Nafe v. Hudson

• Decision Date: 12 November 1898
• Citation: 47 S.W. 675
• Parties: NAFE et al. v. HUDSON et al.
• Court: Texas Court of Appeals

47 S.W. 675

NAFE et al. v. HUDSON et al.

Court of Civil Appeals of Texas.

November 12, 1898.

Error from district court, Haskell county; Ed. J. Hamner, Judge.

Trespass quare clausum fregit by H. Nafe and others against W. T. Hudson and others. There was a judgment for defendants, and plaintiffs bring error. Reversed.

H. R. Jones, for plaintiffs in error. Foster & Scott, for defendants in error.

TARLTON, C. J.

On January 1, 1897, the plaintiffs in error (plaintiffs also in the court below) were the owners of a certain tract of 320 acres of land located in Haskell county. On the night of that day, W. T. Hudson and other defendants in error entered upon the premises described, with about 300 head of cattle, and remained there during the night. This suit in trespass quare clausum fregit is to recover damages for the destruction of the grass upon the premises, and for injury to the soil. The defendants prevailed in the trial before a jury, and hence this writ of error.

The evidence is conflicting as to the condition of the inclosure about the land. The testimony on the part of the plaintiffs tends to show that the fence was in good condition. That on the part of the defendants tends, on the contrary, to show that it was so out of repair as that the premises were practically a part of the commons. It appears that at the date of the entry the premises were in the possession of one C. C. Riddle, as the tenant at will of the plaintiffs, and that after the entry Riddle approved and ratified the act of Hudson and his co-defendants who had made the entry. On the issue of damages the evidence indicates that the injury was slight, if not trivial. The court, among other matters, substantially charged the jury as to the nonliability of the defendants if the premises were in the possession of a tenant at will, and this instruction is complained of. The lessor cannot maintain an action for injury to premises in the exclusive possession of the lessee, unless the injury affects or lessens the value of the freehold. Reynolds v. Williams, 1 Tex. 311; Railway Co. v. Smith, 3 Tex. Civ. App. 483, 23 S. W. 89. To justify himself, however, under such a condition, the defendant must specially plead the tenancy by virtue of which the owner is deprived of the exclusive right of possession. In an action of the character here involved, the plea in bar does not put in issue the existence of the plaintiff's title, or of his right of possession. "In actions of trespass quare...