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The Texas Supreme Court Shifts the Burden of Proof in Trespass Cases

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In a unanimous February 6 opinion, the Texas Supreme Court held for the first time that lack of consent is an element of the tort of trespass on which the plaintiff bears the burden of proof. In doing so, the Texas Supreme Court has overturned what was widely considered to be a principal of basic, hornbook law.

The case is Environmental Processing Systems, L.C. v. FPL Farming Ltd., and it involves a landowner who sued a neighboring wastewater disposal facility for trespass, claiming that wastewater encroached on the landowner's property deep below the surface. At trial, the court defined "trespass" to the jury as "entry on the property of another without having consent of the owner," effectively placing the burden of proving lack of consent on the plaintiff, and the jury found for the defendant. The Ninth Court of Appeals in Beaumont reversed the judgment and remanded the case for a new trial, holding that consent is an affirmative defense to trespass (as opposed to lack of consent being a prima facie element of trespass) and that the jury charge should therefore have placed the burden of proving consent on the defendant.

In reversing the Ninth Court of Appeals, the Supreme Court did not reach the "hot button" issue raised by the defendants of whether subsurface wastewater migration can support a trespass action at all, but instead held that the trial court had properly allocated the burden of proof on consent and that the jury's verdict rendered the wastewater migration issue moot.

The Supreme began its analysis by citing cases holding that the doctrine of stare decisis "should be strictly followed by [the Supreme Court] in cases involving established rules of property rights," but noted that it had never before addressed the issue of which party carries the burden of proof on the issue of consent in a trespass case. The Court then cited a number of past Supreme Court cases in which the Court, without analysis of burden of proof, defined trespass variously as entry that is "unauthorized," "without consent," "wrongful," "without any legal right or invitation," or other terms that the Court deemed synonymous with "without consent."

The Court reasoned that it had never "squarely addressed the question of which party bears the burden of proving consent in a trespass action, nor have the courts of appeals answered it uniformly." To illustrate this lack of uniformity, the Court cited in a footnote five cases from four different courts of appeals which referenced consent as an affirmative "without analyzing the question directly," one case from the First Court of Appeals in Houston directly holding, with "some analysis," that consent is an affirmative defense, and one case from Waco "approving a jury charge that denied trespass as entering another's property without consent." The Court did not note the fact that the one court of appeals case approving a jury charge that placed the burden on the plaintiff, Watson v. Brazos Elec. Power Coop., Inc., included no analysis of the proper allocation of burden of proof on the issue of consent. The Court later cites this footnote for the proposition that the issue of whether consent is an affirmative defense is "far from settled," even though six out of the seven cases cited-including Stone Resources, Inc. v. Barnett, the only case to directly address the issue-held that consent is an affirmative defense.

The Supreme Court rejected the plaintiff's citation of comment c of section 167 of the Restatement (Second) of Torts-a treatise that has often been relied upon by the Supreme Court in the past-for the proposition that the "burden of establishing the possessor's consent is upon the person who relies upon it." The Court explains that it was not clear which party is "the person who relies upon [consent]," and that the court of appeals' opinion below was the only case in Texas citing this comment.

However, the Restatement and Stone Resources are not the only historical authorities for the proposition that consent is an affirmative defense on which the defendant bears the burden of proof in a trespass case. More than two hundred years ago, William Blackstone in his Commentaries on the Laws of England, noted that the words of the old common law writ of trespass commanded the defendant to "show cause quare clausum querentis fregit," or "because he broke the close of the plaintiff"-in other words, the onus was on the defendant to show his privilege for entering onto the plaintiff's property. Blackstone distinguished English common law, which presumed wrong from a stranger's entry onto a person's land, from the ancient Roman principal requiring the plaintiff to show that the defendant ignored the plaintiff's express prohibition of the defendant's entry.

While the common law writ system has been abolished in Texas, English common law itself is adopted by statute, and the treatment of consent as an affirmative defense is carried forward into the Texas Rules of Civil Procedure. Among the defenses expressly listed in Rule 94 as those which much be affirmatively pled, is "license." "License" is the more traditional term for "consent" with regards to entry onto or use of land.

One potential implication of the Supreme Court's ruling is that there is now effectively a rebuttable legal presumption that any person or object found on any particular property is there with the owner's consent. This would be a profound shift in the law that could have unintended and far-reaching consequences. For example, while the Supreme Court correctly pointed out that there is no Pattern Jury Charge for trespass, trespass is an issue in premises liability cases, for which there is a PJC. Under the current PJC, if there is a dispute as to the plaintiff's status, it is the burden of the plaintiff, the alleged trespasser, to prove that he was an invitee or licensee as opposed to a trespasser. If lack of consent is an element of trespass on which the landowner bears the burden of proof, it would stand to reason that the PJC should be revised to place the burden of proving trespasser status on the defendant in a premises liability case.

Ultimately, the holding in Environmental Processing Systems could have a profound effect on a number of aspects of Texas real property law, and only time will tell how far those effects will reach.

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