                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                  October 14, 2009
                                  TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                    Clerk of Court


 JOHN J. GATES, as Trustee of
 Triumph Mortgage, Inc., Retirement
 Trust,

           Plaintiff-Appellant,

 v.
                                                          No. 08-3003
 SPRINT SPECTRUM, L.P.,                       (D.C. No. 2:05-CV-02340-CM-JPO)
                                                          (D. Kansas)
           Defendant-Appellee,

 and

 SPRINTCOM, INC.,

           Defendant.


                           ORDER AND JUDGMENT *

Before BRISCOE, SEYMOUR, and PORFILIO, Circuit Judges.


       In this diversity action, John Gates alleges that the presence of Sprint

Spectrum’s telecommunications equipment on his property constitutes a trespass.

The district court granted summary judgment to Sprint on the basis that the


       *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
alleged injury took place prior to Mr. Gates’s acquisition of the property and that,

absent an assignment, a cause of action for trespass belongs only to the property

owner at the time of the injury. Without such an assignment, Mr. Gates lacked

standing to sue. Reviewing the district court’s grant of summary judgment de

novo, Butler v. Compton, 482 F.3d 1277, 1278 (10th Cir. 2007), we affirm.

      In April 1969, Houston Light & Power (“HLP”) obtained a prescriptive

easement on the property at issue in this case. The easement permitted HLP to

utilize the easement for the “purpose of [] supplying, transmission and

distribution of electric current, power and energy to the public.” Aplt. Br. at 3

(quoting Aplt. App. at 1-2). In May 1998, HLP leased space to Sprint for the

purpose of placing a cell phone antenna on an electricity transmission tower

located on the property. Later that year, in December 1998, Mr. Gates purchased

the property from the Federal Deposit Insurance Corporation’s Resolution Trust

Corporation. Although the installation of Sprint’s cell-phone antenna predated

Mr. Gates’s acquisition of the property, he did not initially notice its presence.

Upon discovering the antenna, Mr. Gates filed the instant trespass action seeking

the rental value of Sprint’s use of the land. Applying Texas law, the district court

held the alleged injury constituted a “permanent trespass,” a cause of action that

vests only in the property owner at the time of the injury. Given Mr. Gates’s

acknowledgment that Sprint put the equipment in place prior to his acquisition of

the property, the district court held Mr. Gates lacked standing to sue. This appeal

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followed.

      On appeal, Mr. Gates advances several challenges to the district court’s

grant of summary judgment to Sprint. Upon review, however, we discern no error

in the district court’s conclusion that the alleged injury is a permanent trespass

and therefore Mr. Gates lacks standing to pursue this action.

      “Because standing may be jurisdictional,” Coastal Oil & Gas Corp. v.

Garza Energy Trust, 268 S.W.3d 1, 9 (Tex. 2008), we address it first. “Whether a

trial court has subject matter jurisdiction is a question of law subject to de novo

review.” In Re Premcor Ref. Group, Inc. & Motiva Enter., 233 S.W.3d 904, 908

(Tex. App. 2007). As the district court concluded, and Mr. Gates does not

contest, “[Mr. Gates] acknowledges that the trespass–the intrusion onto plaintiff’s

property without consent or paying rent–occurred before he acquired the

property.” Aplt. Br. at 18 (citing Aplt. App. at 183-84). And as the Texas

appellate court held in In re Premcor, “a cause of action for injury to real

property is a personal right belonging only to the record owner of the real

property at the time of the injury . . . .” 233 S.W.3d at 909. No assignment of

any cause of action was made to Mr. Gates when he purchased the property.

      Mr. Gates’s standing to bring the instant case turns on the legal distinction

between “permanent” and “temporary” trespass as applied to this case. To the

extent that Sprint’s cell-phone antenna constitutes a trespass, it is undisputed that

Sprint placed the equipment on the property prior to Mr. Gates’s ownership of it.

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If the alleged trespass is temporary, Mr. Gates possesses standing to bring this

trespass action; if the trespass is permanent, Mr. Gates’s action is barred.

      Under Texas law, an injury to property should be deemed temporary only if

it is “so irregular or intermittent over the period leading up to filing and trial that

future injury cannot be estimated with reasonable certainty. Conversely, [the

claim] should be deemed permanent if it is sufficiently constant or regular (no

matter how long between occurrences) that future impact can be reasonably

evaluated.” Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281 (Tex.

2004) (holding industrial plant emissions constituted a permanent nuisance). See

id. (applying same analysis to trespass). See also Krohn v. Marcus Cable

Assocs., L.P., 201 S.W.3d 876, 881 (Tex. App. 2006) (applying Schneider and

holding that placement of cable line across plaintiffs’ property was permanent

trespass). The district court characterized Mr. Gates’s injury as “permanent,”

reasoning that

      the future harm to the land was reasonably predictable from the time
      of the trespass because neither the existence nor the nature of the
      trespass changed over time.[] The injury in this case occurs often
      enough that in a suit for original trespass the jurors could make a
      reasonable estimate of the long-term impact of the trespass on the
      market value of the property, and under Texas law, ought to be
      allowed to do so.

Aplt. App. at 184-85.

      Mr. Gates challenges the district court’s determination that his injury is

“permanent,” arguing that “[c]learly the [district] court perceives the injury sued

                                           -4-
upon to be an injury to land. But . . . Gates sues for injury to his right of

possession. The injury to Gates’s possessory right occurred the day he took the

property and continues.” Aplt. Br. at 18. Mr. Gates’s challenge reflects a

misunderstanding of Texas laws governing trespass. Continued interference with

a property owner’s possessory interest does not render a trespass “temporary,” see

Krohn, 201 S.W.3d at 880-81, nor does it vest a subsequent property owner with a

cause of action in tort. Rather, as the Texas Supreme Court clarified in

Schneider, the issue is whether the “activity [is] of such a character and existing

under such circumstances that it will be presumed to continue indefinitely. . . . [A

trespass] is permanent if it is ‘constant and continuous’ and if ‘injury constantly

and regularly recurs.’” Schneider, 147 S.W.3d at 271-72. Mr. Gates has raised

no issue of material fact regarding the inconstancy or unpredictability of the

alleged trespass. Nor have we found any Texas case supporting his argument.

Mr. Gates’s claim for rent arises out of the alleged trespass, which occurred

before he acquired the property.

      Because the Sprint cell-phone antenna constitutes a permanent trespass, the

cause of action vested with the property’s prior owner and Mr. Gates possesses no

standing to bring the instant suit. We AFFIRM.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge

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