Several plaintiffs sue FPL Energy and others who are operating a wind farm on lands they have leased. They assert both public and private nuisance claims and seek injunctive relief. The trial court grants FPUs motion for partial summary judgment as to claims relating to the visual impact of the wind turbines. The remaining issues are tried to a jury which finds against the plaintiffs. Held: affirmed. In Texas a nuisance is "a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. Essentially a nuisance claim is a non-trespassory invasion of the use of and enjoyment of land. Claims of aesthetic injuries or damages are generally not recognized in Texas. Thus, the court's dismissal of the claims relating to the visual impact of the wind turbines is upheld. Likewise, in order to show unreasonable discomfort or annoyance one has to show more than just an emotional reponse to a building or land use. The evidence proffered by the plaintiffs reflects their emotional responses and not annoyance. The wind farm is clearly a legal use so it cannot be a nuisance per se. In order to be a nuisance per accidens or nuisance in fact, the injured party must show some real, palpable injury. In this case that evidence is lacking. The court also upholds the exclusion of plaintiffs' rebuttal witnesses as well as some proffered expert testimony.
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