Lazarus v. Phelps

• Citation: 38 L.Ed. 363,152 U.S. 81,14 S.Ct. 477
• Decision Date: 05 March 1894
• Docket Number: No. 225,225
• Parties: LAZARUS v. PHELPS
• Court: United States Supreme Court

152 U.S. 81

14 S.Ct. 477

38 L.Ed. 363

LAZARUS

v PHELPS.

No. 225.

March 5, 1894.

Statement by Mr. Justice BROWN:

This was an action brought in the circuit court of the United States for the northern district of Texas, September 17, 1888, by william Walter Phelps, to recover of the plaintiff in error, Sam Lazarus, the rental value of 176,000 acres of land in Texas from April 15, 1887, at 8 cents per acre per annum. The facts of the case, as shown by the pleadings and proofs, were substantially as follows:

In 1882 Phelps' vendor leased these lands, the sections of which alternated with sections owned by the Texas public school fund, to the firm of Curtis & Atkinson, for five years, at 2 cents per acre, for arazing purposes. It was agreed in the contract of lease that all improvements made by the lessees should become the property of the lessor at the expiration of the lease. Curtis & Atkinson, in conjunction with adjoining owners, built a fence around the north, east, and west sides of their land. These fences included the school sections, as well as those of Phelps. They did not separate the sections leased by them from the alternate school sections by fence, nor did they apply for a lease of these alternate sections from the state until June 12, 1887. Before the lease was granted, however, Curtis & Atkinson sold nearly all the cattle and horses owned by them on the inclosure to Sam Lazarus, plaintiff in error and defendant below. Lazarus applied to the state for a lease of these alternate school lands, and in September, 1887, a lease was delivered to him, to take effect from the date of the application of Curtis & Atkinson, June 12, 1887. There was a penalty under the law of Texas for using the public lands without a lease.

Phelps became the owner of 168,300 acres April 15, 1887, and Curtis & Atkinson held under him, as tenants at will, up to the date of the sale of their stock. After the purchase of this stock by Lazarus, some negotiations were entered into with Phelps for a lease of the lands, but nothing came of them. Subsequently, he secured the lease of the alternate school sections to the amount of 162,270 acres.

In the fall of 1887 the owners of the land on the south of these sections in dispute erected a fence dividing their lands from those of Phelps, thus entirely inclosing the 168,300 acres belonging to Phelps and the alternating school sections in one continuous tract of land.

During the tenancy of Curtis & Atkinson they had erected two tanks, one upon the land of Phelps. The location of the other was not proven. These tanks were subsequently used by Lazarus. After the purchase by defendant of the stock of Curtis & Atkinson, he contracted to pasture upon this land, besides his own stock, one herd of 3,500 head, for which he received $5,000 for the first year, and $1.65 per head until purchased by him in 1889, and 3,000 calves, for which he received $2,500. The cattle owned and controlled by Lazarus were not confined to the school sections leased by him, but grazed upon the lands of Phelps, and the undisputed proof was that the entire tract was overstocked; but in no other way than by having his cattle in this inclosure did Lazarus prevent the owner of the 168,300 acres from taking possession, or from grazing other stock thereon.

Upon this state of facts, and proof as to the rental value of the land, Phelps secured a verdict and judgment for $8,417. The defendant thereupon sued out this writ of error.

Henry C. Coke, for plaintiff in error.

Leigh Robinson, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

But a single error is assigned to the action of the court below, and that is to the charge that defendant was liable to the plaintiff for the value of the use and occupation of the plaintiff's land, if he had in the common inclosure more cattle than were sufficient to consume the grass on the lands leased of the state of Texas by the defendant.

The defendant, upon the contrary, requested the court to charge that 'in Texas the law is that the owner of stock is not required to keep them in an inclosure, or to prevent them from ranging on the land of others; and that the owner of land trespassed upon by cattle cannot recover from the owner of the cattle damages for the trespass, unless his land is fenced;' and, further, 'that, to entitle the plaintiff to recover in this suit, you must believe from the evidence that the plaintiff's lands were fenced from those leased by defendant. If there was a common inclosure around the lands of plaintiff and those leased by defendant, and no fence separating such lands, then the plaintiff cannot recover.' The views of the court below, concisely stated, are contained in the instruction that if the defendant kept the inclosure so overstocked, as plaintiff claimed, then he is liable for the value of the rent of plaintiff's lands. The request of defendant, taken in connection with the instruction given, presents the respective views of the law entertained by counsel upon either side, and upon which the case turned.

The rule of the common law was admitted to be that a landowner is not bound to fence his land against the cattle of others. The owner of such cattle must confine them to his own land, and will be liable for trespasses committed by them upon the uninclosed lands of others. This rule, however, has been modified in Texas by Rev. St. Tex. art. 2431, which enacts that 'every gardener, farmer, or planter shall make a sufficient fence about his clear land under...