequately alleged a wrongful act under Water Code section 11.086, even though the petition did not cite that statute. PBP’s evidence also raised a fact issue over whether the defendants had diverted the natural flow of surface water.
That factual dispute did not defeat summary judgment because the claim was time-barred. Applying the Texas Supreme Court’s intervening decision in Family Dollar Stores of Texas, LLC v. JLMH Investments, LLC, the court held that nuisance is a legal injury, not an independent cause of action, and that an injunction is a remedy dependent on an actionable, timely claim. The defendants’ motion was broad enough to reach PBP’s injury-to-real-property theory, and the two-year limitations period applied to the section 11.086 claim despite PBP’s request for injunctive relief. PBP knew of the flooding before March 2017 but did not file the operative suit until March 2021.
Key Takeaways
- A request to enjoin a continuing nuisance does not exist independently of the underlying cause of action and does not avoid that claim’s limitations period.
- An allegation that neighboring land continues to divert surface water may state a wrongful act under Texas Water Code section 11.086 even when the pleading does not expressly cite the statute.
- The two-year limitations period for injury to real property barred PBP’s Water Code theory because the operative suit was filed more than four years after PBP learned of the flooding.
Why It Matters
The decision applies the Texas Supreme Court’s JLMH II ruling to drainage disputes and confirms that labeling flooding as a continuing nuisance or requesting a permanent injunction does not keep an otherwise untimely property-injury claim alive. Texas litigants seeking to stop diverted surface water must timely assert a viable underlying cause of action, even when the alleged flooding continues.