Environmental Processing Systems, L.C. v. Fpl Farming Ltd.

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 12-0905
444444444444

ENVIRONMENTAL PROCESSING SYSTEMS, L.C., PETITIONER,

v.

FPL FARMING LTD., RESPONDENT

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

Argued January 7, 2014

JUSTICE GREEN delivered the opinion of the Court.

In this case, a landowner sued its neighbor, the operator of an adjacent wastewater disposal

facility, on the theory that deep subsurface wastewater trespassed beneath the landowner’s property.

The jury returned a verdict in the wastewater disposal facility’s favor. After a series of appeals that

included an opinion and remand from this Court, the court of appeals reversed the jury’s verdict.

383 S.W.3d 274, 289 (Tex. App.—Beaumont 2012). Today we hold that the jury instruction

properly included lack of consent as an element of a trespass cause of action that a plaintiff must

prove, and that the trial court properly denied the plaintiff’s motion for directed verdict on the issue

of consent. We reverse the court of appeals’ judgment, reinstate the trial court’s judgment that the

landowner take nothing, and decline the invitation to address the remaining question presented in
this appeal—namely, whether deep subsurface wastewater migration is actionable as a common law

trespass in Texas.

I. Factual and Procedural Background

FPL Farming Ltd. owns land in Liberty County, Texas, which it uses primarily for rice

farming. It owns all of the surface and non-mineral subsurface rights to this land. Environmental

Processing Systems (EPS) leased a five-acre tract on an adjacent property, where it constructed and

operated a wastewater disposal facility. EPS began operating this facility under a 1996 permit from

the Texas Natural Resource Conservation Commission (TNRCC).1 During the initial permitting

process, FPL Farming’s predecessor-in-title, J.M. Frost III, requested a hearing to contest EPS’s

permit applications. Frost later reached a settlement with EPS, forgoing his contest in exchange for

$185,000. The parties reduced their agreement to a writing reflecting that the settlement was binding

on all successors-in-title. EPS then drilled a well and began injecting wastewater approximately

8,000 feet below ground into the Frio rock formation.

In 1999, EPS applied to the TNRCC/TCEQ to amend its permits to increase the volume of

wastewater it could inject into the Frio formation. FPL Farming, by then the surface owner of the

Frost property, requested a hearing to contest the permit amendments. The administrative law judge

acknowledged that wastewater would likely enter the subsurface of FPL Farming’s land in the future,

but found that FPL Farming did not have the right to exclude EPS from the deep subsurface because

1
EPS requested and received two permits to operate two Class I wastewater injection wells. It is undisputed,
however, that during the relevant time in this case EPS only drilled and injected wastewater through one well. Years after
it issued EPS’s permits, the TNRCC was renamed the Texas Commission on Environmental Quality (TCEQ). See Act
of May 28, 2001, 77th Leg., R.S., ch. 965, § 18.01, 2001 Tex. Gen. Laws 1933, 1985. W e refer to this entity as the
TNRCC/TCEQ for clarity purposes.

2
FPL Farming’s right to obtain its own injection well permit would not be impaired. The

TNRCC/TCEQ granted EPS’s permit amendments upon the recommendation of the administrative

law judge, and the district court affirmed. The court of appeals also affirmed, noting the possibility

that “should the waste plume migrate to the subsurface of FPL Farming’s property and cause harm,

FPL Farming may seek damages from EPS.” FPL Farming, Ltd. v. Tex. Natural Res. Conservation

Comm’n, No. 03-02-00477-CV, 2003 WL 247183, at *5 (Tex. App.—Austin Feb. 6, 2003, pet.

denied) (mem. op.) (citation omitted).

Less than three years after the court of appeals affirmed the permit amendments, FPL

Farming sued EPS and alleged that wastewater had migrated into the deep subsurface of its land,

possibly contaminating the briny groundwater beneath it. FPL Farming sued for injunctive relief and

damages for trespass, negligence, and unjust enrichment. At trial, the contested issues were whether

EPS’s injected wastewater had actually entered beneath FPL Farming’s land, whether FPL Farming

consented to the alleged entry (either by its own conduct or through Frost’s), and the amount of

damages, if any. The trial court excluded the settlement agreement between Frost and EPS. Before

the jury verdict, the trial court denied FPL Farming’s no-evidence motion for a directed verdict on

the issue of whether EPS provided evidence that FPL Farming or Frost had consented to the

subsurface entry. The jury charge included consent in the definition of trespass over FPL Farming’s

objection that consent should be treated as an affirmative defense:

Question 1: Did EPS trespass on FPL [Farming’s] property?

“Trespass” means an entry on the property of another without having consent
of the owner. To constitute a trespass, entry upon another’s property need not
be in person, but may be made by causing or permitting a thing to cross the

3
 boundary of the property below the surface of the earth. Every unauthorized
entry upon the property of another is a trespass, and the intent or motive
prompting the trespass is immaterial.

Answer yes or no.

(emphasis added). The jury answered “No.”

Following a jury verdict for EPS on all claims and issues, the trial court entered a take-

nothing judgment. The court of appeals affirmed, holding that FPL Farming could not recover in

tort, as a matter of law, because the TNRCC/TCEQ had authorized EPS’s underlying actions. FPL

Farming Ltd. v. Envtl. Processing Sys., L.C., 305 S.W.3d 739, 744–45 (Tex. App.—Beaumont

2009), rev’d, 351 S.W.3d 306 (Tex. 2011), remanded to 383 S.W.3d 274 (Tex. App.—Beaumont

2012, pet. granted). This Court reversed, holding that a government-issued permit does not shield

the permit holder from civil tort liability, but we reserved the question of whether “subsurface

wastewater migration can constitute a trespass, or whether it did so in this case.” FPL Farming Ltd.,

351 S.W.3d at 314–15. On remand, the court of appeals reversed the trial court’s take-nothing

judgment, holding that: (1) Texas recognizes a common law trespass cause of action for deep

subsurface water migration; (2) consent is an affirmative defense to trespass, on which EPS bore the

burden of proof, and therefore the jury charge was improper; (3) FPL Farming was not entitled to

a directed verdict because there was some evidence that it (or Frost) impliedly consented to the

subsurface entry; and (4) the trial court erroneously excluded the settlement agreement between EPS

and Frost from evidence. 383 S.W.3d at 282, 284–85, 288–89.

Both parties petitioned this Court for review. EPS challenges the court of appeals’ decision

recognizing a trespass cause of action under these circumstances and holding that consent is an

4
affirmative defense. FPL Farming challenges the court of appeals’ decision affirming the denial of

its motion for directed verdict and reversing the settlement agreement’s exclusion. We granted both

petitions for review. 57 TEX . SUP . CT . J. 53 (Nov. 22, 2013).

II. Consent in Trespass Causes of Action

We first consider whether lack of consent is an element of the trespass cause of action (on

which the plaintiff bears the burden) or whether consent is an affirmative defense (on which the

defendant bears the burden). If lack of consent is an element of a trespass cause of action as the jury

charge instructed here, then we need not address whether Texas law recognizes a trespass cause of

action for deep subsurface wastewater migration because the jury found in EPS’s favor on all of FPL

Farming’s claims and any error would be harmless. See TEX . R. APP . P. 61.1(a); see also Gilbert

Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., ___ S.W.3d ___, ___ (Tex. 2014) (declining to

address a question related to a trespass allegation because “even if the submission of the trespass

cause of action was error, it was harmless”).

We have not squarely addressed the question of which party bears the burden of proving

consent in a trespass action, nor have the courts of appeals answered it uniformly.2 We recently

observed that “we have rarely addressed trespass damages in detail,” Coinmach Corp. v. Aspenwood

2
Compare Stukes v. Bachmeyer, 249 S.W .3d 461, 465 n.1 (Tex. App.—Eastland 2007, no pet.) (referencing
consent as an affirmative defense without analyzing the question directly), Gen. Mills Rests., Inc. v. Tex. Wings, Inc.,
12 S.W .3d 827, 835 (Tex. App.— Dallas 2000, no pet.) (same), Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W .2d
464, 470 (Tex. App.— Texarkana 1998, pet. denied) (same), Ward v. Ne. Tex. Farmers Co-op. Elevator, 909 S.W .2d
143, 150 (Tex. App.— Texarkana 1995, writ denied) (same), Carr v. Mobile Video Tapes, Inc., 893 S.W .2d 613, 623
(Tex. App.— Corpus Christi 1994, no writ) (same), and Stone Res., Inc. v. Barnett, 661 S.W .2d 148, 151 (Tex.
App.— Houston [1st Dist.] 1983, no writ) (performing some analysis on the consent question and holding that consent
is an affirmative defense), with Watson v. Brazos Elec. Power Coop., Inc., 918 S.W .2d 639, 645–46 (Tex. App.— W aco
1996, writ denied) (approving a jury charge that defined trespass as entering another’s property without consent).

5
Apartment Corp., 417 S.W.3d 909, 920 (Tex. 2013), so it is unsurprising that we have also not

addressed which party bears the burden to prove consent in a trespass lawsuit.3 Although important

trespass issues have not frequently drawn this Court’s attention, our historical precedent guides the

present inquiry.

Examining our historical treatment of trespass is important because we adhere to prior

decisions that have established rules relating to property rights unless, or until, the Legislature

modifies those rules. See Friendswood Dev. Co. v. Smith-Sw. Indus., Inc., 576 S.W.2d 21, 29 (Tex.

1978) (stating that “[t]he doctrine of stare decisis has been and should be strictly followed by this

Court in cases involving established rules of property rights,” but giving effect to subsequent changes

in legislative policy); see also Southland Royalty Co. v. Humble Oil & Ref. Co., 249 S.W.2d 914,

916 (Tex. 1952) (stating that when this Court reviews property rights, previously established rules

“should not be changed in the absence of other controlling circumstances, even though good reasons

might be given for a different holding”) (quoting Tanton v. State Nat’l Bank of El Paso, 79 S.W.2d

833, 834 (Tex. 1935)); cf. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 702 (Tex. 2002)

(acknowledging “[t]he emphasis our law places upon . . . important public policies by promoting

certainty in land transactions”). A review of this Court’s trespass-related jurisprudence reveals that

3
In a recent case involving a civil battery claim, however, we recognized that “[c]onsent to contact ‘negatives
the wrongful element of the defendant’s act, and prevents the existence of a tort.’” City of Watauga v. Gordon, 434
S.W .3d 586, 591 (Tex. 2014) (quoting W . P AGE K EETON ET AL., P RO SSER & K EETON O N THE L AW O F T O RTS , § 18, at
112 (5th ed.1984)). W e concluded that the plaintiff pleaded the existence of an intentional tort because his pleadings
demonstrated he did not consent to the defendant’s conduct, and “battery is defined to require an intentional touching
without consent.” Id. at 594 (citation omitted).

6
a common definition of trespass has emerged over time that is consistent with the trespass definition

submitted to the jury in this case.

This Court has consistently defined a trespass as encompassing three elements: (1) entry

(2) onto the property of another (3) without the property owner’s consent or authorization. Our

review of this Court’s trespass cases begins with our first recorded opinions.4 In 1841, the Supreme

Court of the Republic of Texas reviewed a case in which:

A jury found that the defendant entered on the premises of the plaintiff without any
title in law or warrant of authority from the plaintiff; that the plaintiff, with a view
to be restored to possession, gave up one portion of his land to get possession of the
other portion, and that the title of the plaintiff was genuine.

Hall v. Phelps, Dallam 435, 436 (Tex. 1841). The Court noted that the trial court refused the

defendant’s proposed instructions, which sought to depict the parties’ transaction as consensual and

not coerced. Id. at 436–37 (noting, for example, one proposed instruction: “If [the jury] believed the

parties compromised their difficulties and settled the same, they should find for the defendant.”).

Instead, the Court approved the trial court’s instructions, id. at 439–40, 441, which the Court

summarized as stating:

[If the jury] believed the defendant entered on the premises without any title in law
or warrant of authority from the plaintiff, and that [the plaintiff], with a view to be
restored to possession, gave up one portion of his land to get back the other, they
might declare the title so made as void; that they should determine from the evidence,
if this had been such a case; that if they believed the defendant had a doubtful claim
to the league granted to plaintiff, they might find for the defendant; but to come to
that conclusion they should be satisfied the defendant had more than a shadow of

4
W e recognize that this historical examination involves cases decided before formal pleading rules went into
effect. W e cite them not as conclusive authority on their allocation of the burden of proof, but as examples of how this
Court has defined trespass or approved the definition of trespass over time.

7
 title; and that if they believed the defendant’s entry on the land was without any right
to enter, they might find such damages as the evidence warranted.

Id. at 437 (emphasis added). After the plaintiff proved that “the defendant’s entry on the land was

without any right to enter,” the trial court ruled in the plaintiff’s favor and issued an injunction

prohibiting the defendant from entering the plaintiff’s land.5 Id. The Court affirmed the trial court’s

judgment in all respects. Id. at 441.

In 1878, the now-Supreme Court of Texas had an opportunity to review jury instructions that

involved trespass issues. In Houston & Great Northern Railroad Co. v. Meador, 50 Tex. 77 (1878),

a landowner’s heirs sued a railroad company and alleged it negligently constructed a railroad through

the landowner’s property by damaging fences and failing to install cattle guards, which caused

livestock to enter the property and damage crops. Id. at 81. The railroad requested a jury instruction

on the defense that because it used independent contractors to construct the railroad, the contractors

were solely liable for any damages caused by their own negligence. Id. at 81, 83–84. The trial court

denied the railroad’s proposed instruction based on an exception to independent contractor liability

rules that an employer can still be held liable if it authorized an independent contractor to commit

a wrongful act. Id. at 82–84. Apart from the question of negligence, the case turned on whether the

railroad caused the independent contractors to wrongfully trespass on the landowner’s property

because causing such a wrongful act would have made the railroad responsible for the independent

5
W e specifically note this portion of the relief granted—an injunction against future entry— because it is wholly
consistent with the relief available in a common law trespass action. See, e.g., Allen v. Keeling, 613 S.W .2d 253, 255
(Tex. 1981) (enjoining defendants from trespassing).

8
contractor’s negligence. Id. at 84. The Court approved of the trial court’s instruction that defined

trespass:

If, [the evidence] should show either that the defendants [or the independent
contractors] entered upon the [landowner’s property] for the purpose of constructing
said railroad, without first having obtained the consent of the [landowner], . . . then
the defendants, if the evidence under the law of the charge would otherwise justify
it, would be liable for damages to [the landowner’s crops based on the negligent
construction of the railroad].

Id. at 83 (emphasis added). In approving this instruction, the Court noted that “[u]nder the evidence,

it was for the jury to say whether [the landowner] had consented to the entry on his premises or not.”

Id. at 84.

In a trespass to try title case in 1881, this Court defined a trespasser as “one who, not having

the title to land, without the consent of the true owner, makes entry thereon.” Pilcher v. Kirk, 55

Tex. 208, 216 (1881) (emphasis added). Similarly, in 1884, this Court recognized that “[t]he

ordinary signification of the term ‘trespass’ is the wrongful interference with another’s personal or

property rights.” Cahn Bros. & Co. v. Bonnett, 62 Tex. 674, 676 (1884). In determining the

appropriate venue for a plaintiff to bring suit for a wrongful writ of attachment, the Court explained

that “the pith of the action is the wrongful interference thereby with the property rights of the

plaintiff.” Id.

In 1889, in a case involving questions of trespass and the lawful recovery of personal

property, a married couple alleged that a group of defendants entered their home, removed rented

furniture, and threatened the wife. Loftus v. Maxey, 11 S.W. 272, 272 (Tex. 1889). The parties

contested the issue of whether the couple consented to the defendants’ entry, and this Court approved

9
of a jury instruction that read: “If the proof satisfy you that the defendants . . . did take and remove

the bed, as alleged in the plaintiffs’ petition, without the consent of [the plaintiffs], . . . then you will

find for plaintiffs for such an amount as you may deem proper and adequate . . . .” Id. (emphasis

added).

Later, in 1926, this Court noted that construction and maintenance of a dam on another’s

property for thirty-five years would constitute a continuing trespass if it occurred without the

landowner’s consent. See Motl v. Boyd, 286 S.W. 458, 476 (Tex. 1926), disapproved of on other

grounds by Valmont Plantations v. State, 355 S.W.2d 502 (Tex. 1962). Ten years later, in a

premises liability case, this Court defined a trespasser, in part, as someone who “enters upon the

property of another without any right, lawful authority, or express or implied invitation, permission,

or license.” Tex.–La. Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936) (citation omitted).

Later still, in Shell Oil Co. v. Howth, 159 S.W.2d 483 (Tex. 1942), a case involving adverse claims

to mineral land, this Court distinguished another case by explaining that “[t]he entry of the

[defendant] on the land without the consent of [the landowner] constituted a trespass and ouster in

denial of [the landowner’s] rights. That was the gravamen of the wrong, and a recovery was based

upon that ground.” Id. at 491 (emphasis added) (citing Humble Oil & Ref. Co. v. Kishi, 276 S.W.

190, 190–91 (Tex. Comm’n App. 1925, judgm’t adopted), judgm’t set aside on reh’g, 291 S.W. 538

(Tex. Comm’n App. 1927, holding approved)).

In recent years, this Court’s definition of a common law trespasser has remained consistent

with our historical precedent. In 1997, we cited a writ refused, court of appeals case for its holding

that “every unauthorized entry upon land of another is a trespass.” Trinity Universal Ins. Co. v.

10
Cowan, 945 S.W.2d 819, 827 (Tex. 1997) (emphasis added) (quoting McDaniel Bros. v. Wilson, 70

S.W.2d 618, 621 (Tex. Civ. App.—Beaumont 1934, writ ref’d)). In a 2006 premises liability case,

we stated that “[a] trespasser at common law was one who entered upon property of another without

any legal right or invitation, express or implied.” State v. Shumake, 199 S.W.3d 279, 285 (Tex.

2006) (emphasis added) (citing Tex.–La. Power Co., 91 S.W.2d at 306). Two years later, in a case

involving a trespass allegation, we once again approvingly quoted the rule from McDaniel Brothers

that “every unauthorized entry upon land of another is a trespass even if no damage is done or injury

is slight, and gives a cause of action to the injured party.” Coastal Oil & Gas Corp. v. Garza Energy

Trust, 268 S.W.3d 1, 12 n.36 (Tex. 2008) (emphasis added) (quoting McDaniel Bros., 70 S.W.2d

at 621).

Further, we reiterated the now-familiar standard in a 2011 trespass case, stating that

“[t]respass to real property is an unauthorized entry upon the land of another, and may occur when

one enters—or causes something to enter—another’s property.” Barnes v. Mathis, 353 S.W.3d 760,

764 (Tex. 2011) (per curiam) (emphasis added) (citations omitted). In Barnes, the burden of proving

consent was not challenged, but the jury instruction defined trespass, in relevant part, as “any

unauthorized intrusion or invasion of private premises or land of another, committed when a person

enters another’s land without consent; or alternatively, unauthorized entry upon land of another.”

Id. at 765 n.4. Finally, in 2013, this Court approved of a court of appeals’ definition of trespass

when we noted, “Texas courts of appeals have provided helpful explanations of the common law

principles that apply [in trespass cases],” and we recited the general definition that “[e]very

11
unauthorized entry upon land is a trespass even if no damage is done.” Coinmach Corp., 417

S.W.3d at 920 (emphasis added) (quoting Watson, 918 S.W.2d at 645).

In sum, the definition of a common law trespass has remained constant throughout this

Court’s jurisprudence and has become a well-established rule relating to property rights. At its core,

a “[t]respass to real property is an unauthorized entry upon the land of another, and may occur when

one enters—or causes something to enter—another’s property.” Barnes, 353 S.W.3d at 764

(emphasis added) (citations omitted). We have never departed from the inclusion of lack of consent

or authorization in the definition of a trespass. With this well-established definition of a trespass in

mind, we next address whether the jury charge properly placed the burden of proving an

unauthorized entry, or lack of consent, on the plaintiff.

FPL Farming argues that section 167 of the Restatement (Second) of Torts clearly establishes

that consent is an affirmative defense to a trespass claim. See RESTATEMENT (SECOND ) OF TORTS

§ 167 cmt. c (1965). Comment c to section 167, the provision defining the trespass cause of action,

states: “Burden of proof. The burden of establishing the possessor’s consent is upon the person who

relies upon it.” Id. Despite FPL Farming’s contrary contention, it is not clear from this language

which party is “the person who relies upon [consent],” and the only case in Texas that has cited this

comment is the court of appeals’ opinion below.6 See 383 S.W.3d at 283–84.

6
Colorado cites this comment in its pattern jury charge, which treats consent as an affirmative defense in a
trespass cause of action. C O LO . S U P . C T . C O M M . O N C IV IL J U R Y I N STR U C TIO N S 18:3. It is the only state that cites
comment c in providing how consent is incorporated into a trespass causes of action.

12
 A handful of courts of appeals have stated that consent is an affirmative defense to be pleaded

and proven by the defendant, but the issue is far from settled.7 There is no pattern jury charge for

a trespass to real property cause of action in Texas. At least one court of appeals has approved of

a proposed charge definition and question that included lack of consent as an element of trespass.

See Watson, 918 S.W.2d at 645–46.8 And although other courts of appeals have stated that “consent

is an affirmative defense to a cause of action for trespass,” e.g., Gen. Mills Rests., Inc., 12 S.W.3d

at 835, the more precise statement from the courts of appeals’ case law is that “consent to enter the

property is sufficient to defeat the cause of action for trespass,” e.g., Carr, 893 S.W.2d at 623,

because only one court of appeals has given more than cursory treatment to the present issue of

whether consent is an affirmative defense to a trespass claim. See Stone Res., Inc., 661 S.W.2d at

151. There, the court of appeals held, without citing any authority for the proposition, that:

[R]egardless of the definition given to the term “trespass”, the courts have held that
once the plaintiff has proven ownership of the property “or a lawful right to
possession”, and an entry by the defendant, the burden of proof falls upon the
defendant to plead and prove consent or license as a justification for the entry.

7
See supra note 2 (listing cases).

8
The tendered definition and question on trespass were:

“Trespasser” means one who enters on the property of another without having consent of the owner.
To constitute a trespass, entry upon another’s property need not be in person but may be made by
causing or permitting a thing to cross the boundary of the premises. Every unauthorized entry upon
land of another is a trespass and the intent or motive prompting the trespass is immaterial.

Did [Brazos] trespass causing damage to [W atson’s] property on the date of the fire that is the basis
of this suit?

Watson, 918 S.W .2d at 645–46. The court of appeals held that the trial court erred by refusing this tendered definition
and question, and by failing to include them in the charge. See id. at 641–42.

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Id. Subsequent courts of appeals’ opinions have merely cited Stone Resources for this rule of law

in dicta, and perhaps hastily used the term “affirmative defense” to describe the proposition.9 Thus,

no well-reasoned allocation of the burden of proving consent in trespass cases has emerged from

our courts of appeals,10 despite FPL Farming’s arguments to the contrary.

Ignoring the well-established definition of a trespass as “an unauthorized entry upon the land

of another,” see, e.g., Barnes, 353 S.W.3d at 764, FPL Farming argues that the defendant bears the

burden of proving authorization, or consent, as an affirmative defense. In determining the burden

allocation of a fact a party must prove, we consider: (1) “[t]he comparative likelihood that a certain

9
See Stukes, 249 S.W .3d at 465–66 & n.1; Gen. Mills Rests., Inc., 12 S.W .3d at 831–32, 835; Cain, 969
S.W .2d at 470; Ward, 909 S.W .2d at 150; Carr, 893 S.W .2d at 623–24.

10
Our review of other jurisdictions reveals a similar lack of reasoning and consistency in allocating the burden
of pleading and proving consent. Compare Loftus v. Mingo, 511 N.E.2d 203, 210 (Ill. App. Ct. 1987) (requiring
plaintiff’s pleadings to negate performance of official duties and allege wrongful interference with property rights to
claim trespass against a public official), Sullivan v. Wallace, 766 So. 2d 654, 658 (La. Ct. App. 2000) (concluding that
a defendant “enter[ing] onto the land and remov[ing] timber without the plaintiff’s knowledge or consent” was sufficient
to support a finding of trespass), Mitchell v. Balt. Sun Co., 883 A.2d 1008, 1014 (Md. Ct. Spec. App. 2005) (recognizing
that a trespass plaintiff must prove lack of consent), and Ondovchik Family Ltd. P’ship v. Agency of Transp., 996 A.2d
1179, 1183, 1187 (Vt. 2010) (holding that a landowner failed to plead a trespass claim because, “[b]y definition, trespass
involves conduct that the trespasser has no right to engage in” and defendant’s actions were privileged) (citations
omitted), with McCaig v. Talladega Publ’g Co., 544 So. 2d 875, 879 (Ala. 1989) (“Consent is a defense to an action for
damages for trespass.”), Rosenthal v. City of Crystal Lake, 525 N.E.2d 1176, 1181 (Ill. App. Ct. 1988) (finding that
plaintiff in a trespass and ejectment action did not have the burden to prove defendant’s initial entry was unlawful), and
Grygiel v. Monches Fish & Game Club, Inc., 787 N.W .2d 6, 18 (W is. 2010) (concluding that a trespass defendant must
plead and prove lack of consent). Further, some jurisdictions appear to allocate the burden of proving and disproving
consent on plaintiffs and defendants simultaneously. See Lee v. Konrad, 337 P.3d 510, 522 (Alaska 2014) (citations
omitted) (inconsistently stating that “[c]onsent is generally considered to be an affirmative defense to trespass,” but
“consent marks a deficiency in the plaintiff’s prima facie case at the most fundamental level; where the plaintiff consents,
the defendant’s act is simply not tortious”); Singleton v. Haywood Elec. Membership Corp., 588 S.E.2d 871, 874 (N.C.
2003) (citations omitted) (referring to trespass as a “wrongful invasion” and stating that “a claim of trespass
requires . . . an unauthorized entry by [a] defendant,” but inconsistently stating that “[i]n a trespass action a defendant
may assert that the entry was lawful or under legal right as an affirmative defense”). But requiring a defendant to carry
the burden of proof on an element that is also fundamental to the plaintiff’s prima facie case “obviates the tort: W here
there is a consensual entry, there is no tort, because lack of consent is an element of the wrong.” Spinks v. Equity
Residential Briarwood Apartments, 90 Cal. Rptr. 3d 453, 484 (Ct. App. 2009) (citation omitted).

14
situation may occur in a reasonable percentage of cases”; and (2) the difficulty in proving a negative.

20801, Inc. v. Parker, 249 S.W.3d 392, 397 (Tex. 2008) (citations omitted).

Applying the 20801, Inc. factors, we are mindful that consent is an issue in only a fraction

of trespass cases, as represented by the dearth of case law on point. The fact that consent (or

authorization) is rarely contested reflects “the assumption that landowners normally have no reason

to expect trespassers or know about them,” Shumake, 199 S.W.3d at 285, and landowners or

possessors will normally not be presented with the opportunity to provide consent or authorization

before an entry occurs.

Regarding the second 20801, Inc. factor, we do not believe it will be difficult for a landowner

or possessory interest holder to prove lack of consent or authorization. After all, the landowner or

possessor who is bringing suit is in the best position to provide evidence on whether an alleged

trespasser’s presence was unauthorized because only “someone acting with the authority of the

landowner or one with rightful possession” can authorize, or consent to, the entry. Gen. Mills Rests.

Inc., 12 S.W.3d at 835; see also Armintor v. Cmty. Hosp. of Brazosport, 659 S.W.2d 86, 90 (Tex.

App.—Houston [14th Dist.] 1983, no writ); cf. Tex.–La. Power Co., 91 S.W.2d at 306 (indicating

that only “the owner or person in charge” can authorize entry onto the property). Given these

parameters, it makes sense to treat consent, or lack thereof, as an element of the trespass cause of

action rather than as an affirmative defense. Otherwise, a trespass cause of action would require

plaintiffs to prove only an entry onto their property, which ignores our well-established definition

that the entry is actionable only if it is unauthorized or without consent.

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 Relatedly, we recognize the fundamental notion that “[g]enerally, an owner of realty has the

right to exclude all others from use of the property.” Severance v. Patterson, 370 S.W.3d 705, 709

(Tex. 2012); see also Marcus Cable Assocs., L.P., 90 S.W.3d at 700. Of course, this right to exclude

may be relinquished, see, e.g., Marcus Cable Assocs., L.P., 90 S.W.3d at 700 (granting an easement

is a relinquishment of the right to exclude), and therefore, mere entry onto the property of another

may not always be actionable as a trespass. Further, we have stated that “[t]he misfeasance or the

wrongful act is the trespass.” Lyle v. Waddle, 188 S.W.2d 770, 773 (Tex. 1945) (emphasis added).

This aligns with our well-established definition that trespass is “an unauthorized entry upon the land

of another.” See, e.g., Barnes, 353 S.W.3d at 764 (emphasis added). It follows that an entry onto

the land of another is wrongful, and therefore actionable, if it is without consent or authorization.

Cf. City of Watauga, 434 S.W.3d at 591 (recognizing that consent prevents a defendant’s conduct

from being wrongful). Thus, to maintain an action for trespass, it is the plaintiff’s burden to prove

that the entry was wrongful, and the plaintiff must do so by establishing that entry was unauthorized

or without its consent.

In conclusion, we hold that the jury charge here provided the well-established definition of

a trespass, which includes lack of consent or authorization as an element of the cause of action.

Because the charge provided the correct definition and resulted in a jury verdict and judgment in

favor of EPS, any error in submitting the trespass question about a possible deep subsurface water

migration was harmless. See TEX . R. APP . P. 61.1(a); see also Gilbert Wheeler, Inc., ___ S.W.3d

at ___ (declining to address a question related to a trespass allegation because “even if the

submission of the trespass cause of action was error, it was harmless”). Therefore, without the need

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to decide whether Texas law recognizes a trespass cause of action for deep subsurface water

migration, we next address whether the trial court properly denied FPL Farming’s motion for

directed verdict.

III. Directed Verdict

FPL Farming moved for a directed verdict on the basis that EPS provided no evidence to

support any of the affirmative defenses it pleaded, which included consent and authorization.11 The

trial court denied the motion on all grounds. Later, the trial court overruled FPL Farming’s objection

that the issue of consent was improperly included in the jury charge’s definition of trespass and

should have been an affirmative defense that EPS had to prove as the defendant.

As discussed above, we agree with the trial court that consent is not an affirmative defense

to a trespass action, but rather lack of consent or authorization is an element of a trespass cause of

action that a plaintiff must prove. Accordingly, FPL Farming’s motion for directed verdict relied

on an erroneous premise because EPS was not obligated to prove that FPL Farming consented to the

alleged entry. Cf. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) (stating that no-evidence

challenges “are appropriate when the party without the burden of proof complains of a . . . finding”).

Instead of moving for a directed verdict that EPS provided no evidence of consent, FPL Farming’s

motion should have sought relief on the ground that it established as a matter of law an element of

its cause of action on which it bore the burden of proof—lack of consent or authorization. See id.

(citing O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 113 (Tex. 1976)) (“When . . . the party having

11
Although EPS included consent and authorization in the many affirmative defenses it pleaded, we note that
FPL Farming also pleaded lack of consent as an element of its trespass claim.

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the burden of proof appeals from an adverse fact finding in the trial court, the point of error should

be that the matter was established as a matter of law . . . .”); see also Dow Chem. Co. v. Francis, 46

S.W.3d 237, 241 (Tex. 2001) (per curiam).

Despite FPL Farming’s reliance on the wrong burden in its motion for directed verdict, we

will consider its contentions because “[i]t is our practice to liberally construe the points of error in

order to obtain a just, fair and equitable adjudication of the rights of the litigants.” Holley v. Watts,

629 S.W.2d 694, 696 (Tex. 1982); see also O’Neil, 542 S.W.2d at 114. Thus, liberally construing

FPL Farming’s contentions, FPL Farming would have been entitled to a directed verdict if it

conclusively established, as a matter of law, that it did not authorize or consent to EPS’s alleged

entry. See Dow Chem. Co., 46 S.W.3d at 241 (citing Croucher, 660 S.W.2d at 58). At the time of

its motion, FPL Farming did not argue or cite to any evidence upon which the trial court could have

found as a matter of law that FPL Farming did not consent to EPS’s alleged entry. See TEX . R. CIV .

P. 268 (“A motion for directed verdict shall state the specific grounds therefor.”). Accordingly, the

trial court properly denied the motion for directed verdict and submitted the issue of lack of consent

to the jury. See Dow Chem. Co., 46 S.W.3d at 241 (noting that a matter of law challenge can be

sustained only if it is conclusively established); see also Collora v. Navarro, 574 S.W.2d 65, 68

(Tex. 1978) (stating that a directed verdict is proper when the evidence leads to only one conclusion).

FPL Farming’s challenge to the trial court’s denial of its motion for directed verdict fails

even when we liberally construe its contentions. We agree with the court of appeals’ holding that

FPL Farming was not entitled to a directed verdict on the issue of consent, albeit for different reasons

than the court of appeals stated.

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 IV. Remaining Issues

EPS challenged the trial court’s exclusion of the 1996 settlement agreement between FPL

Farming’s predecessor-in-title and EPS at the time of the initial permit applications, and the court

of appeals held that the trial court erroneously excluded it from evidence. We need not address the

admissibility of the settlement agreement, however, because the jury found in EPS’s favor. Thus,

even if the trial court erroneously excluded the settlement agreement, any error was harmless. See

TEX . R. APP . P. 61.1(a). Because we are rendering judgment in favor of EPS and not remanding the

case for a new trial, the admissibility of the settlement agreement is an unnecessary inquiry.

Similarly, because it prevailed at trial, EPS was not harmed by the submission of a jury

question asking whether it committed a trespass by causing deep subsurface wastewater to migrate

underneath FPL Farming’s property. This lack of harm eliminates the need to address whether Texas

law recognizes a trespass cause of action for deep subsurface wastewater migration.

Accordingly, we neither approve nor disapprove of the court of appeals’ analysis and holding

on these remaining issues.

V. Conclusion

Lack of consent is a required element of a trespass cause of action that the plaintiff must

prove, and the jury charge here correctly reflected the longstanding definition of trespass in Texas.

Additionally, FPL Farming failed to conclusively establish that it did not consent to EPS’s alleged

entry in connection with its motion for directed verdict, so the trial court did not err in denying the

motion and submitting the issue to the jury. There was no harmful error in excluding the settlement

agreement because the jury found for EPS without considering it. Finally, any error in submitting

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the question of trespass for deep subsurface wastewater migration was harmless because the jury

found no such liability, which obviates the need to address whether this is a viable cause of action

in Texas. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s

judgment that FPL Farming take nothing.

___________________________________
Paul W. Green
Justice

OPINION DELIVERED: February 6, 2015

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