Holland v. City of San Antonio

• Citation: 23 S.W. 756
• Parties: HOLLAND v. CITY OF SAN ANTONIO.
• Decision Date: 01 November 1893
• Court: Texas Court of Appeals

23 S.W. 756

HOLLAND v. CITY OF SAN ANTONIO.

Court of Civil Appeals of Texas.

November 1, 1893.

Appeal from district court, Bexar county; George H. Noonan, Judge.

Trespass to try title by William Holland against the city of San Antonio. Judgment for defendant. Plaintiff appeals. Reversed.

B. L. Aycock, for appellant. Upson & Bergstrom, for appellee.

FLY, J.

Appellant instituted an action of trespass to try title, setting up special damages arising from the unauthorized entry of appellee upon premises held by appellant under a certain lease for a term of years, and the destruction of certain outhouses and fences, and opening a street, which cuts him off from the river, and exposes the rear of the premises to view. There was prayer for restitution of the land, and for the special damages set up. Defendant answered by plea of not guilty. The facts in this case show that appellant was in peaceful possession of the premises in controversy; that the appellee, through its agents, entered upon the same, and opened a street, tore down houses, cut down trees, and ousted appellant from his possession of the land. All this was done in the face of his written protest. He brought this suit to test the right of the city to thus invade his property, and the reply to his proof is that the city, after suit had been filed, had obtained a deed to the land seized by it from some persons who, so far as the proof shows, had nothing whatever to do with the land. Appellant having proved possession, this was sufficient evidence of title in him to maintain his action of trespass to try title against a mere wrongdoer. Parker v. Railway Co., 71 Tex. 133, 8 S. W. Rep. 541; Alexander v. Gilliam, 39 Tex. 228; Kolb v. Bankhead, 18 Tex. 229. It was held in Reynolds v. Williams, 1 Tex. 311, that "the tenant being in possession, the right of action was in him for any trespass committed on the premises." Appellant undoubtedly had authority under the law to bring his suit, and we are of the opinion that, even if the Biencourts are owners of the land, they could not deprive appellant of his rights by entering into a combination with trespassers upon the leased land, and, after the tenant has brought his action, defeat the same by giving a deed to the trespasser. Would the owners themselves have had the right while the lease continued to enter into a part of the leased premises, and dedicate it and set it apart for a street? Common sense and reason answer, "No," and if they could not...