Harmon v. Landers

• Decision Date: 13 March 1897
• Court: Texas Court of Appeals
• Parties: HARMON et al. v. LANDERS.<SMALL><SUP>1</SUP></SMALL>

41 S.W. 378

HARMON et al. v. LANDERS.¹

Court of Civil Appeals of Texas.

March 13, 1897.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Suit by D. H. Landers against J. C. Harmon and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Davis & McKoy, for appellants. Ramsey & Brown, for appellee.

RAINEY, J.

Appellee brought this suit against the defendants, alleging in his petition that he was in the actual possession of the land in controversy, and was using the same as a pasture for his cattle, and that he had no other, and could not obtain any other, and that defendants were entering on the same, and plowing up and destroying the grass, and were threatening to continue to do so, and that defendants had no right or title to said land, and prayed for an injunction restraining the defendants from so trespassing. Defendants answered by general demurrer and general denial, and specially, under oath, denying the material averments in plaintiff's petition. On the trial plaintiff recovered.

Conclusions of Fact.

The land in controversy was inclosed with other land by the plaintiff, and had been in his possession for several years prior to the trespass by the defendants, and which plaintiff used as a pasture for his stock. He leased most of the land from Getzendaner, and on the trial he introduced in evidence a deed from Shropshire to Getzendaner for 320 acres of railroad survey No. 4, and 310 acres of the J. J. Allen survey; the land in controversy being a part of the 310 acres last mentioned. This land he leased from Getzendaner, and he had permission from the owners of the other tracts of land in the pasture to use the same. He used the land exclusively for a pasture. He had about 75 head of steers on said land,—all the pasture he had for them,—and knew of no other he could rent, and the land had a special value to him as a pasture. There were six or seven gates at different places on the land, and people habitually passed through said gates. The gates were kept closed as nearly as possible, and the fences kept up. No one kept stock in there except by plaintiff's consent. The defendants entered the land in controversy about the 1st of November, 1895, without plaintiff's consent, and over his objections, and had broken, at the time of this suit, about 30 or 35 acres, which injured the land for grazing purposes. It was shown by the surveyor's records of Johnson county that the land was not vacant, and had been segregated from the public domain by virtue of a survey made by the surveyor of Johnson county by virtue of certificate 35/217, issued to Jarret J. Allen by the commissioner of the land office, February 8, 1881. Said Allen survey contained 1,000 acres or more, and included the land in controversy. The defendants went upon the land believing that it was vacant, and filed their application for a survey with the county surveyor of Johnson county, who refused to survey it. Defendants got one Vickers, a surveyor, to survey the land. We further conclude that the land was not vacant at the time the defendants went on it, and that they had no claim to the same, and were trespassers.

Conclusions of Law.

The evidence in the case showing that the land had been segregated from the public domain, and the plaintiff being in possession thereof, and the defendants showing no...