In 1969, Houston Light & Power obtained a prescriptive easement to place an electricity transmission tower on a lot in Texas. In 1998, the electric company leased space on the electric tower to a cellular company, which then placed a cellular antenna on the tower. Later in 1998, John Gates purchased the lot, not noticing the cellular antenna until after he took possession of the property.

Gates filed suit in Gates v. Sprint Spectrum LLC alleging a trespass and looking to recover the value of cellular company’s lease of the space. The district court ruled against Gates, finding that the cellular company’s use of the land was a permanent trespass, which Texas law recognizes as a cause of action only on behalf of the owner at the time the trespass was originally committed. Accordingly, the lower court held, Gates had no standing to sue. Gates appealed the district court’s ruling.

In 1969, Houston Light & Power obtained a prescriptive easement to place an electricity transmission tower on a lot in Texas. In 1998, the electric company leased space on the electric tower to a cellular company, which then placed a cellular antenna on the tower. Later in 1998, John Gates purchased the lot, not noticing the cellular antenna until after he took possession of the property.

Gates filed suit in Gates v. Sprint Spectrum LLC alleging a trespass and looking to recover the value of cellular company’s lease of the space. The district court ruled against Gates, finding that the cellular company’s use of the land was a permanent trespass, which Texas law recognizes as a cause of action only on behalf of the owner at the time the trespass was originally committed. Accordingly, the lower court held, Gates had no standing to sue. Gates appealed the district court’s ruling.

On appeal, the lower court’s ruling was upheld. It was undisputed that the cellular antenna was installed prior to Gates’ purchase of the property, and also undisputed that the installation constituted a trespass. The issue of whether the trespass was temporary or permanent, the court explained, would determine whether Gates had standing to bring a case against the cellular company.

The court went on to define a temporary trespass as one "so irregular or intermittent over the period leading up to filing and trial that future injury cannot be estimated with reasonable certainty," and defined a permanent trespass as "sufficiently constant or regular (no matter how long between occurrences) that future impact can be reasonably evaluated."

"Because neither the existence nor the nature of the trespass changed over time," and because this sort of trespass is not unique, the injury to the land could be predicted with certainty.

Gates did not dispute the constancy or predictability of the trespass, the court stated. Rather, his only argument was that the trespass injured his right of possession.

The appellate court ruled that the possessory issue was irrelevant to the standing issue and did not give rise to any other cause of action under Texas law. As a result, the court agreed with the lower court that the trespass was permanent and that Gates lacked standing to sue, because the trespass occurred prior to his purchase and was permanent in nature.

Tara-Nicholle Nelson is author of "The Savvy Woman’s Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

***

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