Limitations Is an Affirmative Defense to Private-Nuisance Injunctions; “No-Limitations-for-Abatement” Is Not a Blanket Rule

Case: FAMILY DOLLAR STORES OF TEXAS, LLC, ARCP FDCCC1403 LLC, 7B BUILDING & DEVELOPMENT, LLC, TRIPLE C DEVELOPMENT, INC., BURKHARDT ENGINEERING COMPANY, AND M&S UTILITY CONSTRUCTION, LLC v. JLMH INVESTMENTS, LLC
Court: Supreme Court of Texas
Date: 2026-06-26
Opinion discussed: Justice Busby’s concurrence (joined by Justice Lehrmann and Justice Devine), explaining the limits of the Court’s holding.

1. Introduction

This dispute arises from alleged stormwater runoff from a neighboring commercial development that repeatedly flooded JLMH Investments, LLC’s property, allegedly depriving JLMH of the “use and enjoyment” of its land and causing physical damage. JLMH sought both damages and an injunction—framed as private-nuisance relief—to stop the runoff conditions.

The central legal question presented in the portion of the decision excerpted here is not the merits of nuisance itself, but the interaction between nuisance remedies (especially injunctive relief) and statutes of limitations. The Fort Worth Court of Appeals held broadly that “Texas law does not recognize limitations as a defense to injunctive relief” and that JLMH had a “standalone right to have a nuisance abated.” The Supreme Court rejected that broad view. Justice Busby concurred to emphasize what the Court’s opinion does—and does not—decide, particularly regarding (i) public nuisances and (ii) the possible relevance of the ten-year real-property limitations statute in cases involving adverse use that could ripen into a prescriptive easement.

2. Summary of the Opinion

The Court held (as summarized by the concurrence) that the court of appeals erred by treating nuisance abatement as categorically immune from limitations. Two propositions were corrected:

• No “standalone” right to an injunction without liability: “Liability must be proven to obtain an injunction.”
• Limitations generally applies across remedies: “Limitations generally provides an affirmative defense to liability whether the plaintiff seeks legal or equitable relief.”

Justice Busby’s concurrence adds a key caution: the Court’s decision addresses a private-nuisance case where the parties agreed that a two-year limitations period governs. It should not be read to resolve separate questions about (a) public nuisance litigation or (b) when a ten-year statute applies to suits seeking to stop adverse uses before they become prescriptive easements.

3. Analysis

3.1. Precedents Cited

Justice Busby frames the concurrence with a warning against casually removing doctrinal “fences,” quoting Artis v. District of Columbia, 583 U.S. 71, 92 (2018) (Gorsuch, J., dissenting). That theme animates his method: instead of accepting or rejecting a slogan (“limitations never bars nuisance abatement”), he examines the older cases to identify narrower rationales that may still matter in future litigation.

A. The modern Texas Supreme Court signposts the concurrence relies on

• Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004): The concurrence notes that Schneider observed lower-court holdings suggesting limitations does not bar suits “seeking only to enjoin a nuisance” without damages. But it also uses Schneider for two clarifications that matter here: (i) Texas does not use “continuing nuisance” as a separate category—Texas distinguishes temporary vs. permanent nuisances; and (ii) concern about “indefinite” limitations periods and claim-splitting must be handled consistently with statutory text.
• ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 542 n.14 (Tex. 2017): Cited for the observation that “Texas cases hold that limitations is not a defense” to abatement of a continuing nuisance—an observation the Court’s opinion in this case narrows by rejecting an unqualified version of that principle.
• Albert v. Ft. Worth & W. R.R., 690 S.W.3d 92 (Tex. 2024) (per curiam): Used to connect nuisance/abatement rhetoric to real-property limitations doctrine—specifically, the ten-year period in TEX. CIV. PRAC. & REM. CODE § 16.026(a) for suits to “recover real property” held in adverse possession or adverse use (including adverse use that could ripen into an easement by prescription).
• Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 2016): Cited for two foundational points: (i) public nuisance is categorically distinct from private nuisance (and Crosstex focused on private nuisance), and (ii) property law recognizes different protected interests—use and enjoyment (nuisance), exclusive possession (trespass), and injury to the land itself.
• Regency Field Servs. v. Swift Energy Operating, LLC, 622 S.W.3d 807, 814 (Tex. 2021): Cited for the accrual principle: a claim accrues when wrongful conduct causes a “legal injury” giving a right to seek a remedy—important because the limitations question turns on identifying the specific injury and the remedy sought.

B. The older “limitations does not bar abatement” line and its rationales

Justice Busby surveys a long line of Texas appellate decisions repeating the proposition that limitations does not bar suits to abate a nuisance, including: Yalamanchili v. Mousa, Nugent v. Pilgrim's Pride Corp., Jamail v. Stoneledge Condo. Owners Ass'n, Abbott v. City of Princeton, Stein v. Highland Park Indep. Sch. Dist., Hughes v. Jones, and federal recognition in Simi Inv. Co. v. Harris County. The concurrence’s key move is to show that many of these cases are best understood as resting on narrower, often implicit premises—especially:

• Public nuisance: some cases involved municipal sewer/sewage/drainage conditions affecting public rights, where courts invoked a strong rule that no prescriptive right can legalize a public nuisance.
• Prescription/adverse use and the ten-year “recover real property” statute: some cases treated injunctions as a way to prevent adverse uses from ripening into easements, tying the analysis to the ten-year statutory period rather than the two-year personal-injury-to-property period.

C. Four illustrative nuisance/abatement decisions unpacked by the concurrence

• City of Dallas v. Early, 281 S.W. 883 (Tex. Civ. App.—Dallas 1926, writ dism'd w.o.j.): A public nuisance case involving drainage ditches and sewers causing flooding, stagnant water, odors, and mosquitoes. The court rejected a limitations defense by reasoning from prescription: “the right to maintain nuisances cannot be acquired by prescription,” therefore limitations is “no defense” to abatement of a “continuing nuisance.” Justice Busby treats this as a key example of how “no limitations” rhetoric may be rooted in public-nuisance and anti-prescription ideas—not a generalized, remedy-based immunity from limitations.
• City of Corsicana v. King, 3 S.W.2d 857 (Tex. Civ. App.—Waco 1928, writ ref'd): Another public nuisance case (sewage discharge), emphasizing that when nuisance-creating acts are prohibited by law, “no prescriptive right” can be acquired. Justice Busby also notes the special precedential status of “writ refused” cases as historically carrying “equal precedential value.”
• City of Ennis v. Gilder, 74 S.W. 585 (Tex. Civ. App.—San Antonio 1903, writ ref'd): A dam caused backed-up water making rental property uninhabitable. The court allowed abatement even though damages were time-barred, reasoning that a flooding neighbor could not acquire “any right in [the owner’s] realty, by easement or otherwise, by adverse use that had existed for less than ten years.” This is the concurrence’s clearest example of the ten-year/prescription rationale hiding beneath “abatement not barred” language.
• Rhodes v. Whitehead, 27 Tex. 304 (1863): The foundational statement: “The right, however, to a nuisance, cannot be acquired by prescription,” and an easement (even if established) cannot be used to injure another’s comfortable enjoyment. Justice Busby reads Rhodes as a prescription-limiting principle rather than a sweeping, remedy-based abatement exemption from limitations statutes.

D. Cases and authorities used to refine nuisance categories and terminology

• Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474 (Tex. 2014): Provides modern definitions for “permanent” vs. “temporary” injury (recurrence predictability and evaluability of future harm), which influences accrual and remedies.
• City of Tucson v. Apache Motors, 245 P.2d 255 (Ariz. 1952): Cited for the broader observation that jurisdictions have long experienced confusion about “permanent” vs. “temporary/continuing” nuisance labels.
• RESTATEMENT (SECOND) OF TORTS § 821B and § 821D (A.L.I. 1979): Used to state baseline definitions: public nuisance interferes with rights common to the public; private nuisance is a nontrespassory invasion of the interest in private use and enjoyment of land.
• In re Premcor Refin. Grp., 233 S.W.3d 904 (Tex. App.—Beaumont 2007, no pet.) and Kane v. Cameron Int'l Corp., 331 S.W.3d 145 (Tex. App.—Houston [14th Dist.] 2011, no pet.): Provide Texas appellate formulations of public/private nuisance consistent with the Restatement.

E. Authorities connecting limitations to adverse possession, title, and easements

• Lance v. Robinson, 543 S.W.3d 723 (Tex. 2018): Cited for the proposition that limitations can operate as “title by limitations” when recovery-of-land actions are brought too late, and for caution that trespass-to-try-title is a possessory/title vehicle that may not neatly fit easement disputes (a “nonpossessory” interest).
• Slaughter v. Qualls, 162 S.W.2d 671 (Tex. 1942) and Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615 (Tex. 2007) (per curiam): Cited to illustrate how different limitation periods can apply depending on whether a deed is void vs. voidable—reinforcing the concurrence’s central theme: limitations analysis is claim-and-injury specific, not remedy slogan–based.
• Boerschig v. Rio Grande Elec. Coop., ___ S.W.3d ___, 2026 WL 1468464 (Tex. May 22, 2026): Cited (along with Albert) to suggest that a common-law trespass claim seeking prospective injunctive relief may function as a “cause of action” to stop use outside an easement’s scope—implicating the ten-year statute where the dispute is about recovering exclusive use/possession from adverse use.
• Haas v. Choussard, 17 Tex. 588 (1856) and First Nat'l Bank of Marshall v. Beavers, 602 S.W.2d 327 (Tex. Civ. App.—Texarkana 1980, no writ): Cited for the idea that repeated flooding runoff use can, over time, support an easement by prescription.
• Gearhart v. Wardell, No. 13-15-00096-CV, 2016 WL 7011402 (Tex. App.—Corpus Christi-Edinburg Dec. 1, 2016, no pet.): Provides a modern example where a court applied the ten-year statute to injunctive relief to remove a wall, while recognizing the damages claim expired under two years—illustrating remedy/injury differentiation.
• Simon v. Nance, 142 S.W. 661 (Tex. Civ. App.—Austin 1911, no writ) and Scharlack v. Gulf Oil Corp., 368 S.W.2d 705 (Tex. Civ. App.—San Antonio 1963, no writ): Older examples where equity doctrines (laches) and proof of nuisance, rather than a categorical “limitations never applies,” helped resolve requests for injunctions in long-running conditions.
• Byrne Oil Co. v. Walraven, 722 S.W.3d 339 (Tex. App.—Eastland 2025, pet. filed): Cited to show self-help abatement is limited and often disfavored when judicial remedies are available—supporting the concurrence’s point that limitations periods should not hinge on the “vagaries” of self-help feasibility.
• Kapur v. U.S. Bank Nat'l Ass'n, 691 S.W.3d 663 (Tex. App.—Houston [14th Dist.] 2024, pet. denied): Cited to emphasize that quiet-title actions generally involve claims “affecting title,” which may not map cleanly onto easement disputes.

F. Additional citations supporting the broader ecosystem of limitations doctrine

The concurrence also cites multiple intermediate appellate cases (e.g., Wells v. MSW 1221 S. Lamar, LLC, Hestia Mgmt., LLC v. Klimist, Gutierrez v. Lorenz, Brown v. Snider Indus., Valdez v. Moerbe, Mem'l Park Med. Ctr., Inc. v. River Bend Dev. Grp., Thedford v. Union Oil Co. of Cal.) largely to demonstrate that adverse possession periods function as limitations statutes in recovery-of-land litigation. Their collective influence is methodological: they reinforce that Texas limitations analysis is statute- and claim-dependent.

3.2. Legal Reasoning

A. The core correction: limitations is about liability, not the label “injunction”

The concurrence aligns with the Court’s central legal move: injunctions are remedies, not freestanding causes of action. If a plaintiff’s underlying claim is time-barred, the plaintiff cannot evade limitations simply by recasting the request as “abatement.” This directly rebuts the court of appeals’ premise that injunctive relief is categorically immune from limitations and that there is a “standalone right” to abatement.

This reasoning reflects orthodox Texas civil procedure: limitations is an affirmative defense to liability. Absent a live claim within the governing period, there is no basis for the court to impose a coercive equitable remedy.

B. Separating two questions courts often conflate

Justice Busby insists on disentangling:

• (1) Availability: Is limitations a defense at all in this type of case?
• (2) Selection: If so, which limitations statute applies (two years, ten years, or something else)?

The court of appeals answered (1) incorrectly by adopting a broad no-limitations rule for nuisance injunctions. But (2) remains highly context-sensitive, because the Legislature wrote different statutes for different kinds of injuries and different kinds of “suit[s].”

C. Public nuisance vs. private nuisance as a potential limitations fault line

The concurrence highlights that several “no limitations to abate” cases were public nuisance cases involving municipal sewer or drainage systems (City of Dallas v. Early; City of Corsicana v. King). In public nuisance litigation, courts often invoke the idea that “prescription or lapse of time” cannot legalize a public wrong affecting rights common to the public.

The concurrence does not decide whether, or how, limitations operates in public nuisance actions; it underscores that Crosstex N. Tex. Pipeline, L.P. v. Gardiner treated public nuisance as a distinct category and that “today’s opinion” similarly does not address public nuisance limitations issues.

D. Two-year “personal actions” vs. ten-year “recover real property” actions

The concurrence’s most concrete doctrinal contribution is statutory: it maps limitations to the Legislature’s structure in Chapter 16 of the Civil Practice and Remedies Code.

The concurrence uses Miller v. Rusk, 17 Tex. 170, 171 (1856), to explain the conceptual split: “recovery” refers to possession, while “injury to the … freehold or estate” sounds in “damages.” Translating that to modern pleading, a suit that is fundamentally about restoring or protecting exclusive possession against adverse use may implicate § 16.026(a), whereas a suit about harm to use and enjoyment (nuisance) and physical damage typically falls under § 16.003(a).

E. The prescription/easement thread: why some “abatement” cases looked limitation-proof

Justice Busby suggests that a number of older cases may have treated injunctions not as “nuisance abatement” immune from limitations, but as a form of recovery against adverse uses that cannot become lawful until the adverse-use period runs. That is why City of Ennis v. Gilder emphasized “less than ten years,” and why later cases like Gearhart v. Wardell applied a ten-year period to certain injunctive claims.

In that frame, “limitations will not bar” may really mean: “the two-year statute does not govern this type of recovery-of-use/possession claim; a longer real-property limitations statute does.” The concurrence explicitly leaves that exploration to future cases.

F. Self-help and government intervention are not substitutes for judicial remedies

The concurrence rejects the idea that limitations analysis should depend on whether a plaintiff could have used self-help abatement. Citing Crosstex N. Tex. Pipeline, L.P. v. Gardiner and Byrne Oil Co. v. Walraven, it notes self-help is limited, often unclear, and may be disallowed if there is time to seek judicial relief. Therefore, the duration of a limitations period for seeking an injunction should not turn on the practical availability of self-help in a particular nuisance/adverse-use setting.

3.3. Impact

A. Immediate doctrinal impact in private nuisance litigation

• Pleading “injunction” will not salvage an untimely private nuisance claim: Plaintiffs must timely establish the underlying liability; they cannot rely on a generalized “right to abate” as immunity from limitations.
• Courts must avoid slogans and perform statute-specific analysis: The decision, as framed by the concurrence, demands careful identification of the injury and the cause of action to select the correct limitations statute.

B. Clarifying what remains open (and thus likely future litigation pressure points)

• Public nuisance limitations doctrine remains unsettled here: The concurrence flags that older “no prescription/no limitations” language often arose in public nuisance contexts, but the Court does not decide the limitations framework for public nuisance injunctions.
• The ten-year statute’s role in easement-by-prescription prevention remains to be developed: The concurrence points toward § 16.026(a) and cases like Albert v. Ft. Worth & W. R.R. and Boerschig v. Rio Grande Elec. Coop., suggesting that a trespass claim seeking prospective injunctive relief may sometimes be analyzed as a “recover real property” action in substance—even if the factual setting resembles a nuisance (e.g., drainage/flooding) and even if damages claims would be governed by two years.

C. Practical impact on remedies strategy

The concurrence encourages litigants to separate (and plead with care) claims seeking: (i) compensation for injury to use/enjoyment or physical damage (often two-year), from (ii) recovery of exclusive use/possession from adverse use that may mature into a prescriptive easement (potentially ten-year). While the concurrence does not endorse any specific pleading strategy, it signals that remedy selection cannot substitute for statutory compliance.

4. Complex Concepts Simplified

• Statute of limitations: A deadline set by statute for bringing a lawsuit. If it expires, the defendant can raise limitations as an affirmative defense to liability.
• Affirmative defense: A defense the defendant must plead and prove that defeats liability even if the plaintiff’s factual allegations are true (e.g., limitations).
• Nuisance (private): Interference with a person’s private use and enjoyment of land (often non-physical invasions like noise/odor, but it can include flooding/runoff effects). The concurrence cites RESTATEMENT (SECOND) OF TORTS § 821D.
• Nuisance (public): Interference with rights common to the public (RESTATEMENT (SECOND) OF TORTS § 821B). Public nuisance cases may implicate different policy concerns (e.g., not legalizing public harms through lapse of time), but this decision does not resolve that issue.
• Temporary vs. permanent nuisance/injury: Texas generally uses “temporary” vs. “permanent,” not a separate “continuing nuisance” category (Schneider Nat'l Carriers, Inc. v. Bates). Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P. provides modern criteria, including whether recurrence is predictable and future harm can be estimated.
• Prescription / easement by prescription: If someone uses another’s property openly, adversely, and continuously for the statutory period, they may obtain a legal right to continue that use (an easement). Section 16.026(a) is tied to this concept because it gives the property owner time to sue to stop adverse use before it matures into a protected right.
• Laches: An equitable doctrine barring relief when a plaintiff unreasonably delays and the delay prejudices the defendant. Some older nuisance injunction cases (e.g., Simon v. Nance) turned on laches even where courts spoke loosely about limitations.

5. Conclusion

The Court’s decision (as explained and bounded by Justice Busby’s concurrence) repudiates a broad, remedy-driven proposition that “limitations does not bar” nuisance injunctions. An injunction requires timely, provable liability; limitations generally remains an affirmative defense regardless of whether the plaintiff seeks damages or equitable relief.

At the same time, the concurrence preserves important doctrinal space: older “no limitations to abate” statements may reflect narrower rationales— particularly public nuisance concerns and the distinct ten-year limitations framework for suits to recover real property from adverse use that could ripen into a prescriptive easement. Future Texas cases will likely refine where private nuisance ends, where adverse-use recovery begins, and which statutory period applies to each distinct injury and remedy.