Opinion
No. 3653.
November 4, 1937. Rehearing Denied November 24, 1937.
Appeal from District Court, Culberson County; W. D. Howe, Judge.
Suit in trespass to try title by W. W. Cameron and others against W. T. Johnson. From an order granting a temporary mandatory injunction, the defendant appeals.
Order reversed, and judgment rendered denying temporary injunction.
W. W. Cameron and others brought this suit in trespass to try title to recover a number of tracts of land specifically described in the petition. The issue between the parties is purely one of boundary, involving the true location of the dividing line between ranches owned by the respective parties. Additional allegations made by the plaintiffs were to the effect that, commencing about June 2, 1937, defendant had unlawfully removed portions of a jointly owned separating and dividing fence between the ranch used, owned, and occupied by plaintiffs, and the ranch used, owned, claimed, and occupied by defendant; such removal having been made without plaintiffs' consent and without defendant's having given to plaintiffs, as joint owners of said fence, the notice required by the statutes of the state of Texas; and, further, that defendant had entered upon plaintiffs' land and constructed fences constituting two inclosures, with the result that by such unlawful acts defendant had effectively taken the land embraced within such inclosures out of plaintiffs' said ranch and possession and appropriated the same to defendant's own use and benefit. Plaintiffs further alleged that they had cattle running on their ranch and required the whole thereof for the proper pasturage of such cattle.
T. M. Pyle formerly owned the ranch of the plaintiffs and a short time before the institution of the suit sold the same to the plaintiffs. The fence between the two ranches had been located and built by Pyle and Johnson; Pyle at the time recognizing that Johnson owned, or perhaps owned, some land lying north of the dividing fence, and Pyle agreed to buy from Johnson whatever land the latter owned north of the fence. This agreement between Pyle and Johnson was never consummated because before consummation thereof Pyle sold to the plaintiffs. Shortly before the filing of the suit, Johnson had moved the dividing fence to a point north of where it was originally located, and had rebuilt the same along the line he contended to be the true boundary line between the two ranches.
Upon application of the plaintiffs and after hearing, the trial court entered a temporary mandatory injunction ordering the defendant Johnson to rebuild the fence where it was originally located, and enjoining him from using the land in controversy. From this order Johnson has appealed.
Johnson Rogers and Nat. L. Hardy, all of San Antonio, for appellant.
Sleeper, Boynton Kendall, of Waco, and Mead Metcalfe, of Marfa, for appellees.
The record in this case clearly and plainly shows that the controversy between the parties involves the title to land, and is simply a boundary case. It is neither pleaded nor proven that the defendant, in removing the fence and taking possession of the disputed area, was guilty of violence, force, or fraud. There are no allegations nor evidence of facts which would justify plaintiffs in resorting to the equitable remedy of a mandatory injunction restoring to them the land of which they had been dispossessed. There is no allegation or evidence showing any unusual hardship inflicted upon the plaintiffs or pressing necessity for the issuance of such an injunction. It is not alleged nor proven that defendant is insolvent or unable to respond in damages. It is broadly alleged plaintiffs have no adequate remedy at law and will be irreparably damaged unless they obtain the preliminary equitable relief sought; but there are no facts pleaded or proven specifically showing irreparable damage or want of an adequate remedy at law. The allegations of the plaintiffs in this connection are mere conclusions of law. Hudgens v. Yancey (Tex.Civ.App.) 284 S.W. 347; Kean Crofford Co. v. City of Dallas (Tex.Civ.App.) 244 S.W. 655; Kampmann v. Stappenbeck (Tex.Civ.App.) 45 S.W.2d 761.
Mandatory injunctions are not to be granted unless extreme or very serious damage at least will result from denying such relief, and each case depends on its own facts. Southwestern Telegraph Telephone v. Smithdeal, 104 Tex. 258, 136 S.W. 1049. Nor will injunctive relief be granted where the plaintiff has a clear, adequate, and complete remedy at law. Woman's Club v. Hutchins (Tex.Civ.App.) 40 S.W.2d 960.
There is nothing whatever in this record to show that the action of trespass to try title and damages and the ancillary remedy of sequestration is not a clear, adequate, and complete remedy at law for the protection of the plaintiffs. Such being the case, the temporary injunctive relief sought should not have been granted, particularly the mandatory injunction requiring the defendant to remove the fence from its present position and replace it in its former position pending the final determination of the suit. Woman's Club v. Hutchins, supra; Allen Yarbrough v. Texas P. Ry. Co. (Tex.Civ.App.) 7 S.W.2d 1102; Hill v. Brown (Tex.Com.App.) 237 S.W. 252; Jowell v. Carnine (Tex.Civ.App.) 20 S.W.2d 1087; Dilworth v. Buchanan (Tex.Civ.App.) 275 S.W. 177.
Reversed, and judgment here rendered denying the temporary injunction sought by the plaintiffs.