Barrera v. Hondo Creek Cattle Co.

Appellants argue that beginning a cattle confinement operation would have been a substantial change. The focus of the argument supporting this point should be on whether any substantial changes have occurred in the conditions allegedly creating the nuisance (i.e., the flies, dust, and smell).

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Click here for the full text of this decision FACTS:Approximately 60 people who live near the Hondo Creek Cattle Co. filed suit against the feed lot, allegedly the flies, dust and smell created a nuisance on their property. The plaintiffs filed suit Oct. 22, 1997. A smaller group of plaintiffs went to a bench trial as a test suit, where the trial court agreed with HCCC that the one-year statute of repose applied. Agriculture Code �251.004(a-b) states that a nuisance action cannot be brought against an agricultural operation that has lawfully been in operation for one year or more prior to the date the action is brought, “if the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation.” The statute allows that someone who brings a suit dismissed for untimeliness will bear the costs. In its findings of fact, the trial court found the feed lot had been lawfully operated for more than a year before the plaintiffs’ case was filed. On appeal, the plaintiffs argue that the feed lot was not operating lawfully. They point out that the lot’s former owners shut the lot down for several months before HCCC bought it. While in inactive mode, the old Natural Resources Conservation Commission found that no confined cattle were being raised when HCCC purchased the lot. HOLDING:Affirmed. The court rejects several of the plaintiffs’ arguments as either being waived or for not being fully briefed and developed. As for the lawfulness of HCCC’s operation, the court chastises the plaintiffs for confusing what they consider a substantial change in operations of the feed lot with a substantial change in the conditions of the feed lot. The court says it realizes that a change in operation could have an effect on the conditions, but that the plaintiffs have not demonstrated that relationship in its brief. The court rules the statute of repose is not an unconstitutional taking of property. A taking requires an intentional government action, and none has been alleged here. OPINION:Yanez, J.; Hinojosa, Ya�ez and Castillo, JJ.

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