Environmental Processing Systems, L.C. v. Fpl Farming Ltd., 457 S.W.3d 414

Background

FPL Farming owns surface and non-mineral subsurface rights to farmland adjacent to an EPS wastewater injection facility; EPS injected wastewater into the Frio formation ~8,000 feet deep under state permits.
A predecessor (Frost) previously settled with EPS in 1996 over the initial permit; that settlement was later excluded at trial.
FPL Farming challenged EPS’s 1999 permit amendments; administrative law judge and courts concluded FPL Farming lacked the right to exclude EPS from deep subsurface because its ability to obtain its own injection permit would not be impaired.
FPL Farming later sued EPS alleging deep subsurface wastewater migrated under its land, asserting trespass, negligence, unjust enrichment, and seeking injunctive relief and damages.
At trial the jury was instructed that trespass means entry on another’s property without consent (consent thus framed as part of the plaintiff’s burden); the jury answered “No” to trespass and the trial court entered a take-nothing judgment for EPS.
The court of appeals reversed on multiple grounds (including treating consent as an affirmative defense and admitting the 1996 settlement), but the Texas Supreme Court reversed the court of appeals, holding lack of consent is an element of trespass the plaintiff must prove and that the directed-verdict and exclusion rulings were harmless in light of the jury verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lack of consent is an element of trespass or an affirmative defense	Lack of consent is an affirmative defense; Restatement (Second) of Torts §167 places burden on party asserting consent	Trespass historically defined as "entry without consent"; consent is part of prima facie trespass elements so plaintiff must prove lack of consent	Held: Lack of consent/authorization is an element of trespass that the plaintiff must prove
Whether directed verdict should have been granted because EPS failed to prove consent	FPL Farming argued EPS bore the burden to prove consent and offered no evidence, so directed verdict should be entered	EPS argued consent was not its burden; plaintiff failed to prove lack of consent as required	Held: Directed verdict properly denied because FPL Farming did not conclusively prove lack of consent as a matter of law; EPS was not required to prove consent
Admissibility and effect of the 1996 settlement between Frost and EPS	Settlement should have been admitted and would show consent or waiver binding successors	Trial court excluded the settlement; EPS argued exclusion harmless because jury found for EPS	Held: Court need not decide admissibility because exclusion was harmless given jury verdict for EPS
Whether deep subsurface wastewater migration is actionable as common-law trespass	FPL Farming urged recognition of subsurface trespass claim	EPS argued the court need not and should not recognize such a claim; asserted permits do not bar tort liability but other issues exist	Held: Court declined to decide whether deep subsurface migration is actionable because any error in submitting that question was harmless (jury found no trespass)

Key Cases Cited

Houston & Great Northern Railroad Co. v. Meador, 50 Tex. 77 (1878) (approved jury instruction defining trespass as entry without landowner's consent)
Pilcher v. Kirk, 55 Tex. 208 (1881) (defined trespasser as one entering without the consent of true owner)
Loftus v. Maxey, 11 S.W. 272 (Tex. 1889) (approved instruction requiring plaintiff to prove entry without consent)
Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819 (Tex. 1997) (quoting rule that every unauthorized entry is a trespass)
State v. Shumake, 199 S.W.3d 279 (Tex. 2006) (describing common-law trespass as entry without legal right or invitation)
Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008) (reiterating that every unauthorized entry is a trespass)
Barnes v. Mathis, 353 S.W.3d 760 (Tex. 2011) (defining trespass to include causing something to enter another's property)