Wootton v. Thomson

• Citation: 119 S.W. 117
• Parties: WOOTTON v. THOMSON.
• Decision Date: 05 May 1909
• Court: Texas Court of Appeals

119 S.W. 117

WOOTTON v. THOMSON.

Court of Civil Appeals of Texas.

May 5, 1909.

Error from Tom Green County Court; Milton Mays, Judge.

Action by J. T. Thomson against H. A. Wootton. Judgment for plaintiff, and defendant brings error. Affirmed.

Woldert & Dalton, for plaintiff in error.

KEY, J.

J. T. Thomson brought this suit against H. A. Wootton in the justice's court, seeking to recover the value of certain lumber alleged to belong to Thomson and to have been unlawfully appropriated by Wootton. The case was appealed to the county court, and upon trial there resulted in a judgment in favor of Thomson for $35, and Wootton has brought the case to this court by writ of error.

No statement of facts has been brought up, and the case is submitted upon the trial judge's findings of fact, which are set out in brief for plaintiff in error as follows: "The court found as conclusions of fact: That Wootton owned lots numbered 5, 6, and 7 of block No. 2 in Ellis addition to San Angelo. That Mrs. Newis (from whom Thomson purchased the fence) owned lot No. 8 of said block adjoining Wootton on the east. That in the year 1905 Wootton erected the plank fence on the lot owned by Mrs. Newis six feet from the boundary line and parallel to it. That the same was erected in good faith; defendant (Wootton) then believing that he owned the land upon which the fence was placed. That some time during the year of 1905 Mrs. Newis was apprised of the fact that said fence was on her land, and notified defendant, Wootton, to remove said fence. That he failed to do so. That about January, 1906, Mrs. Newis forbade Wootton from taking said fence off her premises. That in August, 1907, Mrs. Newis sold the material in said fence to Thomson. That said Thomson caused said fence to be torn down and moved off of said premises to his residence. The court further finds that Wootton went to the residence of Thomson and went within his inclosure and, without the knowledge or consent of Thomson, took said lumber and carried the same off and appropriated it to his own use, and that Thomson knew at the time he bought said material in said fence that Wootton had built the same on Mrs. Newis' land without her knowledge and consent."

On the facts above set out, the trial court announced several conclusions of law, all of which are assailed by counsel for Wootton, and the contention is that the court should have rendered judgment for him. Whether or not the trial court was correct in all of its...