Gottschalk v. Gottschalk , 1948 Tex. App. LEXIS 1323 ( 1948 )

McClendon, chief justice.

Appeal from an interlocutory order granting (pending hearing upon the merits) a temporary injunction, enjoining Carl Gottschalk (in a suit brought by his father, R. Gottschalk) from “moving any existing fences on, and from placing any new fences on” three specifically described tracts of land in Runnels County.

The record shows: The father had a life estarte in 200 acres of the land, with remainder in Carl. June 20, 1947, Carl and his father entered into a written contract by which Carl leased the 200 acres, beginning January 1, 1948, for the term of his father’s life, for an annual rental of $500, payable $200 on January 1 and $300 July 1 of each year. January 5, 1948, the father brought suit against Carl in the District Court of Runnels County for title and possession of the land. The same day he brought this suit in the County Court of Runnels County, alleging that he was entitled to such possession. Carl filed a “Plea in Abatement” setting up the District Court suit, and asserting want of jurisdiction in the County Court, in that the suit involved the title and right of pos-' session of land. The plea was overruled and temporary injunction granted as stated.

The pertinent principles of law involved are well settled, and their application (as we think and hold) is plain. They arc:

1. Where neither the title to an interest in or right of possession of land is in dispute, the County Court has jurisdiction to enjoin a trespass upon or injury to the land, the amount of damage in controversy being within that court’s jurisdiction. See Repka v. American Nat. Ins. Co., 143 Tex. 542, 186 S.W.2d 977.

2. “If, on the other hand, the suit, be * * * one to prevent an infringement of * * * right of possession of real estate * * * the district court alone would have jurisdiction. Benavides v. Benavides, Tex.Civ.App., 174 S.W. 293; Stewart v. Patterson, Tex.Civ.App., 204 S.W. 768; Graham v. Omar Gasoline Co., Tex.Civ.App., 253 S.W. 896. See also Carey v. Looney, 113 Tex. 93, 251 S.W. 1040.” St. Matthews Methodist Church v. Watrous, Tex.Civ.App., 191 S.W.2d 489, 491. Many other cases might be cited. See Coughran v. Nunez, 133 Tex. 303, 127 S. W.2d 885; Posey v. Williamson, Tex.Civ.App., 134 S.W.2d 335; Carleton v. Dicrks, Tex.Civ.App., 195 S.W.2d 834.

While the record does not show the basis of the District Court suit, it is plain that as a possessory action it could not be maintained without invalidating the lease, upon which Carl’s right of possession depended. Either the lease was invalid ab initio, or had terminated upon some authorizing breach. These issues, which clearly involved Carl’s asserted right of possession of the land, could not be adjudicated in the County Court. The right to construct fences upon the property depended upon this right of possession, and an enforced prevention of the exercise of such asserted right constituted an infringement thereof, — a question which the District Court alone had jurisdiction to adjudicate. The trial court should have sustained the plea in abatement and dismissed the suit.

The temporary injunction is dissolved.

Injunction dissolved.