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Click here for the full text of this decision FACTS:The Krohns purchased land in 1984. At that time, Hill County Electric Cooperative Inc. maintained power lines on utility poles which crossed the Krohns’ property pursuant to an easement which had been granted by the Krohns’ predecessors in interest. Under an agreement with the Cooperative, Marcus Cable Associates, LP and Charter Communications Inc. (collectively, Marcus) installed a cable television line on these utility poles in 1985 or 1986. The Krohns noticed the cable line at or near the time it was installed but consciously chose to take no action at that time. The Krohns decided to build a new home on the property in 1997. However, some of the trucks used by the builders and by vendors delivering materials to the property were unable to enter the property because of the height of the telephone and cable television lines attached to the Cooperative’s utility poles. The telephone company removed its line from the poles. When Marcus refused to remove the line, the Krohns filed suit, alleging that Marcus had no easement to run its cable television line across the Krohns’ property. The Krohns sought damages and an injunction. The trial court granted Marcus’ summary judgment motion and rendered a take-nothing judgment. HOLDING:Affirmed. The Krohns did not plead the discovery rule in their original petition or in any amended or supplemental petition. Marcus expressly objected to the Krohns’ assertion of the discovery rule in their summary judgment response. Therefore, the discovery rule was not tried by consent in the summary judgment hearing. Because the Krohns did not plead the discovery rule in their petition, they have waived it. A cause of action for a continuing tort does not accrue until the defendant’s tortious conduct ceases. In determining whether there is a continuing tort, the court distinguishes between 1. repeated injury proximately caused by repetitive wrongful or tortious acts and 2. continuing injury arising from one wrongful act. The Krohns allege one wrongful act � the placement of the cable line across their property � which has been a source of continuing injury. The court holds as a matter of law that Marcus’ trespass was not a continuing tort. It has been held that the continuing tort doctrine does not apply in the case of a permanent injury to real property. “This conclusion is probably nothing more than a recognition that a permanent injury to land will generally arise from a single tortious act which causes continuing injury to the landowner. Such a permanent injury, by definition, would not constitute a continuing tort.” In Schneider Nat’l Carriers Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004), the Texas Supreme Court held: “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.” The presence of Marcus’ cable line on the Krohns’ property for more than a decade clearly constituted a permanent trespass as of the time the Krohns filed suit. Therefore, because Marcus committed a permanent trespass, the continuing tort doctrine does not apply. Because Marcus conclusively established that the cable line has been removed from the 11.764-acre tract, the Krohns’ claim for injunctive relief is moot. OPINION:Reyna, J.; Walton, Reyna and Yelenosky, J.J.

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