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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

B.F. HICKS, GARY BOREN §

and KATHY BOREN § 

§

v. § Civil Action No. 5:23cv81-RWS-JBB

§

SCOTT ANDREWS, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The above-referenced case was referred to the undersigned United States Magistrate Judge 

for pretrial purposes in accordance with 28 U.S.C. § 636. Before the Court is the following pending 

motion:

Stockyard Solar Project, LLC and Saddle House Solar Project, LLC’s Motion 

to Dismiss Second Amended Complaint for Failure to State a Claim (Dkt. No. 

54).

The undersigned, having reviewed the relevant briefing, recommends the motion be GRANTED 

IN PART AND DENIED IN PART. Specifically, the Court recommends the motion be granted

as to Plaintiffs’ strict liability nuisance claim but denied as to Plaintiffs’ claims for negligent 

nuisance, intentional nuisance, injunctive relief to prevent a prospective nuisance, Texas Water 

Code violations, and trespass.

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Table of Contents

I. BACKGROUND.........................................................................................................................3

A. Procedural background............................................................................................................3

B. Allegations in the SAC, generally ...........................................................................................3

II. MOTION TO DISMISS...........................................................................................................6

III. LEGAL STANDARD..............................................................................................................7

IV. APPLICABLE LAW...............................................................................................................8

A. Nuisance claims, generally....................................................................................................8

B. Texas Water Code................................................................................................................12

C. Trespass...............................................................................................................................13

V. DISCUSSION...........................................................................................................................14

A. Plaintiffs’ allegations of injury...............................................................................................14

B. Plaintiffs’ negligent, intentional, and strict liability nuisance claims.....................................15

1. Whether the SAC sufficiently alleges that a nuisance currently exists...................................16

a. Allegations of flooding, erosion, washed-up trees and limbs, and migration of hogs....17

b. Aesthetic-based allegations (view pollution) ................................................................21

c. Mental anguish allegations.............................................................................................23

d. Summary..........................................................................................24

2. Whether the SAC alleges the essential elements of each private nuisance claim ..................25

a. Plaintiffs’ negligent nuisance claim ...............................................................................25

b. Plaintiffs’ intentional nuisance claim.............................................................................31

c. Plaintiffs’ strict liability nuisance claim.........................................................................32

C. Plaintiffs’ claim for injunctive relief to prevent a prospective nuisance................................34

1. Relevant background ..............................................................................................................34

2. Defendants’ assertions................................................................................. 36

3. Analysis...................................................................................................................................37

a. Necessarily create a nuisance....................................................................37

b. Imminent harm....................................................................................39

D. Plaintiffs’ Texas Water Code § 11.086 claim .........................................................................43

1. Defendants’ assertions ............................................................................................................43

2. Applicable law ........................................................................................................................43

3. Analysis...................................................................................................................................44

E. Plaintiffs’ trespass claim.........................................................................................................48

1. Defendants’ assertions ............................................................................................................48

2. Applicable law ........................................................................................................................49

3. Analysis...................................................................................................................................50

VI. RECOMMENDATION.........................................................................................................53

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I. BACKGROUND

A. Procedural background

Plaintiffs B.F. Hicks, Gary Boren, and Kathy Boren (“Plaintiffs”) originally filed this 

lawsuit in the 62nd Judicial District Court of Franklin County, Texas, on June 29, 2023, alleging 

causes of action against Scott Andrews, Stockyard Solar Project, LLC (“Stockyard”), Saddle 

House Solar Project, LLC (“Saddle House”), and various “Enel” Defendants based on the early 

stages of a solar energy project next to Plaintiffs’ land. Defendant Saddle House filed its Notice of 

Removal on July 28, 2023. Dkt. No. 1.

Following an initial motion to dismiss, Plaintiffs were ordered to amend. Hicks v. Andrews, 

No. 5:23CV81-RWS-JBB, 2024 WL 1202922, at *13 (E.D. Tex. Feb. 28, 2024), report and 

recommendation adopted, 2024 WL 1198859 (E.D. Tex. Mar. 20, 2024). Plaintiffs’ Second 

Amended Complaint (“SAC”) alleges causes of action against Stockyard and Saddle House 

(collectively, “Defendants”) for (1) negligent nuisance; (2) intentional nuisance; (3) strict-liability 

nuisance; (4) anticipatory nuisance; (5) violation of the Texas Water Code; and (6) trespass. Dkt. 

No. 53. On May 14, 2024, Defendants filed the current motion to dismiss Plaintiffs’SAC for failure 

to state a claim. Dkt. No. 54.

B. Allegations in the SAC, generally

This case involves the Stockyard and Saddle House Defendants’ intentions to install “two 

620,000 panels solar farms” and DC electric lines that run to two “220 MW/AC storage” Battery 

Energy Storage Systems (BESS) on land owned by former defendant Andrews which is adjacent 

to Plaintiffs’ properties in Franklin County, Texas. SAC (Dkt. No. 53), ¶¶ 1, 3-4, 9-10, 12, 21-22, 

26, 28, 35.

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Plaintiffs Gary and Kathy Boren (“Borens”) are husband and wife who own five acres in 

Franklin County. Id., ¶ 2. They have lived there for twenty-three years. Id., ¶ 25. Plaintiffs allege 

the Borens live and own property within 200 yards of the proposed Stockyard BESS. Id., ¶ 28.

Plaintiff B.F. Hicks (“Hicks”) owns approximately 1,000 acres of “pristine Texas prairie,”

which is operated under a “conservation easement” and known as the “Daphne Prairie Preserve.”

Id., ¶ 8 and n. 3; see also id., ¶ 16 (alleging “it has enjoyed protected status for over 25 years and 

Plaintiff Hicks gifted a conservation easement on the land restricting development”).

1 Plaintiffs 

allege the Daphne Prairie Preserve’s north boundary is about 500 yards from the proposed Saddle 

House BESS. Id., ¶ 28; see also id. at 7, n. 5 (alleging Saddle House and Stockyard “but each other 

and form one big continuous area” and further alleging that Stockyard’s solar farm on 2,500 acres

comes “”up to the Daphne Prairie Preserve from the south”). Plaintiffs further allege bulldozing 

and clearing to accommodate placement of the Saddle House solar panels and right-of-way has 

already commenced, and the prolonged construction period creates “noise pollution” and “will 

destroy Plaintiff Hicks’ ability to enjoy the Daphne Prairie Preserve.” Id., ¶¶ 11, 14. 

The SAC contains an introductory critique of the federal government’s solar energy policy 

and solar energy in general. Id., ¶ 7 (stating solar energy is “a wholly unregulated industry (at least 

in the State of Texas) that is only made economically viable by the tax breaks and subsidiary of 

the globalist agenda of the Biden Administration ‘Climate Change’ legislation” and further stating 

that a large solar farm containing hundreds of thousands of solar panels “will surely have an 

1 The Daphne Prairie Preserve is a “unique tallgrass prairie remnant; the second largest tract of untouched prairie land 

left in Texas, offering vistas across a landscape free of transmission lines, solar panels, industrial clutter and the hand 

of man.” SAC (Dkt. No. 53), ¶ 17. According to Plaintiffs, the Daphne Prairie Preserve has always been surrounded 

by undeveloped agricultural land, “which is part of its charm.” Id., ¶ 18. Plaintiffs allege the prairie landscape hosts 

an “extraordinary range of over 380 plant species” and provides “sheltering habitat for threatened grassland birds and 

native wildlife.” Id., ¶ 20; see also id., ¶ 21 (alleging the Daphne Prairie Preserve has been the recipient of “many 

conservation awards from state and national organizations”); see also id., ¶ 22 (alleging applications have been 

submitted to the National Park Service to list the Daphne Prairie Preserve as a national nature landmark). 

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adverse effect on wild life and their natural habitat; a negative impact on agricultural economy 

through livestock and poultry operations, including, most specifically in East Texas, the dairy and 

beef cattle industry”). The SAC further alleges potential negative impacts of the proposed BESS, 

which is “a collection of large lithium batteries for the purpose of storing electricity.” Id., ¶ 26. 

Plaintiffs allege the following “has already and will continue to adversely impact the value of 

[their] land, both as a retirement homestead and as an asset” (id., ¶ 31):

The well-known danger of the lithium batteries comprising a BESS are fire, 

emission of toxic chemicals and gasses, and even explosion. A BESS is so 

hazardous that the County Solar Commission Report recommended that it be 

surrounded by an Evacuation Zone in the event of a mishap as described above. e.g.

Appendix 9. These large BESS (100,000 large truck sized DC batteries linked by 

cable are relatively new technology. After several fires in the year 2023 in New 

York state the state government has imposed a moratorium on further construction. 

In New York City alone, just lithium batteries were attributed as the cause of about 

fifty fires and thirteen deaths in 2023.

* * *

If (or, probably when) there is an incident at the BESS causing emission of toxic 

gasses, fire, or explosion, the Borens and everyone within the evacuation zone, will 

be required to leave their property until the danger has been eliminated. (Images of 

East Palestine, Ohio are brought to mind.) The BESS not only diminishes the 

property value of the Boren’s but their health and that of everyone in the Evacuation 

Zone. Within the last year, a BESS exploded in Lyme, New York causing such 

evacuations. 

There is more than a possibility of a leak of hydrogen chloride and hydrogen 

fluoride (deadly gases) that, being heavier than air, flow across the ground creating 

a deadly fog to every living entity. This would be catastrophic and fatal to the 

Borens, anyone else in the Evacuation Zone and all wildlife even beyond if it is 

undiscovered for any period of time.

Id., ¶¶ 27, 29-30 (emphasis original) (internal numbering omitted). 

Plaintiffs seek a temporary and permanent injunction against Defendants from further 

development on Andrews’ land for the purpose of constructing a solar farm or BESS unless and 

until Defendants demonstrate to the Court that they will not commit a nuisance, trespass, or 

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violation of the Texas Water Code. Id., ¶¶ 100-01. Plaintiffs state Defendants’ actions “have and 

will proximately cause, if not enjoined, damages to Plaintiffs in an amount in excess of the 

jurisdictional limits of this Court, but not exceeding $10,000,000.00” and seek a declaratory 

judgment against Defendants, claiming that Defendants’ actions will cause Plaintiffs and their real 

estate temporary and permanent damage for which there is no adequate remedy. Id., ¶¶ 102-03.

Plaintiffs further seek attorney’s fees in accordance with the Declaratory Judgement Act, the Texas 

Water Code, and the Texas Civil Practice and Remedies Code in the amount of $1,000,000.00. Id., 

¶ 104.

II. MOTION TO DISMISS

Defendants move to dismiss Plaintiffs’ SAC in its entirety under Federal Rule of Civil 

Procedure 12(b)(6). Specifically, Defendants argue as follows:

The essence of Plaintiffs’ Second Amended Complaint is that the Plaintiffs might 

be damaged in the future by the Defendants’ planned solar energy activities, largely 

on the basis of complaints Plaintiffs plead regarding other (not specifically defined 

or identified) solar energy projects. The allegations made by Plaintiffs are largely 

hypothetical and rest on entirely speculative assumptions not grounded in anything 

that has actually occurred. While there are some allegations of already occurred 

actions and injuries, those are insufficient to state a claim for relief. . . .

* * *

Plaintiffs’ allegations against Defendants in [the “FACTS”] section (and for that 

matter, most of the rest of the pleading) can be distilled into the following: (1) 

Defendants have announced an intent to construct a solar power project and have 

begun initial site work, and (2) injuries may possibly result in the future. Also 

important for purposes of this Motion are the allegations Plaintiffs plead in the 

“ALL READY OCCURRED” section of the Second Amended Complaint. There, 

Plaintiffs allege that “Defendants have cut great swathes of mature oak trees 

directly adjacent to Plaintiff Hicks Daphne Prairie Preserve,” which has led to 

various alleged injuries. Plaintiffs also make allegations of wrongful conduct in 

paragraph 57 – 60 regarding potential trespass, future placement of utility lines, and 

easements.

Dkt. No. 54 at 3-5 (emphasis original) (internal footnotes omitted). Defendants further assert 

Plaintiffs have failed to allege all of the essential elements of their negligence, intentional, and 

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strict liability nuisance claims. Id. at 14-20. Finally, Defendants move to dismiss Plaintiffs’ 

anticipatory nuisance, Texas Water Code, and trespass claims. Id. at 21-28. Defendants argue the 

Court should not grant Plaintiffs leave to amend again because Plaintiffs have already had two 

opportunities to replead.

III. LEGAL STANDARD

A motion to dismiss for failure to state a claim upon which relief can be granted under Rule 

12(b)(6) of the Federal Rules of Civil Procedure tests only the formal sufficiency of the statement 

of a claim for relief and is “appropriate when a defendant attacks the complaint because it fails to 

state a legally cognizable claim.” Pfang v. Lamar Inst. of Tech., No. 1:23-CV-93, 2023 WL 

5017204, at *8 (E.D. Tex. Aug. 5, 2023) (quoting Ramming v. United States, 281 F.3d 158, 161 

(5th Cir. 2001), cert. denied, 536 U.S. 960 (2002); also citing Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (holding that in order “[t]o survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face”)). Such a 

motion is “not meant to resolve disputed facts or test the merits of a lawsuit” and “instead must 

show that, even in the plaintiff’s best-case scenario, the complaint does not state a plausible case 

for relief.” Id. (quoting Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020)).

When considering a motion to dismiss under Rule 12(b)(6), the court must accept as true 

all well-pleaded facts in the plaintiff’s complaint and view those facts in the light most favorable 

to the plaintiff. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). Further, “[a]ll 

questions of fact and any ambiguities in the controlling substantive law must be resolved in the 

plaintiff’sfavor.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir. 2019) (quoting 

Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)). 

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To avoid dismissal, a plaintiff must state a claim for relief that is facially plausible by 

pleading “factual content that allows the court to draw the reasonable inference that the defendant 

is liable for the misconduct alleged.” Flagg v. Stryker Corp., 647 F. App’x 314, 315 (5th Cir. 2016)

(quoting Iqbal, 556 U.S. at 678). A complaint is insufficient if it offers only “labels and 

conclusions,” or “a formulaic recitation of the elements of a cause of action.” Id. (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). On a motion to dismiss, when the cause of action 

requires specific elements to be proven, the plausibility “standard ‘simply calls for enough fact to 

raise a reasonable expectation that discovery will reveal evidence of’ the necessary claims or 

elements.” Id. at 315-16 (quoting In re S. Scrap Material Co., 541 F.3d 584, 587 (5th Cir.2008)

(quoting Twombly, 550 U.S. at 556)).

IV. APPLICABLE LAW

A. Nuisance claims, generally

“The law of ‘nuisance’ seeks to balance a property owner’s right to use his property as he 

chooses in any lawful way against his duty not to use it in a way that injures another.” Crosstex N. 

Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 590-91 (Tex. 2016). “A ‘nuisance’ is a condition 

that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort 

or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.” Huynh v. 

Blanchard, 694 S.W.3d 648, 672 (Tex. 2024) (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 

37 (Tex. 2003) (“Holubec I”)). There are two types of nuisance claims, public and private, which 

are based on “two distinct conditions with different requirements and limitations.” Bruington v. 

Chesmar Homes, L.L.C., No. 08-23-00015-CV, 2023 WL 6972987, at *8 n. 10 (Tex. App. – El 

Paso Oct. 20, 2023) (citing Crosstex, 505 S.W.3d at 591 n. 3). A public nuisance “affects the public 

at large,” while a private nuisance “is a non-trespassory invasion of another’s interest in the private 

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use and enjoyment of land.” Riley v. Angelle, No. 01-20-00590-CV, 2022 WL 3092892, at *4 (Tex. 

App. – Houston [1st Dist.] Aug. 4, 2022) (quoting Goad v. KHBM Partners III, Ltd., No. 09-20-

00020-CV, 2021 WL 4597083, at *5 (Tex. App.—Beaumont Oct. 7, 2021, no pet.) (mem. op.)). 

A public nuisance may also be a private nuisance. Id. (citing Crosstex, 505 S.W.3d at 591, n. 3).

The Texas Supreme Court addressed private nuisance in Crosstex. According to the Texas 

Supreme Court, “nuisance” is not a cause of action. Dealer Computer Servs., Inc. v. DCT Hollister 

Rd, L.L.C., 574 S.W.3d 610, 621-22 (Tex. App. – Houston [14th Dist.] 2019, no pet.) (citing 

Crosstex, 505 S.W.3d at 580, 594, 601, 604). A nuisance does not itself constitute wrongful 

conduct or cause of injury; rather, nuisance is a type of injury. Id. at 622 (citing Crosstex, 505 

S.W.3d at 588 (“Taking this opportunity to clarify the law, we hold that the term ‘nuisance’ refers 

not to a defendant’s conduct or to a legal claim or cause of action but to a type of legal injury 

involving interference with the use and enjoyment of real property.”)); see also City of Tyler v. 

Likes, 962 S.W.2d 489, 504 (Tex. 1997) (noting that private nuisance is “a kind of damage done, 

rather than any particular type of conduct”)). The court in Crosstex explained that three different 

causes of action may lead to liability for a nuisance injury: (1) intentional conduct causing a 

nuisance, referred to by the court as “intentional nuisance;” (2) negligence; and (3) abnormally 

dangerous or ultra-hazardous activities causing a nuisance, referred to by the court as “strictliability nuisance.” Id. (citing Crosstex, 505 S.W.3d at 604–09).

The Texas Supreme Court recognized early on that a nuisance could result from an array 

of actions by a wide variety of defendants,2 and could involve interference with numerous different 

2 As an example, the Crosstex court cited Austin & N.W. RY Co. v Anderson, 15 S.W. 484 (Tex. 1891), wherein the 

defendant constructed an embankment and culverts, which was not of itself a nuisance. Crosstex N. Tex. Pipeline, L.P. 

v. Gardiner, 505 S.W.3d 580, 592 n. 5 (Tex. 2016). A nuisance was created, however, when the defendant diverted 

destructive waters onto the plaintiff’s land, destroying Anderson’s crops in 1886, 1887, and 1888. Anderson, 15 S.W. 

at 485 (“The building of the embankment and the culverts, as alleged, was not of itself a nuisance. It was no invasion 

of plaintiff’s rights. They were not put on his land. They became a nuisance only at intervals,-by diverting water from 

rain-falls from its usual flow upon plaintiff’s land.”).

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interests through both physical substances and intangible conditions, such as “water, stones, 

rubbish, filth, smoke, dust, odors, gases, noises, vibrations, and the like.” Crosstex, 505 S.W.3d at 

592 (quoting Gulf, Colo. & Santa Fe Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, 1001 (1900)).

However, more recently, the Texas Supreme Court has consistently used a more comprehensive 

definition of a private nuisance: “A ‘nuisance’ is a condition that substantially interferes with the 

use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of 

ordinary sensibilities attempting to use and enjoy it.” Id. at 593 (quoting Holubec I, 111 S.W.3d at

37).

The distinction between temporary and permanent nuisances determines matters such as 

when a claim accrues,3 what damages are available, and whether future suits may be required.

Huynh, 694 S.W.3d at 677 (citing Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 275 

(Tex. 2004), holding modified by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 

S.W.3d 474 (Tex. 2014)). “It is well-settled that three different remedies are potentially available 

to a claimant who prevails on a private-nuisance claim: damages, injunctive relief, and self-help 

abatement. . . . However, not all remedies are available in every case.” Id. at 672 (quoting Crosstex, 

505 S.W.3d at 610 (citations omitted in Huynh)). The purpose of the law “in every case, is to 

compensate the owner for the injury received, and the measure of damages which will accomplish 

3 “A permanent nuisance claim accrues when injury first occurs or is discovered; a temporary nuisance claim accrues 

anew upon each injury.” JLMH Invs., L.L.C. v. Fam. Dollar Stores of Texas, L.L.C., No. 02-23-00233-CV, 2024 WL 

2971684, at *4 (Tex. App. – Ft. Worth June 13, 2024) (citing Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 

270 (Tex. 2004), holding modified by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474 

(Tex. 2014)) (emphasis original). In the context of a nuisance that arises from the construction of an improvement to 

real property, a claim does not generally accrue while the potential source is under construction. Id. (citing Schneider, 

147 S.W.3d at 279). “But once operations begin and interference occurs, the limitations runs against a nuisance claim 

just as against any other.” Id. However, “accrual occurs upon notice of injury, even if the claimant does not yet know 

the full extent of damages.” Yalamanchili v. Mousa, 316 S.W.3d 33, 38 (Tex. App. – Houston [14th Dist.] 2010, pet. 

denied) (citations omitted).

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this in a given case ought to be adopted.” Gilbert Wheeler, 449 S.W.3d at 481 (quoting Pac. 

Express Co. v. Lasker Real–Estate Ass’n, 81 Tex. 81, 16 S.W. 792, 793 (1891)).

According to the Texas Supreme Court, “a nuisance may be considered temporary” (1) if 

“it is uncertain if any future injury will occur,” (2) “if future injury is liable to occur only at long 

intervals,” (3) if the nuisance is “occasional, intermittent or recurrent, or” (4) if it is “sporadic and 

contingent upon some irregular force such as rain.” Huynh, 694 S.W.3d at 677-78 (quoting 

Schneider, 147 S.W.3d at 272) (emphasis added and internal quotation marks omitted in Huynh)). 

Thus, a nuisance that is occasional, recurrent, or affected by irregular weather forces in a manner 

that makes future damages difficult to quantify with reasonable certainty can be classified as 

temporary even though it is also imminent or likely to recur. Id. at 678 (citation omitted).

“Generally, when a nuisance is temporary, the landowner may recover only lost use and 

enjoyment. . . that has already accrued.” Id. at 673 (quoting Crosstex, 505 S.W.3d at 610 (internal 

quotation marks omitted in Huynh)). Such backward-looking damages “are calculated as loss of 

rental value, ... or use value, ... or possibly the cost of restoring the land.” Id. (quoting Crosstex, 

505 S.W.3d at 610 (citations omitted in Huynh)); also citing Houston Unltd., Inc. Metal Processing 

v. Mel Acres Ranch, 443 S.W.3d 820, 826 (Tex. 2014) (“[A] landowner can recover lost fair market 

or the cost to repair or restore and loss of use, but not both.”); DAN B. DOBBS & CAPRICE L. 

ROBERTS, LAW OF REMEDIES: DAMAGES, EQUITY, RESTITUTION § 5.1(1), at 508 (3d 

ed. 2018) (“[T]he damages may be measured either by reduced market value of the land or reduced 

rental value .... Plaintiff[s] in such cases may also recover for personal illness or inconvenience 

caused by the nuisance.”)). 

On the other hand, “a permanent nuisance may be established by showing that either the 

plaintiff’s injuries or the defendant’s operations are permanent.” Id. at 678 (quoting Schneider, 

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147 S.W.3d at 283 (emphasis added in Huynh)). For example, “construction of a source of foul 

odors is likely to lower the market value of neighboring property permanently, even if operations 

are occasionally discontinued for months at a time.” Id. (quoting Schneider, 147 S.W.3d at 276 

(internal quotation marks omitted in Huynh)). If a nuisance is permanent, the owner may recover 

lost market value—a figure that reflects all losses from the injury, including lost rents expected in 

the future.” Id. (quoting Crosstex, 505 S.W.3d at 610-11). 

In addition, when the necessary foundational findings have been made, “[a] court may 

decide to abate a nuisance whether it is temporary or permanent.” Id. at 673 (quoting Crosstex, 

505 S.W.3d at 610). In other words, the harm from either a temporary or a permanent nuisance can 

satisfy the imminent harm prerequisite for injunctive relief. Id. at 679. “To be entitled to a 

permanent injunction, a party must prove (1) a wrongful act, (2) imminent harm, (3) an irreparable 

injury, and (4) the absence of an adequate remedy at law.” Id. at 674 (quoting Pike v. Tex. EMC 

Mgmt., L.L.C., 610 S.W.3d 763, 792 (Tex. 2020)). Relatedly, there are other circumstances in 

which a court may exercise its equitable power to enjoin a prospective nuisance. 1717 Bissonnet, 

L.L.C. v. Loughhead, 500 S.W.3d 488, 497 (Tex. App. – Houston [14th Dist.] 2016, no pet.) (citing 

Freedman v. Briarcroft Prop. Owners, Inc., 776 S.W.2d 212, 216 (Tex. App.–Houston [14th Dist.] 

1989, writ denied)).

B. Texas Water Code

Texas Water Code § 11.086 generally prohibits a person from diverting or impounding the 

natural flow of surface water in a manner causing damage to another’s property. Trevino v. Patel, 

No. 14-22-00497-CV, 2023 WL 5124662, at *1 (Tex. App. – Houston [14th Dist.] Aug. 10, 2023). 

Section 11.086 provides in relevant part:

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(a) No person may divert or impound the natural flow of surface waters in this state, 

or permit a diversion or impounding by him to continue, in a manner that damages 

the property of another by the overflow of the water diverted or impounded.

(b) A person whose property is injured by an overflow of water caused by an 

unlawful diversion or impounding has remedies at law and in equity and may 

recover damages occasioned by the overflow.

City of Magnolia v. Smedley, No. 09-15-00334-CV, 2018 WL 2246533, at *8 (Tex. App. –

Beaumont 2018, no pet.) (quoting TEX.WATER CODE ANN. § 11.086(a), (b) (West 2008)). Damages 

are allowed under § 11.086 when “(1) a diversion or impoundment of surface water, (2) causes, 

(3) damage to the property of the plaintiff landowner.” Good River Farm, LP v. Martin Marietta 

Materials, Inc., No. 1:17-CV-1117-RP, 2023 WL 2904577, at *3 (W.D. Tex. Apr. 11, 2023), aff’d 

sub nom., 100 F.4th 545 (5th Cir. 2024) (quoting Dietrich v. Goodman, 123 S.W.3d 413, 417 (Tex. 

App.—Houston 2003, no pet.)).

C. Trespass

Whereas nuisance is a type of legal injury, trespass is a cause of action–generally, an 

intentional tort.4 Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605, 607 n. 2 (Tex. 2017)

(citing Stinson v. Fontenot, 435 S.W.3d 793, 793 (Tex. 2014) (per curiam)). The owner of realty 

generally “has the right to exclude all others from use of the property.” Env't Processing Sys., L.C. 

v. FPL Farming Ltd., 457 S.W.3d 414, 424 (Tex. 2015) (quoting Severance v. Patterson, 370 

S.W.3d 705, 709 (Tex. 2012)). Of course, this right to exclude may be relinquished. Id. (citing

Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (granting an easement is a 

4 Nuisance claims are frequently described as a “non-trespassory invasion of another’s interest in the use and 

enjoyment of land.” Rankin v. FPL Energy, L.L.C., 266 S.W.3d 506, 509 (Tex. App. – Eastland 2008, pet. denied) 

(quoting GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 615 (Tex. App.–Houston [14th Dist.] 2001, 

pet. denied)). 

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relinquishment of the right to exclude)). Therefore, mere entry onto the property of another may 

not always be actionable as a trespass. Id.

V. DISCUSSION

A. Plaintiffs’ allegations of injury

In addition to the allegations listed above, Plaintiffs have alleged in paragraphs 50 through 

62 of the SAC “specific facts” which they claim support all of their causes of action. Dkt. No. 58 

at 5. Concerning alleged damages and injuries which have already occurred, Plaintiffs allege the 

“mere announcement of the solar farms and two BESS by Defendants, recording of the Andrews 

option, filing and commencement of construction of transmission line easements and destruction 

of great swathes of oak trees thereby causing a diversion of water onto Plaintiff Hicks’ land have 

caused and continue to cause a measurable diminution in the reasonable cash market value of 

Plaintiffs’ real estate and constitutes a present and continuing trespass.” SAC (Dkt. No. 53), ¶ 50. 

Plaintiffs further allege Defendants have cut “great swathes of mature oak trees” directly adjacent 

to Plaintiff Hicks Daphne Prairie Preserve which has caused the following damages and injuries: 

• Flooding and erosion directly onto Plaintiff Hicks’ land.

• Flooding and erosion directly into the local water sources – Campbell Creek, White 

Oak Creek (which is a major tributary to the Sulphur River), and Lake Wright 

Pattman (which is the Texarkana water supply).

• Dead trees and limbs choking these creeks and washing up on Plaintiff Hicks’ land.

• Migration of a great number of feral hogs from the bottoms of these creeks onto 

Plaintiff Hicks’ land thereby causing extreme hog damage where there was none or 

very little before.

• View pollution in the form of barren land and dead and dying oak trees, stumps and 

limbs where there . . . were mature oak trees.

Id., ¶¶ 51-56. As additional damages and injuries which have already occurred, Plaintiffs allege as 

follows:

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• Defendants engaged Spectrum to enter upon Plaintiff Hicks’ land and used an 

existing waterline easement to run internet cable, not for the service of the residents 

of Franklin County as Plaintiff’s were first lead to believe, but rather to service the 

solar farm offices and BESS. This, in addition to being a continuing trespass, also 

causes water intrusion and erosion directly on Plaintiff Hicks’ land.

• Transmission line easements, 200 to 300 feet wide, to Oncor, have been recorded 

for the purpose of transmitting electricity to and/or from the solar farms and BESS. 

One of these transmission easements runs directly along and parallel to the west 

property line between Plaintiff Hicks’ Daphne Prairie Preserve and former 

Defendant Andrews property. The destruction of the oak trees described above, is 

either in conjunction with construction of said transmission line and/or the solar 

farm itself. In other words, the heretofore unobstructed view from Plaintiff Hicks’ 

Daphne Prairie Preserve will either contain a 600 plus thousand solar panel glare 

pollution or a huge transmission line, or both. This construction is currently in 

process and has already caused some of the injuries and damages alleged herein. 

The transmission lines will be uninsulated and will pose a health risk both to human 

life and certainly to the life of migrating animals who happen to run afoul of them. 

This will disturb the entire ecosystem (wild and plant life), the protection and 

preservation of which is the whole purpose of the Daphne Prairie Preserve.

• Defendants have allowed Spectrum access to a large parking lot leased by 

Defendants which had previously been used in a cattle operation in order to access 

Plaintiff Hicks’ land. 

• Plaintiff Hicks, seeing the Daphne Prairie Preserve threatened with irreparable 

damage, which he has dedicated a great deal of his time, energy and resources to 

prevent is understandably under extreme mental anguish at the injuries and 

damages that the solar farms and BESS are and will continue to cause. Likewise, 

the Borens are suffering from the certainty that their retirement homestead will be 

included in an Evacuation Zone because of the well-known ultra-hazardous nature 

of lithium batteries. This causes Plaintiffs immediate and severe mental anguish.

Id., ¶¶ 57-60.

Plaintiffs also include specific allegations regarding the elements of the negligent nuisance, 

intentional nuisance, strict liability nuisance, and anticipatory nuisance claims (id., ¶¶ 63-86), as 

well as the Texas Water Code and trespass claims (id., ¶¶ 87-99).

B. Plaintiffs’ negligent, intentional, and strict liability nuisance claims 

Defendants first assert the SAC “remains too speculative and based on future events to 

state a cause of action for Plaintiffs’ claims that must be based on an injury already suffered 

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(negligent, intentional, and strict liability nuisance).” Dkt. No. 54 at 7. Urging the Court to

disregard all allegations of potential future harm, Defendants contend Plaintiffs’ remaining 

allegations of harm that has already occurred (flooding, erosions, washed-up trees and limbs, 

migration of feral hogs, view pollution, continuing trespass of allowing Spectrum to enter Hicks’ 

land and use an existing waterline easement to run internet cable, and mental anguish) “do not 

meet the threshold necessary to state a claim for relief.” Id. at 8; see also id. at 9-14. Defendants 

next assert Plaintiffs have failed to allege essential elements of their claims of intentional nuisance, 

negligent nuisance, and strict liability nuisance.

1. Whether the SAC sufficiently alleges that a nuisance currently exists

Whether a defendant may be held liable for causing a nuisance depends on (1) the 

culpability of the defendant’s conduct, (2) whether the interference is a nuisance, and (3) whether 

the interference caused loss or damage. Enter. Crude GP L.L.C. v. Sealy Partners, L.L.C., 614 

S.W.3d 283, 300 (Tex. App. – Houston [14th Dist.] 2020, no pet.) (citing Crosstex, 505 S.W.3d at 

601, 604-07). Defendants dispute whether the allegations in the SAC are sufficient to qualify as a 

nuisance—and thus a legal injury. More specifically, Defendants argue the SAC fails to sufficiently 

allege injuries already suffered. Dkt. No. 54 at 6-8.

Putting aside the SAC’s allegations of future harm, which are discussed as part of Plaintiffs’ 

claim for injunctive relief through anticipatory nuisance below, Plaintiffs allege the following 

damages and injuries which have already occurred and are substantially interfering with the use 

and enjoyment of their land: (1) diversion of water, flooding, and erosion caused by 

commencement of construction of transmission line easements and the destruction of “great 

swathes of oak trees” directly adjacent to the Daphne Prairie Preserve (SAC, ¶¶ 50-53, 57); (2) 

incursion of feral hogs and dead trees and limbs onto the Daphne Prairie Preserve (id., ¶¶ 54-55); 

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(3) view pollution for the Daphne Prairie Preserve “in the form of barren land and dead and dying 

oak trees, stumps and limbs where there was. . . mature oak trees” (id., ¶ 57); (4) “noise pollution” 

from the prolonged construction period which “consists largely of the continual driving of piles,” 

destroying Hicks’ ability to enjoy the Daphne Prairie Preserve (id., ¶ 14); (5) “extreme mental 

anguish at the injuries and damages that the solar farms and BESS are and will continue to cause” 

(id., ¶ 60); and (6) “a measurable diminution in the reasonable cash market value of Plaintiffs’ real 

estate” as a result of the “mere announcement of the solar farms and two BESS by Defendants, 

recording of the Andrews option, [and] filing and commencement of construction. . . .” of the 

proposed projects (id., ¶ 50). Defendants contend these new allegations “cannot save the negligent, 

intentional, and strict liability nuisance claims” from dismissal under Rule 12(b)(6). Dkt. No. 54 

at 9.

a. Allegations of flooding, erosion, washed-up trees and limbs, and migration of hogs

A survey of nuisance cases reflects situations in which a defendant is found to have caused 

a nuisance by causing flooding on the plaintiff’s property, see, e.g., Barnes v. Mathis, 353 S.W.3d 

760, 763-64 (Tex. 2011); emitting noxious odors, see, e.g., Natural Gas Pipeline Co. of Am. v. 

Justiss, 397 S.W.3d 150, 154 (Tex. 2012); discharging water onto the plaintiff’s land, see, e.g., 

Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336, 338 (Tex. 1954); or 

invading the plaintiff’s land with dust, noise, or bright lights, see, e.g., Schneider Nat’l Carriers, 

Inc. v. Bates, 147 S.W.3d 264, 269-70 (Tex. 2004). Amini v. Spicewood Springs Animal Hosp., 

L.L.C., No. 03-18-00272-CV, 2019 WL 5793115, at *11 (Tex. App. – Austin Nov. 7, 2019, no pet.).

Essentially, the common thread through Texas nuisance jurisprudence is that the defendant has 

invaded the plaintiff’s property by some physical means, creating a “condition” that substantially 

interferes with the plaintiff’s use and enjoyment of its land. Id.

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In the SAC, Plaintiffs allege Defendants have invaded the Daphne Prairie Preserve by some 

physical means, creating a condition that substantially interferes with Hicks’ use and enjoyment of 

his land. Among other things addressed below, Plaintiffs allege there has been trespass onto the 

Daphne Prairie Preserve through flooding, erosion, washed-up trees and limbs, and migration of 

feral hogs. Defendants argue the Court should disregard Plaintiffs’ “general and broadly stated” 

allegations of flooding, erosion, presence of washed-up trees and limbs, and migration of feral 

hogs. Dkt. No. 54 at 9-10. Defendants argue these allegations are “naked assertions devoid of 

further factual enhancement” which fail to “nudge” the claims “across the line from conceivable 

to plausible.” Id. (citations omitted). 

Unlike in the first amended complaint, however, the legal conclusions in the SAC are 

supported by factual allegations. Because there are well-pleaded factual allegations of injury in the 

SAC, the Court assumes their veracity and determines whether they plausibly give rise to an 

entitlement of relief.5 See Iqbal, 556 U.S. at 678. In the event the Court accepts Plaintiffs’ 

allegations as true, Defendants argue the alleged injuries – mere erosion, flooding, and washing 

up of trees and limbs on land without any allegations as to the extent, degree, volume, frequency, 

etc. – “are neither substantial nor do they amount to unreasonable annoyances.” Dkt. No. 54 at 10.

Defendants are correct that to rise to the level of nuisance, the interference must be 

“substantial” in light of all the circumstances. Crosstex, 505 S.W.3d at 596. Of course, “what is 

substantial will vary, within limits, according to circumstances.” Id. at 595 (citation omitted).

Whether an interference is substantial or merely a “trifle” or “petty annoyance” necessarily 

5 As urged by Defendants, however, Plaintiffs’ allegations regarding the migration of “feral hogs” will not support a 

claim for nuisance because there is no duty of landowners in Texas “to guard against injury to someone in another 

location from every species of indigenous wild animals which may roam from the landowner’s property.” Dkt. No. 54 

at 11 (quoting Nichols v. McKinney, 553 S.W.3d 523, 529 (Tex. App. – Waco 2018, pet. denied) (emphasis removed 

by Defendants)).

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depends on the particular facts at issue, including, for example, the nature and extent of the 

interference, and how long the interference lasts or how often it recurs. Id. at 595-96 (quoting 

WILLIAM L. PROSSER, LAW OF TORTS 3d ed. § 88, at 601 (“[T]he duration or recurrence of 

the interference is merely one—and not necessarily a conclusive—factor in determining whether 

the damage is so substantial as to amount to a nuisance.”)). Even a substantial interference does 

not constitute a nuisance unless the effect of the interference on those who would otherwise use 

and enjoy their land is “unreasonable.” Id. at 596 (citation omitted). “To establish such a legal 

injury, the plaintiff must prove that the interference is substantial and the resulting discomfort or 

annoyance is unreasonable, but need not establish that the defendant’s conduct or land use was 

unreasonable.”6 Id. at 601. 

Although Defendants make a cursory argument that Plaintiffs’ alleged injuries “as bare and 

plainly alleged by Plaintiffs” (Dkt. No. 54 at 10) are not substantial or unreasonable, Texas courts 

generally leave for the factfinder to determine questions of fact, such as:

whether an interference with the use and enjoyment of property is substantial, 

whether the effects of such an interference on the plaintiffs are unreasonable, 

whether the defendant intentionally or negligently created the interference, and 

whether the interference results from abnormally dangerous activities.

Olivarez v. Pena, No. 13-22-00547-CV, 2023 WL 5611428, at *2 (Tex. App. – Corpus ChristiEdinburg Aug. 30, 2023) (quoting Crosstex, 505 S.W.3d at 609); see also Enterprise Crude GP 

L.L.C., 614 S.W.3d at 301 (stating “whether the effects of interference are unreasonable is 

governed by an objective standard, accounting for numerous circumstance-based factors,” and 

further stating the “determination is generally one of fact”); see also Reed v. LKQ Corp., No. 3:14-

CV-4412-L, 2018 WL 3328424, at *5 (N.D. Tex. July 6, 2018) (noting these issues are generally 

6 However, there must be some level of culpability on behalf of the defendant; nuisance cannot be premised on a mere 

accidental interference. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 604 (Tex. 2016).

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questions of fact for the jury to decide and finding the defendant was not entitled to summary 

judgment as to Reed’s intentional and negligent nuisance theories).Additionally, in determining 

whether an interference is substantial, courts may review whether the use impairs the adjoining 

property’s market value. Crosstex, 505 S.W.3d at 595 (stating, as examples, that noises or odors 

from a horse stable can create a nuisance if the stable is “so kept, or so used, as to destroy the 

comfort of persons owning and occupying adjoining premises, and impair their value” and that 

gunpowder storage can create a nuisance when it is a “constant source of apprehension and alarm” 

which prevents the plaintiffs from renting their land “at any price” and substantially reduces the 

land’s market value); see also id. at 609–12 & n.21 (discussing the types of damages available for 

nuisance as loss of rental or use value, cost of restoring land, or lost market value).

In the SAC, Plaintiffs specifically allege they have already suffered a measurable 

diminution in the reasonable cash market value of Plaintiffs’ real estate, diminution which has 

occurred, in part, due to cutting down the oak trees and diversation of water. recovery for which 

has been allowed under a nuisance theory.

7 SAC (Dkt. No. 53), ¶ 50; see also id., ¶ 24, 29, 37, 61-

62, 80, 85-86. This issue is relevant to the question of whether an interference is substantial. 

Considering this, and further considering that questions of whether an interference is substantial 

and unreasonable in its effects are generally questions of fact for the jury, the Court declines to 

7 Defendants’ motion does not address, nor does the Court consider at this time, whether Plaintiffs could, under the 

facts alleged here, recover lost-market-value property damages that they allege already incurred as a result of the

announcement of the planned project. See 1717 Bissonnet, L.L.C. v. Loughhead, 500 S.W.3d 488, 498, 500 (Tex. App. 

– Houston [14th Dist.] 2016, no pet.) (stating that the “nuisance is merely anticipated and thus will not support an 

award of lost-market-value damages even if those damages have already occurred because of the plan to build the 

project” and further finding the trial court erred by denying the Developer’s motion to disregard the jury’s damages 

finding “because Texas law does not recognize a cause of action for damages resulting from a prospective nuisance 

and that was the only liability theory submitted to the jury”) (emphasis added); see also id. at 507 (stating the 

Homeowners could assert such a future claim for damages once a nuisance existed).

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recommend dismissal of Plaintiffs’ intentional nuisance, negligent nuisance, and strict liability 

nuisance claims for failure to sufficiently allege injuries already suffered.

8

Even though Plaintiffs do not need additional allegations of injury to survive dismissal, the 

Court addresses Defendants’ arguments that Plaintiffs’ allegations of “view pollution” (SAC, ¶ 57)

and extreme mental anguish (id., ¶ 60) will not support a claim for nuisance as a matter of law. 

b. Aesthetic-based allegations (view pollution)

Defendants assert the Court should disregard all of Plaintiffs’ allegations regarding “view 

pollution” and other aesthetical complaints. Dkt. No. 54 at 11. In response, Plaintiffs argue the 

aesthetics complained of in the authorities citied by Defendants “were not the cause of financial 

damages.” Dkt. No. 58 at 9. According to Plaintiffs, the “Daphne Prairie Preserve is financially 

dependent upon its surroundings and will suffer economic damages from ‘view pollution.’” Id. In 

their reply, Defendants argue Texas case law does not support claims for nuisance based on 

aesthetic complaints, “even if the aesthetic complained of causes financial damages.” Dkt. No. 61 

at 3.

Texas courts have held that aesthetical complaints alone cannot support a nuisance finding.

See, e.g., Jeansonne v. T–Mobile W. Corp., No. 01-13-00069-CV, 2014 WL 4374118, at *8 (Tex. 

App.—Houston [1st Dist.] 2014, no pet.) (holding “Texas courts have not found a nuisance merely 

because of aesthetic-based complaints”); Rankin v. FPL Energy, L.L.C., 266 S.W.3d 506, 509 (Tex. 

App.–Eastland 2008, pet. denied) (same). In a case where the plaintiffs failed to allege the 

defendants caused them to suffer any personal injury or property damage, a federal court held the 

8 Defendants do not address in their motion Plaintiffs’ allegation of “noise pollution.” SAC (Dkt. No. 53), ¶ 14 (alleging 

Defendants’ construction “consists largely of the continual driving or pile which creates noise pollution”). “Noise, if 

sufficiently extreme, may constitute a nuisance.” Canales v. Vandenberg, No. 14-22-00404-CV, 2024 WL 4351267, at 

*3 (Tex. App. – Houston [14th Dist.] Oct. 1, 2024) (citing Pool v. River Bend Ranch, L.L.C., 346 S.W.3d 853, 857 (Tex. 

App.—Tyler 2011, pet. denied); also citing Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004) 

(“There is no question that foul odors, dust, noise, and bright lights—if sufficiently extreme—may constitute a 

nuisance.”)).

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plaintiffs’ allegations that a nearby property “created an eyesore” and negatively impacted 

neighboring property values and sales were insufficient to state a claim for nuisance. Ballard v. 

Bank of Am., No. CV H-14-3653, 2015 WL 12743631, at *3-*4 (S.D. Tex. Mar. 7, 2015) (citing

Shamburger v. Scheurrer, 198 S.W. 1069, 1072 (Tex. Civ. App.–Fort Worth 1917, no writ) (“[T]he 

law will not declare a thing a nuisance because it is unpleasant to the eye, because all the rules of 

propriety and good taste have been violated in its construction, nor because the property of another 

is rendered less valuable, nor because its existence is a constant source of irritation and annoyance 

to others.”) (emphasis added); Dallas Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex. Civ. 

App.–Dallas 1925, no writ) (“Matters that annoy by being disagreeable, unsightly, and undesirable 

are not nuisances simply because they may to some extent affect the value of property.”); City of 

Temple v. Mitchell, 180 S.W.2d 959, 962 (Tex. Civ. App.–Austin 1944, no writ) (“The law does 

not concern itself with trifles, and therefore there must be a real and appreciable interference with 

the present usability of a person’s land before he can have a cause of action under the rule here 

stated.”)).

Like Plaintiffs’ “feral hogs” allegations, Plaintiffs’ “view pollution” allegations are not

actionable “because as a matter of law aesthetic impact will not support a claim for nuisance.”

Ladd v. Silver Star I Power Partners, L.L.C., No. 11-11-00188-CV, 2013 WL 3377290, at *3 (Tex. 

App. May 16, 2013, pet. denied) (“Texas law does not allow a plaintiff to recover on a visual 

nuisance claim based on aesthetic impact”). While aesthetic impact will not support a claim for 

nuisance as a matter of law, id., that does not necessarily make Plaintiffs’ aesthetic-based 

allegations irrelevant or inadmissible. See Rankin, 266 S.W.3d at 512 n. 13 (noting “in individual 

cases, aesthetical information may be relevant for a variety of purposes”). Thus, the Court is not 

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saying that evidence of aesthetics will be inadmissible. Ladd, 2013 WL 3377290, at *4 (“In Rankin,

we did not say that evidence of aesthetics was never admissible.”).

c. Mental anguish allegations

Finally, the Court considers whether, as urged by Defendants, Plaintiffs’ alleged mental 

anguish “by viewing the initial stages of construction” of the solar farm are insufficient to maintain 

a nuisance claim. Dkt. No. 54 at 14. Defendants rely on Maranatha Temple, Inc. v. Enterprise 

Products Co., 893 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1994, writ denied), where the only 

alleged injury was “fear, apprehension, or other emotional reaction that results from the lawful 

operation of industries in Texas.” Id. at 100. Defendants’ reliance on Maranatha Temple is 

misplaced. 

Unlike the claimant in Maranatha Temple, Plaintiffs’ alleged injury is not limited to fear, 

apprehension, or other emotional reaction alone. See Enterprise Crude GP L.L.C. v. Sealy 

Partners, L.L.C., 614 S.W.3d 283, 301 (Tex. App. – Houston [14th Dist.] 2020, no pet.) (“Not only 

does Sealy Partners disavow any desire to recover for emotional harm, it seeks economic damages 

for lost market value of its property and lost profit. Sealy Partners contends that the blast zone 

resulting from the construction. . . encompasses its land and has depreciated the land’s property 

value to the point where the property can no longer be developed commercially. Recovery for 

similar harm has long been allowed in Texas under a nuisance theory.”). Throughout the SAC, 

Plaintiffs allege Defendants’ actions have proximately caused Plaintiffs’ immediate damages “by 

causing a measurable and demonstrative diminution in the value of Plaintiffs’ land and mental 

anguish,” as well as substantially interfering with the use and enjoyment of Plaintiffs’ land and 

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causing them “unreasonable discomfort or annoyance.”9 SAC (Dkt. No. 53), ¶¶ 65-67, 71-73, 79-

80. As noted in Enterprise Crude, 614 S.W.3d at 301, recovery for economic damages for lost 

market value has been allowed in Texas under a nuisance theory.

Additionally, three years after Maranatha Temple was decided, the Texas Supreme Court 

stated that although mere nuisance has never been a basis for recovery of mental anguish in Texas, 

there is considerable authority for the proposition that a nuisance which impairs the comfortable 

enjoyment of real property may give rise to damages for “annoyance and discomfiture.” Likes, 962 

S.W.2d at 504 (citing cases). Earlier this year, the Texas Supreme Court noted that courts have 

considered “harm to the plaintiffs’ health, or psychological harm to the plaintiffs’ ‘peace of mind’ 

in the use and enjoyment of their property” as properly recoverable. Huynh, 694 S.W.3d at 686, 

n. 54 (citing Bruington v. Chesmar Homes, L.L.C., No. 08-23-00015-CV, 2023 WL 6972987, at *8 

(Tex. App.—El Paso Oct. 20, 2023, no pet.) (quoting Crosstex, 505 S.W.3d at 596)).

d. Summary

viewing the allegations in the SAC as a whole in the light most favorable to Plaintiffs and 

drawing all inferences in Plaintiffs’ favor, Plaintiffs have sufficiently alleged Defendants’ actions 

caused conditions that substantially interfere with Plaintiffs’ use and enjoyment of their property,

and that the effects of the substantial interference are unreasonable (i.e., noise, flooding, erosion, 

presence of washed-up limbs and trees, measurable diminution in the value of Plaintiffs’ land, and 

annoyance and discomfiture / psychological harm to Plaintiffs’ peace of mind during and as a result 

of Defendants’ construction). Given the early stage of litigation, Plaintiffs’ factual allegations, 

9 In their surreply, Plaintiffs clarify that certain damages allegations are included in the SAC to “put the damages that 

have already occurred from actions already taken in perspective” and to support Plaintiffs’ pleading for prospective 

injunction which has specific requirements (“Imminent” and “no adequate remedy at law”). Dkt. No. 62 at 6; see also 

SAC (Dkt. No. 53), ¶ 61 (alleging Plaintiffs’ damage is not merely “probable” or “more than reasonably certain” but 

is imminent because “the injury has already occurred in the form of mental anguish. . . .”).

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taken as a whole, are sufficient to qualify as a nuisance—and thus a legal injury. The Court 

recommends this part of Defendants’ motion be denied.

2. Whether the SAC alleges the essential elements of each private nuisance claim

Defendants next assert Plaintiffs have failed to allege essential elements of their private

nuisance claims of intentional nuisance, negligent nuisance, and strict liability nuisance. A private 

nuisance claim includes the following elements:

(1) the plaintiff had an interest in the land; (2) the defendant interfered with or 

invaded the plaintiff’s interest by conduct that was negligent, intentional, or 

abnormal and out of place in its surroundings; (3) the defendant’s conduct resulted 

in a condition that substantially interfered with the plaintiff’s use and enjoyment of 

his land; and (4) the nuisance caused injury to the plaintiff.

K & K Inez Properties, L.L.C. v. Kolle, No. 13-21-00460-CV, 2023 WL 8941487, at *3 (Tex. App. 

– Corpus Christi-Edinburg Dec. 28, 2023) (quoting Cerny v. Marathon Oil Corp., 480 S.W.3d 

612, 622 (Tex. App.—San Antonio 2015, pet. denied)).

Specifically, Defendants argue (1) Plaintiffs fail to state a negligent nuisance claim because 

they fail to properly allege proximate cause; (2) Plaintiffs fail to state an intentional nuisance claim 

because they have failed to properly allege the necessary level of intent and culpability; and (3) 

Plaintiffs fail to state a strict liability nuisance claim because they have failed to properly allege 

the existence of an abnormally dangerous activity that is occurring. Dkt. No. 54 at 14-21.

a. Plaintiffs’ negligent nuisance claim

A plaintiff’s negligent nuisance claim is governed by ordinary negligence principles, and a 

plaintiff must prove “the existence of a legal duty, a breach of that duty, and damages proximately 

caused by the breach.”10 Reed, 436 F. Supp. 3d at 912-13 (citing Crosstex, 505 S.W.3d at 607 

10 Unlike a negligent nuisance claim, intentional nuisance and strict liability nuisance claims do not require proof of 

the legal duty owed. In re Oncor Elec. Delivery Co. L.L.C., 694 S.W.3d 789, 802 (Tex. App. – Houston [14th Dist.] 

2024, no pet.) (citation omitted).

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(internal quotation marks omitted in Reed)). Here, Defendants challenge the proximate cause 

element. 

Proximate cause has two components: (1) “cause in fact” and (2) foreseeability. Starkey v. 

Enri, No. 14-17-00224-CV, 2018 WL 4136876, at *5 (Tex. App. – Houston [14th Dist.] 2018, no 

pet.) (citing W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); Doe v. Boys Clubs of Greater 

Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Browning–Ferris, Inc. v. Hobson, 967 S.W.2d 543, 

546 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)). “Cause in fact” means that the act or 

omission was a substantial factor in bringing about the injury, without which the harm would not 

have occurred.” Id. (quoting Doe, 907 S.W.2d at 477 (emphasis added in Starkey)). 

“Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the 

dangers his negligent act creates for others.” Id. (quoting Aleman v. Ben E. Keith Co., 227 S.W.3d 

304, 310 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). The elements of proximate cause—cause 

in fact and foreseeability—cannot be established by mere conjecture, guess, or speculation. Id.

(citing W. Invs., Inc., 162 S.W.3d at 551).

Defendants assert Plaintiffs have not alleged sufficient facts for cause-in-fact or 

foreseeability. Dkt. No. 54 at 15-17. However, in the SAC, Plaintiffs allege the announcement of 

the solar farm and BESS by Defendants, recording of the Andrews option, filing and 

commencement of construction of transmission line easements, and destruction of great swathes 

of oak trees thereby causing a diversion of water onto Plaintiff Hicks’ land is the proximate cause 

of Plaintiffs’ immediate damages by causing a measurable and demonstrative diminution in the 

value of Plaintiffs’ land and mental anguish. SAC (Dkt. No. 53), ¶¶ 66, 67. Plaintiffs also allege 

Defendants should have anticipated the dangers their actions would cause. Id., ¶¶ 14 & n. 4, 29, 

31, 36-37, 50, 51-54 (announcing a solar farm decreases land value and constructing requires 

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removing trees, changing water path, driving piles, etc.). Taking these facts as true, Plaintiffs have 

sufficiently alleged proximate cause. 

Defendants’ reliance on Bonin v. Sabine River Auth. of Texas, No. 1:17-CV-00134-TH, 

2019 WL 1246259 (E.D. Tex. Mar. 1, 2019) (“Bonin I”), report and recommendation adopted, 

2019 WL 1244705 (E.D. Tex. Mar. 18, 2019), aff’d sub nom., 961 F.3d 381 (5th Cir. 2020) (“Bonin 

II”) is misplaced. A careful reading of Bonin does not warrant dismissal of Plaintiffs’ negligent 

nuisance claim at this early stage of the case.11

In that case, a group of around 300 property owners in Texas and Louisiana, who lived near 

the Sabine River and had suffered flood damage, filed suit in Texas state court against Sabine River 

Authority, Louisiana (“SRA-L”) and Sabine River Authority of Texas (“SRA-T”). Bonin II, 961 

F.3d at 383. The plaintiffs also brought negligence, trespass, and private nuisance claims against 

power companies (Entergy defendants), asserting they allowed one of two hydroelectric generators 

at the dam to remain inoperable for six months, which “contributed to raising the reservoir water 

levels and made the flood damage worse.” Id. at 384. Following removal to federal court, the 

Entergy defendants filed a Rule 12(b)(6) motion to dismiss the claims against them. Id. at 384-85. 

The magistrate judge’s report and recommendation found that the plaintiffs failed to state 

a claim for negligence against the Entergy defendants for three “independently sufficient reasons.” 

Bonin II, 961 F.3d at 387. First, the magistrate judge found that the plaintiffs “did not adequately 

allege any violations of the FERC license” by Entergy, because the FERC license does not impose 

minimum energy generation requirements upon Entergy for either of the generators. Id. at 387-88.

11 There are cases suggesting the summary judgment procedure is not well adapted to the disposition of negligence 

cases because Texas courts usually consider proximate cause an issue for the jury. See Davenport v. Bonini, No. 1:22-

CV-469, 2024 WL 69062, at *7 (E.D. Tex. Jan. 4, 2024) (citing cases); see also Cuevas v. Westerman, No. 1:14-CV133, 2018 WL 6579041, at *7 (S.D. Tex. June 15, 2018) (“Proximate cause is usually an issue of fact, unless the 

evidence is undisputed and only one reasonable inference can be drawn.”). Here, Defendants ask the Court to 

recommend dismissal pursuant to Rule 12(b)(6) at an even earlier stage than summary judgment. 

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Second, the magistrate judge found that under Texas state law, only state authorities may be found 

liable for damage caused by floodwaters, not private entities like Entergy, reasoning, “in short, a 

state rule granting immunity to private entities would bar liability even if Entergy violated the 

FERC license.” Id. Third and finally, the magistrate judge found that the plaintiffs failed to 

sufficiently allege Entergy’s operation of the generators was a proximate cause of plaintiffs’ losses.

Id.; see also Bonin I, 2019 WL 1246259, *10 (finding the plaintiffs had not alleged sufficient facts 

for both the cause-in-fact and foreseeability components of the proximate cause element). 

The district court adopted the magistrate judge’s report and recommendation over the 

plaintiffs’ objections, dismissed all of the claims against the Entergy defendants, and remanded to 

Texas state court the remaining state constitutional takings claims SRA-L and SRA-T. Bonin II, 

961 F.3d at 385. The Fifth Circuit affirmed the district court’s dismissal on appeal. In doing so, the 

Fifth Circuit noted the plaintiffs only challenged the “third of three independent grounds for 

dismissal of their negligence claim” on appeal – that the plaintiffs failed to show that Entergy’s 

operation of the generators was a proximate cause of the plaintiffs’ losses. Id. at 388. Because the 

plaintiffs thus waived any argument with respect to the Entergy defendants’ liability, the Fifth 

Circuit affirmed the dismissal of the plaintiffs’ negligence claim against the Entergy defendants

without substantive discussion. Id. (further affirming the dismissals of the plaintiffs’ trespass and 

nuisance claims against Entergy defendants because the plaintiffs had not challenged these 

dismissals on appeal).

In their motion to dismiss, Defendants focus on the magistrate judge’s alternative findings 

in Bonin I as to cause-in-fact and foreseeability. Although the magistrate judge focused his 

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proximate cause analysis on the “floodwaters” issue,12 the magistrate judge alternatively held 

(assuming the analysis concerning floodwaters and surface waters was incorrect) that the plaintiffs’ 

negligence claim (and by extension, negligent nuisance claim) also failed to allege sufficient facts 

for the proximate cause element. Bonin I, 2019 WL 1246259, at *7-8. Specifically regarding causein-fact, the magistrate judge reasoned as follows:

The Plaintiffs have essentially alleged that the Entergy Defendants’ failure to fix 

Unit #2 furnished a condition (i.e. the condition of too much water in the upstream 

body) that made the Plaintiffs’ injuries possible, but “furnish[ing] a condition” is 

insufficient to establish cause-in-fact. See IHS Cedars [Treatment Ctr. of DeSoto, 

Texas, Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004)]. The operative complaint 

does not allege any facts that the water remaining in the upstream body actually 

resulted in any flooding of the Plaintiffs’ properties that would not have occurred 

otherwise. The Plaintiffs have not alleged how an operational Unit #2 would have 

changed the amount of water released from the spillway gates prior to the flooding 

of the Plaintiffs’ properties. The bare-bones factual allegations made by the 

Plaintiffs are not enough to state a plausible cause-in-fact for the Plaintiffs’

negligence claim. Because of the Plaintiffs’ failure to allege facts showing the 

cause-in-fact of their injuries by the Entergy Defendants’ actions, the negligence 

claim should be dismissed for failure to state a claim for which relief can be granted.

Id. at *8 (emphasis original). Specifically regarding foreseeability, the magistrate judge reasoned 

as follows:

The Plaintiffs have not alleged any facts that directly address the Entergy 

Defendants’ ability to foresee the danger created by leaving Unit #2 in disrepair. . . 

. The operative complaint does not allege that the Entergy Defendants knew (or 

should have known) that a non-operational Unit #2 might cause excess water to 

remain in the upstream body of water, nor how excess water might create any kind 

12In finding the plaintiffs’ negligence claim against the Entergy defendants should be dismissed because the defendants 

did not proximately cause any damage by waters that they had a legal duty to control, the magistrate judge focused on 

the important difference between “floodwaters” and “surface waters” under Texas law before concluding that the 

Entergy defendants owed no duty to control the alleged floodwaters, they could not breach a duty they did not owe, 

and they could not proximately cause damages if they had no duty to control the waters in the first place. Bonin I, 

2019 WL 1246259, at *6; see also id., ¶ 7 (“Stated another way, the operative complaint fails to allege sufficient facts 

to state a negligence claim for which relief can be granted because it includes only allegations that the plaintiffs were 

harmed by floodwaters, not surface waters.”). 

Defendants do not argue this case involves alleged floodwaters. The SAC does not use the term “floodwaters.” In 

connection with their Texas Water Code claim, Plaintiffs allege Defendants have caused and will continue to cause 

the diversion or impoundment of the natural flow of surface water onto Plaintiffs’ land. SAC (Dkt. No. 53), ¶ 90; see 

also ¶ 91.

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of danger. The operative complaint does not address how a person of ordinary 

intelligence would anticipate that Unit #2 being non-operational would create or 

exacerbate property damage downstream in the event of an extreme rainfall event 

that causes flooding of the Sabine River.

Id. at *9.

As Bonin concerned only flooding, Defendants characterize Plaintiffs’ alleged injury as 

related to the alleged flooding, erosion, and intrusions onto Hicks’ Daphne Prairie Preserve.

According to Defendants, like the Entergy defendants in Bonin, “all that can be taken from 

Plaintiffs’ allegations . . . of flooding, erosion, washed-up trees and tree limbs, and feral hogs are 

that Defendants furnished a condition which made the injury possible.” Dkt. No. 54 at 16.

However, Defendants do not address the other allegations of alleged injury, namely that

Defendants’ leasing of nearby acreage for “solar placement,” announcement of the solar farms and 

BESS, the recording of the Andrews option, and the filing and commencement of construction of 

transmission and internet communication line easements to serve the BESS for both projects have 

caused a “measurable diminution in the reasonable cash value of Plaintiffs’ real estate” and caused 

psychological harm to Plaintiffs’ peace of mind in the use and enjoyment of their property. SAC 

(Dkt. No. 53), ¶¶ 11, 80; see also id., ¶¶ 37, 50. Thus, unlike Bonin, the SAC alleges sufficient 

facts to conclude Defendants’ actions actually caused surface water to be diverted onto Plaintiffs’

property. Id., ¶¶ 14 & n.4 (alleging the ongoing construction consists of “continual driving of 

piles” and further alleging that leveling ground to install panels destroys topsoil), 21 (alleging 

Saddle House’s installation disturbs the water flow from “a 495 foot elevation rushing to the 400 

foot levels in the preserve”), 50-52, 57-58.

This case differs from Bonin regarding foreseeability as well. Where the Bonin court found 

the operative complaint did not allege that it was foreseeable that not operating one of two 

generators would create or exacerbate property damage during an extreme rain event, here the 

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SAC contains sufficient foreseeability allegations. According to Plaintiffs, the residents of Franklin 

County “are largely opposed to the placement of solar farms,” and there is a general “uprising” of 

local citizens against solar farms and BESS. Id., ¶ 36. Plaintiffs further allege Defendants have 

experienced “identical consequences in Hicks County; have engaged in a public relations 

campaign attempting to minimize the potential problems and have offered weak mediation 

efforts.” Id., ¶ 69.

The Court recommends this part of Defendants’ motion be denied.

b. Plaintiffs’ intentional nuisance claim

A defendant may be held liable for intentionally causing a nuisance based on proof that he 

intentionally created or maintained a condition that substantially interferes with the claimant’s use 

and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary 

sensibilities attempting to use and enjoy it. Crosstex, 505 S.W.3d at 604-05. A plaintiff may 

establish intent with proof that the defendant acted with a specific intent to inflict injury or a 

malicious desire to so harm by causing the actionable interference. Reed, 436 F. Supp. 3d at 912 

(citing Crosstex, 505 S.W.3d at 605). “But an intent to inflict injury or desire to harm is not required 

to show intent; the plaintiff can establish intent with evidence that the defendant acted with the 

belief that the interference was ‘substantially certain to result from’ the defendant’s conduct.” Id.

(quoting Crosstex, 505 S.W.3d at 605 (quoting Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 

(Tex. 1985))). That is, an intentional invasion may be “an invasion that the actor knowingly causes 

in the pursuit of a laudable enterprise without any desire to cause harm.” Id. (quoting Crosstex, 

505 S.W.3d at 605 (quoting Restatement (Second) of Torts § 8A cmt. B)). 

Plaintiffs have sufficiently alleged that Defendants act for the purpose of causing the 

interference that constitutes the nuisance or know that the interference is resulting or is 

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substantially certain to result from Defendants’ conduct. Plaintiffs allege “Defendants intend to 

cause and have caused and unless enjoined, will continue to cause an immediate, temporary and 

permanent unreasonable nuisance to Plaintiffs and Plaintiffs’ real estate for which there is no 

adequate remedy at law.” SAC (Dkt. No. 53), ¶ 69. According to Plaintiffs, there is “substantial 

certainty that this substantial and unreasonable nuisance is intended by Defendants,” as 

demonstrated by the fact that “Defendants have experienced identical consequences in Hicks 

County; have engaged in a public relations campaign attempting to minimize the potential 

problems and have offered weak mediation efforts. . . .” Id. 

Defendants argue the allegations regarding Defendants’ community involvement and 

engagement indicate an intent not to cause negative consequences. Dkt. No. 54 at 18. However,

that is a factual dispute not suitable for resolution on a motion to dismiss. Further, Plaintiffs allege 

the residents of Franklin County “are largely opposed to the placement of solar farms,” and there 

is a general “uprising” of local citizens against solar farms and BESS. SAC (Dkt. No. 53), ¶ 36.

All of the allegations, when viewed in the light most favorable to Plaintiffs, suggest Defendants 

know that the interference (economic harm to Plaintiffs’ properties’ market value and/or 

psychological harm to Plaintiffs’ peace of mind) is resulting or is substantially certain to result 

from Defendants’ conduct. The Court recommends this part of Defendants’ motion be denied.

c. Plaintiffs’ strict liability claim

The third category of nuisance-based claims (strict liability) includes those based on “other 

conduct, culpable because abnormal and out of place in its surroundings, that invades another’s 

interests.” Crosstex, 505 S.W.3d at 607 (quoting Likes, 962 S.W.2d at 503). The strict liability basis 

for a claim alleging a nuisance must be based on conduct that constitutes an “abnormally dangerous 

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activity,” and not just an activity that is “abnormal and out of place in its surroundings.” Id. at 617 

(citations omitted). The allegations in the SAC do not support such a cause of action. 

Plaintiffs allege the proposed “solar farm and BESS are abnormal and out of place; are an 

abnormally dangerous activity; and involve abnormally dangerous substances creating a high 

degree of risk of serious injury.” SAC (Dkt. No. 53), ¶ 75. However, for this claim, the Court 

considers only the allegations of conduct that has already occurred or is occurring. Id., ¶ 79 

(allegations regarding the announcement of the solar farm and BESS, recording of the Andrews 

option, filing and commencement of construction of transmission line easements and associated 

destruction of oak trees causing a diversion of water and other intrusions).13 Plaintiffs have not 

sufficiently alleged that the activities Defendants have done constitute “abnormally dangerous 

activity.” See Lara v. Encana Oil & Gas (USA), Inc., No. CV H-18-4585, 2021 WL 3878884, at 

*1 (S.D. Tex. Apr. 26, 2021) (stating the plaintiffs alleged “nothing more than legal conclusions to 

say that Encana’s conduct was abnormally dangerous” and “[n]o facts were pleaded for how 

Encana’s operation of the plant is abnormally dangerous”); see also Dealer Computer Servs., Inc. 

v. DCT Hollister Rd, L.L.C., 574 S.W.3d 610, 623 (Tex. App. – Houston [14th Dist.] 2019, no pet.)

(stating none of the arguments regarding the operation of Staples’s warehouse or that additional 

paving “resulted in substantial flooding and drainage issues that burden” DCT’s facility and the 

surrounding properties and community asserted that Staples engaged in abnormally dangerous 

conduct that created a high risk of serious injury).

13 The Court will consider in its discussion below on Plaintiffs’ claim for injunctive relief through anticipatory nuisance 

Plaintiffs’ allegations that the proposed solar farms and BESS will emit noxious chemicals which will leach into the 

soil and drain into Plaintiffs’ land; the alleged danger of the BESS (consisting of lithium batters and subject to 

explosion, fire, and evacuation zone); and the alleged harm which will be caused by the solar panels. See SAC (Dkt. 

No. 53), ¶¶ 76, 80.

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The closest allegation of conduct which could constitute an “abnormally dangerous” 

activity would be Defendants’ alleged construction of transmission lines for the purpose of 

transmitting electricity to and/or from the solar farms and BESS. SAC (Dkt. No. 53), ¶ 58. 

However, Plaintiffs’ pleadings, accepted as true, are insufficient to raise a question of fact as to 

whether the alleged interference resulted from abnormally dangerous or ultra-hazardous conduct 

by the construction of transmission lines. As acknowledged by the Restatement, “the transmission 

of electricity. . . [is not] deemed to be an abnormally dangerous activity.” In re Oncor Elec. 

Delivery Co. L.L.C., 694 S.W.3d 789, 802 (Tex. App. – Houston [14th Dist.] 2024, not pet.)

(quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM § 20 

cmt. h (Am. L. Inst. 2010)). Plaintiffs cite no Texas court case that has held that the transmission 

or distribution of electricity is an abnormally dangerous activity giving rise to a nuisance injury 

for which a defendant is strictly liable. Id. As such, the Court recommends Defendants’ motion to 

dismiss Plaintiffs’ strict liability nuisance claims be granted.

C. Plaintiffs’ claim for injunctive relief to prevent a prospective nuisance14

1. Relevant background

In the February 28, 2024 R&R on the Enel Defendants’ first motion to dismiss, the Court 

noted Plaintiffs had not alleged that the development of a solar farm/BESS was nuisance per se. 

Hicks, 2024 WL 1202922, at *12 (citing Maranatha Temple, 893 S.W.2d at 100 (stating the lawful 

use of property or the lawful conduct of a business cannot constitute a nuisance per se)). The Court 

explained that although not a nuisance per se, there was the possibility that Plaintiffs could amend 

14 Plaintiffs’ request for injunctive relief is not a separate cause of action from their nuisance claims. Riley v. Angelle, 

No. 01-20-00590-CV, 2022 WL 3092892, at *8 n.4 (Tex. App. – Houston [1st Dist.] 2022, no pet.) (citing Battista v. 

City of Alpine, 345 S.W.3d 769, 776 (Tex. App.—El Paso 2011, no pet.)). Instead, injunctive relief is an equitable 

remedy, and a party’s right to such relief is dependent on his ability to establish a probable right of recovery through 

another claim or cause of action. Id.

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in such a way to fit into the cases relied upon by Plaintiffs that classified proposed sewage 

treatment disposal plants as a type of “legalized” nuisance which might be enjoined. Id. at *10-11 

(citing City of Marlin v. Holloway, 192 S.W. 623 (Tex. Civ. App.—Austin 1917); Cardwell v. 

Austin, 168 S.W. 385 (Tex. Civ. App. – Galveston 1914)); also citing City of Wylie v. Stone, 16 

S.W.2d 862, 863 (Tex. Civ. App.—Dallas 1929), writ granted (Oct. 30, 1929), aff'd, 34 S.W.2d 

842 (Tex. Comm’n App. 1931) (stating “the nuisance here complained of does not belong to the 

category of those legalized, but, in a proper case, may be enjoined”)). The Court further explained 

that “there are other circumstances in which a court may exercise its equitable power to enjoin a 

prospective nuisance.” Id. at *11 (citing 1717 Bissonnet, L.L.C. v. Loughhead, 500 S.W.3d 488, 

497 (Tex. App. – Houston [14th Dist.] 2016, no pet.) (citing Freedman v. Briarcroft Prop. Owners, 

Inc., 776 S.W.2d 212, 216 (Tex.App.–Houston [14th Dist.] 1989, writ denied))). However, the 

allegations in the first amended complaint were insufficient to show that the anticipated threatened 

injury is imminent and thus failed to state a plausible claim for injunctive relief to prevent a 

threatened injury. Id. at *12. Accordingly, the Court granted Plaintiffs leave to amend to address 

the deficiencies identified in the R&R, noting Defendants could refile a motion to dismiss in 

response to Plaintiffs’ second amended complaint. Id.

Following the District Court’s adoption of the R&R, Plaintiffs filed their SAC, alleging the 

proposed solar farms and BESS should be classified similarly to the “legalized category of cases 

which can be anticipatorily enjoined.” SAC (Dkt. No. 53), ¶ 46. Plaintiffs allege the nuisance here 

is imminent and reasonably certain, having already resulted in damage and injury for which there

is no adequate remedy at law. Id., ¶ 47. According to Plaintiffs, when an attempt is made to enjoin 

an anticipated nuisance and the threatened injury is reasonably certain, a court will exercise its 

equitable power to restrain it. Id. Plaintiffs seek to enjoin Defendants’ construction of a solar farm 

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or BESS unless and until Defendants can demonstrate to the Court the development will not 

constitute a nuisance, trespass, or violation of the Texas Water Code. Id., ¶ 101.

2. Defendants’ assertions

In their motion to dismiss the SAC, which was filed on May 14, 2024, Defendants argue 

Plaintiffs’ claim for injunctive relief through the theory of an “anticipatory nuisance” (whose 

“applicability has been confined to a small number of cases, none of which are applicable here”) 

should be dismissed for similar reasons as outlined in the February 28, 2024 R&R. Dkt. No. 54 at

21. First, Defendants argue that Plaintiffs have not sufficiently alleged that the facts of the present 

dispute—the construction and operation of a solar plant by a non-governmental landowner—fit 

within the few cases involving enjoined sewage treatment plants which can be anticipatorily 

enjoined. Id. at 21-22. Second, Defendants assert Texas courts “have held that before the 

construction of a building and operation of a business not a nuisance per se will be enjoined, it 

must appear that the proposed use of the building will necessarily create a nuisance.” Id. at 22. 

Third, Defendants assert Plaintiffs have not alleged, and cannot allege, that the conduct complained 

of is a nuisance per se. Id. at 23. Fourth, Defendants assert there are insufficient allegations as to 

the imminence of the alleged harm. Id.

On June 7, 2024, the Texas Supreme Court issued its lengthy order in Huynh v. Blanchard, 

694 S.W.3d 648 (Tex. 2024).15 Application of the law as outlined in detail in Huynh, in conjunction 

15 Huynh was a nuisance suit brought by neighbors of two poultry farms located on a single tract of rural land in

Henderson County. Huynh v. Blanchard, 694 S.W.3d 648, 660 (Tex. 2024). A jury found that odors from the farms 

were a temporary nuisance (which was unchallenged on appeal), and the trial court granted permanent injunctive relief 

that effectively shut down the farms. Id. The farm owners and operators challenged the injunction on appeal, raising 

three issues: (1) whether the trial court abused its discretion in finding imminent harm; (2) whether equitable relief 

was unavailable because damages provided an adequate remedy; and (3) whether the scope of the injunction was

overly broad. Id. Although the Texas Supreme Court rejected the first two challenges and thus upheld the trial court’s

authority to grant an injunction, the court concluded the trial court abused its discretion in crafting the scope of that 

injunction, which was broader than necessary to abate the nuisance. Id. The court reversed in part and remanded for 

the trial court to modify the scope of injunctive relief. Id.

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with the holding in 1717 Bissonnet, L.L.C. v. Loughhead, 500 S.W.3d 488 (Tex. App. – Houston 

[14th Dist.] 2016, no pet.), eliminates the need to consider Defendants’ first and third arguments. 

Rather, the issues are whether the allegations in the SAC sufficiently allege the construction and 

operation of the planned project will necessarily create a nuisance and the existence of imminent 

harm. 

3. Analysis

a. Necessarily create a nuisance

Viewing all of the allegations in the SAC in the light most favorable to Plaintiffs, Plaintiffs 

sufficiently allege injury will necessarily be sustained. Plaintiffs’ allegations, construed liberally, 

allege, among other things, the danger from fire, emission of toxic chemicals and gasses, and

explosions from Defendants’ threatened conduct is “liable to occur and with consequent injury to 

the residences. . ., or greatly interfering with, if not entirely destroying, the proper enjoyment of 

such dwelling houses,” allegations which the court in Enterprise Crude GP L.L.C. noted could

constitute a nuisance.16 614 S.W.3d at 301-02. Specifically, Plaintiffs allege the “well-known 

danger of the lithium batteries comprising a BESS are fire, emission of toxic chemicals and gasses, 

and even explosion.” SAC (Dkt. No. 53), ¶ 27 (alleging these large BESS (100,000 large truck 

16The court stated as follows:

As these cases illustrate, conditions such as the one at issue can constitute a nuisance depending on 

the relevant circumstances. See Crosstex, 505 S.W.3d at 600. Courts have held, for example, that a 

horse stable, an earthen dam, a gun-powder magazine, a cemetery, and, significantly, oil storage 

tanks can be a nuisance to nearby property owners. In Boren [v. Magnolia Petroleum Co., 266 S.W. 

623, 624 (Tex. Civ. App. 1924)], the court rejected the claimant’s right to enjoin the construction of 

two large oil storage tanks, but noted that the storage of oils may nevertheless constitute a nuisance 

in certain circumstances if “danger from fire or explosion therefrom is continuous and imminent or 

liable to occur and with consequent injury to the residences. . ., or greatly interfering with, if not 

entirely destroying, the proper enjoyment of such dwelling houses.” Boren, 266 S.W. at 624. 

Enterprise Crude GP L.L.C. v. Sealy Partners, L.L.C., 614 S.W.3d 283, 301-02 (Tex. App. – Houston [14th Dist.] 

2020, no pet.) (internal citations and footnotes omitted). 

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sized DC batteries linked by cable) are “relatively new technology” and further alleging the New 

York state government imposed a moratorium on further construction after about “fifty fires and 

thirteen deaths in 2023” were attributed to lithium batteries). Plaintiffs allege the solar farms and 

BESS are particularly unsuited to inclusion in agricultural or residential areas and particularly 

unsuited to be located next to a unique prairie preserve. Id., ¶ 34; see also id., ¶ 16 (alleging Hicks’ 

Daphne Prairie Preserve will be surrounded on three sides by at least one of the proposed solar 

farms and will suffer unique damage). According to Plaintiffs, a BESS should be surrounded by a 

1.3 mile evacuation zone, and this would encompass not only Borens’ land but also 500 residences, 

subdivisions, and various animal husbandry farms.17 Id., ¶ 34. Plaintiffs further allege there is 

“more than a possibility of a leak of hydrogen chloride and hydrogen fluoride (deadly gases) that, 

being heavier than air, flow across the ground creating a deadly fog to every living entity.” Id., ¶

30 (alleging this would be “catastrophic and fatal to the Borens, anyone else in the Evacuation 

Zone and all wildlife even beyond if it is undiscovered for any period of time”). Accepting these 

allegations as true, they cannot be described as “completely hypothetical, speculative, and 

conclusory” as urged by Defendants. Dkt. No. 54 at 22. 

Despite these detailed allegations, Defendants rely on Inwood Forest Cmty. Imp. Ass’n v. 

R. J. S. Dev. Co., Inc., 630 S.W.2d 751, 753 (Tex. App.—Houston [1st Dist.] 1982, no writ) to 

argue the allegations in the SAC are insufficient to plead that the construction and operation of the 

planned project “will necessarily create a nuisance.” Dkt. No. 54 at 22. However, the Ironwood 

Forest case, which was decided on motions for summary judgment, does not suggest that Plaintiffs’ 

17According to Plaintiffs, the “fire marshal visited a solar farm under construction on the Hopkins/Franklin County 

line; a 5,000 acre farm that extends seven (7) miles. The fire marshal was told that he could not inspect the solar farm 

or BESS for the potential of hazardous materials and was further told that in the event of a leak, fire or spill, it would 

be handled by company teams not local officials. (This was the Stampede solar farm which is a sister company to 

Defendants).” SAC (Dkt. No. 53), ¶ 34.

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allegations are insufficient to plausibly allege an injury is imminent and will necessarily be 

sustained. 

There, homeowners sought injunctive relief to enjoin the proposed construction and 

operation of an apartment complex and sewerage treatment plant incident thereto, alleging “the 

development of the proposed facilities would, by their very nature, constitute a private and public 

nuisance.” Inwood Forest Cmty. Imp. Ass’n, 630 S.W.2d 752. The court stated that in order for the 

homeowners to have raised a fact question on the issue of nuisance, they must have shown the 

operation and construction of the proposed facilities would constitute a nuisance per se or that “it 

must appear that the proposed use of the building will necessarily create a nuisance.” Id. at 753-

54. Considering the proper summary judgment proof in the record, the court held the only proof 

presented by the homeowners was contained in the affidavits of two residents of the Inwood Forest 

area, neither of whom were familiar with apartment complexes or sewerage treatment plants. Id.

at 754. The court concluded the affidavits contained “only subjective opinions and conclusions 

and thus were not competent summary judgment evidence,”18 and affirmed the judgment of the 

trial court. Id. Defendants’ similar arguments are not controlling at this stage of the case. 

b. Imminent harm

Defendants next assert there are insufficient allegations as to the imminence of the alleged 

harm. If the nuisance is actual (as the jury found in Huynh), the imminent harm prerequisite is met 

when the injury is ongoing, whether in a continuous or recurrent manner. Huynh, 694 S.W.3d at 

679. However, if the nuisance is threatened, the prerequisite is met when injury is imminent and 

18 The appellate court also noted it had held in a “very similar case” that a party must exhaust prescribed administrative 

remedies prior to seeking injunctive relief by a collateral attack on an order if the administrative remedies are adequate.

Inwood Forest Cmty. Imp. Ass’n v. R. J. S. Dev. Co., Inc., 630 S.W.2d 751, 753 (Tex. App.—Houston [1st Dist.] 1982, 

no writ); see also id. at 752 (noting the development company pointed out the homeowners were not entitled to 

injunctive relief because they failed to exhaust their administrative remedies before filing suit).

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will necessarily be sustained. Id. (citing Holubec v. Brandenberger, 214 S.W.3d 650, 657 (Tex. 

App.—Austin 2006, no pet.) (“Holubec II”); Freedman v. Briarcroft Prop. Owners, Inc., 776 

S.W.2d 212, 216 (Tex. App.—Houston [14th Dist.] 1989, writ denied); O’Daniel v. Libal, 196 

S.W.2d 211, 213 (Tex. Civ. App.—Waco 1946, no writ)). “[A]n injunction will not lie to prevent 

an alleged threatened act, the commission of which is speculative and the injury from which is 

purely conjectural.” Id. (quoting Dallas Gen. Drivers, Warehousemen & Helpers v. Wamix, Inc., 

of Dallas, 156 Tex. 408, 295 S.W.2d 873, 879 (1956)).

Regarding imminent harm, Plaintiffs allege as follows:

The panels, in such great numbers, concentrated in one spot, will shed toxic waste 

residue from the manufacturing process with initial rainfall and continue to do so 

via deterioration over the life of the panels. (This is particularly true of Chinese 

panels that are constructed of cadmium telluride.) This toxic waste, mixed with rain 

groundwater, will run onto Plaintiff’s Hicks land which is less than 100 feet down 

stream of the proposed installations. The toxic waste will also pollute the water 

table and all surrounding lakes, rivers and streams. 

Denuding the ground beneath the panels will require toxic herbicides and increase 

erosion on Plaintiff’s land. Solar farms create islands of increased heat. The 

construction period will be prolonged and consists largely of the continual driving 

of piles which creates noise pollution and will destroy Plaintiff Hicks’ ability to 

enjoy the Daphne Prairie Preserve.

Upon completion, the panels and inverters will create a continuous humming sound 

which will have the same deleterious effect. All of this noise pollution is 

detrimental to surrounding wild life. The uninsulated transmission lines will emit 

an annoying hum and are dangerous to both human and animal life.

* * *

Further, it will create a “temperature island” raising the ambient temperature in the 

vicinity by approximately five to ten degrees. 

All of the above have already and will continue to adversely impact the value of 

the land, both as a natural preservation of vintage Texas and as an asset.

SAC (Dkt. No. 53), ¶¶ 13-15, 23-24 (internal numbering omitted); see also id., ¶¶ 61-62 (alleging 

the damage is “IMMINENT” and not merely “probable” and further alleging Defendants’ actions 

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have caused, “in the form of measurable diminution in property value and mental anguish,” and 

“if allowed to continue, will progressively cause irreparable injury to Plaintiffs Hicks’ and Boren’s 

[unique] real estate for which there is no adequate remedy at law”). Unlike in their first amended 

complaint, Plaintiffs sufficiently allege in their SAC that the anticipated threatened injury is 

imminent. 

Relying on Bruington v. Chesmar Homes, L.L.C., No. 08-23-00015-CV, 2023 WL 6972987 

(Tex. App. – El Paso Oct. 20, 2023, no pet.), Defendants argue Plaintiffs’ allegations are merely 

speculative and based on fear and apprehension of injury, which the court in Bruington held was 

insufficient to support a claim for injunctive relief. Dkt. No. 54 at 23. However, in Bruington, the 

issue was decided after the trial court held an evidentiary hearing on the Bruingtons’ request for a 

temporary injunction. Id. at *2, *4. On appeal, the court held the Bruingtons’ evidence “only 

established their fear or apprehension of future and speculative damage due to Chesmar Homes’ 

activities, which is insufficient to support their claim for injunctive relief.” Id. at *11. Therefore, 

the court agreed with the trial court that the Bruingtons “failed to establish their claim for injunctive 

relief was ripe of review.” Id. Here, while the allegations in the SAC may be excessive or 

eventually shown to be unfounded, in the current posture, accepted as true, they are not speculative, 

purely conjectural, or based merely on fear or apprehension of the possibility of injury.

A finding of imminent harm can follow from a variety of circumstances, including actual 

injury, a pattern of actions, a threat to undertake harmful action, and other non-speculative bases 

to conclude that harm is impending. Huynh, 694 S.W.3d at 679 (citing Vaughn v. Drennon, 202 

S.W.3d 308, 313 (Tex. App.—Tyler 2006, pet. denied) (explaining that finding of imminent harm 

can be based on “actual injury, the threat of imminent harm, or another’s demonstrable intent to 

do that for which injunctive relief is sought”); also citing Bankler v. Vale, 75 S.W.3d 29, 39 (Tex. 

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App.—San Antonio 2001, no pet.) (“Demonstrable intent to breach a restrictive covenant will 

support an injunction. . . .”)). Thus, “showing that the defendant will engage in the activity sought 

to be enjoined” is sufficient to establish imminent harm for purposes of injunctive relief. Id. (citing

Schmidt v. Richardson, 420 S.W.3d 442, 447 (Tex. App.—Dallas 2014, no pet.) (citing State v. 

Morales, 869 S.W.2d 941, 946 (Tex. 1994))).

The allegations show Defendants’ “demonstrable intent to do that for which injunctive 

relief is sought.” Vaughn, 202 S.W.3d at 313; see also Schmidt, 420 S.W.3d at 447 (“Imminent 

harm is established by showing that the defendant will engage in the activity sought to be 

enjoined.”). Plaintiffs allege Defendants have announced their intent to install the solar farms and 

BESS and have obtained leases for solar placement, “all as a forewarning of the coming placement 

of panels, inverters, and transmission towers to carry the electricity generated by the panels.” SAC 

(Dkt. No. 53), ¶¶ 11, 12. Plaintiffs allege bulldozing and clearing to accommodate placement of 

the Saddle House solar panels and right-of-way have already commenced. Id., ¶¶ 11, 14. The 

allegations, taken as true on a motion to dismiss, provide specific details concerning the imminence 

of the alleged harm. 

In the context of a Rule 12(b)(6) motion to dismiss, the Court finds the allegations in the 

SAC in support of Plaintiffs’ request for injunctive relief to redress a prospective nuisance are 

sufficient to plausibly show an injury that is imminent and that will necessarily be sustained by the 

threatened actions of Defendants. The Court recommends this part of Defendants’ motion be 

denied.

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D. Plaintiffs’ Texas Water Code § 11.086 claim

1. Defendants’ assertions

Defendants next assert Plaintiffs do not allege “present significant damage” to their 

property, and thus Plaintiffs do not state a legally cognizable claim under Texas Water Code §

11.086(a). Dkt. No. 54 at 26. Defendants argue successful claims under § 11.086 “are those with 

allegations of (and ultimately evidence of) significant action done by the higher ground holder 

which causes damage [to] the lower ground holder.” Id. at 25 (citing cases). According to 

Defendants, Plaintiffs do not “articulate significant actions or damages as seen in the relevant 

cases.” Id. at 26.

2. Applicable law

Texas Water Code § 11.086 states, “No person may divert or impound the natural flow of 

surface waters in this state, or permit a diversion or impounding by him to continue, in a manner 

that damages the property of another by the overflow of the water diverted or impounded.” Good 

River Farms, L.P. v. TXI Operations, L.P., 100 F.4th 545, 551 (5th Cir. 2024) (quoting TEX. WATER 

CODE ANN. § 11.086(a)). Texas courts have long held that adjoining landowners have a legally 

enforceable obligation to not wrongfully burden adjoining properties with stormwater runoff in 

greatly increased, concentrated, or unnatural quantities. Tri-Con, Inc. v. Union Pac. R.R. Co., No. 

1:20-CV-535-MAC-CLS, 2023 WL 5831504, at *9 (E.D. Tex. Aug. 4, 2023), report and 

recommendation adopted, 2023 WL 5746920 (E.D. Tex. Sept. 6, 2023) (citing, among other cases,

Bunch v. Thomas, 49 S.W.2d 421, 423 (Tex. 1932) (“[I]t it is the generally recognized rule both of 

the civil and the common law that a landowner cannot collect surface water into an artificial 

channel or volume, or precipitate it in greatly increased or unnatural quantities upon his neighbor, 

to the substantial injury of the latter.”); Langford v. Kraft, 498 S.W.2d 42, 46–47 (Tex. App.—

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Beaumont 1973, writ ref’d n.r.e.) (holding that developers that increased both the quantity and the 

velocity of the runoff water and caused it to pass off onto adjoining land in increased quantities 

violated governing statute and common law); Vien v. Del Buono, No. 10-09-00318-CV, 2010 WL 

5117248, at *3-4 (Tex. App.—Waco Dec. 15, 2010, pet. denied) (“[S]urface waters are waters from 

precipitation which migrate across land until they evaporate, are absorbed, or reach a water course. 

. . . Under the common law, adjoining landowners have interrelated rights and duties with regard 

to surface water.”)).

3. Analysis

Liberally construing the SAC, Plaintiffs have alleged Defendants’ actions in bulldozing 

and clearing the land have increased the flow of surface water from Defendants’ higher ground to 

Plaintiff Hicks’ lower property. SAC (Dkt. No. 53), ¶¶ 11 (“Bulldozing and clearing to 

accommodate placement of solar panels and right-of-way has already commenced.”), 13 (Hicks’

land is less than 100 feet down stream of the proposed installations), 14 & n.4 (alleging the ongoing 

construction consists of “continual driving of piles” and further alleging that leveling ground to 

install panels destroys topsoil), 37 (alleging current construction of transmission and internet 

communication line easements) see also id., ¶ 21 (alleging Saddle House’s installation disturbs the 

water flow from “a 495 foot elevation rushing to the 400 foot levels in the preserve”). As 

acknowledged by Defendants in their motion, Plaintiffs allege Defendants have cleared trees on a 

portion of Defendants’ property as part of constructing a transmission line easement and also that 

the ongoing construction has caused current erosion and flooding on the Daphne Prairie Preserve.

See SAC (Dkt. No. 53), ¶¶ 50-52, 57-58; see also Dkt. No. 54 at 25-26. However, Defendants 

assert Plaintiffs do not allege Defendants have “shifted the slope of their property, placed barriers 

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to divert the flow of surface water, or taken any action to impermissibly increase the flow of surface 

water onto Plaintiffs’ property to cause damage.”19 Dkt. No. 54 at 26. 

The alleged changes in Vaughn v. Drennon, 202 S.W.3d 308, 314 (Tex. App. – Tyler 2006, 

no pet.), a case relied upon by Defendants which was decided after the trial court held a trial, are 

similar to the allegations challenged by Defendants in their motion to dismiss. In Vaughn, the 

Drennons’ property shared a boundary with property at a higher elevation owned by the Vaughns. 

Id. at 312. When Millard Vaughn made some changes to the topography of his property near its 

boundary with the Drennon property (such as clearing and removing trees and all undergrowth 

from the property, bulldozing and tilling the soil, altering the natural slope of land, and constructing 

dams), water began draining from the Vaughn property onto the Drennon property. Id.; see also id. 

at 314. After finding water damage to their property, the Drennons sued the Vaughns alleging 

nuisance and seeking a temporary injunction. Id. at 312. The trial court ordered the Vaughns to 

lower the elevation of their land along the east/west boundary shared with the Drennons by 

eighteen inches. Id. at 316. On appeal, the court held the trial court “did not err by ordering Millard 

Vaughn to alter the slope of his property” but reversed and remanded for clarification because the 

order did “not clearly describe the corrective measures Millard Vaughn [was] required to 

implement.”20 Id. at 324. 

19 According to Plaintiffs’ response, “Defendants have virtually admitted the causal factor – that they have done 

preparatory work (the cutting of trees) which caused the intrusion of water.” Dkt. No. 58 at 12.

20 Similarly, in Fairfield Ests. L.P. v. Griffin, 986 S.W.2d 719 (Tex. App. – Eastland 1999, no pet.), after the Fairfield 

defendants began construction on their tract, there was a noticeable increase in the water flow onto and across the 

plaintiffs’ tracts. Id. at 721. The plaintiffs then brought suit to recover damages and to secure an injunction to prevent 

the diversion of surface water onto their property. Following a trial by jury, the trial court rendered judgment that the 

plaintiffs recover monetary damages and that the defendants be permanently enjoined from “any alteration of the 

terrain” on the defendants’ property. Id. at 720. On appeal, the court held there was sufficient evidence in the record 

that the defendants’ construction caused the amount of surface water flowing over plaintiffs’ property to increase and 

that the excess water caused erosion to the plaintiffs’ property. Id. at 722-23. The court affirmed the trial court’s 

judgment as to actual damages but reversed and remanded the injunction portion of the judgment because the 

injunction was overly-broad. Id. at 723-24.

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Defendants assert Plaintiffs “do not clearly portray what or how much damage has 

occurred” to the Daphne Prairie Preserve through the alleged floodings and erosion. Dkt. No. 54 

at 25. However, as clarified in their response, Plaintiffs are seeking injunctive relief for the alleged 

Texas Water Code violations. Dkt. No. 58 at 12 (asserting in response to Defendants’ motion that 

violations of the Texas Water Code (and trespass) are remedied by injunctive relief and that these 

“two causes of action, alone, support retention of this lawsuit”); see also SAC (Dkt. No. 53), ¶¶ 

90 (alleging the “lack of sunlight caused by the solar panels will denude the plant life on the 

Andrews property which will cause an increased flow and velocity of rain water onto Plaintiffs’ 

property thereby causing an increased amount of erosion,” and further alleging the “chemicals 

associated with the solar farm and BESS will cause this rainwater to be permeated with chemicals 

that are antithetical to the existing plant and animal life on Plaintiffs’ property”), 91 (“Each and 

every intrusion of surface water caused by the acts of Defendants constitutes a violation of the 

Texas Water Code which will cause injury to Plaintiffs’ property unless enjoined for which there 

is no adequate remedy at law.”).

An injunction is an equitable remedy that is available for a violation of statutory water 

rights under § 11.086 of the Texas Water Code. Damron v. Till, No. 11-01-00355-CV, 2002 WL 

32344943, at *1 (Tex. App. – Eastland Oct. 3, 2002, no pet.) (citations omitted). Section 11.086 

does not require that the injury be “serious” in order for an injunction to be appropriate. Id. at *2. 

It is not necessary for a plaintiff to plead or prove that the damages resulting from an unlawful 

diversion are “‘beyond the possibility of repair by monetary compensation in order to authorize 

the court to grant equitable relief.’” Muniz v. Dugi, No. 04-20-00528-CV, 2022 WL 1479052, at 

*6 (Tex. App. – San Antonio May 11, 2022, no pet.) (citation omitted). 

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In Muniz, the Dugis alleged the Munizes’ construction on neighboring property caused 

flooding on the Dugis’ property. Muniz, 2022 WL 1479052, at *1. The Dugis sued, asserting a 

water diversion action against the Munizes. Id. at *2. After the case was tried to the bench, the trial 

court granted the Dugis, among other things, injunctive relief on the water diversion action. Id. at 

*2. On appeal, the Munizes argued “there was no evidence presented that they diverted the natural 

flow of surface water, much less that they did so in a manner that damaged the Dugis’ property.” 

Id. at *6 (“They maintain that the surface water flowing from their property to the Dugis’ property 

does so naturally because their property sits at a higher elevation and that the torrential rain events 

in 2018 caused the damages in this case.”).

The appellate court held the evidence was legally and factually sufficient to support the 

trial court’s findings that the Munizes’ construction altered the grade of their lot; the altered grade 

caused a diversion of water into the Dugis’ lot; but for the altered grade caused by the construction, 

the surface water would not have been diverted to the Dugis’ lot; and the diversion caused the 

Dugis’ damages. Id. at *7 (citing TEXAS WATER CODE ANN. § 11.086; also citing Marin Real Estate 

Partners, L.P. v. Vogt, 373 S.W.3d 57, 84 (Tex. App.—San Antonio 2011, no pet.) (“We hold this 

case involved a classic example of surface water—water diffused over the ground from falling 

rain—diverted by a change in elevation because of the construction of the development.”)).

The appellate court in Muniz noted a “lower estate must receive the surface waters 

naturally flowing thereon from a higher estate” but the lower estate “is not required to receive 

these waters except in their natural condition, untouched by the hands of man.” Id. (quoting Bunch 

v. Thomas, 49 S.W.2d 421, 423 (Tex. 1932)). The Muniz court held the trial court correctly 

determined that the Munizes had a responsibility to stop the flow of surface water over and above 

the natural flow—the unlawful diversion—caused by the construction on their higher estate to the 

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Dugis’ lower estate. Id. (citing Boatman v. Lites, 888 S.W.2d 90, 93 (Tex. App. – Tyler 1994, no 

writ) (temporary injunctive relief appropriate when evidence showed damage from diversion 

occurs with every heavy rain)).

Here, viewing all of the allegations in the light most favorable to Plaintiffs, the SAC 

sufficiently alleges that after Defendants began construction at a higher elevation near the

boundary with the Daphne Prairie Preserve, which included clearing and removing trees and 

bulldozing the soil, water began draining onto Hicks’ lower estate. The SAC plausibly alleges a 

viable claim under the Texas Water Code. Therefore, the Court recommends this part of 

Defendants’ motion be denied. 

E. Plaintiffs’ trespass claim

1. Defendants’ assertions

Finally, Defendants argue “Plaintiffs’ trespass claim fails to sufficiently allege facts to 

support the element of an unauthorized entry and intent by the Defendants to commit an act which 

violates a property right.” Dkt. No. 54 at 27. Plaintiffs allege the following constitute trespass: (1) 

Defendants engaged Spectrum to enter Hicks’ land to run internet cable, and any invasion by 

Spectrum for the installation of internet cable is a trespass (SAC (Dkt. No. 53), ¶¶ 57, 94); (2) Any 

incursion of Hicks’ land to maintain the internet cable to service Defendants’ solar farms, BESS, 

and offices is a trespass (id., ¶ 95); (3) Any encroachment of diverted water onto Hicks’ land 

constitutes a trespass (id., ¶¶ 52-53, 93, 96); (4) Erosion of Hicks’ land caused by water incursion 

is a trespass (id., ¶¶ 52-53, 97); (5) Each tree trunk, branch or limb which washes up on Hicks’ 

land constitutes a trespass (id., ¶¶ 54, 98); and (6) Each intrusion of feral hogs from the bottoms 

of these creeks onto Hicks’ land constitutes a trespass (id., ¶¶ 55, 99).

In their motion, Defendants assert as follows:

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Plaintiffs’ do not clearly assert that Defendants intended to divert water outside of 

its natural course or engage in any conduct that would rise to the level of trespass. 

And, as previously stated, Defendants are not liable for the actions of feral hogs, 

especially when these hogs are not the legal property of the Defendants. Therefore, 

the only remaining allegations for Plaintiffs to stand on are (1) [invasion by 

Spectrum for the installation of an internet cable to service Defendants’ project]

and (2) [any incursion to maintain the internet cable]. Allegation (2) is a statement 

of future action for which trespass has not occurred. Allegation (1) presents a 

different issue regarding consent. Plaintiffs’ pleading is unclear on whether 

“Plaintiff Hicks” gave consent for Spectrum to enter his property. No conclusive 

statement is given regarding Plaintiff Hicks’ consent. Instead, Plaintiff alleges that 

“Defendants engaged Spectrum to enter upon Plaintiff Hicks’ land and used an 

existing waterline easement to run internet cable, not for the service of the residents 

of Franklin County as Plaintiffs were first lead to believe, but rather to service the 

solar farm offices and BESS.” This statement only opines as to the reason for the 

internet cable. It does not assert that consent was not given before the internet cable 

was run. Finally, any concern regarding access to establish internet falls to 

Spectrum, the party which is accused of trespass. Plaintiffs do not support, and 

Defendants do not contend, that Spectrum is their agent, nor is Spectrum a party to 

the suit at hand. 

Without alleging that Plaintiffs did not give consent to access their land or that 

[Defendants] intended to commit an act that would violate a property right there is 

nothing for a trespass claim to stand on. Accordingly, this claim should be 

dismissed.

Dkt. No. 54 at 27-28 (internal footnote omitted).

2. Applicable law

“Trespass to real property is an unauthorized entry upon the land of another, and may occur 

when one enters—or causes something to enter—another’s property.”21 MQ Prosper N., L.L.C. v. 

Coulter, No. 05-20-00800-CV, 2022 WL 17580198, at *8 (Tex. App. – Dallas Dec. 12, 2022, pet. 

denied), review denied (June 23, 2023) (quoting Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 

2011) (per curiam)). Any person who assists, advises, or encourages the commission of the trespass 

is liable as a trespasser. Lisle v. DO-MO Joint Venture, No. 05-22-00236-CV, 2023 WL 6226160, 

21 In some instances, an action can be both a trespass and a nuisance. Rankin v. FPL Energy, L.L.C., 266 S.W.3d 506, 

509 (Tex. App. – Eastland 2008, pet. denied) (citing Allen v. Virginia Hill Water Supply Corp., 609 S.W.2d 633, 636 

(Tex.Civ.App.–Tyler 1980, no writ) (continuing encroachment upon the land of an adjoining owner by either erecting 

or maintaining a building without any right to do so is a trespass and a private nuisance)).

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at *6 (Tex. App. – Dallas Sept. 26, 2023, pet. filed), review denied (June 21, 2024). “[E]very 

unauthorized entry upon land of another is a trespass even if no damage is done or injury is slight.”

Id. at *5 (quoting Lightning Oil Co. v. Anadarko E&P Onshore, L.L.C., 520 S.W.3d 39, 46 (Tex. 

2017)). To recover damages for such a trespass, a claimant must prove (1) she owns or has a lawful 

right to possess real property, (2) the trespasser entered the claimant’s land and the entry was 

physical, intentional, and voluntary, and (3) the trespass caused injury to the claimant. MQ 

Prosper, 2022 WL 17580198, at *8 (citing Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. 

App.—Fort Worth 2006, pet. denied)).

3. Analysis

Like Defendants, the Court focuses on Plaintiffs’ allegation that Defendants engaged 

Spectrum to enter Hicks’ land to run internet cable to service the solar farm offices and BESS and 

that such “invasion by Spectrum for the installation of internet cable is a trespass.” SAC (Dkt. No. 

53), ¶¶ 57, 94. Defendants assert three reasons why Plaintiffs’ claim for trespass fails: (1) Plaintiffs 

do not “support,” and Defendants do not contend, that nonparty Spectrum is Defendants’ agent; 

(2) Plaintiffs have failed to allege that Hicks did not give consent for Spectrum to access the 

Daphne Prairie Preserve; and (3) Plaintiffs have failed to allege Defendants intended to commit an 

act that would violate a property right. Dkt. No. 54 at 28.

Liberally construing all of the allegations in the SAC and viewing them in the light most 

favorable to Plaintiffs, Plaintiffs have plausibly pleaded that Defendants caused and assisted

Spectrum’s entry onto Hicks’ land. “Intent can be shown by proof that, while the actor did not 

know his conduct would result in trespass, his actions were practically certain to have that effect.”

Kozak v. LeFevre Dev., Inc., No. 09-18-00369-CV, 2019 WL 2220305, at *7 (Tex. App. –

Beaumont May 23, 2019, no pet.) (citation omitted).

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Plaintiffs allege Defendants, after announcing the projects in question, filed the option on 

Andrews’ land and recorded and constructed “transmission and internet line easements to serve 

the planned BESS for both Stockyard and Saddle House projects.” SAC (Dkt. No. 53), ¶ 37. 

According to Plaintiffs, Defendants engaged Spectrum to enter upon Hicks’ land to service the 

solar farm offices and BESS. Id., ¶ 57. Plaintiffs allege that “Defendants have allowed Spectrum 

access to a large parking lot leased by Defendants. . . to access Plaintiff Hicks’ land.” Id., ¶ 54; see 

Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011) (defining trespass to real property as 

“unauthorized entry upon the land of another” including “when one enters—or causes something 

to enter—another’s property”).

A plaintiff asserting a trespass cause of action has the burden of proving it did not consent 

to defendant’s entry onto the land. Dean v. Mitchell, No. 09-21-00267-CV, 2023 WL 6317683, at 

*9 (Tex. App. – Beaumont Sept. 28, 2023, no pet.). One form of legal consent to enter property is 

an express easement. Wiley v. Wabtec Manufacturing Solutions, L.L.C., No. 4:20-CV-345-SDJ, 

2021 WL 4399532, at *4 (E.D. Tex. Sept. 27, 2021) (citing Marcus Cable Assocs., L.P. v. Krohn, 

90 S.W.3d 697, 700 (Tex. 2002)). If the beneficiary of an easement enters or uses land in a way 

that exceeds the rights expressly conveyed in the easement, a trespass has occurred. Id.

While a landowner may choose to relinquish a portion of their rights by granting an 

easement, “[u]nlike a possessory interest in land, an easement is a nonpossessory interest that 

authorizes its holder to use the property for only particular purposes.” Samaratunga Fam. Tr. v. 

Am. Tower, Inc., No. A-17-CV-097 LY, 2017 WL 2274491, at *2 (W.D. Tex. May 24, 2017), 

report and recommendation adopted sub nom., 2017 WL 10841490 (W.D. Tex. July 25, 2017) 

(quoting Marcus Cable, 90 S.W.3d at 700). Therefore, “if a particular purpose is not provided for 

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in the grant, a use pursuing that purpose is not allowed.”22 Id. (quoting Marcus Cable, 90 S.W.3d 

at 701). While the common law recognizes that certain easements may be assigned or apportioned 

to a third party, the third party’s use cannot exceed the rights expressly conveyed to the original 

easement holder. Id. (citation omitted). The Texas Supreme Court has recognized that while “the 

manner, frequency, and intensity of an easement’s use may change over time to accommodate 

technological development. . . such changes must fall within the purposes for which the easement 

was created,” because “an express easement encompasses only those technological developments 

that further the particular purpose for which the easement was granted.” Id. at *3 (quoting Marcus 

Cable, 90 S.W.3d at 701-02).

Viewing the allegations in the light most favorable to Plaintiffs, there are sufficient 

allegations to plausibly show that Defendants acted without Hicks’ authorization. Plaintiffs allege 

the Daphne Prairie Preserve has “enjoyed protected status for over 25 years” and Hicks “gifted a 

conservation easement on the land restricting development.” SAC (Dkt. No. 53), ¶ 16. According 

to Plaintiffs, Defendants engaged Spectrum to enter upon Hicks’ land and used an existing 

waterline easement to run internet cable, “not for the service of the residents of Franklin County 

as Plaintiff’s were first lead to believe, but rather to service the solar farm offices and BESS.” Id., 

¶ 57. See CenterPoint Energy Houston Elec. L.L.C. v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 

387 (Tex. App.—Houston 2008, pet. denied) (“An easement holder who exceeds the rights granted 

22 The easement at issue in Marcus Cable allowed an electric utility permission to construct and maintain “an electric 

transmission or distribution line or system” over private property. Samaratunga Fam. Tr. v. Am. Tower, Inc., No. A17-CV-097 LY, 2017 WL 2274491, at *3 (W.D. Tex. May 24, 2017), report and recommendation adopted sub nom., 

2017 WL 10841490 (W.D. Tex. July 25, 2017). Marcus Cable then contracted with the utility to attach its cable lines 

to the utility’s poles. Id. (emphasis added). The property owners sued, claiming that the cable company’s use exceeded 

the scope of the easement and that they had not consented to the placement of the cable lines across their property. Id.

The court found that the easement allowed the utility to run lines for “electric transmission” and “electric distribution,” 

and those terms are commonly and ordinarily associated with power companies conveying electricity to the public, 

which did not include running wire for cable television transmission. Id. (citing Marcus Cable Assocs., L.P. v. Krohn, 

90 S.W.3d 697, 706 (Tex. 2002)).

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by the owner of the servient estate. . . commits a trespass.”). The plain implication is that Plaintiffs 

did not consent to Spectrum entering Hicks’ land to serve the solar farm.

Defendants’ arguments raise a fact question not suitable for disposition under Rule 

12(b)(6). See Wiley, 2021 WL 4399532, at *5. The SAC sufficiently states a claim for trespass, 

and the undersigned recommends that Defendants’ motion to dismiss on that ground be denied. 

VI. RECOMMENDATION

For the above reasons, it is

RECOMMENDED that Stockyard Solar Project, LLC and Saddle House Solar Project, 

LLC’s Motion to Dismiss Second Amended Complaint for Failure to State a Claim (Dkt. No. 54)

be GRANTED IN PART AND DENIED IN PART. Specifically, it is recommended that 

Defendants’ motion be granted as to Plaintiffs’ strict liability nuisance claim but denied as to 

Plaintiffs’ claims for negligent nuisance, intentional nuisance, injunctive relief to prevent a 

prospective nuisance, Texas Water Code violations, and trespass. It is further

RECOMMENDED that Plaintiffs’ strict liability nuisance claim be dismissed with 

prejudice.

Objections

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or refers to the briefing 

before the magistrate judge is not specific.

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Failure to file specific, written objections will bar the party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

.

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 21st day of November, 2024.

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