Buchanan v. Wilburn , 60 Tex. Civ. App. 206 ( 1910 )

In the year 1900 M. G. Buchanan purchased from E. D. Harrington a lease on four sections of public school land in Crane County. On the 31st of October, 1900, Buchanan surrendered that lease and obtained from the Commissioner of the General Land Office of the State another lease on the same land for a period of ten years. On the 22d of July, 1907, the land was purchased from the State by J. A. Wilburn. On the same date Buchanan instituted suit against Wilburn in trespass to try title to recover the land. That suit was decided in Wilburn's favor both in the trial court and in this court, and a writ of error was denied by the Supreme Court on October 14, 1908. Pending that suit Buchanan procured the issuance of a writ of sequestration which was levied on the land, and, Wilburn having replevied it, an injunction was granted to Buchanan by the judge of the trial court restraining Wilburn from interfering with Buchanan's possession of the land during the pendency of the suit. By virtue of a mandate issued from this court December 21, 1908, Wilburn was placed in possession of the land.

The suit now before us was instituted by Wilburn to recover the rental value of the land pending the aforesaid litigation. By plea in reconvention Buchanan sought to recover of Wilburn the value of certain improvements placed upon the land by the former and taken by the latter when he was placed in possession of the land, some of which improvements were permanent and some movable improvements. The suit was tried by the court without a jury, and findings of fact and conclusions of law were filed. Judgment was rendered allowing Wilburn three hundred and thirty-six dollars and eighty-five cents as the rental value of the land during the time he was wrongfully deprived of its use, and also allowing Buchanan two hundred and forty-seven dollars for the movable improvements which he placed on the land and which were appropriated by Wilburn.

An exception was sustained to Buchanan's claim for the value of the permanent improvements which he alleged he placed upon the land during the lease issued to him by the Land Commissioner October 31, 1900. In the former suit between the parties, and above noted, this court held that lease void. In his plea in reconvention Buchanan alleged that he was advised by the Land Commissioner that he had lawful authority to issue the lease; that in good faith he believed the same to be a valid lease, and, relying upon that belief, he erected on the land the permanent improvements for which he sought a recovery. We think the court erred in sustaining Wilburn's exception to the plea; however, the extent of Buchanan's recovery for the permanent improvements would be the amount the value of the land was enhanced by the use of those improvements during the unexpired period of the lease. Williams v. Finley, 99 Tex. 468; House v. Stone, 64 Tex. 677 [64 Tex. 677]; Sellman v. Lee, 55 Tex. 322; French v. Grenett, 57 Tex. 274.

There was no error in allowing Wilburn the rental value of the land from the date of his purchase until the date he was placed in possession thereof upon the termination of the litigation over the title to the property. Subject to Buchanan's equitable claim for permanent improvements, Wilburn was entitled to possession of the land as soon as he bought it from the State, and the undisputed evidence showed that in that condition it had a definite rental value. George Hogg, witness for plaintiff, testified over defendant's objection that the rental value of the land was twenty-five cents per head for all the cattle it would pasture. There was no error in the admission of this testimony, as other witnesses testified to the number of cattle for which the land would furnish pasture.

The rulings of the court in allowing Buchanan the value of the movable improvements which he had placed on the land, and in admitting testimony over appellee's objection to prove their value, are challenged by cross-assignments of error presented by Wilburn. Buchanan's application for writ of error from the decision of this court in the former suit was denied on October 14, 1909, more than sixty days prior to the issuance of the mandate of this court. Sayles' Texas Civil Statutes, article 4218s, provides that a lessee of public school land shall have the right, for sixty days from the date of termination of his lease, to remove all improvements he shall have placed upon the leased premises. The issuance of the mandate from this court was delayed by reason of the pendency of a motion for rehearing in the Supreme Court. Appellee insists that there is no law permitting a motion for rehearing in the Supreme Court when an application for writ of error is denied by that court, citing Hines v. Morse, 92 Tex. 194; that the judgment became final on the 14th day of October, 1908, and that, as the land was the property of the State at the time the improvements were placed thereon, and appellant did not demand of appellee the right to remove them within sixty days from and after October 14, 1908, he should not recover their value. The statute does not prohibit the removal of the improvements after the sixty days' period above mentioned. Claims for improvements in good faith are allowed on principles of equity, and if appellant brought himself within that rule, and has shown a reasonable excuse for not sooner demanding the right to remove the improvements which he placed upon the land, we can perceive no valid reason for holding that he has forfeited his claim and that appellee should thus enjoy the fruits of appellant's labors without paying any consideration therefor. Accordingly, appellee's cross-assignments are overruled. Williams v. Finley,supra.

For the error in sustaining appellee's exception to appellant's claim for permanent improvements placed on the land under the lease of date October 31, 1900, the judgment of the trial court is reversed and the cause remanded for another trial.

Reversed and remanded.