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Click here for the full text of this decision FACTS:This is one of several multi-party suits by residents living near the Houston Ship Channel complaining of conditions created by industrial plants nearby. Because the residents’ own complaints show the conditions have existed for many years, the trial court granted summary judgment based on limitations. The court of appeals reversed, finding a fact question on whether the nuisances alleged were temporary or permanent. HOLDING:Reversed and rendered. The traditional Texas distinction between temporary and permanent nuisances should be applied using the same standard of reference that applies to the consequences flowing from it. Thus, if a nuisance occurs several times in the years leading up to a trial and is likely to continue, jurors will generally have enough evidence of frequency and duration to reasonably evaluate its impact on neighboring property values. In such cases, the nuisance should be treated as permanent, even if the exact dates, frequency or extent of future damage remain unknown. Conversely, a nuisance as to which any future impact remains speculative at the time of trial must be deemed “temporary.” The court recognizes this line will not always be bright. The court holds that a nuisance should be deemed temporary only if it is so irregular or intermittent over the period leading up to filing and trial that future injury cannot be estimated with reasonable certainty. Conversely, a nuisance should be deemed permanent if it is sufficiently constant or regular (no matter how long between occurrences) that future impact can be reasonably evaluated. Jurors should be asked to settle the question only to the extent there is a dispute regarding what interference has occurred or whether it is likely to continue. The court disapproves of those cases suggesting the contrary to the extent they are inconsistent with this opinion. The court also disapproves of statements in a few cases that suggest nuisance claimants may elect whether to assert a temporary and permanent nuisance. A permanent nuisance may be established by showing that either the plaintiff’s injuries or the defendant’s operations are permanent. The presumption of a connection between the two can be rebutted by evidence that a defendant’s noxious operations cause injury only under circumstances so rare that, even when they occur, it remains uncertain whether or to what degree they may ever occur again. The court holds that the characterization of a nuisance as temporary or permanent should not depend on whether it can be abated. In this case, the affidavits of the residents themselves establish that the conditions alleged here have been regular and continuous (though perhaps not daily) for many years beyond the two-year period preceding suit. The court holds as a matter of law that their complaints are barred. OPINION:Brister, J., delivered the opinion of the court.

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