Gillum v. St. Louis, A. & T. Ry. Co.

• Decision Date: 05 September 1893
• Docket Number: (No. 61.)
• Citation: 23 S.W. 716
• Parties: GILLUM et al. v. ST. LOUIS, A. & T. RY. CO. et al.
• Court: Texas Court of Appeals

23 S.W. 716

GILLUM et al. v. ST. LOUIS, A. & T. RY. CO. et al.

(No. 61.)

Court of Civil Appeals of Texas.

September 5, 1893.

Appeal from district court, Hopkins county; E. W. Terhune, Judge.

Action by Henry Gillum and others against the St. Louis, Arkansas & Texas Railway Company and others for the destruction of plaintiffs' grass by a fire set by one of defendants' engines. From a judgment in plaintiffs' favor for $100, they appeal. Reversed.

J. A. B. Putman and Whittle & Son, for appellants. Perkins, Gilbert & Perkins and Sam H. West, for appellees.

RAINEY, J.

The appellants and C. M. and Nancy Houston were owners in common of the Dike's league and labor of land in Hopkins county. Part of this land was inclosed and used as a pasture by the Houstons. In August, October, and November, 1887, the grass in said pasture was burned. Appellants bring this suit to recover damages of appellee railway company, alleging that the grass was burned by the negligence of said railway company, and that the land was damaged by said burning. During the pendency of the suit, receivers were appointed for said railway company, who were made parties to the suit. The railway company answered by general denial, and that C. M. and Nancy Houston, appellants' cotenants, had recovered judgment against it for said burning, which judgment was res adjudicata. The receivers answered that leave had never been granted appellants to sue them, and asked that they be dismissed. A trial was had, which resulted in a judgment for appellants and C. M. and Nancy Houston against the railway company for $100, and in favor of the receivers as against appellants, from which appellants appeal.

The appellants complain of the action of the court in excluding from the consideration of the jury evidence as to the damages done to the premises by the burning of August 12, 1887; the ground upon which said evidence was excluded, as given by the court, being that the Houstons were in possession of the premises at the time, and had since then recovered of the railway company for such damages. On April 11, 1887, a judgment by a court of competent jurisdiction was rendered, establishing the fact that appellants and C. M. and Nancy Houston were owners in common of the land in question. The appellees contend that, at the time of the burning, the Houstons had the land inclosed, were using and enjoying the same and exercising ownership over it, and that a recovery by them precludes appellants from a further recovery. "That tenants in common must join in the action of trespass quare clausum fregit is well settled" in this state. In this respect this action differs from the action of trespass to try title, in which case a tenant in common can maintain, alone, an action against a naked trespasser. In May v. Slade, 24 Tex. 205, Slade brought an action against May for cutting and carrying away timber, alleging that he was "absolute legal owner of an undivided interest" in and to said land, (specifying the interest;) "that he holds said land as tenant in common with ____; and that he was in the peaceable possession of said land" at the time of the cutting, etc. Subsequently, the cotenant was made a party. On the trial the court charged the jury that the mere fact "that the parties stand before the court as joint suitors will not bar Slade's recovery for the injury to his own land;" and judgment was rendered for Slade alone. In that case the court, after discussing the right of one tenant in common to maintain an action of trespass to try title, said: "But it is well settled that they must join in actions of trespass relating to the possession, because in actions of this nature, though the estates are several, yet the...