Dunlap v. Yoakum

• Decision Date: 01 January 1857
• Citation: Dunlap v. Yoakum, 18 Tex. 582 (Tex. 1857)
• Parties: J. C. DUNLAP v. H. YOAKUM.
• Court: Texas Supreme Court

18 Tex. 582

J. C. DUNLAP

v.H. YOAKUM.

Supreme Court of Texas.

1857.

It would seem that deeds filed with the petition and referred to therein as so filed and marked thus and so, are not thereby made parts of the petition, but should be expressly made so by words to that effect.

The general allegation of an owner, that he has a ferry, with its privileges, attached to his land, it is to be taken as referring to a public, and not a private ferry, and will authorize proof that he has a license for such ferry, from the proper authority; and the net profits of such ferry are a part of the damages sustained by detention of the land. 24 Tex. 355.

Error from Walker. Tried below before the Hon. Peter W. Gray.

The exception discussed by this court was taken in the court below, and overruled. The court charged the jury that the measure of damages was reasonable rent for the ferry and for the land. They found $150 damages. There was no statement of facts nor bill of exceptions.

Leigh and Baker, for plaintiff in error. It does not appear from the petition, that there was a public, licensed ferry; and at such only could charge be made for ferriage, and consequently rent therefor; aside from rent for the land, be recovered as damages.

A. M. Branch, for defendant in error.

HEMPHILL, CH. J.

The plaintiff in error insists that there was error in overruling the demurrer to the petition. The plaintiff below (who is defendant in this court) alleged that on a certain day he owned and possessed a tract of land lying on the west bank of Trinity river, more fully described in two deeds filed with the petition, the one marked C, being for lands lying, etc., the other marked D, being for land lying in Cincinnati, etc., viz.: lots No. 2, 3, 4, and 5. of fraction No. 5, in the plan of said town, including the ferry and ferry privileges; and being so possessed, etc., the defendant on, etc., unlawfully entered upon said tract of land, ejected the petitioner therefrom, and has continued to hold the said lands, ferry and ferry privileges.

The special ground of exception is, that so much of the petition as is in relation to the value of ferry privileges, claimed by the plaintiff, is deficient in this, that the allegations in regard thereto do not show any right in the plaintiff to such privileges or to pay for the same.

It must be admitted that the allegations in relation to the right of the plaintiff to the ferry privileges are bald and somewhat vague. It is evident from the averments, considered as a whole, that he claims a ferry and ferry privileges, which the defendant, having ejected him from, is holding and enjoying; but the statement is not very distinct as to the manner in which he claims them. He alleges the existence of two deeds, and that the land is more fully described in them, but does not aver positively that he...