Petrus v. Cage Bros.

• Decision Date: 26 April 1939
• Docket Number: No. 10511.,10511.
• Citation: 128 S.W.2d 537
• Parties: PETRUS et al. v. CAGE BROS. et al.
• Court: Texas Court of Appeals

128 S.W.2d 537

PETRUS et al. v.CAGE BROS. et al.

No. 10511.

Court of Civil Appeals of Texas. San Antonio.

April 26, 1939.

Rehearing Denied May 24, 1939.

Appeal from District Court, Bee County; W. G. Gayle, Judge.

Action by J. F. Petrus and others against Cage Brothers and others to recover the value of caliche admittedly taken by mining operations from the homestead of plaintiffs' parents.From an adverse judgment, plaintiffs appeal.

Affirmed.

Wade & Wade and L. D. Stroud, all of Beeville, for appellants.

Boone, Henderson, Boone & Davis, of Corpus Christi, and Lee H. Lytton, Jr., of Sarita, for appellees.

SMITH, Chief Justice.

J. F. Petrus and others, children and heirs at law of Ferdinand Petrus, deceased, brought this suit against Cage Brothers, individually and as partners, to recover the value of caliche admittedly taken by mining operations from the 118-acre homestead of the plaintiffs' parents in Bee County, which is still occupied as a homestead by their mother, the survivor in community of their father, who died intestate.In a trial before the court without a jury, judgment was rendered that J. F. Petrus and his co-plaintiffs recover nothing, and they have appealed.There is no statement of facts with the record.

The facts of the case are well stated in appellants' brief, as follows:

"F. Petrus and wife, Laura Petrus, acquired the 118 acres of land in 1906, as community property, immediately moved upon and improved the same as a farm and homestead, and were so using and occupying it when F. Petrus died on the 6th day of August, 1930, intestate.There was no administration on his estate, and none was necessary.Upon the death of F. Petrus, Mrs. Laura Petrus continued her occupancy of the homestead, without interruption, and down to the trial of this case.The appellants are the children, and all of the heirs of Petrus, deceased.

"At the time of the acquisition of the title and the establishment of the homestead rights of the husband and wife, in 1906, and before that time, there was no caliche pit or so called mine for caliche existing on said premises.Some eighteen years later, and in 1924, F. Petrus opened and began to operate a caliche pit and continued to operate it through himself, or his agents and lessees or purchasers of caliche, removing caliche therefrom until his death on August 6, 1930, after which his said widow continued to so operate said caliche pit, using and occupying said premises as her homestead, and selling caliche therefrom."

The caliche pit, or mine, is being operated by appellees under lease from appellants' mother, and this suit was to recover of appellees the value of the caliche taken from the mine under said lease.

The whole case, and this appeal, turn on the question of the character of the estate of the widow in that part of the community homestead which descended to the children in fee upon the death of their father, subject to the homestead rights of their mother.

The rights of survivors in like situations have been the subject of much discussion in the cases arising in this State, resulting in the clarification and settlement of the law upon the subject.

The rule arrived at seems clearly to be that the right of survivors, such as Mrs. Petrus, is more than a mere right of possession and occupancy; it is an estate in land, in the nature of a life estate.She is a tenant for life in the homestead, the measure of her right in which is...