FAMILY DOLLAR STORES OF TEXAS LLC ARCP FDCCC1403 LLC 7B LLC LLC v. JLMH INVESTMENTS LLC (2026)

This case presents issues regarding appellate jurisdiction and the applicable statute of limitations. After a store was built on one property, a neighboring property flooded whenever it rained. The neighbor sued for trespass, negligence, and violations of the Water Code, seeking both damages and an injunction as remedies for each of its three claims. The defendant moved for summary judgment based on the two-year statute of limitations, and the trial court granted that motion in an order that included express finality language. The court later signed an order authorizing a permissive interlocutory appeal. The neighbor filed an ordinary notice of appeal, and the court of appeals accepted jurisdiction and reversed in part, reasoning that limitations is not a defense to an action to abate a continuing nuisance.

We conclude that the court of appeals properly exercised appellate jurisdiction because the trial court's order granting summary judgment was expressly final and its later order did not clearly undo that finality. On the merits, we hold that a plaintiff cannot obtain an injunction without a cause of action and, as the parties agree, the two-year statute of limitations applies to each of the claims alleged here. We therefore reverse the court of appeals’ judgment and reinstate the trial court's judgment.

Background

Petitioner ARCP FDCCC1403 LLC (ARCP) and respondent JLMH Investments own adjacent parcels of commercial property in Fort Worth. Between 2014 and 2016, petitioner Family Dollar Stores of Texas built a store on ARCP's property. The summary judgment record includes evidence that before construction, water did not drain from ARCP's property onto JLMH's property. After construction, JLMH's property began to flood every time it rained, depositing silt and trash around the property. The water turned the north side of JLMH's property into something resembling a swamp and eventually began to affect JLMH's commercial building and its parking lot.

JLMH's President, Mary Hyatt, noticed the water “from the time the [Family Dollar] was completed,” but she was unsure whom to contact regarding the issue. She started with the City of Fort Worth, to which Family Dollar had submitted drainage and building plans. According to Hyatt, the City passed her complaint around to different departments before eventually sending out Jeremy Lee. Lee said Hyatt would need to contact code enforcement, and Hyatt said Lee “just kind of blew me off.” Hyatt's efforts with the City spanned two years but went nowhere.

Hyatt's company, Arctic Repair, retained Crosstown Engineering in 2019 to inspect the foundation of JLMH's building. Crosstown found that the “vast majority of the Family Dollar driveway and gutter runoff is directed to and stores into the pond immediately adjacent to the property.” A sump pump in the loading dock area of JLMH's building pumped 100 gallons every day during the rainy season, which did not happen before construction of the Family Dollar store. The report concluded that the Family Dollar drainage system caused the groundwater on the JLMH property to increase and caused distress to JLMH's property.¹

That same year, a technician with American Leak Detection Plumbing Repair told JLMH that there were no leaks in the building; instead, the entire building was “sitting in the middle of a lake.” And a report from Helmer Engineering in 2020 concluded that, more probably than not, JLMH's building “receives storm water runoff from the Family Dollar store building by means of overland flow, and possibly by subsurface movement.”

In 2020, JLMH sued Family Dollar, ARCP, and others (collectively, Family Dollar).² JLMH alleged a nuisance, trespass, negligent and intentional diversion of water, and violations of a Water Code provision making it actionable to “divert or impound the natural flow of surface waters” or “permit a diversion or impounding ․ to continue, in a manner that damages the property of another by the overflow” of such waters. Tex. Water Code § 11.086(a). JLMH sought damages for deprivation of property use, loss of property value, and damage to its building and parking lot. Two groups of Family Dollar defendants filed separate motions for summary judgment on the ground that the two-year statute of limitations had run on all claims. After the first motion was filed, JLMH amended its petition to ask the court to “permanently enjoin [Family Dollar] from allowing surface water to gather on [JLMH's] property.”

The trial court granted both motions for summary judgment in separate orders. The second order stated: “This Order is final, disposes of all parties and all claims, and is appealable.” The trial court later issued an order purporting to clarify its summary judgment orders. That order permitted JLMH to seek an interlocutory appeal of the orders granting the motions for summary judgment and stayed all proceedings pending the interlocutory appeal. We discuss these orders in more detail below as part of our threshold inquiry into our appellate jurisdiction.

JLMH filed a motion for new trial and later a notice of appeal from a final judgment; it did not seek permission to appeal from the court of appeals. Before the court of appeals considered the merits of the appeal, it asked any party desiring to continue the appeal to file a response showing why the court had jurisdiction. The Family Dollar appellees filed a response arguing that the judgment was final, and the court of appeals agreed, concluding that the trial court's clarifying order “made no perceivable clarifications to its prior orders” and “did nothing to undo th[e] finality” of the orders granting summary judgment. 716 S.W.3d 770, 776 n.7, 778 n.8 (Tex. App.—Fort Worth 2024).

Turning to the limitations issue, the court of appeals first concluded that both motions for summary judgment were broad enough to encompass JLMH's claims seeking injunctive relief. Id. at 777. The court then considered when JLMH's claims accrued. It concluded that the nuisance is a permanent one because the drainage system is permanent and rain events causing flooding are sufficiently regular. Id. at 779. It further concluded that all claims accrued in 2016 or 2017 when the flooding first occurred and was discovered. Id. The court declined to apply the continuing tort doctrine, characterizing the injury here as a permanent injury to land. Id. at 781. Because JLMH did not sue until 2020, the court concluded that the two-year statute of limitations barred its claims. Id.

But the court held that the two-year limitations period did not bar the injunction JLMH sought to abate the nuisance. Id. It observed that “[s]ince at least 1895, Texas courts have consistently and uniformly adhered to the rule that limitations is not a defense to an injunction requesting abatement of a nuisance.” Id. The court disagreed with Family Dollar's argument that injunctive relief is not an independent cause of action for limitations purposes, observing that “[i]t appears” cases “have recognized a plaintiff's standalone right to have a nuisance abated.” Id. at 783.

Family Dollar filed a petition for review on the ground that these two holdings fundamentally conflict with the way our legal system conceives of claims. We granted the petition.

Analysis

I. The order granting summary judgment is final and a later order did not undo its finality.

“Jurisdiction always comes first.” Rush Truck Ctrs. of Tex., L.P. v. Sayre, 718 S.W.3d 233, 237 (Tex. 2025). Although no party has challenged our appellate jurisdiction, we must examine it whenever it is in doubt, just as the court of appeals did. At our request, the parties submitted supplemental briefs on the issue, and both argue that our jurisdiction is secure. We agree.

“[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Because no exceptions arguably apply here, the court of appeals—and this Court in turn—lacks appellate jurisdiction if the trial court did not sign an order constituting a final judgment.³

The trial court granted the Family Dollar defendants’ motions for summary judgment in two separate orders: one signed April 14 and the other signed April 17, 2023. The April 14 Order provides: “Plaintiff's causes of action against [Defendant] are dismissed as a matter of law,” and “[a]ll relief not specifically granted herein is hereby DENIED.” The April 17 Order contains similar language as to all defendants and adds: “This Order is final, disposes of all parties and all claims, and is appealable.”

JLMH then asked the court to clarify its summary judgment orders and proceed with a trial on injunctive relief. Both sides submitted proposed orders. The trial court granted some relief in a May 8, 2023 order entitled “Order Clarifying Summary Judgment Orders and Allowing Permissive Interlocutory Appeal.” That order, which tracks Family Dollar's proposal and was signed while the trial court still had plenary power,⁴ provides in full:

The court has considered Plaintiff JLMH Investments, LLC's oral Motion to Clarify the Summary Judgment Orders and to Proceed with Trial on Injunctive Relief, Plaintiff's Request for a Permissive Interlocutory Appeal, and Defendants/Third Party Defendants request for final disposal of all parties and claims in the above-styled matter.

The Court recognizes that the Plaintiff does not waive its right to challenge the Court's summary judgment rulings, and any Final Judgment, as allowed under Texas law. See, e.g., First Nat'l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); Hooks v. Samson Lone Star, Ltd. P'ship, 457 S.W.3d 52, 67 (Tex. 2015).

After considering the requests, motions, and objections, the Court enters the following orders:

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff's Request for a Permissive Interlocutory Appeal of the Orders Granting Summary Judgment dated April 14, 2023, and April 17, 2023, is GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all proceedings in the above-entitled and numbered cause are hereby stayed pending the interlocutory appeal of the Summary Judgment Order granted on April 14, 2023, and the Summary Judgment Order granted on April 17, 2023.

SIGNED this 8 day of May, 2023.

The court did not sign JLMH's proposed order, which included statements that the orders granting summary judgment “did not dispose of Plaintiff's requests for Permanent Injunctive Relief” and that “Defendants/Third Party Defendants request for final disposal of all parties and claims is DENIED.”

If the April 17 Order is a final summary judgment, then JLMH timely filed its notice of appeal and the court of appeals correctly held that it had appellate jurisdiction over this case.⁵ But if the May 8 Order undid the finality of the summary judgment, the case remains pending in the trial court and appellate jurisdiction is lacking. To determine which view is correct, we apply familiar principles.

“There are two paths for an order to become a final judgment without a trial: the order can (1) dispose of all remaining parties and claims then before the court, regardless of its language; or (2) include unequivocal finality language that expressly disposes of all claims and parties.” Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room Mgrs. of Am., L.L.C., 685 S.W.3d 816, 820 (Tex. 2024). An appellate court faced with “an order that includes a finality phrase” under the second path “must take the order at face value” for jurisdictional purposes; it “cannot look at the record” to determine whether the court actually disposed of all parties and claims. In re Elizondo, 544 S.W.3d 824, 828 (Tex. 2018) (per curiam).

Taking the April 17 Order at face value—“by its own express terms, in other words,” Lehmann, 39 S.W.3d at 200—its clear and unequivocal language finally disposes of all parties and claims. The April 17 Order says in no uncertain terms that “[t]his Order is final, disposes of all parties and all claims, and is appealable.” We have said before that such language “would leave no doubt about the court's intention.” Id. at 206. Indeed, because “the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final.” Id. (emphasis added). In short, because “the original order included a finality phrase, it was clear and unequivocal.” Elizondo, 544 S.W.3d at 828. Therefore, the April 17 Order constituted a final judgment when it was signed.

Did the May 8 Order undo this final judgment? Despite its title, that order is far from a model of clarity. The May 8 Order does not say that it is replacing the April 14 and 17 Orders, nor does it modify their language or alter their disposition in any way. But the May 8 Order does grant JLMH's “Request for a Permissive Interlocutory Appeal” of the April 14 and 17 Orders, which perhaps implies that the trial court regarded those orders as interlocutory—contrary to their plain language. The May 8 Order also grants a “stay[ ]” of “all proceedings,” which could be understood to suggest that there were remaining proceedings to be had. On the other hand, the order “recognizes that [JLMH] does not waive its right to challenge the Court's summary judgment rulings, and any Final Judgment, as allowed under Texas law,” and it cites two cases holding that a losing party can obtain a final adverse judgment while reserving its right to appeal that judgment. These observations and citations would be out of place unless there were a final judgment.

When faced with such mixed signals regarding finality, courts of appeals may save time and resources for all concerned by abating the appeal and remanding for the trial court to clarify whether the appealed order is final.⁶ But the court of appeals did not do so here. To determine whether such an unclear order affects an earlier order that is final by its terms, therefore, we look again to our precedent.

This Court has explained that “[d]uring the time in which a court [has plenary power to] vacate, set aside, modify or amend its previous [final] order, such action must, to be effective, be by written order that is express and specific.” McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (emphasis added) (quoting Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex. Civ. App.—Houston [14th Dist.] 1969, writ dism'd w.o.j.)).⁷ This requirement makes good sense when the previous order was made final by its express language—the second path to finality discussed above. If an order becomes final precisely because the court chooses to use “unequivocal finality language that expressly disposes of all claims and parties,”⁸ those parties should be able to depend on the order remaining final unless a later order sets that language aside or makes a different disposition as to a claim or party that renders the order no longer final. “Simplicity and certainty in appellate procedure are nowhere more important than in determining the time for perfecting appeal.” Lehmann, 39 S.W.3d at 205. And the requirement that finality expressly created must be expressly undone is logical, certain, and simple to apply.

Put another way, a trial court cannot eliminate express finality language by implication—it must do so directly. Otherwise, appellate courts and litigants would be left to guess whether a subsequent order implicitly unwound finality or the time to appeal continued to run, with the consequence of a wrong guess being either the loss of appellate rights or a waste of public and private resources on a premature appeal. Our law does not condemn them to such costly uncertainty.

Here, the May 8 Order falls short of the “express and specific” language required to “vacate, set aside, modify or amend” the trial court's final April 17 Order. McCormack, 597 S.W.2d at 346. The May 8 Order does not say that it is correcting, amending, or otherwise superseding the April 17 Order.⁹ Nor does anything in the May 8 Order alter or remove the April 17 Order's final disposition as to any claim or party. For example, the May 8 Order does not say that the court is reviving any of JLMH's claims in whole or in part, as JLMH's proposed order urged the trial court to do.¹⁰

Of course, “no magic language is required” to either create or remove express finality. In re Lakeside Resort JV, LLC, 689 S.W.3d 916, 924 (Tex. 2024) (per curiam).¹¹ But as the court of appeals put the matter in concluding it had appellate jurisdiction, the trial court's May 8 Order “made no perceivable clarifications to its prior orders” and “did nothing to undo th[eir] finality.” 716 S.W.3d at 776 n.7, 778 n.8. Accordingly, we hold that the April 17 Order remained final, and we have jurisdiction over this appeal of the order.

Our dissenting colleagues contend that this holding renders the May 8 Order meaningless. We certainly agree with the dissent (post at –––– (Sullivan, J., dissenting)) that the trial court was “trying to say something” in that order, which was proposed by Family Dollar, but we have explained that the language chosen is unclear when applied to these facts. Some statements require clarity to have a certain effect: whether a statute to abrogate the common law, a pleading to cause a judicial admission, or an order to effect finality.¹² Because a clear-statement rule applies here and the May 8 Order is not clear, the April 17 Order granting summary judgment based on limitations remained final, and our appellate jurisdiction is secure.

II. The two-year statute of limitations bars trespass and similar claims seeking both damages and an injunction.

We now turn to the merits of the April 17 Order, which the court of appeals partially reversed. In doing so, the court drew a distinction for limitations purposes between JLMH's claims for damages and its requested injunction. Applying our decision in Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004), the court of appeals held that the nuisance and trespass were sufficiently constant and regular to be considered permanent because JLMH's property flooded every time it rained and the flooding was caused by permanent structures. 716 S.W.3d at 779. Thus, claims seeking damages for those injuries to JLMH's land accrued in 2016 or 2017 when the flooding first occurred and was discovered, and those claims were barred by the two-year statute of limitations before JLMH filed this suit. Id. at 779-780. These holdings are not challenged in this Court.

But the court of appeals also concluded that “Texas law does not recognize limitations as a defense to injunctive relief to abate a nuisance.” Id. at 781. Family Dollar argued that injunctive relief depends on a cause of action and all of JLMH's causes of action are barred by the two-year statute of limitations. See id. at 782-83. The court of appeals rejected this argument, reasoning that a plaintiff has a “standalone right to have a nuisance abated.” Id. at 783. Thus, it reversed the portion of the trial court's judgment applying limitations to JLMH's request for injunctive relief. Id.

Family Dollar challenges these holdings, renewing its arguments that injunctions require a cause of action and that statutes of limitations generally apply to equitable as well as legal actions. We agree with Family Dollar.

There is no stand-alone right to abate a nuisance or obtain an injunction. Regardless of the relief a party seeks, “remedies are available only if liability is established under a cause of action.” Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011) (per curiam). A nuisance is not a cause of action but a type of “legal injury” to “a person's right to the ‘use and enjoyment of property’ ” that “may result from [a] wrongful act” and “give rise to a cause of action.” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 594-95 (Tex. 2016). And although “[a]n injunction is the recognized method of abating nuisances,”¹³ injunctions also generally require proof of “(1) a wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of an adequate remedy at law.” Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 792 (Tex. 2020).

The wrongful acts alleged here are violations of property rights and breaches of tort and statutory duties—each of which, if found, would be sufficient to establish liability. JLMH's petition separates these acts into three counts: trespass, negligent and intentional diversion of water, and violation of the Water Code provision prohibiting diversion of water in a manner that damages another's property. See Tex. Water Code § 11.086(a). The summary judgment record includes evidence of these violations, none of which are disputed at this stage of the case.

For each count, JLMH seeks an injunction and damages as remedies, and it points to a line of cases cited by the court of appeals for the proposition that “limitations is not a defense to an injunction requesting abatement of a nuisance.” 716 S.W.3d at 781. But this Court has recognized “the general rule that under our blended system, where both law and equity are administered by the same court, statutes of limitation apply to equitable actions the same as to legal actions.” Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 170 (1943).¹⁴

Turning to which statute of limitations applies, Chapter 16 of the Civil Practice and Remedies Code sets out the various limitations periods. The two-year statute of limitations to “bring suit for trespass for injury to the estate or to the property of another” appears in subchapter A addressing “personal actions.” Tex. Civ. Prac. & Rem. Code § 16.003(a). This Court has confirmed that the limitations period governing a claim for private nuisance injury to the use and enjoyment of land is two years. Schneider, 147 S.W.3d at 270.¹⁵ For that reason, as the court of appeals observed, “[t]he parties agree that [this] two-year statute of limitations applies to all of JLMH's claims.” 716 S.W.3d at 778. Because it is the claim itself that determines which limitations period applies, JLMH's addition of a request for injunctive relief to its claims for injury to land does not alter the two-year limitations period.

For these reasons, we hold that the two-year statute of limitations bars JLMH's trespass, negligence, and Water Code claims seeking both damages and an injunction. Accordingly, the court of appeals erred by partially reversing the trial court's order granting summary judgment on those claims.

Conclusion

We hold that we have appellate jurisdiction and that the two-year statute of limitations bars the claims pleaded by JLMH. Accordingly, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

“Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn't seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.” Artis v. District of Columbia, 583 U.S. 71, 92, 138 S.Ct. 594, 199 L.Ed.2d 473 (2018) (Gorsuch, J., dissenting). Although our Court has not considered the issue in this century, we have noted the holdings of several Texas courts “that limitations (as opposed to laches) does not bar a suit seeking only to enjoin a nuisance” without “seeking damages.” Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 288-89 (Tex. 2004); see also ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 542 n.14 (Tex. 2017) (“Texas cases hold that limitations is not a defense to abate[ment of] a continuing nuisance.”). The Court's opinion holds that the court of appeals erred in relying on this broad principle. I write separately to point out that today's case does not implicate narrower reasons identified by some of these courts that require a careful approach to this issue, including distinctions between private and public nuisances and between the two-year and ten-year statutes of limitations.

Here, the parties agree that the two-year statute of limitations governs JLMH's causes of action, which seek both damages and an injunction for a private nuisance injury to the use and enjoyment of its property due to runoff from neighboring property. But the court of appeals concluded otherwise, reasoning that “Texas law does not recognize limitations as a defense to injunctive relief” in this situation and that JLMH has a “standalone right to have a nuisance abated.” 716 S.W.3d 770, 781, 783 (Tex. App.—Fort Worth 2024). As the Court's opinion explains, both points are wrong: Liability must be proven to obtain an injunction, and limitations generally provides an affirmative defense to liability whether the plaintiff seeks legal or equitable relief. Ante at –––– – ––––.

But whether a limitations defense is available and which statute of limitations applies are separate questions. Careful scrutiny of the cases on which the court of appeals relied reveals at least two narrower underlying rationales. Some courts have concluded that limitations is not an available defense when a landowner's suit seeks to abate a public nuisance by injunction. And regarding which statute applies, a landowner typically has ten years to sue for recovery of its property being used adversely by another party before that use ripens into an easement by prescription that will cut off litigation. See Tex. Civ. Prac. & Rem. Code § 16.026(a); Albert v. Ft. Worth & W. R.R., 690 S.W.3d 92, 98 (Tex. 2024) (per curiam).

Neither rationale applies in this case: JLMH has not argued that a public nuisance is at issue, and it agrees that the two-year statute of limitations governs all of its claims, which seek to remedy a permanent injury to the use and enjoyment of its land. Thus, today's opinion should not be understood to express any view regarding when the ten-year statute applies or whether or how limitations plays a role in public nuisance cases.

To illustrate why these important questions are separate ones to be explored in future cases, I begin with an overview of the Texas cases addressing the broad principle that the court of appeals misapplied here and highlight certain cases that identify the two narrower rationales just mentioned. I then offer some points to consider regarding how those rationales intersect with the text of the statutes of limitations enacted by the Legislature.

I

Texas courts have repeatedly concluded for more than a century that limitations is not a defense to an action to abate a permanent nuisance.¹ Four cases are particularly helpful in understanding this principle and its rationales.

City of Dallas v. Early was a public nuisance case in which the plaintiffs sued the city and its officials to abate a nuisance caused by certain drainage ditches and sewers. 281 S.W. 883, 884 (Tex. Civ. App.—Dallas 1926, writ dism'd w.o.j.). Plaintiffs alleged that whenever it rained, water flooded their property and then became stagnant, leading to odors and mosquitoes. Id. The court rejected the city's limitations defense, explaining: “The doctrine in this state, thoroughly well established, is that the right to maintain nuisances cannot be acquired by prescription. It follows, therefore, that limitation is no defense to a proceeding instituted for the abatement of a continuing nuisance.”²

In City of Corsicana v. King, the city dumped sewage into a creek near plaintiffs’ homes, and they sought past damages and a prospective injunction to restrain the public nuisance. 3 S.W.2d 857, 859 (Tex. Civ. App.—Waco 1928, writ ref'd). Needless to say, “the air was laden with offensive odors,” and “great swarms of mosquitoes from said creek invaded the homes of all of the appellees.” Id. at 860. There, in a writ refused case of equal precedential value to our own cases,³ the court rejected the city's argument that it had obtained a right by adverse possession to discharge the sewage, explaining that “when the acts which create a nuisance are prohibited by law, no prescriptive right to continue such acts and the nuisance resulting therefrom can be acquired.” Id. at 861.

In City of Ennis v. Gilder, the city erected a dam that caused water to back up, “rendering the places improved by plaintiff for the occupancy of his tenants unfit for habitation.” 32 Tex.Civ.App. 351, 74 S.W. 585, 585 (Tex. Civ. App.—San Antonio 1903, writ ref'd). Gilder, the landowner, sought damages and an injunction to abate the nuisance. Id. at 585-86. The trial court sustained the city's demurrer to Gilder's evidence of damages because the statute of limitations had run but permitted Gilder to seek abatement of the nuisance. Id. at 586. The court of appeals affirmed, explaining that a landowner's “claim for damages might be barred [by limitations] without impairing his right to abate the nuisance.” Id. “It cannot be seriously claimed that [a neighbor who creates flooding on an owner's land] could acquire any right in [that owner's] realty, by easement or otherwise, by adverse use that had existed for less than ten years.” Id. at 587. The court went on to explain that, “[i]f necessary to relieve plaintiff from the injurious effects of these conditions, the [trial] court had power to abate the dam altogether.” Id.

Both Gilder and King rely on our decision in Rhodes v. Whitehead, 27 Tex. 304 (1863). Rhodes sought damages for and abatement of a nuisance created by damming a river. Id. at 308. After a lengthy discussion about the nature of prescriptive rights, the Court made the following statement:

The right, however, to a nuisance, cannot be acquired by prescription, and if the damming of the water, though in accordance with a prescriptive right, “worketh hurt, inconvenience, or damage” to the plaintiff, by “creating pools of stagnant and putrid water, or in any manner creating or causing such annoyance as seriously to interfere with the comfortable enjoyment of his property; or that it has a direct or decided tendency to cause sickness in his family or immediate neighborhood,” it is a nuisance of which he may complain.

Id. at 316. In other words, “[t]he defendant cannot use his easement[,] if he have one, so as to hurt or injure the plaintiff in the free enjoyment of that part of his lot not affected by it.” Id. at 316-17.⁴

II

Although the Court now rejects the broad pronouncement that limitations never bars a suit to enjoin a nuisance, one of the specific grounds that certain cases identify as supporting their approach to limitations is the existence of a public rather than a private nuisance. See, e.g., King, 3 S.W.2d at 861 (invoking the “rule universally recognized that prescription or lapse of time cannot be relied on to establish a right to maintain a public nuisance,” such as pollution of a watercourse); Early, 281 S.W. at 885.⁵ When real property rights common to the public are infringed, it is not surprising that relevant considerations regarding the role of defenses such as limitations can differ.

Thus, in one of our principal modern opinions untangling the law of nuisance, we treated public nuisances as categorically distinct and limited our analysis to the requirements and limitations of private nuisances. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 591 n.3 (Tex. 2016).⁶ Today's opinion likewise does not address the role of limitations in public nuisance cases. Ante at –––– n.15.

III

A second specific rationale that these cases identify is the relevance of adverse possession or prescription to the limitations analysis. See King, 3 S.W.2d at 861; Early, 281 S.W. at 885; see also Rhodes, 27 Tex. at 316. Again, although we reject today the broad principle that a suit to remedy a nuisance injury can never be barred by limitations, some cases indicate that the two-year limitations period does not apply to a claim seeking a prospective injunction to abate an adverse use of property so it does not become an easement by prescription. Gilder, 74 S.W. at 587.⁷ Because JLMH has not alleged such a claim and agrees that the two-year period applies here, the Court properly does not address other limitations periods, which remain to be considered in future cases. As I discuss below, the difference highlighted by these cases can be traced to the texts of our statutes of limitations themselves, which show that distinct limitations periods can apply to causes of action that seek different forms of relief to remedy different injuries.

Chapter 16 of the Civil Practice and Remedies Code sets out many different statutes of limitations. The two-year statute to “bring suit for trespass for injury to the estate or to the property of another” appears in subchapter A addressing “limitations of personal actions.” Tex. Civ. Prac. & Rem. Code § 16.003(a) (emphases added). The Legislature also provides various periods of “limitations of real property actions” in subchapter B, including the ten-year statute to “bring suit” on a “cause of action ․ to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.” Id. § 16.026(a) (emphases added).⁸ This statute provides ten years to bring a suit to enjoin an adverse use of property—such as drainage or passage—before it ripens into an easement by prescription. See Albert, 690 S.W.3d at 98 (applying ten-year period to determine whether trespass claim seeking injunction against adverse use of easement was barred by limitations).⁹ Versions of both statutes have been on the books since the earliest days of Texas. See, e.g., Former Tex. Rev. Civ. Stat. arts. 3194, 3203 (1879).¹⁰

When read together, these statutes take into account that property owners can suffer different kinds of injuries. As we explained in Crosstex, these include injury to the owner's right to use and enjoy land (nuisance), interference with the right to exclusive possession of the land such as by physical entry of a person or thing (trespass), and injury to the land itself. 505 S.W.3d at 594, 603 n.17. Our laws provide owners with various—sometimes overlapping—causes of action for violations causing these injuries,¹¹ and each type of action may offer multiple remedies that redress different injuries. Thus, courts confronted with a limitations defense to a property-based claim must pay careful attention to how the text of the relevant statutes applies to each alleged violation and injury for which a remedy is sought. See Regency Field Servs. v. Swift Energy Operating, LLC, 622 S.W.3d 807, 814 (Tex. 2021) (“[A] claim accrues when the defendant's wrongful conduct causes the claimant to suffer a legal injury, which gives the claimant the right to seek a judicial remedy.”).

Key textual distinctions between these statutes show that the two-year limitations period applies to JLMH's causes of action seeking to remedy a nuisance injury to its personal use and enjoyment of land through damages and an injunction. JLMH alleges that Family Dollar's development has “repeatedly inundated [JLMH's property] temporarily with large volumes” of water; that “temporary retention” of the water has “deprived [JLMH] of the use and enjoyment of a substantial portion or all of its property, including ․ the loss of the value of such use” to carry out its business; and that it has suffered “property damage” to its parking lot and building. JLMH's suit to remedy these harms is thus a “personal action[ ]” for “injury to the estate or property,” not a suit to “recover real property.” Tex. Civ. Prac. & Rem. Code §§ 16.003(a), 16.026(a).¹²

But the Legislature has recognized that there is also a “cause of action” that offers “recover[y]” as a remedy for “adverse” “use[ ]” of “real property,” and holders of property interests have ten years to “bring [such a] suit.” Id. § 16.026(a). Future cases will need to explore when this ten-year limitations period applies rather than the two-year period, and the statutory text and our cases provide some useful guidance. The ten-year statute is written generally to cover any cause of action that seeks to recover exclusive possession and use of real property. Thus, as just explained, the limitations period for a certain type of claim can vary depending on the violation alleged and the injury sought to be remedied.

For example, different limitations periods apply to trespass-to-try-title claims depending on the source of the title dispute. If the source is an adverse use, this ten-year statute or another relevant statute governing recovery of land applies.¹³ But if the source is a conveyance, the four-year statute applies to a claim to set aside a voidable deed (such as for fraud), while the ten-year or other relevant statute governing recovery of land applies to a claim that a deed is void. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 674 (1942); see also Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007) (per curiam).

When the owner brings a trespass-to-try-title suit beyond the period to recover land, the defendant may assert limitations as a defense, arguing that it has “title by limitations.” Lance v. Robinson, 543 S.W.3d 723, 735 (Tex. 2018). In that situation, the limitations period is the adverse possession period (usually ten years) because an owner cannot recover his land beyond that period. See, e.g., Tex. Civ. Prac. & Rem. Code § 16.026(a); see also 2 W. Mike Baggett & Brian Thompson Morris, Tex. Prac. Guide: Real Est. Litig. § 5:62 (Aug. 2025) (“The adverse possession statutes are statutes of limitation[s].”).¹⁴

It is not clear whether a statutory action for trespass to try title can be used to establish or prevent an easement, however, as an easement is a nonpossessory interest authorizing the holder to use land for a particular purpose while a trespass-to-try-title action determines title or a possessory right. See Lance, 543 S.W.3d at 736-37.¹⁵ So what is a cause of action to which the ten-year statute applies in the easement context? The answer to this question will be relevant not only to landowners like JLMH that seek to recover exclusive possession of their property before an adverse use ripens into an easement by prescription, but also to easement holders like utilities, pipelines, and railroads that seek to prevent others from eroding their full usage rights through conflicting uses.

Some of our cases indicate that one such cause of action is a common-law trespass claim seeking a prospective injunction to recover property that is being used adversely. See Boerschig v. Rio Grande Elec. Coop., --- S.W.3d ––––, ––––, 2026 WL 1468464, at *11 (Tex. May 22, 2026) (rendering judgment for landowner on trespass claim against party using property outside scope of authorizing easement); Albert, 690 S.W.3d at 98. Applying the ten-year statute to such a claim, as we did in Albert, mirrors the period we apply when a limitations defense is raised to a trespass-to-try-title action involving adverse possession as discussed above.¹⁶

Of course, an owner may also be able to seek government help or exercise self-help to abate certain adverse uses before they ripen into an easement by prescription. But neither is a replacement for judicial remedies,¹⁷ so they shed no light on what constitutes a “suit” on a “cause of action ․ to recover” an interest in “real property” to which the ten-year statute of limitations applies. Tex. Civ. Prac. & Rem. Code § 16.026(a).

In addition, self-help is not “available in every case,” Gardiner, 505 S.W.3d at 610, and “few Texas cases ․ have addressed the circumstances when [it] is available.” Byrne Oil Co., 722 S.W.3d at 348. For example, an owner may be able to abate certain adverse uses by building a wall. But many nuisances cannot be abated by self-help at all (such as noise, dust, or odor), and other adverse uses such as flooding might be abatable or not depending on the slope of the terrain, the nature of the soil, and other factors. It would make little sense to have the length of the limitations period for a claim seeking to enjoin an adverse use turn on the vagaries of whether self-help is an available alternative in a particular case.

Today's decision leaves courts and parties free to explore the narrower limitations rationales identified in these cases, which are not implicated here.

Today's opinion does what needs to be done on the merits. First, the Court explains, injunctions to abate a nuisance are bound by statutes of limitations. Second, injunctions do require a valid (in this case, non-expired) cause of action. The court of appeals held the opposite as to both, and the Court today briskly corrects those serious errors. The correction is proper because an injunction is simply a remedy that a plaintiff can request and that might be available if he pleads and proves a viable claim. I write separately to further explain why the Court's result is compelled not just by logic but also by our existing jurisprudence.

Our appellate jurisdiction, by contrast, presents a closer and more difficult question. I ultimately agree that the Court has jurisdiction to decide the case, but my basis for that conclusion is narrower than the plurality opinion's, so I also write separately for that reason. Accordingly, I join the Court's judgment and the portions of the lead opinion—all but Part I—that constitute the opinion of the Court.

I

Well after we granted the petition for review, the Court identified a potential defect in appellate jurisdiction and directed the parties to address it. The parties do not dispute that our jurisdiction is secure. We must independently resolve any substantial doubts, however, so “[b]efore turning to the merits, we must first ensure that we have jurisdiction to do so.” Leibman v. Waldroup, 715 S.W.3d 367, 371 (Tex. 2025). Our colleagues in dissent make a number of powerful points regarding finality and jurisdiction, and I agree with much of what they say. In other cases, those principles may well compel a different outcome, but under the specific circumstances of this case, I conclude, along with a majority of the Court's members, that we have jurisdiction to reach the merits.^*

II

A

The merits turn out to be simple. A claim that fails for any reason—including, as here, because it was filed outside the limitations period—cannot support any relief. An injunction is relief. JLMH's claims are barred by limitations, so a court cannot award an injunction to remedy those claims. The Court's brevity in dispensing with the contrary arguments is laudatory.

Neither the relief sought (a permanent injunction), nor the label affixed to the claims (“nuisance”), presents any complication. Demanding damages, demanding an injunction, demanding both—none of that matters for purposes of determining limitations, which is focused on the cause of action. After all, in Texas, “law and equity are so blended as to remove all distinctions, procedural or otherwise,” in our courts. Rogers v. Daniel Oil & Royalty Co., 130 Tex. 386, 110 S.W.2d 891, 894 (1937). In our blended system, “where both law and equity are administered by the same court, statutes of limitation apply to equitable actions the same as to legal actions.” Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 170 (1943) (emphasis added). JLMH sought damages alongside an injunction—all to remedy a permanent nuisance. Had it sought one, the other, or (as it eventually did) both, the result must be the same: its causes of action are time-barred, so the court cannot award relief of any kind.

The court of appeals was therefore wrong to conclude that “Texas law does not recognize limitations as a defense to injunctive relief to abate a nuisance.” 716 S.W.3d 770, 781 (Tex. App.—Fort Worth 2024). It may have been accurate as a historical matter to observe that at least some “Texas courts have recognized a plaintiff's standalone right to have a nuisance abated.” Id. at 783. But it was wrong as a legal matter to have joined those courts in thinking that injunctive relief is freestanding and can be untethered from a valid cause of action.

The Court is quite right to dispel these mistaken views. I endorse the clarity of today's statements: “There is no stand-alone right to abate a nuisance or obtain an injunction.” Ante at ––––. “Regardless of the relief a party seeks, ‘remedies are available only if liability is established under a cause of action.’ ” Id. (emphasis added) (quoting Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011)). And “[b]ecause it is the claim itself that determines which limitations period applies, JLMH's addition of a request for injunctive relief to its claims for injury to land does not alter the two-year limitations period.” Id. at –––– (emphasis added).

I join all of that without reservation. Notably, none of it is really about nuisance per se; it all inheres in the very concept of a cause of action, regardless of the injury a plaintiff seeks to redress. Courts ask when a cause of action accrued because the cause of action determines the applicable statute of limitations. Likewise, courts do not ask about the requested remedy before assessing limitations because the cause of action, not the remedy, determines the answer. If the cause of action is time-barred after two years, as everyone agrees is true of all the causes of action pleaded by JLMH, all potential relief for that cause of action is also necessarily time-barred. The result is simple, clear, and universal.

Today's decision stands for this general and universal rule, clarifying only that there is no exception for so-called “nuisance claims.” But because misunderstandings seem to frequently arise over claims involving nuisance, I next turn to why our nuisance jurisprudence is not only consistent with but compels today's result.

B

The law of nuisance has long been a source of great confusion and frustration. “Dean Prosser famously wrote that there ‘is perhaps no more impenetrable jungle in the entire law than that which surrounds the word “nuisance.” ’ ” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 591 (Tex. 2016) (quoting William L. Prosser, The Law of Torts § 88, at 592 (3d ed. 1964)).

This Court began clearing a path through that jungle in Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004), and then in Crosstex. The Court's decision today continues that good work.

Schneider is our seminal case about limitations for causes of action in which plaintiffs seek redress for an injury that the law denominates a “nuisance.” In Schneider, we criticized existing Texas nuisance cases for their endemic inconsistency and incoherence in determining whether a nuisance was permanent or temporary. See id. at 273–75. That taxonomy is key for limitations because it is what determines whether the limitations clock will run (a permanent nuisance) or perpetually restart upon each new infraction (a temporary nuisance). So great was the indeterminacy in the case law—generating an inability to reliably predict how a court would rule based on materially indistinguishable circumstances—that, in then-Justice Brister's famous line for the Court, “half of [the cases] must be wrong; they are simply unreconcilable.” Id. at 274.

Schneider eliminated the old ad hoc approach to permanent and temporary nuisances. It wiped the old cases away and made clear that they were of no help for limitations purposes. It replaced them with new guidance—namely, that “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.” Id. at 281. Applying that guidance here, JLMH's alleged injury is a permanent nuisance because the flooding occurs every time it rains and results from permanent structures. No one contends otherwise. JLMH's claims therefore accrued once; they do not accrue anew each time a hard rain causes its parking lot to flood. See id. at 270.

Schneider likewise made clear that certain things were beyond questioning: “The limitations period for a private nuisance claim is two years.” Id. (citing Tex. Civ. Prac. & Rem. Code § 16.003). That formulation is shorthand, of course, because there is in truth no such thing as a “nuisance claim,” but only a justiciable cause of action in which an alleged nuisance constitutes the injury in fact. See Crosstex, 505 S.W.3d at 591, 604. The shorthand, though, is useful; it describes the relevant injury in fact, even if that label does not include all the remaining elements of a particular claim.

Nonetheless, the application of this clarified standard for limitations has not been uniform when injunctions are at play. In this case, for example, the court of appeals effectively split the cause of action, treating it as expired as to damages but allowing it to proceed as to the remedy of injunctive relief (ostensibly on the ground that no cause of action was even needed). Other courts, however, have treated requests for injunctive relief as having no effect on limitations. See, e.g., Mitchell v. Timmerman, No. 03-08-00320-CV, 2008 WL 5423268, at *1 (Tex. App.—Austin Dec. 31, 2008, no pet.) (affirming summary judgment on the plaintiffs’ time-barred nuisance claim seeking damages and injunctive relief). Similarly, courts have differed with respect to limitations when only injunctive relief is sought. Compare, e.g., Yalamanchili v. Mousa, 316 S.W.3d 33, 39 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“Limitations is not a defense to a request to permanently abate a nuisance.”), with Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 276 (Tex. App.—El Paso 2001, pet. denied) (“Because Phillips established that all causes of action are barred by limitations, Walton is not entitled to injunctive relief.”).

In Schneider, we reserved how to deal with limitations when injunctive relief is requested as “a question we do not reach as it is not this case.” 147 S.W.3d at 289. Our normal practice, after all, is not to formally reach unpresented issues. At the same time, though, it is also common for prior holdings to leave open only one possible outcome once an issue is squarely presented. Schneider’s holdings—and common sense—leave open no other outcome here.

Here is a sampling of why that is so. In Schneider, the Court clarified the distinction between permanent and temporary nuisances. One of our central points was that, as in other legal contexts, “characterizing a nuisance as temporary or permanent determines when limitations accrues, and thus when an injured party's claims are barred.” Id. at 279 (emphasis added). We did not say then or at any other time that the accrual of limitations determines when a particular remedy is barred. Again, as elsewhere in the law, it is the claim itself that is either categorically barred or not barred: “[T]he record here establishes as a matter of law that the alleged nuisances were permanent, and thus barred by limitations.” Id. at 268. That is why the delineation between temporary and permanent nuisances is so important. “Uncertainty in the test for the distinction can put the parties in a serious predicament.” Id. at 275 (quoting 1 Fowler V. Harper et al., The Law of Torts § 1.30, at 140 (3d ed. 1996)). Indeed, dispelling uncertainty about limitations in nuisance cases is the reason we decided Schneider in the first place.

Elsewhere in Schneider, we made clear that so-called nuisance claims are not treated differently from other kinds of claims—as always, a claim is a cause of action that can generate remedies. For example:

Generally, a cause of action accrues and limitations begins to run when facts exist that authorize a claimant to seek judicial relief. As nuisance claims arise only upon a substantial interference with property use, they normally do not accrue when a potential source is under construction [O]nce operations begin and interference occurs, limitations runs against a nuisance claim just as against any other.

Id. at 279 (emphasis added and omitted) (footnotes deleted). And we clearly contemplated multiple or alternative remedies arising from the same claim. E.g., id. at 290 (“If only private interests are involved, courts may well favor the equitable option allowing neighboring owners to stop the uninvited nuisance, rather than the legal option forcing them to live with it and sending them a check.”).

One of Schneider’s objectives was to eliminate “splitting one claim into several suits when a single suit will suffice.” Id. at 278. As with any other cause of action, we treated a permanent nuisance as a single claim with multiple potential remedies. Our discussion would have been awkward, at best, if it later turned out that the limitations period for that single claim transformed from two years to something longer if a plaintiff simply failed to sue in time to get damages. As we observed in response to some cases that seemed to allow plaintiffs great flexibility, “claimants cannot opt for an indefinite limitations period or a series of suits whenever they would prefer.” Id. at 281–82. To the contrary, the rule remains one suit for one claim. A limitations period in which one remedy (but not another) would be continually available would constitute a maximally “indefinite limitations period” that would allow a demand for an injunction to spring forth at any time.

So, yes, Schneider formally reserved the question. But it also set up all the dominoes, which fall exactly where the trial court in this case thought they would. That is why that court treated the causes of action in this context as it would in any other: subject to the usual statutes of limitations.

The Court's opinion today is welcome and necessary because it eliminates the remaining cognitive dissonance that survived Schneider. At least some courts took Schneider’s formal reservation to mean that the law allows a wildly different approach to limitations as long as an injunction is at issue. Today's decision eliminates this last vestige of the pre-Schneider jurisprudence of confusion, placing everyone on notice that if they seek to redress a nuisance through litigation, they must sue within two years of accrual, period.

C

As all parties and the lower courts agree, this case is about nothing more than relief from an alleged permanent nuisance: JLMH's inability to fully enjoy the use of some of its land when it rains. We have reiterated that such nuisance claims have a two-year limitations period because the nuisance injury is allegedly caused by wrongful acts like negligence or trespass. Section 16.003 covers “suit[s] for trespass for injury to the estate or to the property of another.” Tex. Civ. Prac. & Rem. Code § 16.003(a).

Unsurprisingly, some infringements on a property owner's enjoyment of his land might, in time, ripen into a threat to that ownership. Adverse possession may lead to property interests like easements. But that does not mean that a nuisance itself has anything to do with adverse possession. An untreated scrape is not itself lockjaw, even though failing to treat such a scrape might sometimes play a role in contracting that entirely different and far more serious ailment.

If an unabated nuisance does eventually facilitate an adverse property claim, that is when the law of adverse possession would presumably become relevant. Make three assumptions based on this case to see how that might be so. First, assume things will proceed as they have until the end of a ten-year period, with JLMH's land continually flooding each time it rains heavily, allegedly because of Family Dollar. Second, assume that those circumstances implicate the ten-year adverse-possession statute of limitations. See id. § 16.026(a) (covering causes of action “to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property”). Third, assume that, under those circumstances, Family Dollar could actually meet every adverse-possession requirement to claim a prescriptive easement over the portion of JLMH's land flooded by Family Dollar's runoff water.

Even granting all those assumptions (some of which are more dubious than others), the fate of JLMH's untimely nuisance suit says nothing about a hypothetical future adverse-possession claim. After all, JLMH retains the balance of ten years from the time the nuisance began in which it can prevent any potential easement from maturing. Even if JLMH missed the two-year period to sue for nuisance, it still has the remaining eight years to defeat any element of Family Dollar's theoretical adverse-possession claim. See, e.g., Brumley v. McDuff, 616 S.W.3d 826, 828 n.3, 834 (Tex. 2021) (setting out the various elements of a claim for trespass to try title by adverse possession, which falls under § 16.026: “actual, visible, continuous, hostile, and exclusive possession and use of the property for over ten years”); Albert v. Fort Worth & W. R.R. Co., 690 S.W.3d 92, 98 (Tex. 2024) (“A person can acquire a prescriptive easement if he uses someone else's land in a manner that is adverse, open and notorious, continuous, and exclusive for the requisite ten-year period.” (citing § 16.026)).

That means, for example, that JLMH itself could redirect the water or abate the flooding, which would preclude Family Dollar from establishing the element of exclusive use of the land during floods. JLMH could dig a culvert to direct the water elsewhere, build a wall, or install a larger pump. Or, if JLMH is correct that Family Dollar is not in compliance with the Water Code, perhaps it could persuade the government to take some enforcement action that would have the effect of redirecting the water. It does not much matter which of these routes (or any other that may exist) is chosen. If anything leads to a scenario in which Family Dollar's runoff does not flood JLMH's land when there is heavy rain, Family Dollar could hardly assert a prescriptive easement to do the thing that it no longer does. Defeat any element and you defeat adverse possession wholly aside from whether you sought to vindicate your nuisance injury.

Beyond all that, if JLMH indeed abates the nuisance, JLMH would have a new nuisance claim if Family Dollar takes steps to again invade JLMH's property. As we said in Schneider, even if an old nuisance is time-barred, “an old nuisance does not excuse a new and different one.” 147 S.W.3d at 280.

True, JLMH obviously would prefer to benefit from a court-ordered injunction for this permanent nuisance to be abated now and for Family Dollar to do the work. But the very nature of limitations in this and every other context is that relief that may have otherwise been available to a plaintiff is now barred.

In no sense does this outcome mean that Family Dollar has the “right” to create a nuisance. This Court long ago stated that “[t]he right ․ to a nuisance, cannot be acquired by prescription.” Rhodes v. Whitehead, 27 Tex. 304, 316 (1863). Indeed. The only “right” that Family Dollar has, at least at this point, is not to be subjected to judicial process for an untimely claim. This is basic to the law. We would not say that a tort defendant had the “right” to commit a tort any more than a criminal defendant had the “right” to commit a crime if limitations expired before charges were filed; it just means that they cannot be forced to answer for it in court. It is precisely because Family Dollar has no substantive “right” to the alleged nuisance that JLMH can abate the injury to its land even without judicial relief. A plaintiff's forfeiture of a judicial remedy through inaction for nuisance does not mean that the other party has a “right” in the alleged misconduct. Family Dollar, in other words, has no affirmative right in JLMH's land (or in the conditions causing a nuisance)—at least until ten years have elapsed.

* * *

If a claim is time-barred, then both damages and injunctions are unavailable for the tardy plaintiff. The Court properly holds as much today, providing consistency and straightforwardness to an area of law that is easily convoluted.

Simplifying and settling the limitations questions that arise in this context is to the benefit of all parties. Everyone is better off with this maximally clear up-front rule: Nuisance is no exception to the principles that (1) remedies are not available once a cause of action has been defeated and (2) causes of action cannot be split with different limitations periods for different demanded remedies. With these thoughts, I concur in part and in the judgment.

In the 1970s, Italian pop star Adriano Celentano released a smash-hit single titled “Prisencolinensinainciusol.” The point of the song is—well it's better to hear for yourself. Explaining a joke can kill the bit, so give it a listen if you can and then turn the page.¹

For those who can't listen to it now, the song sounds like it's in English, but it's actually gibberish. Celentano later explained: “I thought that I would write a song which would only have as its theme the inability to communicate ․ And to do this, I had to write a song where the lyrics didn't mean anything.” It's Gibberish, but Italian Pop Song Still Means Something, NPR (Nov. 4, 2012, at 16:13 ET), https://www.npr.org/2012/11/04/164206468/its-gibberish-but-italian-pop-song-still-means-something. The song is funny because it violates language's first and greatest commandment: say something.

This rule, integral to the very concept of a language, is intentionally violated only by artists, jokers, and the insane. Judges and lawyers almost always follow it. That's why we resist interpretations that'd render meaningless any snippet of written text, whether found in our Constitution, a statute, a contract, or some other legal document. Today, however, the plurality opinion and the concurrence conclude that the district court's clarifying order says and does nothing: It didn't spell out that there was no longer a final order, so it had no legal effect. Our precedents don't compel this result, and if they did, I'd jettison them rather than the first rule of language.

The way I read it, the district court's order (1) modified its (previously) final order by withdrawing summary judgment on JLMH's claim for a permanent injunction and (2) gave JLMH the right to pursue an interlocutory appeal of the court's other decisions, rather than a conventional appeal. These judicial acts transformed the final order into an interlocutory one. Sure, the clarifying order could've been clearer, though that's true of most writing. But mine is the only reading that gives its words any legal effect. Instead of treating the district court's order as a sort of judicial Prisencolinensinainciusol, I would instead dismiss this case for want of appellate jurisdiction.

I

The plurality ably summarizes the facts, but here's what you need to know for purposes of jurisdiction. JLMH Investments, LLC owns a parcel of land abutting a store operated by Family Dollar Stores of Texas, LLC. Family Dollar hired contractors to build the store, install utilities, and construct a drainage system. JLMH later sued Family Dollar and its contractors, alleging that the construction was causing water to drain onto JLMH's land when it rained. Seeking damages and injunctive relief, JLMH urged claims of nuisance, trespass, negligent and intentional diversion of surface water, and Water Code violations.

Family Dollar moved for summary judgment on the ground that the two-year statute of limitations barred all of JLMH's claims. Though it didn't specifically address JLMH's claim for a permanent injunction, Family Dollar asked the district court to grant summary judgment against JLMH on “all claims.” The district court granted Family Dollar's motion in an order of April 17, 2023 that “dispose[d] of all parties and all claims.”

JLMH moved the court to reconsider and to order a new trial, arguing (as it does in our Court) that limitations won't bar a claim for a permanent injunction against a nuisance. In the alternative, JLMH asked the court to merely “clarify” that its claim for a permanent injunction had not been dismissed, and to set that claim for trial. The parties set the motion for a hearing, at which JLMH made an “oral [m]otion to [c]larify the [s]ummary [ j]udgment [o]rders and [p]roceed [to t]rial on [i]njunctive [r]elief.” Family Dollar, meanwhile, orally moved for a “final disposal of all parties and claims”—in other words, it asked that the district court stick with its earlier order.

The district court gave JLMH what it wanted. In a clarifying order of May 8, 2023, the district court clarified its summary-judgment order to give JLMH the right to file a permissive interlocutory appeal, and stayed all proceedings (namely, proceedings on JLMH's permanent-injunction claim) pending resolution of the interlocutory appeal.

Inexplicably, JLMH didn't pursue the interlocutory appeal it had won the right to file. Instead, it took a conventional appeal. The court of appeals appears to have noticed the potential problem JLMH's actions created. It noted that the district court had granted JLMH's request for a permissive interlocutory appeal and stayed the remaining claims until that appeal was resolved. 716 S.W.3d 770, 776 n.7 (Tex. App.—Fort Worth 2024). According to the court of appeals, however, this order had no legal effect. See id. (“The Clarifying Order ․ made no perceivable clarifications to its prior orders.”).

II

Texas Rule of Civil Procedure 329b governs motions to modify a judgment. A party gets thirty days to file such a motion, Tex. R. Civ. P. 329b(a), and the motion is deemed denied if the district court hasn't ruled within seventy-five days, id. 329b(c). The district court then has “plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment” for thirty days after a motion to modify the judgment has been denied. Id. 329b(e). In sum, a district court can have several months to modify a judgment it signed.

Everyone agrees that the district court's April 17 order was final. It included the magic words—dismissing “all parties and all claims”—that we've said will always suffice to render a final judgment. See Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020) (per curiam). Everyone also agrees that the district court had plenary power to grant JLMH's request that it “clarify” (really, modify) that order so that JLMH's claim for a permanent injunction would remain pending before the district court. See Tex. R. Civ. P. 329b. The only question is whether the district court's May 8 order actually made such a modification. If so, then the court of appeals lacked jurisdiction because the district court made its final order into an interlocutory one, yet JLMH failed to perfect an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(d), (f ); Indus. Specialists, LLC v. Blanchard Refin. Co., 652 S.W.3d 11, 13–14 (Tex. 2022).

I'm compelled to conclude that the May 8 order had this effect because there's no other interpretation that gives it any reason to exist. Consider the words that a busy judge put on the page: In its self-styled “ORDER CLARIFYING SUMMARY JUDGMENT ORDERS,” the district court “GRANTED” JLMH's “[r]equest for a [p]ermissive [i]nterlocutory appeal.” It then “DECREED that all proceedings in the above-entitled and numbered cause are hereby stayed pending the interlocutory appeal of the [s]ummary [ j]udgment [o]rder[s].”

None of these things are consistent with a final judgment. The district court couldn't “stay[ ]” the proceedings unless there was a claim left to stay. Likewise, JLMH could take an “interlocutory appeal” only if at least one of its claims was still alive. And despite acknowledging Family Dollar's pending “request [for] final disposal of all parties and claims,” the district court didn't grant that motion.

It's a basic principle of language to presume that someone is trying to say something when they speak. We don't lightly conclude that everything coming from someone's mouth (or pen) is nonsense. See, e.g., M.B.W. Sinclair, Law and Language: The Role of Pragmatics in Statutory Interpretation, 46 U. Pitt. L. Rev. 373, 377–78, 394 (1985) (relying on Paul Grice's work on linguistics and philosophy of language). That intuition is amplified in legal proceedings, for it's even less likely than normal that a statute, contract, or similar text will be meaningless, in whole or even in part. See, e.g., id. at 395 (“[W]e can likewise presume that each enacted provision of a statute says something ․”); Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844, 856 (Tex. 2024) (“If possible, every word and every provision is to be given effect ․ None should be ignored.” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012))); In re J.S., 670 S.W.3d 591, 599 (Tex. 2023) (“Adopting an interpretation ․ that renders the sentence ‘pointless’ would run afoul of the presumption against surplusage.”); Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996) (“In construing a contract, we strive to give meaning to each provision.”). As far as I can tell, we've never applied this principle to court orders. But I see no reason why we shouldn't, given that the surplusage canon and related doctrines are simply outgrowths of bedrock linguistic principles.

III

So why, then, is the Court willing to treat an entire court order as so much gibberish? The plurality relies on an opinion that's older than me, in which we wrote that, “[d]uring the time in which a court may vacate, set aside, modify or amend its previous order, such action must, to be effective, be by written order that is express and specific.” McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (quoting Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex. App.—Houston [14th Dist.] 1969, writ dism'd)). The plurality focuses on those last three words—“express and specific.” Ante at ––––. On this view, it's not enough that the order now before us clearly (but implicitly) unwinds finality. If the order didn't “express[ly]” do so, the argument goes, then it did nothing.

McCormack is too thin a reed to bear the weight the plurality places on it, for several reasons. For one thing, the quoted passage is dicta. What mattered in that case was that the district court had orally granted a motion for a new trial, but didn't sign an order to that effect until after the deadline had passed. 597 S.W.2d at 345. The problem wasn't a lack of express language, but a lack of paper and ink. We correctly held that orders granting Rule 329b motions must be put in writing and signed before the district court loses jurisdiction. Id. at 346. What we said about the requisite level of clarity was unnecessary to our holding and so was dicta. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 406 (Tex. 1997).

Even if McCormack’s dicta were something more, the three words on which the plurality relies—“express and specific”—don't get it all the way home. The plurality apparently reads McCormack to say that an order must state that it's unwinding finality to have that effect. That's a clear implication, but we didn't actually say so. It's at least a little bit ironic to rely on the implication that implications aren't enough. Given McCormack’s own lack of perfect clarity, I'd forgive the same sin in the district court's clarifying order and construe our precedent to follow the natural law of language.

Finally, even if I thought those three words announced a clear holding, I'd be inclined to overrule them. McCormack drew from an even older court of appeals opinion that cited nothing. See 597 S.W.2d at 346 (quoting Poston Feed Mill, 438 S.W.2d at 366). “Stare decisis does not warrant an obstinate insistence on precedent that appears to be plainly incorrect.” Mitschke v. Borromeo, 645 S.W.3d 251, 266 (Tex. 2022) (quoting Sw. Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 448 (Tex. 2008)). To the extent McCormack constitutes precedent at all, it is only of the most ephemeral variety. There's no wizard behind this curtain.

In sum, I see no reason to give more weight to a single line of dubious dicta relying on nonbinding precedent that in turn cited nothing at all, than to an ancient and venerable principle like the one that courts disfavor interpretations resulting in surplusage. That's like betting on a lemur in a fight with a silverback gorilla.²

* * *

Be careful what you wish for, as the saying goes. JLMH asked the district court to clarify that its permanent-injunction claim was still alive, and to let it take an interlocutory appeal rather than a conventional appeal. That wish came true, unless we're to believe (as the Court does) that the district court's clarifying order did nothing at all. I don't share that belief because, to quote a fellow jurist who predates anyone reading my little opinion, “verba cum effectu sunt accipienda”—“Words are to be taken as having an effect.” Scalia & Garner, supra, at 174 & n.1 (quoting Ulpian, Digest 2.7.5.2).

Given JLMH's failure to perfect its desired interlocutory appeal, combined with the final-judgment vacuum that JLMH itself engineered, the court of appeals lacked jurisdiction. Because the Court affirms the judgment below on the merits, instead of vacating it for want of appellate jurisdiction, I respectfully dissent.

FOOTNOTES

1.   In 2022, Crosstown prepared another report documenting cracks in the building's foundation and driveway. Crosstown noted that the foundation in the shop/dock area had heaved and “is behaving like the soils are very-hydrated” and that increased drainage and ground water “are causing slab cracking.”

2.   The other defendants in the trial court and petitioners here are: Triple C Development, Inc., a contractor or developer of the Family Dollar store; 7B Building & Development, LLC, a subcontractor for Triple C on the project; Burkhardt Engineering Company, the engineer of record for the store's civil plans; and M&S Utility Construction, LLC, a subcontractor for 7B Building & Development, whose work included the installation of the store's drainage system and utilities.

3.   See Heckman v. Williamson County, 369 S.W.3d 137, 145 (Tex. 2012) (“Ordinarily, this Court lacks jurisdiction over an appeal from an interlocutory order.”); Tex. Gov't Code § 22.001(a) (describing when this Court “has appellate jurisdiction ․ of an appealable order or judgment of the trial courts”).

4.   See Tex. R. Civ. P. 329b(d).

5.   JLMH filed a motion for new trial on May 17, 2023, which extended the time to file the notice of appeal to 90 days after judgment. See Tex. R. App. P. 26.1(a)(1). JLMH filed its notice of appeal on July 7, 2023.

6.   See Bella Palma, LLC v. Young, 601 S.W.3d 799, 800-02 (Tex. 2020) (per curiam) (giving effect to such a clarification); Lehmann, 39 S.W.3d at 206 (“If the appellate court is uncertain about the intent of the order [regarding finality], it can abate the appeal to permit clarification by the trial court.”). A court of appeals may also abate to allow an order that is not final to be modified to be made final. Tex. R. App. P. 27.2.

7.   Our dissenting colleagues contend that this language from McCormack is dicta. Post at –––– (Sullivan, J., dissenting). But they concede that they have no precedent supporting their contrary approach to construing court orders. Id. at ––––.

8.   Sealy Emergency Room, 685 S.W.3d at 820.

9.   Cf. City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 726 (Tex. 1971) (holding signing of “corrected” final judgment replaced original judgment and observing “[i]t is not necessary that the second judgment expressly state that the first judgment is vacated, though this would be the preferable procedure”); Luck v. Hopkins, 92 Tex. 426, 49 S.W. 360, 361 (1899).

10.   Our concurring colleagues agree. See post at –––– n.* (Young, J., concurring in part and in the judgment) (observing that the trial court “did not sign [JLMH's] proposed order” and that “no claims remained live” under the May 8 order).

11.   This opinion should not be understood to require that a subsequent order “state that it's unwinding finality to have that effect.” Post at –––– (Sullivan, J., dissenting). As we have explained, an order may also unwind finality by altering or removing the previous order's final disposition as to any claim or party.

12.   E.g., City of Houston v. Manning, 714 S.W.3d 592, 596 n.8 (Tex. 2025) (per curiam) (“Abrogating common-law claims is disfavored and requires a clear repugnance between the common law and statutory causes of action.” (quoting Cash Am. Int'l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000))); H2O Sols., Ltd. v. PM Realty Grp., 438 S.W.3d 606, 617 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“[I]t would be absurd and manifestly unjust to permit a party to recover after he has sworn himself out of court by a clear and unequivocal statement.” (quoting In re Spooner, 333 S.W.3d 759, 764 (Tex. App.—Houston [1st Dist.] 2010))); Lehmann, 39 S.W.3d at 203-05 (explaining ambiguity of “Mother Hubbard” clauses and adopting a clear-statement rule for finality of judgments).

13.   Int'l & Great N. Ry. v. Davis, 29 S.W. 483, 484 (Tex. Civ. App.—Austin 1895, writ ref'd); see also Huynh v. Blanchard, 694 S.W.3d 648, 673-74 (Tex. 2024).

14.   See also Smith v. Fly, 24 Tex. 345, 351 (1859) (“[S]tatutes of limitations are not, in their terms, applicable to courts of equity, yet, in administering relief, they act in obedience and analogy to the statute, and refuse relief wherever the claim would have been barred by the statute, if it had been made in a court of law.”).

15.   Because JLMH has not argued that this case involves a public nuisance, we do not address the role of limitations in such cases. See Crosstex, 505 S.W.3d at 591 n.3 (observing that public and private nuisances “are two distinct conditions with different requirements and limitations”).

1.   E.g., Yalamanchili v. Mousa, 316 S.W.3d 33, 39-40 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“Limitations is not a defense to a request to permanently abate a nuisance.”); Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 575 (Tex. App.—Texarkana 2000, pet. denied) (“One cannot ordinarily acquire a prescriptive right to maintain a nuisance. Limitations will not bar a suit to abate a continuing nuisance.”); Jamail v. Stoneledge Condo. Owners Ass'n, 970 S.W.2d 673, 676-77 (Tex. App.—Austin 1998, no pet.) (“Limitations is not a defense to an action to abate a continuing nuisance.”); Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex. App.—Dallas 1986, writ ref'd n.r.e.) (“Furthermore, limitation does not bar a suit to abate a continuing nuisance.”), disapproved on other grounds by Schneider, 147 S.W.3d at 281 n.79; Stein v. Highland Park Indep. Sch. Dist., 540 S.W.2d 551, 554 (Tex. Civ. App.—Texarkana 1976, writ ref'd n.r.e.) (“But here appellant alleged a continuing nuisance, praying for abatement as well as for damages. Limitations is not a defense to an action to abate a continuing nuisance.”), disapproved on other grounds by Schneider, 147 S.W.3d at 281 n.79; Hughes v. Jones, 94 S.W.2d 534, 536 (Tex. Civ. App.—Eastland 1936, no writ) (“It seems to be fairly well settled by the decisions in this state that in an action to abate a nuisance, public or private, prescription or limitation is no defense.”); City of Corsicana v. King, 3 S.W.2d 857, 861 (Tex. Civ. App.—Waco 1928, writ ref'd) (rejecting argument that a city “acquired by prescription a vested right to pollute the waters” of a creek); City of Dallas v. Early, 281 S.W. 883, 885 (Tex. Civ. App.—Dallas 1926, writ dism'd w.o.j.) (“The doctrine in this state, thoroughly well established, is that the right to maintain nuisances cannot be acquired by prescription. It follows, therefore, that limitation is no defense to a proceeding instituted for the abatement of a continuing nuisance.”); Gose v. Coryell, 59 Tex.Civ.App. 504, 126 S.W. 1164, 1168 (Tex. Civ. App.—Austin 1910, no writ) (“[T]he doctrine of prescription is not available as a defense; but, at the same time, we are of [the] opinion that the facts and circumstances relied on as constituting prescription, as well as those bearing upon the question of estoppel, are pertinent and proper to be considered in determining whether or not, in the exercise of sound discretion, relief by injunction should be granted.”); Boyd v. Schreiner, 116 S.W. 100, 103 (Tex. Civ. App.—San Antonio 1909, writ ref'd) (“It now seems to be settled by the weight of authority that the right to maintain a nuisance cannot be acquired by prescription.”); City of Ennis v. Gilder, 32 Tex.Civ.App. 351, 74 S.W. 585, 587 (Tex. Civ. App.—San Antonio 1903, writ ref'd) (“It follows that his claim for damages might be barred without impairing his right to abate the nuisance. It cannot be seriously claimed that the city could acquire any right in plaintiff's realty, by easement or otherwise, by adverse use that had existed for less than ten years.”); Int'l & Great N. Ry. v. Davis, 29 S.W. 483, 484 (Tex. Civ. App.—Austin 1895, writ ref'd) (holding that “limitation did not affect the remedy to abate the nuisance” where culvert became a permanent injury when it flooded neighbor's land and injury “was not only continuing, but was constantly increasing”); Rhodes v. Whitehead, 27 Tex. 304, 316 (1863) (“The right, however, to a nuisance, cannot be acquired by prescription, and if the damming of the water ․ interfere[s] with the comfortable enjoyment of [the plaintiff's] property ․, it is a nuisance of which he may complain.”); see also Simi Inv. Co. v. Harris County, 236 F.3d 240, 250 n.14 (5th Cir. 2000) (“Under Texas law, limitations is not a defense to an action to abate a continuing nuisance.” (cleaned up)).

2.   Early, 281 S.W. at 885 (citing Rhodes, 27 Tex. at 316; Gilder, 74 S.W. at 587; Boyd, 116 S.W. at 103). In Texas, we do not have a separate analytical category for “continuing” nuisances—we have temporary or permanent ones. Schneider, 147 S.W.3d at 280. We synthesized the distinction between temporary and permanent injuries to land most clearly in Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474 (Tex. 2014). There, we explained that an injury is permanent if: “(a) it cannot be repaired, fixed, or restored, or (b) even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated.” Id. at 480 (second emphasis added). Conversely, an injury is temporary if: “(a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.” Id. Over time, different authorities have used these terms differently. See, e.g., City of Tucson v. Apache Motors, 74 Ariz. 98, 245 P.2d 255, 257 (1952) (“Much confusion has arisen in the various jurisdictions of the United States as to just what constitutes a permanent nuisance as distinguished from a temporary or continuing nuisance ․”); Joseph A. Joyce & Howard C. Joyce, Treatise on the Law Governing Nuisances § 459 (1906) (referring to a continuing nuisance as one that “may be abated by law”). But in general, the continuing nuisances in the cases examined here would be considered permanent under the definitions quoted above. See, e.g., Jamail, 970 S.W.2d at 677 (referring to a locked gate as potentially a “continuing nuisance”); Early, 281 S.W. at 885 (referring to a “constant menace” as a “continuing nuisance”); 2 H.G. Wood, a Practical Treatise on the Law of Nuisances in Their Various Forms § 780 (3d ed., rev. 1893) (defining a continuous nuisance as one that “occurs so often, and is so necessarily an incident of the use of property complained of, that it can fairly be said to be continuing, although not constant or unceasing”).

3.   See Texas Rules of Form: The Greenbook app. E (Texas Law Review Ass'n ed.,16th ed. 2025) (explaining that when used between 1927 and 1997 the notation “writ refused” means such cases possess “equal precedential value with the Texas Supreme Court's own opinions”).

4.   Other cases apply similar principles. In Simon v. Nance, another water runoff case, the defendant pleaded the two-year statute of limitations as to damages and ten and twenty years’ prescription as to a widening ditch. 142 S.W. 661, 662-63 (Tex. Civ. App.—Austin 1911, no writ). The court concluded that laches barred an injunction when the condition lasted for twenty-one years. Id. at 664. In Scharlack v. Gulf Oil Corp., appellants conceded that the two-year statute of limitations barred their damages claim but sought injunctive relief. 368 S.W.2d 705, 706 (Tex. Civ. App.—San Antonio 1963, no writ). Rather than dismissing the claim for injunctive relief because of the two-year limitations bar, the court held that appellants failed to show they had suffered a nuisance. Id. at 707. And in a more recent case, Gearhart v. Wardell, the court declined to apply the two-year statute of limitations and instead applied the ten-year statute for adverse possession to injunctive relief to remove a wall. No. 13-15-00096-CV, 2016 WL 7011402, at *3 (Tex. App.—Corpus Christi–Edinburg Dec. 1, 2016, no pet.). The court recognized that the claim for damages expired two years after the wall was built. Id. at *2.

5.   See also Richardson v. Lone Star Salt Co., 20 Tex.Civ.App. 486, 49 S.W. 647, 648 (Tex. Civ. App.—Austin 1899, no writ) (“Under the present statutes of this state, it is clear that no right in the obstruction of a public street can grow up on the ground of limitation.”); Joyce, supra note 2 §§ 50, 55 (stating of public nuisances: “No prescriptive right to maintain such a nuisance can be acquired”; and of private nuisances: “Th[is] rule ․ does not apply where the nuisance is not a public one but private only.”).

6.   This Court has not thoroughly explored the distinction between public and private nuisances. In general, “a ‘public’ or ‘common nuisance’ is a condition that amounts to an unreasonable interference with a right common to the general public.” In re Premcor Refin. Grp., 233 S.W.3d 904, 907 (Tex. App.—Beaumont 2007, no pet.) (citation omitted); see also Restatement (Second) of Torts § 821B (A.L.I. 1979) (“A public nuisance is an unreasonable interference with a right common to the general public.”). And a private nuisance “is a nontrespassory invasion of another's interest in the private use and enjoyment of land.” Restatement (Second) of Torts § 821D (A.L.I. 1979); see Kane v. Cameron Int'l Corp., 331 S.W.3d 145, 147-48 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

7.   See also, e.g., Simi Inv. Co., 236 F.3d at 250 n.14; Gearhart, 2016 WL 7011402, at *2-3; Yalamanchili, 316 S.W.3d at 39; Abbott, 721 S.W.2d at 875; Stein, 540 S.W.2d at 554; 1 James L. High, a Treatise on the Law of Injunctions § 786 (Shirley L. High ed., 4th ed. 1905) (“[I]t is held that no acquiescence short of [the statutory period for] adverse user will bar plaintiff from his right to relief by injunction against a nuisance, unless he is estopped by some act or conduct which has induced defendant to incur expense, or to take action upon the strength of such conduct.”). A suit to recover property interrupts the period of peaceable use necessary to acquire an easement by prescription. Tex. Civ. Prac. & Rem. Code § 16.021(3).

8.   There are several other statutes of limitations for real property actions. E.g., id. § 16.024 (three years under title or color of title); id. § 16.025 (five years when person uses, pays taxes on, and claims property under a deed); id. § 16.0265 (fifteen years for cotenant heirs); id. § 16.027 (twenty-five years notwithstanding disability); id. § 16.028 (twenty-five years with recorded instrument). Although I base my discussion on the general ten-year statute, there may be circumstances in which one of the other limitations periods applies to cut off the right to an injunction.

9.   The use of another's property as a flooding runoff area for the statutory period can result in an easement by prescription. Haas v. Choussard, 17 Tex. 588, 590 (1856); First Nat'l Bank of Marshall v. Beavers, 602 S.W.2d 327, 329 (Tex. Civ. App.—Texarkana 1980, no writ); see also Joyce, supra note 2, § 396 (recognizing that “putting trash, filth and garbage upon” the land of another is a “use”).

10.   See also, e.g., Act approved Feb. 5, 1841, 5th Cong., R.S., §§ 1, 17, 1841 Repub. Tex. Laws 163, 163, 167-68, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822–1897, at 627, 631-32 (Austin, Gammel Book Co. 1898) (providing two years for “trespass for injury done to the estate, or property of another” and that “ten years of ․ peaceable possession and cultivation, use or enjoyment thereof, without any evidence of title, shall give to such naked possessor full property precursive of all other claims”).

11.   “[I]n some instances an action can be both a trespass and a [negligent] nuisance.” Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509 (Tex. App.—Eastland 2008, pet. denied). And the Water Code's description of the conduct and injury it prohibits—“damages” to another's property by an “overflow” of diverted or impounded water—may also support a cause of action for trespass or negligence. Tex. Water Code § 11.086(a).

12.   See Miller v. Rusk, 17 Tex. 170, 171 (1856) (“[R]ecovery ․ manifestly has reference to the possession” of property, while “an injury to the ․ freehold or estate” results in “damages.”).

13.   See, e.g., Wells v. MSW 1221 S. Lamar, LLC, No. 05-23-01288-CV, 2026 WL 188025, at *11-12 (Tex. App.—Dallas Jan. 23, 2026, pet. filed) (applying ten-year limitations period for trespass-to-try-title action); Hestia Mgmt., LLC v. Klimist, No. 13-24-00431-CV, 2025 WL 3548514, *3 (Tex. App.—Corpus Christi–Edinburg Dec. 11, 2025, no pet.) (describing adverse possession statue as a “limitations statute”); Gutierrez v. Lorenz, No. 14-18-00608-CV, 2020 WL 1951606, at *5 (Tex. App.—Houston [14th Dist.] Apr. 23, 2020, no pet.) (barring action to recover property due to “adverse possession limitations”); Brown v. Snider Indus., 528 S.W.3d 620, 630 (Tex. App. Texarkana 2017, pet. denied) (applying adverse possession limitations to bar trespass-to-try-title suit); Valdez v. Moerbe, No. 03-14-00731-CV, 2016 WL 1407800, at *6-8 (Tex. App.—Austin Apr. 6, 2016, pet. denied) (addressing which statute for recovery of land applies to trespass-to-try-title claim); Mem'l Park Med. Ctr., Inc. v. River Bend Dev. Grp., 264 S.W.3d 810, 817-820 (Tex. App.—Eastland 2008, no pet.) (same); Thedford v. Union Oil Co. of Cal., 3 S.W.3d 609, 615 (Tex. App.—Dallas 1999, pet. denied) (applying 25-year limitations period to bar trespass-to-try-title action); see also 2 Tex. Jur. 3d Adverse Possession § 1 (“Statutes providing limitation periods control in any case involving the recovery of land claimed by adverse possession; thus, one having a right to recover property from an adverse possessor must institute suit within three, five, 10, or 25 years, depending on various factors and circumstances, or subsequently be barred from recovery.” (footnote omitted)).

14.   Put another way, adverse possession is not a claim in itself; it is the shorthand label we apply when the ten-year or other applicable limitations period has run on a claim to recover real property being used adversely by another. The actionable injury is the adverse use, not the prescriptive easement that may result in the future if no suit is filed to recover the property within ten years. Thus, the ten-year statute becomes relevant when the adverse use begins for which suit can be brought, not merely when the ten-year period has run. I agree with my concurring colleagues that the fate of JLMH's untimely nuisance suit under the two-year statute says nothing about a hypothetical claim to which the ten-year statute applies. Post at –––– (Young, J., concurring in part and in the judgment).

15.   Similarly, it is not clear whether a suit to quiet title or remove a cloud on title can be used to establish or prevent an easement, as one party is not claiming title to the property. See Kapur v. U.S. Bank Nat'l Ass'n, 691 S.W.3d 663, 667 (Tex. App.—Houston [14th Dist.] 2024, pet. denied) (listing elements of quiet title action, which include a claim by defendant affecting title).

16.   Our decision in Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004), is not to the contrary. Permitting a single suit to recover a property interest that another party has been permanently using adversely for more than two but less than ten years does not “split[ ] one claim into several suits” or recognize shifting accrual dates that could create an “indefinite limitations period.” Id. at 278, 281-82. Instead, it respects the language the Legislature chose in Section 16.026.

17.   See Byrne Oil Co. v. Walraven, 722 S.W.3d 339, 349 (Tex. App.—Eastland 2025, pet. filed) (“[S]elf-help abatement is a privileged remedy that cannot be pursued if there is adequate time to pursue a judicial remedy.” (internal quotation marks omitted)).

FOOTNOTE.   When an indisputably final judgment is followed by a clarifying order purporting to grant a permissive interlocutory appeal but falling short of procedural requirements—that is to say, an order that does nothing at all—we will treat the notice of appeal as effective. In the case before us, the trial court issued an order dismissing all of JLMH's claims “as a matter of law.” The court expressly noted that “[t]his Order is final, disposes of all parties and all claims, and is appealable.” Then, within the window of its plenary power, the court issued a “clarifying” order, though its efforts had the opposite effect. After a hearing on its “Motion to Clarify the Summary Judgment Orders and to Proceed with Trial on Injunctive Relief,” JLMH filed a proposed order that would have permitted its claim for injunctive relief to proceed to trial and presented a controlling question of law to be argued if the court certified an interlocutory appeal. But the court did not sign that order. Instead, the court signed an order taking only two actions: (1) allowing a permissive interlocutory appeal of the prior final order; and (2) staying proceedings pending resolution of the “interlocutory” appeal of the final order (which, again, disposed of all parties and all claims). The court's order also emphasized that “JLMH does not waive its right to challenge the [c]ourt's summary judgment rulings, and any Final Judgment.” So the court's order noticed JLMH's right to appeal final orders, mentioned an “interlocutory” appeal of a final order, and stayed proceedings that did not exist—no claims remained live.The clarifying order was therefore completely facially ineffective. It did nothing whatsoever. For these reasons, although a lack of clarity in finality is typically construed against finality, in this bizarre (and hopefully unique) situation, there was no lack of clarity. The final order remained final.

1.   See Adriano Celentano, Prisencolinensinainciusol (Vinyl Record, Clan Celentano 1973), https://archive.org/details/WeAreBackSliding_1640861777.

2.   The concurrence agrees with the plurality that we have appellate jurisdiction, but on much narrower grounds. Ante at –––– (Young, J., concurring). Happily, McCormack’s clear-statement-rule dicta will stay dicta because the concurrence doesn't adopt it. In fact, the concurrence suggests that I'm right about the law, and that these principles might compel a different outcome in a case where the district court's subsequent order is clearer. See id. at –––– & n.*.

Justice Busby delivered the opinion of the Court with respect to Part II, in which Chief Justice Blacklock, Justice Lehrmann, Justice Devine, Justice Bland, Justice Huddle, and Justice Young joined, and an opinion with respect to Part I, in which Justice Lehrmann and Justice Devine joined.

Justice Busby filed a concurring opinion, in which Justice Lehrmann and Justice Devine joined. Justice Young filed an opinion concurring in part and in the judgment, in which Justice Bland and Justice Huddle joined, and in which Chief Justice Blacklock joined as to Part II. Justice Sullivan filed a dissenting opinion, in which Chief Justice Blacklock and Justice Hawkins joined.