Opinion
No. 11521.
June 13, 1945.
Appeal from District Court, Duval County; L. Broeter, Judge.
Action by C. G. Palacios against Edwin B. Cox and another for damages for injury to land. From an order overruling a plea of privilege, defendants appeal.
Affirmed.
Perkins Floyd, of Alice, for appellants.
Lloyd Lloyd, of Alice, for appellee.
This is an appeal from an order overruling a plea of privilege. The plea was properly overruled under the provisions of exception 14 of Article 1995, Vernon's Ann.Civ.Stats. The opinion of this Court in the recent case of Cox et al. v. Chapa, Tex.Civ.App. 188 S.W.2d 217, is controlling here. The allegations of Palacios' petition with reference to damages to land are practically identical with those contained in the petition in the Chapa case. Under exception 14, the venue fact which must be established by evidence is that the land is situated in the county where the suit is brought. That was done in this case. Whether or not a suit is one for the "recovery of lands or damages thereto" is a matter to be determined by allegations of the petition. The venue inquiry under exception 14 is restricted to the nature or character of the suit, and is not directed to the question of whether or not a cause of action exists in fact. In this particular, exception 14 differs from certain other exceptions set out in Article 1995. In order to maintain venue in Duval County, Palacios was not called upon to prove by a preponderance of the evidence that he had in fact suffered an injury to his land. He alleged that he did and his right to maintain the suit in the county where the land is situated was not defeated by his failure to prove upon the plea of privilege hearing that his land had in fact been damaged.
The order appealed from is affirmed.