Graham v. Knight , 1920 Tex. App. LEXIS 612 ( 1920 )

The contention presented by the assignments is that the trial court erred when he overruled certain exceptions urged by appellants to appellee's answer. The ground of the exceptions was that there was no denial in the answer of material allegations in appellants' petition. The argument is that the trial court therefore should have treated the allegations as true, and hence that he abused the discretion he had when he dissolved the temporary injunction.

The contention assumes that the allegations in the petition, if taken as true, entitled appellants to relief by injunction. We do not think so, and therefore would not reverse the judgment, if we thought the answer was subject to the objection urged to it. As we view the petition, the allegations did not entitle appellants to such relief, and the trial court, for that reason, if for no other, should have dissolved the writ. San Antonio Water Supply Co. v. Green, 198 S.W. 631.

The fact that appellants owned a fence on the land, and that appellee tore it down and converted the material thereof to his own use, may have entitled appellants to recover damages of appellee, but it certainly did not entitle them to an injunction. The wrong, if it was one, was complete, and such a writ was not a remedy for it. Whitaker v. Dillard,81 Tex. 359, 16 S.W. 1084; Acme Cement Plaster Co. v. American Cement Plaster Co., 167 S.W. 183.

So, the fact, if it was one, that appellee threatened to kill appellant Whitfield if he found him on the land, did not entitle appellants to the writ — certainly not, in the absence, as was the case, of allegations showing a right in Whitfield to go thereon. 14 R.C.L. 376.

Of course the fact that appellants had leased the land for the year 1920 was not a reason why the writ should have been granted.

Nor was the fact that appellee was preparing, if he was, to construct "a fence of his own on and around the land in furtherance of a design he had to oust appellants therefrom," of itself a reason why the writ should have been granted. Unless it appeared from the allegations in the petition that appellants had a right to the possession of the land as against appellee, they were not entitled to have him restrained from going upon and building a fence on it. They did not specifically allege, nor did they state facts showing, they had such a right. They did not allege either that they owned the land or were entitled to possession of it. Indeed, they did not even allege that their possession of the land was lawful. The averments with reference to this phase of the case were merely that —

"On and long prior to November 17, 1919 they had and held the land in their actual physical, open, and notorious possession, holding same under a good, sufficient, and secure fence peaceably and without molestation, using and enjoying adversely to all others."

They might have had such possession of the land, and yet have been mere naked trespassers thereon.

If it should be said that the defect just suggested was cured by the allegation that appellee's entry on the land was "unlawful and wrongful," the answer is that the allegation is a mere conclusion of the pleader, and not entitled to force in construing the legal effect of the averments in the petition. Birchfield v. Bourland, 187 S.W. 422.

"The rule of pleading," said the court (Weaver v. Emison, 153 S.W. 923), "that the statements of a party are to be taken most strongly against himself, is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising from the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief."

And see King v. Driver, 160 S.W. 415, Ross v. Veltmann, 161 S.W. 1073, and Shannon v. Hay, 153 S.W. 360, where it was said:

"In an application for an injunction, the well-recognized rule is that allegations of fact must be direct, certain, and particular."

The rule stated is applicable to another view of the allegations in appellants' petition. While appellants alleged that they were in actual possession of the land "on and long prior to November 17, 1919," they did not, except inferentially, allege that they had possession thereof on December 15, 1919 (when, they averred, appellee entered thereupon), or ever afterward. Observing the rule, the trial court might very well have concluded that it did not sufficiently appear from the allegations in the petition that appellants were in actual possession of the land after November 17. 1919.

While appellants sought both mandatory and preventive relief, the trial court granted their prayer only so far as it was for writ restraining appellee from interfering with them in their possession and use of the land. The predicate for the relief the court granted was, of course, the allegations in the petition that appellants had actual possession of the land and that appellee was threatening to resort to unlawful means to deprive them of such possession. As we construe the answer, appellee not only denied that appellants had such possession of the land, but also denied that they were entitled to possession thereof, and alleged that he (appellee) owned it, that he was actually in possession of it from February 25, 1901, to the date of the filing of the answer.

If, therefore, we doubted the correctness of the conclusion reached, that it did not appear from the petition that appellants were entitled to the relief they obtained, we nevertheless would affirm the judgment; for the truth of the allegations of the petition, so far as they were material to the matter before the trial court, having been denied in the answer, the court acted within his discretion when he dissolved the writ. Article 4663, Vernon's Statutes; Harris v. Thomas, 217 S.W. 1068; K. . L. of Honor v. Cole, 62 Tex. Civ. App. 500, 131 S.W. 1180.

The judgment will be affirmed.