## IN THE SUPREME COURT O F TEX AS

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. 13-0234

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### G IL B E R T 

### W H E E L E R 

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### . , P E T IT IO N E R 

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### E N B R ID G E 

### P IP E L IN E S 

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### T E X A S 

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. , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T W E L F T H D I S T R I C T O F T E X A S

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Argued F ebruary 27, 2014

J U S T I C E L E H R M A N N delivere d the opinion of the Court.

This case prese nts various issues reg arding the proper manner of compensa ting a landowner fo r t he destruction of tree s on his proper ty

. As a g ener al rule, when an injury to rea l p ro p er t y i s temporar y , the owner

is entitled to damag es commensur ate with the c ost of restoring his pr operty , but when an in

j u ry t o t h e s ame proper ty is perma

nent, the owner is entitled to damag es

commensura te with the loss in the fair marke t value to the proper ty as a whole. I n today ’s case , we consider whether this g ener al rule applies when the wrong ful conduct causing the injury stems from brea ch of contra ct rathe r than tort. Concluding that it does, we also revie w a common law exception
to this g ener al rule, which under cer tain circ umstances entitles the landowner to damag es in keeping with the intrinsic value of the tree s that wer e destroy ed. Be cause we co n cl u d e that the exceptionproper ly applies in this case , and hold that any err or in the jury char g e rela ted to such damag es was harmless, we reve rse the judgme nt of the court of appea ls and rema nd the case to that court to addre ss the rema ining issues.
I. F acts The Wheeler famil y , b y way of closely held corpor ation Gilbert Wheeler, I nc. (Wheeler ),

owns a 153-ac re trac t of land in Shelby County cal l ed “t h e M o untain.” The proper ty , which the Wheelers use as a family retre at, i s h ea v i l y wooded and transec ted by a natura l stream. When Enbridg e Pipe l i n es , L

. P. deter mined that it neede d to construct a pipeline acr oss the proper ty , it
eng ag ed I NA Field Service s to approa ch Wheeler about obtaining an ease ment. Wheeler ag ree d to
g rant Enbridg e a rig ht of way , but insisted that Enbridg e install the pipeline by boring underg round in order to prese rve the tree s on the proper ty

. Wheeler ag ree d to a contract t hat ref lected this stipulation i n ex plicit terms. Be cause this was an unusual provision, Enbridg e was require d to specific ally

approve the contra ct. Soon afte r the parties executed the ag ree ment, Enbrid ge h i re d a construction company to build the pipeline, but failed to inform the contra ctors about the provision requiring them to use the boring method to install the pipeline. As a re s u l t , in clea ring the rig ht of way the construction
company cut down sever al hundred fee t of tree s and bulldoz ed the g round

. I n the proce ss, the worke rs also cha

nnelized the stream that onc e mea ndere d throug h the woods. Wheeler sued Enbridg e for brea ch of contra ct and trespass. The suit proce eded to a jury trial, and the court char g ed the jury on both claims. Enbridg e objected to the trespass submissi on, arg uing that Wheeler’ s cla i m s s o u n d ed only in contra ct. Enbridg e also reque sted a question conce rning
2whether the damag e to the Mountain was temporar y or perma

nent, contending that the question was

a nece ssary predic ate to deter mine whether the jury should awa rd damag es commensura te with the
cost to restore the t ree s and strea m or damag es commensur ate with the loss in the Mountain’s fa ir marke t value. Wheeler contende d that the distinc t i o n was irrele vant. Ultimately , the trial court submitt ed the char g e without the question, and the jury found Enbridge l i ab l e for the damag e to Wheeler’ s proper

ty on both trespass and brea ch-o f

- c o ntrac t theories. I n conjunction with the brea chof-c ontrac t claim, the jury awa rded $ 3 0 0,000 to compensa te Wheeler for the rea sonable cost to
restore the proper

ty

. I n conjunction with the trespass claim, the jury found no loss in the Mountain’s fair m ar k et v alue and awa rded Wheeler $288,000 in damag es for the intrinsic value of the tree s Enbridg e destroy ed. Wheeler elec ted to rec over the damag es aw arde d for br eac h of contra ct. Enbridg e appea led, arg

uing that the trial court err ed in failing to submit the predi cate question o f whether the injury to the Mountain was temporar y or perma

nent. Enbridg e also contende d that the injury was perma nent as a matter of l aw, that cost-to-re store damag es wer e there fore improperly

awa rded, a nd that Wheeler c ould not recove r damag es for the intrinsic value of the tree s beca

use that measure of damag es was unavailable and not proper ly submitt ed to the jury in any event. Wheeler counter ed that the temporar y -ver sus- p er m anent distinction did not apply beca use its case sounded in contra ct. Wheeler arg ued in the alterna tive that it could rec over for the intrinsic value of the tree s destroy ed without respe ct to the temporar y -ver sus-perma

nent distinction. The court of appea ls ag ree d with Enbridg e and hel d t h at , b ecause Wheeler had failed to secur e a finding as to whethe r t he injury to the proper

ty was tempora

ry or per manent, Wheeler

had wa ived

3its entitlement to a damag e awa rd. For that re as o n , t h e court of appea ls rende red a take- nothing judgme nt in Enbridge ’s fa vor. Wheeler petitioned this Court for review

. II. Analysi s Wheeler’ s petition raises broad conce rns about the boundarie s of th e temporar y -ver susperma nent distinction and its application to the calc ulation of damag es for injury to r eal pr operty

. I n order to resolve the confusion surrounding this distinction, we take this opportunity to clar ify its
contours. A. Tem porary-V ersus-P erm anent Injury to Real P ropert y Apply ing the distinction b e tw e e n te mp orar y and perma

nent injury to rea l proper

ty has proven

a vexing task for litigants and courts alike. After all, injury to rea l proper ty often appea

rs perma nent in the sense that the exact rea l estate in question—a demolished house or destroy ed tree —no longe r exis ts. Howeve r, as discussed below, the law rec og nizes that such items fre quently can be repla ced in an adequa

te manner , rende ring the landowner suitably comp ensate d. To further complicate matters, Texas courts have attempted to cate g orize vario u s as p ec t s of a leg al claim, including a party ’s conduc t, an eve nt or occ urre nce, a condition, an i njury or harm, and the dama g es re sulting from an injury

or har m, as either te mporary

or per manent. Fur ther muddling things are the multipl e purposes serve d by char acte rizing an injury to rea l
pro p er ty as temporar

y or perma

nent. The distinction g uides courts in deter mining: “(1) whether damag es are available for future or only past injuries; (2) whether one or a series of suits is require d; and (3) whether claims acc rue (and thus limit ations beg ins) with the first or eac h subsequent injury .” Schneide r Nat’l Carriers, Inc. v. Ba t es , 1 4 7 S.W .3d 264, 275 (Tex. 2004). The prese nt case
4illust rate s a fourth application of the distinction: it g uides the proper measure of damag es for injury

to rea l proper

ty

. To that end, we have applied the distinction in evalua ting rea l-proper ty damag es 1

acr oss many differ ent theories of liability

. See, e.g. , Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W .3d 909, 921 (Tex. 2013) (trespa ss); Natural Gas Pipeline Co. v. Justiss , 397 S.W .3d 150, 152 (Tex. 2012) (nuisance ); State v. Bristol Hotel Asset Co. , 293 S.W .3d 170, 172 (Tex. 2009) (eminent domain); Coa s ta l Transp. Co. v. Crown Cent. Petroleum Corp. , 136 S.W .3d 227, 235 (Tex. 2004) (ne g lige nce)

. I n today ’s case , we focus on the signific ance of classify ing injury to rea l proper ty as temporar y or perma

nent in the context of proper ly compensa ting t h e i n j u red landowner

. Our analy sis takes int o considera tion the fact that the property in question was inj ured due to a breac h of contra ct, as we ll as the fac t that the injury involves loss of trees. B. App lication of

Distinction to the Me asure of Dam ages for Injury to Real P ropert y As ear ly as 1889, we stated that “[i] f land is temporar ily but not perma nently injured by the
neg lige nce or wrong ful act of another , the owner would be entitled to rec over the amount nece ssary
to repa ir the i njury , and put the l and in the conditi on it was at the t ime immediately prec eding th e injury , with interest there on to the time of the trial.” Trini ty & S. Ry. Co. v. Schofield , 10 S.W

. 575, 576–77 (Tex. 1889). The companion rule, of equally v en era ble provena

nce, states that “the true

measure of damag es in case of perma nent injury to the soil is the differ ence betwee n the value of the

W e s p e c i f

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o r t h e t e m p o r a r y - v e r s u s - p e r m a n e n t d i s t i n c t i o n i n S c h n e i d e r . 1 1 4 7 S

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. W e n o t e t h a t t h e s e p u r p o s e s a r e n o t e x c l u s i v e . W e h a v e h e l d , f o r e x a m p l e , t h a t a l a n d o w n e r m a y r e c e i v e i n

j u n c t i v e r e l i e f

t o p r e v e n t c e r t a i n f

u t u r e t r e s p a s s e s i f t h e t r e s p a s s i s “ c o n t i n u i n g . ” S e e , e
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. 5land immediately befor e the injury and its value immediately afte r.” Fort W orth & D. C. Ry. Co. v. Hogsett , 4 S.W

. 365, 366 (T ex. 1887). These rules are premised on the notion that the ordinary

measure of damag es is the cost to restore the proper ty

. When restora tion is not possible, howeve r,

we a war d damag es equa l to the loss in fair marke t value of the proper ty as a w hole. 1. Appli cation of Distin ction to the Bre ach-of-Contract Claim Wheeler arg ues t h at, with respe ct to calc ulating damag es for injury to rea l proper ty , the temporar y -ver sus-perma

nent distinction has n o place when those damag es stem from brea ch of
contra ct rather t han tort. Wheeler notes that contra ct damage s serve to g ive a plaintiff t he benefit of his ba rg ain, i.e., to pla ce the plaintiff in the position he would have occupie d if the contra ct had been perf ormed. Wheeler contends that restora tion costs will g ive it the benef it of its barg ain under the rig ht-of-w ay

ag ree ment and thus are the proper m easur e of damag es reg ardle ss of whether the injury to the Mountain is chara cter ized as temporar y or per manent. We have never direc tly addre ssed this issue, and the courts of appea ls are not in ag ree ment. Some have held that calc ulating damag es for injury to rea l proper ty require s application of “g ener al principles” a cross c auses of action, whether sounding in contrac t or tort. Hall v. Hubco, I nc. , 292 S.W .3d 22, 32 n.4 (Tex. App.—Houston [14t h Dist.] 2006, pet. d en i ed); see also Z.A.O., Inc. v. Y a r b r ough Drive Ctr

. Joint Venture , 50 S.W .3d 531, 545–46 (Tex. App.—El Paso 2001, no pet.) (holding that cost to restore was the appropr iate measure of damag es for tempo rary injury to rea l
proper ty cause d b y b re ach of a lease ag ree ment). Others have been more flexibl e in evalua ting damag e awa

rds. See, e.g. , P. G. Lake, Inc. v. Sheffield , 438 S.W .2d 952, 9 5 4–55 (Tex. Civ. App.—Ty ler 1969, writ ref ’d n.r.e.) (dec lining to apply the temporar y -ver sus-perma

nent distinction
6wher e an oil and g as lessee brea ched his contra ct to repa ir the lease d premises); see also B. A. Mortg.

Co. v. McCullough , 590 S.W .2d 955, 956–57 (Te x. Civ. App.—For t Worth 1979, no writ) (af

firming
cost-to-re store damag es i n a case invol ving permanen t injury to land because “the reasonable ness of apply ing a g iven measure of damag es in a g iven case unavoidably hinge s on the peculiar ities of the ca se” ( citation and interna l quotation marks omitted)). We hold that application of the temporar y -ver sus-perma

nent distinction in case s involving injury to rea l proper

ty i s not limit ed to cause s of action that sound in tort rathe r t han contract. Of

course , contra cting parties are fre e to specify in an ag ree ment how damag es will be calc ulated in the
event of a brea ch, but when t h ey do not, both courts and parties benef it from the application of
g ener al principles with respe ct to calc ulating damag es for such injury

. I n this case , we find
persua sive our prior holding that, with respe ct to rig ht-of-w ay ag ree ments like the one at issue here , “the measure of damag es for brea ch of an ease ment that restric ted a rig ht to cut tr ees would be the

same as the measur e fo r neg lige ntly cutting tree s.” DeW itt Cnty. Electric Coop., Inc. v. Parks , 1 S.W .3d 96, 105 (Tex. 1999). This stands to rea son beca use the injury in question under either cause of action is the same. We see no rea son to compensa te a party differ ently beca use the wrong ful

co n duct t hat caused t he identical injury stems from breac hing a contract rather than commit t i n g a
tort. Fur ther, the exceptions to the g ener al rules in this are a, discu s s ed below, opera te to ensure landowner s are adequately compensa ted. A c c o r d in g ly , w e h o ld th a t th e te mp o r a

r y - v e r s u s -per

manent distinction under lies the deter mination of the proper measure of damag es for both the trespass and brea ch-of -contra ct claims at issue.

72. Defini tions of Tem porary and Pe rm anent Injury Having clar ified the signific ance of whether in jur y to rea l proper

ty is temporar

y or perma

nent with respe ct t o measuring the resulting damage s, we turn to how t hat det er m i n at ion is made. We have previously define d a perma nent action or conseque nce in acc ordanc e with i t s o rd i nary meaning —that is, as a thing which will conti n u e i n d efinitely , or at least for a very long time. Tarrant Reg’l W

ater Dist. v. Gragg , 151 S.W .3d 546, 558 (Tex. 2004). But we have also rec og nized that the same action or conseque nce “nee d not be eter nal” or “per

petual” to qua lify

as per manent. Schneide r , 147 S.W .3d at 277. On the contra ry , an action or conseque nce may qualify as perma nent if it is ong oing, continually happening , or occur ring repe atedly and predic tably

. Gragg , 151 S.W .3d
at 558; Schneide r , 147 S.W .3d at 272; Atlas Chem. Indus., Inc. v. Anderson , 524 S

. W

. 2 d 681, 684–85 (Tex. 1975); Brazos River Auth. v. City of Graham , 354 S.W .2d 99, 106 (Tex. 19 6 1 ).
I dentify ing the opposites of the same themes, we hav e d ef i n ed as temporar

y those actions and
conseque nces that do not last for long periods of time, are not ong oing, are not likely to occur ag ain,

occur only sporadica lly , or occur unpredic tably

. Schneide r , 147 S.W .3d at 272; Atlas , 524 S.W .2d at 685; Brazos River Auth. , 354 S.W .2d at 108. For the sake of clar ity , we ref ormulate these definitions in the following way . An injury to

rea l proper

ty is considered p er m anent if (a) it cannot be repa ired, fix ed, or restore d, or (b) even though the injury can be repa ired, fix ed, or re s t o re d , i t is substantially cer tain that the injury will
rep ea t ed l y , continually , and reg ularly rec ur, such that future injury can be rea sonably evalua ted. Conversely , an injury to rea l proper ty i s co nsidered temporar y if (a) it can be repa ired, fix ed, or
restore d, and (b) any anticipated rec urre nce would be only occa sional, irreg ul ar , i n t er mittent, and
8not rea sonably predic table, such that future injury could not be estimated with rea sonable cer tainty

. These definitions a

pply to c ases in w hich entry onto rea l property

is phy sical (as in a trespass) and
to case s in which entry onto rea l proper ty is not phy sical (as with a nuisance ). Wit h these definitions in hand, we turn to whether the jury or the court is the proper entity to deter mine whether an injury
to rea l property

is temporary

or per manent. 3. Whether Injury to R eal P ropert y Is Tem porary or P erm anent Is a Qu estion of L aw We held long ag o that “[w]hether the injury [t o rea l proper ty ] amounts to total or only partial destruction of value, or whether it be perma nent or temporar

y , as well as the extent of the injury and
t h e resulting amount of damag es, are all questions for the deter mination of the jury und er p ro p er instructions.” Trini ty & S. Ry. Co. v. Schofield , 10 S.W

. 575, 577 (Tex. 1889). Howeve r, we have

more rec ently clar i fi ed , i n t he context of a nuisance suit, that “[j] urors must still decide the fre quency , extent, and duration of nox ious conditions

. . . [b] ut jurors cannot decide questions such as whe ther da mag es ca

n be estimated w ith rea sonable certainty , whether principles of r es judicata allow one or a series of suits, or when limit ations oug ht to acc rue.” Schneide r , 147 S.W .3d at 281. Acc ording ly , we instructed that jurors should deter mine whether a nuisance works temporar y or perma nent injury

only “to the extent ther e is a dispute reg arding what interfe renc e has oc curr ed or whether it is l ikely

to continue.” Id. Be cause this instruction should apply with equal forc e in c ases considering the appropr iate

measure of damages for injury to rea l proper ty , we hold that whether an injury is temporar y or perma nent is a question of law for the court to decide

. At the same time, we rec og nize that questions
reg arding the fac ts that underlie the temporar y -ver sus-perma

nent distinction must be resolved by the
9jury upon proper reque st. Said another way , when the fac ts ar e d i s p uted and must be resolved to

corr ectly evalua te the nature of the injury , the court, upon proper reque st, must prese nt the issue to the jury , relying on the definitions we have provided in this opinion.

4. Exceptions to the G eneral Rule as to D am ages As noted above, the g ener al rule in case s involving injury to rea l proper ty is that the proper

measure of damag es is the cost to restore or repla ce, plus loss of use for temporar y injury , and loss in fa i r marke t value for perma nent injury

. Howeve r, we apply this rule with some flexibi lity , considering the circumstances of eac h case to ensure that an awa rd of damag es neither over- nor under- compensa tes a landowner for damag e to his proper ty

. We maintain that the purpose of the law “in ever y case , is to compensa te the owner for the injury rec eived, and the measure of damag es wh i ch wi l l acc omplish this in a g iven case oug ht to be adopted.” Pac. Express Co. v. Lasker Real–Estate Ass’n , 16 S.W . 792, 793 (Tex. 1891). For that rea son, Texas courts have appea led to a number of exceptions to the g ener al rule w hen it would compensa te a landowner unjustly

. Two of those exceptions are at issue in this case. a. The Economic F easibili ty Exception I n case s involving tempora ry injury , Texas courts have rec og nized the s o-ca lled economic fea sibili ty except i o n t o the gene ral rule that the cost to restore is the proper m easur e of damag es. This exception applies when the cost of require d repa irs or restora tion exceeds the diminuti on in the
proper ty ’s marke t value to such a disproportionat ely high deg ree that the repa irs are no longe r economica lly fea sible. I n those circ umstances a t emporary injury is deeme d perma nent, and damag es are awa

rde d for loss in fair marke t value. See N. Ridge Corp. v. W alraven , 957 S.W .2d
1 0116, 119 (Tex. App.—Eastland 1997, pet. denied) ; see also Hubco , 292 S.W .3d at 32; Jim W alter Homes, Inc. v. Go nzalez , 686 S.W .2d 715, 717 (Tex. App.—San Antonio 1985, writ dism’d). I n North Ridge , a landowner sued for injury to his proper ty cause d by unrela ted spills of saltwater and oil. 957 S.W .2d at 117. Although these i njuries were capable of being reme diated, and there fore temporar y , the combined cost to complete the restora tion would have “excee ded the maxi mum value of the entire 100–acr e trac t by more than six ti m es . ” Id

. at 119. As a result, the court of appea ls conclude d that the repa irs wer e not economica lly fea sible as a matter of law, and awa rded damag es in keeping with the loss in the property ’s fa ir marke t value. Id. at 119–20. A lt h o u g h th is Co u

r t has not expressly rec og nized the economic fea sibili ty excep ti o n , w e h a v e ap plied it, or something very simil ar to it, when nece ssary to preve nt a landowner from being

overc ompensated. T wo ca s es wi th simil ar fac ts illust rate the application of this exception. I n Pacific Express , a landowner sued to rec over damag es for the negli g ent destruction of his house, which by most acc ounts would be considere d a temporar y injury beca

use the house could be rebuilt. 16 S.W

. at 793. We held, howeve r, that the house should be trea ted “as a part of the land,” and the

measure of damag es should be “the differ ence betwee n the value of the land immediately befor e and afte r a house on it is injured or d es t roy ed.” Id. at 794. We rea ched that result beca use declining local land values led us to conclude that to awa rd t h e l an downer the cost of restoring the home “would be to g ive to him mo re t h an would be just compensa tion.” Id. at 793. By contra st, we

rea ched the opposite result in Coastal Transport Co. v. Crown Central Petroleum , 136 S.W .3d 227, 235 (Tex. 2004). I n that case , fire destroy ed a landowner ’s fac ility

. Id. at 229. The injury was found
to be temporar

y , and the trial court awa

rded an amount commensura te with the cost of repla cing the
1 1fac ility , rathe r than the much larg er sum the jury found constituted the proper ty ’s lost marke t value. Id. at 230, 235. The landowner arg ued that the injury was perma nent, as the fac ility had been totally destroy ed, but we held that the landowner was “entitled to rec over only the amount of money

nece ssary to rebuild its fac ility and to compensa te for its loss of use during the interim.” Id. at 235.
T h i s , we explained, was a measure sufficie nt to place the landowner “in the same position [i t] occupie d prior to the injury .” Id. (citations and inter nal quotation marks omitted). Thoug h we rea ched diverg ent results in the se case s, in e ach instance we explained tha t our holding was nece ssary to ensu re that the landowner was adequately , but not excessively , compensa ted. Consist ent with these dec isions, we confirm today our re cog nition of the economic fea sibili ty exception to the g ener al rule g overning the measur e of damag es for temporar y injury to

rea l property

. b. Th e Intrinsic Value of T ree s Exception I n case s involvin g re al proper ty injured by the destruction of tree s, even when the proper

measure o f damag es is the loss in the fair marke t value of the proper ty to which the tree s wer e attache d, and the value of the land has not declined, we have h el d t h at t h e injured party may

never theless rec over for the tree s’ intrinsic value. This ex ception was cre ated to compensa te landowner s for the loss of the aesthe tic and utilit aria n value that tree s confe r on rea l proper ty

. I n Porras v. Craig , a landowner sued his neig hbor for cutting down tree s on his proper ty , some as larg e

as four fee t in diameter

. 675 S.W .2d 503, 504 (Tex. 1984)

. The parties ag ree d that the damag e to the land was perma

nent, and we noted that the usual measure of damag es for perma nent injury to rea l
proper ty is “the differ ence in the marke t value of the land immediately befor e and immediately afte r”
1 2the injury occur s. Id. Howeve r, we observe d that Texas cou rt s o f appeals had beg un to apply “a

conditional measure of dama ges, . . . conting ent on a showing of no reduc tion in marke t value,” which compensa ted landowner s for the intrinsic value of the tree s that wer e destroy ed. Id. at 506. We rec og nized the exception and rema nded the c ase f

or a ne w trial in the intere st of justice. Id. We rec ently revisited this exception in Strickland v. Medle n . 397 S.W .3d 184 (Tex. 2013).
I n that case , we considere d whether pet owner s co u ld rec over noneconomic damag es for the
neg lige nt loss of their dog

. Id. at 185. We conclude d that they could not, as more than a centur y of

case law has classified pets as persona l proper ty

. Id. (citing Heiligmann v. Rose , 16 S.W

. 931, 932 (Tex. 1891)). Ultimately , we held that the plaintiffs could rec over only the objective, ec o n o m ic value of their pet. Id. at 198. I n arr iving at this conclusion, we distinguished Porras

. We explained that Porras presented no obstacle to the result in Strickland beca use a tree ’s intrinsic value is not “roote d in an owner’s subjective emotions,” nor does it encompas s t h e t re e’s “sentimental value”
to its owner . Id. at 190. Rather, the intrinsic value of a tree lies in “its orname ntal (ae sthetic) value and its utilit y (shade ) value.” Id. (citing Porras , 675 S.W .2d at 506). We also do not rule out other elements of obje ctive value to the extent an expert lay s a prope r pre dicate. Apply ing Strickland , we confirm and clar ify this exception to the g ener al rule g overning damag es for perma

nent injury to r eal proper

ty

. Specifica lly , we aff

irm that when a landowner can show that the destruction of tree s on rea l proper ty resulted in no diminis hment of the proper ty ’s fair marke t value, or in so littl e diminis hment of that value that t h e l o s s i s essentially nominal, the landowner may rec over the intrinsic value of the tree s lost; that is, the orname n t al an d u t i litarian value of the t ree s. We rec og nize that in Porras we state d that the exception applies when there is
1 3“no” diminuti on in marke t value, Porras , 675 S.W .2d at 506, but we decline to limit the exception

so strictly

. See Moran Corp. v

. Murray , 381 S.W .2d 324, 328 (Tex. Civ. App.—Tex arka na 1964,

no writ) (holding that intrinsic value mea sure of damag es is proper

when the plaintiff s hows “that destruction of the tree s did not ha ve a signific ant eff

ect upon the marke t va lue of the land”)

. I f we

wer e to permit application of the exception when the proper ty suffe red no loss in fair marke t value but not permit application of the same exception when the proper ty suffe red wha t am ounts to a nominal loss in value, we would controve rt the purpose of a damag e awa rd, which is to adequately
compensa te the injured pa rty

. See P ac. Ex

press , 16 S.W . at 793. III. App lication Having considere d our case law conce rning the temporar y -ver sus-perma

nent distinction, we
turn to the m atter at hand. First, we consider whether Wheeler was required t o s u b mit a question asking the jury

to char acte rize the injury to the Mountain as tempora ry or per manent. Second, w e consider the propriety of the jury ’s awa rd of cost-to-re store damag es. Finally , we consider whether the jury question conce rning the intrinsic value of the tree s was prope rly

submitt ed. A. Absence of a Tem porary-V ersus-P erm anent Jury Question The c ourt of appeals ul timately held t hat W heele r’s claims failed beca use i t had negle cted
to reque st, an d i n fac t actively opposed, a jury question conce rning whether the injury to the Mountain was temporar

y or perma

nent. The court of appea ls st ated that “whe ther injury to rea l
proper ty is perma

nent or temporar

y is a question o f fa ct

. ” 3 9 3 S.W .3d at 925. As a result, it

reas o n ed that “bef

ore damag es for injury to rea l proper ty may be awa

rded, the plaintiff must first obtain a finding on whether the injury to the land was perma nent or temporar

y .” Id. The court relied
1 4on Texas Rule of Civil Procedure 2 7 9 t o hold that, beca use Wheeler had declined to include a

nece ssary predic ate question, and Enbridg e had objected to that omission, Enbridg e was entitled to rendition of judgme nt i n its favor

. See State Dep’ t of Highways & Pub. Transp. v. Payne , 838 S.W .2d 235, 241 (Tex. 1992). As explained above, the court of appea ls’ analy sis is predic ated on 2
an erroneous pr emise—that the tempora ry -ver sus-perma

nent distinction is a question of fact. We there fore reje ct its conclusion. Any dispute about the underly ing fac ts of the case at bar has no bear ing on the classifica tion of the injury to the Mountain as temporar y or perma

nent. Wheeler prese nted evidenc e that the cost
to restore the Mountain to the condition it was in befor e Enbrid ge cl ea re d the rig ht of way was somewher e betwee n $585,745 and $857,589. The jury ultimately found that the rea sonable cost to
restore the Mountain was $300,000. Alt h o u g h Enbridg e contested the opinions of Wheeler’ s experts, at the very least they show that restora tion was possible, rende ri n g the injury temporar y under the definitions supplied above. There was also competing expert testimony that the loss in the Mountain ’s fa i r marke t value was either $0 (ac cording to Wheeler’ s expert) or $3,000 (ac cording
to Enbridg e’ s expert). Under these circ umstances, when restora tion of the land is technica lly possible but exceeds the diminuti on in marke t value to such a disproportionately high deg ree t h at

I n P a y n e , w e a p p l i e d R u l e 2 7 9 t o h o l d t h a t w h e n a n e l e m e n t o f a p a r t y ’ s c l a i m i s o m i t t e d f r o m t h e j u r y c h a r g e , 2
a n d t h e o p p o s i n g p a r t y o b j e c t s t o t h e o m i s s i o n , a f i n d i n g o n t h e e l e m e n t m a y n o t b e d e e m e d i n t h e p r e v a i l i n g p a r t y ’ s f a v o r . 8 3 8 S

. W

. 2 d a t 2 4 1

. 1 5the repa irs are no longe r economica lly fea sible, the injury is deeme d perma nent. See Pac. Express , 3
16 S.W . at 793–94. Moreove r, the pa rties now ag ree that the injury is a perma

nent one. We hold that whether the injury to the Mountain was temporar y or perma

nent is a question of law and that Wheeler there fore was not require d to submit a jury question on that issue. I ndeed, i t would have been err or for the trial court to include such a question in the char g e. Gr o h ma n v. Kahlig , 318 S.W .3d 882, 887 (Tex. 2010). I nstead, apply ing the definitions supplied in this opinion,

we hold tha t the injury to the Mountain is de emed perma nent as a matter of law due to the parties’
ag ree ment and the a

pplication of the e conomic fe asibility exception. Be cause the injury is deeme d perma nent, howeve r, the trial court improperly instructed the jury to calc ulate damag es based on the cost to restore the proper ty

. I n turn, the trial court’s judgme nt
may not be upheld based on the jury ’s calc ulation of such dam age s . Acc ording ly , we turn to the jury ’s awa

rd of intrinsic value damag es.

B. Th e Intrinsic Value of T ree s Jury Question The jury independe ntly awa rded Wheeler $288,000 in damag es for the intrinsic value of the
tree s that wer e destroy ed. Enbridg e contends that Wheeler is barr ed from rec overing such damag es beca use (1) the loss of tree s cause d some diminuti on in the Mountain’s fair marke t value, and (2) the

W e n o t e t h a t e v e n t h e l o w e r r a n g e o f c o s t

- t o - r e s t o r e d a m a g e s p r e s e n t e d b y W h e e l e r ’ s e x p e r t s s i g n i f i c a n t l y 3
e x c e e d e d t h e f

a i r m a r k e t v a l u e o f

t h e e n t i r e 1 5 3

- a c r e p r o p e r t y . T h e a m o u n t o f c o s t

- t o - r e s t o r e d a m a g e s a w a r d e d b y t h e j u r y w a s a p p r o x i m a t e l y 7 8 % o f t h e v a l u e o f t h e e n t i r e p r o p e r t y . 1 6intrinsic value jury question was submitt ed in conjunction with the trespass cause of action, which

was itself improper ly

submitt ed. 4
I n its first arg ument, Enbridg e contends that Wheeler may not rec over the intrinsic value of the tree s that wer e destroy ed beca use Wheeler did not adduce leg ally suff i ci en t evidenc e that the value of the Moun t ai n wa s n o t at all diminis hed by the destruction. I n support of this arg ument, Enbridg e cites the opinions of sever al courts of appea ls. See, e.g. , Lamar Cnty. Electric Coop. Ass’n

v. Bryant , 770 S.W

. 2 d 921, 923 (Tex. App.—Texarkana 1989, no writ); Garey Constr. Co. v. Thompson , 697 S.W .2d 865, 867 (Tex. App.—Austin 1985, no writ). But, as we have already explained, a landowner may rec over for the intrinsic value of the tree s on his proper ty so long as the diminuti on in the fair marke t value of the land is essentially nominal. To the extent these opinions hold otherwise, we expressly overr ule them.
I n this case , the rec ord indicates that the fair marke t value of the Mountain as of the date of the injury was $383,000. As noted above, Wheeler’ s expert testified that the destruction of the tree s had not d i m i n i s h ed the value of the Mountain at all, while Enbridg e’s expert testified that the Mountain had been reduc ed in value by $3,000. Assuming that the latter fig ure is the corr ect one, 5 the fair marke t value of the Mountain was reduc ed by less than one perc ent. This neg ligible

E n b r i d g e a l s o a r g u e s t h a t W h e e l e r f a i l e d t o s h o w t h a t t h e d e s t r o y e d t r e e s h a d n o m a r k e t v a l u e a s t i m b e r 4
s e p a r a t e a n d a p a r t f

r o m t h e r e a l p r o p e r t y t o w h i c h t h e y w e r e a t t a c h e d , r e n d e r i n g i n t r i n s i c v a l u e d a m a g e s i m p r o p e r . E

. g
. , L u c a s v
. M o r r i s o n , 2 8 6 S

. W

. 2 d 1 9 0 , 1 9 1 ( T e x . C i v . A p p . — S a n A n t o n i o 1 9 5 6 , n o w r i t )

. W h e n w e r e c o g n i z e d i n t r i n s i c v a l u e d a m a g e s i n P o r r a s , w e d i d n o t r e q u i r e t h e p l a i n t i f f t o m a k e s u c h a s h o w i n g , w h i c h m a k e s s e n s e b e c a u s e t h a t m e a s u r e a p p l i e s t o t r e e s t h a t s e r v e o r n a m e n t a l o r s h a d e p u r p o s e s . 6 7 5 S

. W

. 2 d a t 5 0 6

.

T h e j u r y a g r e e d w i t h W h e e l e r t h a t t h e r e w a s n o l o s s i n f a i r m a r k e t v a l u e , b u t E n b r i d g e c h a l l e n g e s t h e 5
s u f f i c i e n c y o f t h e e v i d e n c e t o s u p p o r t t h a t f i n d i n g . W e n e e d n o t d e c i d e t h a t i s s u e b e c a u s e t h e r e s u l t i s t h e s a m e e v e n i f w e a s s u m e t h e r e w a s a $ 3 , 0 0 0 l o s s i n f a i r m a r k e t v a l u e . 1 7reduc tion in fair marke t value is essentially nominal and does not prec lude application of the intrinsic

value e x ception. Enbridg e also sug g ests an independent ground on which the jury ’s damage awa rd must be invalidated. I n the jury char g e, the question that asked the jury to consider the intrinsic value of the
tree s was posed in connec tion with a liability question on Wheeler’ s t re s p as s ca u s e of action. Rely ing on DeW

itt County Electric Cooperative, Inc. v. Parks , 1 S.W .3d 96 (Tex. 1999), Enbridg e arg ues that Wheeler cannot rec over on its trespass claim as a matter of law and that, as a result, the jury question relate d to the intrinsic value of the tree s is infirm.
I n Parks , cer

tain landowner s enter ed into a contra ct with a n elec trical ser

vices c oopera

tive for an ease ment acr oss the landowner s’ proper ty

. Id. at 99. The rig ht-of-w ay ag ree ment that cre ated the ease ment g ave the cooper ative cer tain rig hts with reg ard to the tree s that wer e located on or near the ease ment. Id. When the cooper ative cut down several tree s, the landowner s sued, alleg ing brea ch of co n t ra ct and neg lige nce among other claims. Id. We considere d whether the plaintiffs could maintain their neg lige nce claim independe ntly of their contra ct claim. Id. at 105. Ultimately ,
we held that when a contra ct betwee n two parties “s p el l s out the parties’ respe ctive rig hts about whether tree s may be cut, the contr act a nd not common-law ne g lige nce g overns any dispute about whether tree s could be cut or how tree s wer e cut.” Id. That is, we held that the landowner s’ claims sounded only in contra ct, not in neg lige nce, and we aff irmed the trial court’s g rant of direc ted verdic t
to the cooper ative on the landowner s’ neg lige nce claims. Id. Howeve r, in Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc. , we held that the exis tence of a contra ct did not
preve nt a plaintiff from bring ing an additional claim for fra udulent inducement. 960 S.W .2d 41, 43
1 8(Tex. 1998). Be cause in the instant suit Wheeler broug ht a claim for

trespass—distinct from both the neg lige nce claim in Parks and the f raudule nt inducement cla im in Formosa Plastics —it is not immediately

clea r whe ther the tria l court er red in submitting Wheeler ’s claim to the jury

. Howeve r, we need not r esolve that question to c onclude that, even if the submissi on of the trespass cause of action was err or, it was harmless. We have held that the submissi on of an improper jury question may

be har mless when an appellate court deter mines that the verdic t was base d on a valid theory

of liability

. Thota v. Y

oung , 366 S.W .3d 678, 693–94 (Tex. 2012). And, as we have alre ady stated, the temporar y -ver sus-perma

nent dichotomy and its concomitant rules and exceptions—including the intrinsic value exception—gove rn the p ro p er m easure of damag es on Wheeler’ s brea ch-of

-contra ct claim. See Parks , 1 S.W .3d at 105. Be cause brea ch of contra ct was

a valid theory of liability on which Wheeler preva iled, it is of no moment that the intrinsic value of
tree s jury question was submitted in conjunction with a trespa ss cause of ac tion.
IV. Rem ainin g Issues Enbridg e raised sever al issues in the court of appea ls tha t w ere not rea ched beca use of that court’s dispositi on of the case . Some of those i s s u es we re arg ued in the parties’ briefing to this Court and have been discussed in this opinion. Howeve r, sever al wer e not, i n cl u d i ng various challeng es to the trial cour t’s admission of Wheeler’ s experts’ testimony , exclusion of Enbridge ’s experts’ testimony , and failure to submit a jury question on one of Enbridg e’s brea ch-of -contra ct defe nses. As these issues wer e not briefe d in this Court, we here by rema nd the case to the court of
appea ls to address them.

1 9V. Conclusion

The court of appea ls err ed in rende ring judgme nt for Enbridg e based on t he trial court’s failure to submit a jury question on whether the injury to the Mountain was temporar y or perma

nent. For the rea sons discussed above, we reve rse the court of appea ls’ judgme nt and rema nd the case to that court to addr ess the re maining issues in a manner consistent with this opi nion.

_________________________________ Debr a H. L ehrma

nn J ustice

OP INION DELIVERED: Aug ust 29, 2014

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