Opinion
No. 255.
June 11, 1925.
Appeal from District Court, McLennan County; Sam R. Scott, Judge.
Suit by T. M. Dilworth against O. M. Buchanan. Judgment for defendant, and plaintiff appeals. Affirmed.
Nat Harris and Jno. B. McNamara, both of Waco, for appellant.
Bryan Maxwell, of Waco, for appellee.
This is an appeal from an order denying a temporary injunction. Appellant, T. M. Dilworth, is the owner of a tract of land of approximately 30 acres, lying, in part at least, along a public road. Appellee, O. M. Buchanan, is the owner of a tract of land lying parallel thereto and immediately east thereof, containing approximately 20 acres. Appellant owns another tract of land lying immediately east of appellee's land, containing about 100 acres. This tract is bounded in part by a public road. All three tracts are bounded on the north by private property, which the evidence shows is fenced, and through which it appears ingress and egress to said three tracts, or any of them, cannot be had. Appellee's land is approximately 127 varas wide. There is a fence on the south, running from east to west. Appellant's west tract and a part of his east tract are bounded on the south by this fence. The land in controversy is a strip about 8 feet wide, bounded on the west by appellant's west tract, on the south by said fence, and on the east by appellant's east tract, Both appellant and appellee claim this strip. According to appellee's contention, his tract of land runs to said fence on the south and includes said strip, but according to appellant's contention appellee's land runs only to the north line of said strip, and lacks 8 feet of reaching said fence. While appellee's tract does not touch a public road on any side, there is testimony tending to show that he has ingress and egress from the south across this disputed strip, and that the same is, under present conditions, the only practical way for such ingress and egress. It seems there had been at some prior time division fences separating appellee's tract from appellant's tracts on each side thereof, but that said fences had been permitted to get out of repair, and that the same were down in places, so that stock could pass to and fro from appellant's tract on the east to his tract on the west, and especially that they could so pass over the 8-foot strip here in controversy. How long this condition had continued is not disclosed.
Somewhere between 10 days and a month before the acts of appellee herein complained of, appellant built a fence along the north line of said strip, joining the same to old fences on the east and west sides of appellee's tract, and making a lane 8 feet wide and 127 varas long, which lane connected his said two tracts of land. Such lane also cut appellee off from access to his land from the south. Appellee, after the expiration of said period of time, tore said fence down and removed it from the land claimed by him, and at the same time repaired the fences on both sides of his said tract of land, and joined said fences to said fence on the south, thus separating appellant's said two tracts of land, and effectively preventing stock from passing from one of said tracts to the other. Appellant then instituted this suit, alleging that he was the owner of said strip of land, that he was in peaceable possession of the same, and that appellee had, in the manner and by the means aforesaid, unlawfully, willfully, and maliciously, and with force and arms, entered upon said strip and ejected him therefrom. For a showing of irreparable damage, appellant alleged that both his tracts were pasture land, and that he had about 15 head of cattle thereon; that the west tract was better for grazing, while the east tract bordered on the Bosque river, which at that time was his only available supply of stock water. He also alleged that his feed for said cattle was situated on said east tract. Appellant prayed for a temporary mandatory injunction, requiring appellee to remove his fences from the east and west ends of said strip, respectively, and restraining him from trespassing thereon or excluding appellant therefrom. His prayer for relief on final hearing was that said mandatory injunction and restraining order be made perpetual, that he be awarded possession of said property, that he recover his costs and have general relief.
Appellee, answering said application for injunction, specially denied that appellant owned said disputed strip of land, and alleged affirmatively that he was the owner thereof. Based on said claim of ownership, he denied that his acts in the premises were willful or malicious, or that they constituted a trespass upon appellant's property, and further denied that appellant had suffered any damage from such acts, all of which he claimed were lawful and justified by his alleged ownership of said strip of land. The pleadings of both parties were duly verified. There was a hearing before the court on said pleadings and on oral evidence introduced by appellant, in substance, as indicated above. There was also evidence that appellant's west tract was piped for a supply of water from the city waterworks system, but that the use of such supply was attended with some inconvenience from trespassers. There was no evidence introduced at said hearing with reference to the title to said strip of land. There was no contention that appellee was insolvent or that he could not for any reason be made to respond in damages for any injuries appellant might suffer during the pendency of the suit from the situation complained of. The court after such hearing refused to grant the injunction prayed for, and this appeal is the result of such refusal.
Granting or refusing a temporary injunction or dissolving or refusing to dissolve such injunction rests largely within the sound discretion of the trial court, and will not be revised unless it is apparent that such discretion was abused. Meyer v. Cockcroft, 273 S.W. 665, recently decided by this court, and authorities there cited.
Appellant bases his claim for injunctive relief herein solely on his prior possession. He contends that the acts of appellee in the premises were a forcible invasion of such possession, and that the court should have granted him the relief prayed for, thus preserving the status existing at the time appellee committed such acts. He cites in support of his contention the following cases: Hodges v. Christmas (Tex.Civ.App.) 212 S.W. 825; Montgomery County, etc., v. Miller-Vidor Lumber Co. (Tex.Civ.App.) 139 S.W. 1015; Simms v. Reisner (Tex.Civ.App.) 134 S.W. 278; Boynton v. Milmo (Tex.Civ.App.) 218 S.W. 511; Hill v. Brown (Tex.Civ.App.) 225 S.W. 780; Jeff Chaison, etc., v. McFaddin, Wiess Kyle Land Co., 56 Tex. Civ. App. 611, 121 S.W. 716. The rule announced in said cases is succinctly stated in Simms v. Reisner, supra, as follows:
"An injunction is not a remedy which can be used for the purpose of recovering title or right of possession of property, and it is not the function of a preliminary injunction to transfer the possession of land from one person to another pending an adjudication of the title, except in cases in which the possession has been forcibly or fraudulently obtained by the defendant and the equities are such as to require that the possession thus wrongfully invaded be restored, and the original status of the property be preserved pending the decision of the issue of title."
In the case quoted from, and also in the case of Hodges v. Christmas, supra, the action of the trial court granting a temporary injunction was reversed on appeal. In Simms v. Reisner, supra, and Montgomery County, etc., v. Miller-Vidor Lumber Co., supra, the refusal of an injunction by the trial court was affirmed on appeal. In Hill v. Brown, supra, the trial court granted a temporary injunction, and such action was affirmed by the Court of Civil Appeals, but reversed by the Supreme Court on writ of error. Hill v. Brown (Tex.Com.App.) 237 S.W. 252.
In Jeff Chaison, etc., v. McFaddin, etc., Co., supra, where the granting of a temporary injunction was sustained on appeal, it was shown that the possession of the complainants had its origin, either in actual consent of the owners, or in acquiescence on their part with actual knowledge of the facts; that such possession had been enjoyed continuously and peaceably for a space of 3 years: that large sums had been expended in reliance on the continuance of such possession; and that a large number of persons not parties to the suit would be seriously damaged if the injunction granted was not sustained. In Boynton v. Milmo, supra, the action of the trial court, in granting the temporary injunction to protect a private easement which had been used and enjoyed for many years, was affirmed on appeal.
In this case the exclusive prior possession relied on by appellant had its origin in the building of his fence along the north line of the disputed strip, and had continued only from 10 days to a month. If it should be found that appellee's land extended to the south fence, as claimed by him, the building of said fence by appellant was in itself a trespass. The injury resulting from the acts of appellee, if the same were unlawful, as contended by appellant, was such as could be adequately compensated for by an award of damages. We are also of the opinion that appellant had an adequate remedy at law, either by forcible entry and detainer, or by trespass to try title, with sequestration proceedings in aid thereof, by which his ultimate rights, if any, could be established and enforced with reasonable promptness; any necessary delay being compensated for by an award of damages as aforesaid. Hill v. Brown (Tex.Com.App.) 237 S.W. 252, 255.
Whether appellant showed such equities as to require that the possession of the disputed strip should be restored to him, and his possession thereof preserved pending the decision of the issue of his right thereto, was primarily a question for the trial court. He decided such issue against appellant, and refused to interfere by injunction. We cannot say that he abused his discretion in doing so, and his action in the premises is affirmed.