                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-12-00575-CV

                                   Jesse B. SCOTT and Paula Scott,
                                              Appellants

                                                   v.

                                         Alexander R. BABB,
                                              Appellee

                      From the 216th Judicial District Court, Kerr County, Texas
                                      Trial Court No. 10-96-A
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: October 30, 2013

REVERSED AND RENDERED

           Appellants Jesse and Paula Scott appeal the trial court’s summary judgment ordering, inter

alia, removal of a fence erected in 2005. On appeal, the Scotts argue that Appellee Alexander R.

Babb’s suit was barred by limitations based on an almost five-year delay in filing. We reverse the

trial court’s judgment and render judgment in favor of the Scotts.

                                            BACKGROUND

           The facts in the case are not in dispute. The Scotts own fifteen acres of land bordered by

Bayless Road in Kerr County, Texas. Babb owns approximately 248 acres across the road and
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adjacent to the Scotts’ property. Both properties are subject to a sixty-foot easement which is

located entirely within the Hill Country Ranch Estates subdivision. Bayless Drive is a single-lane

dirt road, used regularly by only five residents. Babb uses Bayless Drive to reach his property

from a connecting county road.

       Over a five-week period in the summer of 2005, the Scotts erected a fence running along

the side of their property on Bayless Drive. Although Babb acknowledges he saw the construction,

specifically the installation of the posts, he never expressed any concerns to the Scotts concerning

the location of the fence. In fact, when asked whether he had any objection at the time the fence

was erected, Babb replied

       At the time I didn’t know what my rights were regarding, you know, whether—
       whether there would be any problems or what my rights were regarding having—
       you know, being able to have something moved. The thought never occurred to me
       at the time.

       In November of 2008, Babb first voiced his objections to the location of the Scotts’ fence

via a letter from his attorney. The letter claimed the Scotts’ fence encroached upon the sixty-foot-

wide easement dedicated in the 1970 plat for the Hill Country Ranch Estates subdivision. The

dedication bestows “to the public for public use forever all roads shown hereon.”

       On January 17, 2010, Babb filed suit seeking (1) damages for the loss of value in his

property due to the Scotts’ “unlawful taking” and (2) a mandatory injunction requiring the Scotts

to remove the fence. In their First Amended Original Answer, the Scotts alleged Babb’s claim

was barred by the applicable two-year statute of limitations for permanent injury to land.

       On competing motions for summary judgment, the trial court granted Babb’s motion for

summary judgment, ordered the Scotts to remove the fence, and denied the Scotts’ Motion to

Dismiss for Want of Jurisdiction. The Scotts filed this appeal.




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                                    STATUTE OF LIMITATIONS

       An action to prevent encroachment upon a private easement may be barred by limitations.

Eidelbach v. Davis, 99 S.W.2d 1067, 1073 (Tex. Civ. App.—Beaumont 1936, writ dism’d);

Auerbach v. Dall. Area Rapid Transit, No. 05-94-01207-CV, 1995 WL 447530, at *4 (Tex. App.—

Dallas July 26, 1995, writ denied). The defendant bears the burden to conclusively prove all

essential elements of an affirmative defense of statute of limitations. Diversicare Gen. Partner,

Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 220 (Tex. 2003). “Generally, when a cause of action accrues is a question of law.”

Provident, 128 S.W.3d at 221. A cause of action may accrue, and the statute begin to run, “when

a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all

resulting damages have yet to occur.” Id. (citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)).

A.     Arguments of Parties

       On appeal, the Scotts argue the trial court abused its discretion in three ways: (1) overruling

the limitations defense, (2) granting a mandatory injunction, and (3) granting impermissible relief.

       The Scotts argue an encroachment upon an easement for permanent injury to land is

governed by a two-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003

(West Supp. 2013) (requiring a person to “bring suit for trespass for injury to the estate or to the

property of another, conversion of personal property, taking or detaining the personal property of

another, personal injury, forcible entry and detainer, and forcible detainer not later than two years

after the day the cause of action accrues”); Yancy v. City of Tyler, 836 S.W.2d 337, 339 (Tex.

App.—Tyler 1992, writ denied) (op. on reh’g). On the other hand, Babb asserts this is an action

affecting real property and five and ten-year statutes of limitations apply.          See Keown v.

Meriwether, 371 S.W.2d 56, 57 (Tex. Civ. App.—Beaumont 1963, writ ref’d n.r.e.); see also



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Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990); Nevins v. Whitley, No. 13-04-486-CV, 2005

WL 2036213, at *9 (Tex. App.—Corpus Christi Aug. 25, 2005, no pet.) (mem. op.).

B.     Temporary versus Permanent Injury to Land

       The temporal bar on limitations is controlled by the type of injury. See generally TEX. CIV.

PRAC. & REM. CODE ANN. ch. 16 (West Supp. 2013). Neither party contests that the easement in

question is a private easement. Therefore, our inquiry is whether the encroachment (i.e., the fence)

is a permanent or temporary injury to the land. The Scotts contend it is a permanent injury.

       The permanent or temporary nature of an injury is determined by its continuum. Schneider

Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 272–73 (Tex. 2004); Auerbach, 1995 WL 447530,

at *3. Permanent injuries are those that are “constant and continuous,” not intermittent or

recurrent. Auerbach, 1995 WL 447530, at *3; cf. Bates, 147 S.W.3d at 272 (defining a permanent

nuisance as “an activity of such a character and existing under such circumstances that it will be

presumed to continue indefinitely”). Temporary injuries are those that are not continuous but are

sporadic, are not likely to continue, and are usually tied to a specific occasion. Auerbach, 1995

WL 447530, at *3; cf. Bates, 147 S.W.3d at 276–80.

       In Auerbach, the court held a billboard was a permanent injury because of the construction

involved, including the concrete footing and steel column. Auerbach, 1995 WL 447530, at *2–3.

Here, the fence took five weeks to complete and the testimony substantiated that moving the fence

off the easement would cost approximately $8,000.00. We therefore construe the fence as a

permanent injury to the land and the two year statute of limitations applies. See Yancy, 836 S.W.2d

at 339; cf. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 58 (describing a fence as a

permanent and valuable improvement on land).

       Based on the fence’s characterization as a permanent injury to the land, the completion

date of the fence’s construction is dispositive for purposes of limitations. See Auerbach, 1995 WL
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447530, at *3 (“Where a building or permanent structure is placed on a private easement, the

limitations period on an action to abate the obstruction begins to run with the completion of the

obstruction.”); Eidelbach, 99 S.W.2d at 1073. The fence was erected in the summer of 2005 and

Babb did not file suit until January 17, 2010. Thus, the limitations contained in section 16.003

barred Babb’s suit. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003; see also Provident, 128

S.W.3d at 221. Accordingly, the trial court erred in denying the Scotts’ Motion to Dismiss for

Want of Jurisdiction. Because we sustain the Scotts’ first issue, their second and third issues are

moot.

        We reverse the trial court’s judgment and render judgment that Babb take nothing in his

suit against the Scotts.


                                                 Patricia O. Alvarez, Justice




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