Birchfield v. Bourland

• Decision Date: 29 April 1916
• Docket Number: (No. 8526.)
• Citation: 187 S.W. 422
• Parties: BIRCHFIELD et al. v. BOURLAND.
• Court: Texas Court of Appeals

Page 422

187 S.W. 422

BIRCHFIELD et al. v. BOURLAND.

(No. 8526.)

Court of Civil Appeals of Texas. Ft. Worth.

April 29, 1916.

On Application for Writ of Prohibition, May 20, 1916.

Appeal from District Court, Tarrant County; J. W. Swayne, Judge.

Suit by John Bourland against G. W. Birchfield and another. From an order granting a temporary injunction, defendants appeal. Reversed, and injunction dissolved.

After reversal, plaintiff presented an amended petition to the district judge, who again ordered a writ of injunction, which was issued, and defendants apply for a writ of prohibition against plaintiff and the judge of the district court to restrain further action until the original action can be heard on its merits. Writ granted, and second writ of injunction dissolved.

Robert G. Johnson, and Wade & Smith, all of Ft. Worth, for appellants. Cummings & Whiteside, of Ft. Worth, for appellee.

DUNKLIN, J.

John Bourland instituted this suit aginst G. W. Birchfield and Terry Allen to restrain the defendants from molesting plaintiff in his possession of a certain farm consisting of 120 acres, and for a mandatory injunction directing and commanding the defendants to deliver to plaintiff the possession of same. A temporary writ of injunction granting the relief prayed for was issued by the trial judge upon an ex parte hearing of said petition, and from that order the defendants have appealed.

Plaintiff alleged in his petition that he leased the farm for the year 1916 from J. A. Younce, paying a cash consideration therefor of $100; that the lease was in writing and duly recorded; that immediately thereafter he went into the possession of the farm and planted about 70 acres in corn and moved his household goods upon the premises and held possession from March 20, 1916, to April 4, 1916, when the defendants unlawfully and forcibly ousted plaintiff of possession; that at the time he was so ousted plaintiff was arranging to move his cattle upon the farm and to cultivate, use, and enjoy the same for the year 1916. As a further ground for the issuance of the temporary writ of injunction, it was alleged that during the pendency of the suit plaintiff's crop which had already been planted would go to waste, and his crop for the year would be lost, and he would thereby suffer irreparable injury, unless the defendants were restrained from molesting plaintiff in his possession and he be permitted to continue in possession of the farm for the purpose of cultivating it. It was further alleged in the petition that the farm was "formerly owned by J. A. Younce; * * * that plaintiff leased the same from the said J. A. Younce, who was the owner in fee-simple title for the year A. D. 1916."

We find in the record an answer filed to plaintiff's petition after the temporary writ was granted, also a motion to dissolve the writ, together with a statement of facts showing the evidence introduced on the hearing of that motion, and the order of the trial judge overruling that motion, all of which proceedings were had some days after the granting of the temporary writ. We also find in the record an agreement by counsel for all parties, approved by the trial judge, in effect, that the hearing by the court of defendant's motion to dissolve might be considered by this court as if it were a hearing for the purpose of determining whether or not the temporary writ of injunction should issue in the first instance.

The statute does not permit an appeal from an order refusing to dissolve a temporary writ of injunction, and as the present appeal is not from that order, but from the order granting the writ, none of the proceedings had subsequent to the granting of the writ can be considered by us, notwithstanding the agreement of counsel referred to, and the merits of this appeal will be determined upon the allegations of the petition, which, in the absence of any denial thereof at the time the writ was granted, must be taken as true. Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 45.

We are of the opinion that the allegations referred to above to show irreparable injury were sufficient for that purpose. In the case of Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382, this court, through Justice Stephens, said:

"Besides, to prevent threatened waste injunction has long been a familiar remedy. See Hammond v. Martin, 15 Tex. Civ. App. 570, 40 S. W. 347."

In 22 Cyc. p. 813, the following is said:

"Where the injury is of such a nature that it cannot be fully compensated in damages, or cannot be measured by any certain pecuniary standard, it is irreparable, and the trespass may be enjoined."

By article 4643, 3 Vernon's Sayles' Texas Civil Statutes, it is provided that a writ of injunction may issue:

"(1) Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant."

And it has been held by numerous decisions of this state that by virtue of that statute the right to an injunction is not confined to the rules obtaining in equity jurisprudence. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994; Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 45; Mitchell v. Burnett, 57 Tex. Civ. App. 124, 122 S. W. 937.

In Gillis v. Rosenheimer, 64 Tex. 246, our Supreme Court said:

"The rule is correctly stated in Harrison v. Crumb, 1 White & W. Civ. Cas. Ct. App. § 992, as follows: `The rule of pleading, that the statements of a party are to be taken most strongly against himself, is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.' See Carter v. Griffin, 32 Tex. 212; Martin v. Sykes, 25 Tex. Supp. 197; Forbes v. Hill, Dallam, Dig. 486; Ballard v. Rogers, Dallam, Dig. 460; Smith v. Frederick, 32 Tex. 256."

Allegations contained in plaintiff's petition, such as that he was lawfully in possession of the farm, and that the defendants unlawfully entered into and forcibly ejected him therefrom, are mere conclusions of law, and entirely too general of themselves to show a right to the relief prayed for. Holbein v. De La Garza, supra.

The allegation that J. A. Younce was formerly the owner of the farm implies that he did not own the title thereto, at the time of the lease to plaintiff, and the inference must be indulged that he was not such owner. The further allegation that J. A. Younce "was the owner in fee-simple title for the year A. D. 1916" also implies that title to the property was not vested in Younce, for the ownership of land for one year only is wholly inconsistent with any conception of fee-simple title.

Applying the rule of construction laid down by our Supreme Court and noted above, the allegations in the plaintiff's petition must be construed as implying that Younce did not own title to the property at the time he leased it to the plaintiff. If he was not the owner of the title, then he was either a trespasser or a tenant. If he was a trespasser, clearly he had no right to lease the property to the plaintiff. If he was a tenant, and in the lawful possession of the farm, as alleged, then he had no legal right to sublet the same to the plaintiff without the consent of the landlord, and, in the absence of some allegation of such consent from the landlord, the petition shows no right in plaintiff as a subtenant. Vernon's Sayles' Texas Civil Statutes, art. 5489. The petition contains no showing in whom the fee-simple title is vested, but it does contain allegations that defendants are each claiming some interest in the property, and there are no allegations that the fee-simple title is not vested in them.

For the reasons indicated, we are of the opinion that the petition was insufficient to warrant the issuance of the temporary writ, and for that reason the order granting the writ is reversed, the writ dissolved, without prejudice to plaintiff's right to a trial upon the merits, and this order will be certified to the trial court for observance.

On Application for Writ of Prohibition.

CONNER, C. J.

On April 4, 1916, the appellee instituted this suit against appellants G. W. Birchfield and Terry Allen to recover possession of 120 acres of land described in the petition, and from which it was alleged he had been ejected by force, and he prayed for a mandatory injunction commanding the defendants to forthwith deliver to the plaintiff possession of the land. On the same day the petition was presented to the Honorable Jas. W. Swayne, judge of the Seventeenth judicial district of Tarrant county, who without notice or hearing, and upon the allegations of the petition alone, ordered the issuance of a writ of mandatory injunction as prayed for. It further appears that the defendants Birchfield and Allen on the 5th day of April, 1916, filed an answer, among other things denying the facts as alleged in plaintiff's petition, and praying for a dissolution of the injunction that had been in the meantime issued. Upon this motion for a dissolution, testimony was heard, and it was agreed, in substance, by counsel for all of the parties, which agreement was approved by the trial judge, that the evidence on hearing before the judge of the defendant's motion to dissolve might be considered by this court as if the hearing had been for the purpose of determining whether or not the issuance of the original order for the writ of injunction was authorized.

Upon an appeal from the original order, it was held by us, as will be seen from the opinion written by Mr. Justice Dunklin, 187 S. W. 423, on April 29, 1916, not yet officially published, that we could not consider the proceedings upon the motion to dissolve...