Long v. Cude , 75 Tex. 225 ( 1889 )

COLLARD, Judge.

The proposition of the appellant, defendant below, that the pleadings of the appellee did not justify the court’s finding for plaintiff the value of the fence removed by defendant, is not tenable. It would be too exacting as a rule of pleading in a Justice Court. The court found as a fact that the defendant put the fence on plaintiff’s land by mistake, in the belief that it was his own land. The court does not say that this was done with plaintiff’s knowledge or acquiescence, but that it was a partition fence between the two parties, and from this fact it might be inferred that it was with plaintiff’s knowledge at least.

The court found that there was no damage to plaintiff’s crop as a consequence of moving the fence, which was done about February 1, 1884, under the impression that it was his own. Under these circumstances, if it is true that plaintiff allowed defendant to build the fence on his land under the mistake, as found by the court, on the part of defendant, or knew of it, if both the parties were so mistaken and believed - at the time the fence was built that it was on defendant’s land, the plaintiff .would not be equitably entitled to the value of the fence. 3 Pome. Eq., note to sec. 1242; Matson v. Calhoun, 44 Mo., 368.

Our statute in allowing compensation for valuable improvements by the defendant in actions of trespass to try title is based upon an equitable right and equity jurisprudence, the question always being one of good faith. Saunders v. Wilson, 19 Texas, 194; Thouvenin v. Lea, 26 Texas, 612; Harrell v. Houston, 66 Texas, 280. Such equitable right will be protected whether it arise in suit of trespass to try title, on independent action for the purpose, or in defense of a suit for removing the improvements.

We are not satisfied that it was the intention of the qourt to include in its findings that plaintiff knew, consented to, or acquiesced in the placing of the fence on his land, or that he was also mistaken as well as the defendant about its being on his land.

If the fact distinctly appeared our conclusion would be that the judgment should be reversed and here rendered for the appellant; but under the circumstances of uncertainty on this point, we think the judgment should be reversed and the cause remanded for a new trial.

Reversed and remanded.

Adopted November 5, 1889.