Davis v. Gillen

WALKER, Justice.

Appeal from a temporary injunction restraining defendants from felling and removing timber. ‘

Appellees, referred to hereinafter as plaintiffs, sued appellants, referred to hereinafter as defendants, in trespass to try title to recover the title to and possession of a 200 acre tract of land in the James Haney Survey in Liberty County. • In addition to a general allegation of title in fee simple, plaintiffs specially plead title under the five, ten, and twenty-five year statutes of adverse possession. Vernon’s Ann.Civ.St. arts. 5509, 5510, 5519. Plaintiffs alleged ouster by defendants on September 7, 1949, to plaintiffs’ damage in the sum of $3j000. Plaintiffs alleged further that since this date, defendants, by and through the defendant Ed Rice, had commenced and were' continuing to fell timber upon the land sued for by plaintiffs and that unless restrained, the defendants, by this conduct and the consequent loss of timber by plaintiffs, woüld cause plaintiffs irreparable damage.. Plaintiffs alleged in general terms that they had no adequate remedy at law; and in addition to their prayer for title to and possession of the land, they prayed that defendants be restrained pending the suit from cutting and removing timber from said land.

Defendants’ pleadings are not in the transcript.

Plaintiff’s prayer for a temporary injunction came on for hearing on September 9, 1949, and on the proof adduced by the parties, the trial court passed an order on this date restraining, “defendants, their agents, assigns, servants and employees from cutting and removing the remainder of the timber from (the land in suit) and from committing or permitting any further waste or spoil in, on, or to said premises, or any part thereof.”

The order contained other provisions to which we need not now refer.

The proof, so far as relevant and ■construed most favorably to plaintiffs, as it must be under the order appealed from, is as follows:

(1) The land in suit bears merchantable timber; and on this record the ownership of this timber appears to be the matter basically at issue between the parties.

Plaintiffs ranged cattle on the land for many years, but no other use of the land was proved.

(2) Plaintiffs adduced proof that they had title to the land under the ten year statute of limitations. It does not appear that defendants ever had'actual possession of the land, or that they ever exercised dominion over the land, prior to the acts of the defendant Rice which are, related hereinafter. Defendants adduced no proof of title, although the testimony of Franklin, agent -of some of the defendants, Shows that the defendants other than Rice did claim titlp to a tract of land in the Haney Survey which included the land in suit; and in their brief defendants make this admission : “For the purposes of this appeal it will be admitted that plaintiffs made a prima facie showing of title to the land involved under the statutes of limitation.”

(3) Although they had once been in actual, exclusive possession of the land, the proof does not show that plaintiffs were in actual possession of said land when defendant Rice committed the acts hereinafter mentioned. However, some of the plaintiffs resided upon a tract adjacent to said land, and prior to the filing of this suit plaintiffs, whether in actual possession or not, had continuously exercised dominion over said land by cutting wood and posts upon said land.

However, by virtue of their proof and defendants’ admission that this proof showed title- in plaintiffs, the plaintiffs are to be taken as having been in constructive possession of the land when defendant Rice first entered upon said land. The proof concerning Rice’s conduct now to be related, also shows that Rice’s acts only amounted to trespasses and did not amount to actual possession ' of the land in suit, for -himself or for defendants, except of such parts of said land as he -momentarily and temporarily occupied during the course of his operations in felling timber growing on said land and removing same to his mill.

(4)Defendant Rice operated a sawmill, and a few days before plaintiffs filed this suit, he entered upon the land in suit and began to fell and remove timber growing on said land, for manufacture into lumber at his mill. He claimed no interest whatever in the land, but made his entry under and by virtue of an oral agreement he had made with Franklin, the agent of the other defendants, about a year prior to this suit, which authorized him, until his codefend-ants ordered him to stop, to- enter upon any of the lands owned by the Wirt Davis Estate in the James Haney Survey, and to fell and'remove hardwood timber growing on said lands. By the term Wirt Davis Estate we refer collectively to all of the defendants other than the defendant Rice. As stated, Franklin testified that -the Davis Estate claimed title to- a tract in the Haney Survey which included the land in suit. Franklin described his agreement with defendant Rice as follows: “Our agreement was Mr. Rice should cut all hardwood on the Wirt Davis Estate lands on the James Haney Survey, timber to be paid for as cut and scaled, on the Doyle-Scribner Scale.” Defendant Rice was to pay $8.00 per thousand feet for this timber. In their brief, the defendants other than Rice admit responsibility to plaintiffs for Rice’s conduct and refer to (him as their agent; hut the testimony of Franklin and Rice shows Rice to have been an independent contractor.

It does not appear that defendant Rice did anything upon the land in suit except fell timber and remove it. It does not appear that he assumed to take possession of said land, or of any part of it, for his co-defendants, or to exclude plaintiffs or anyone else therefrom, or that he occupied any part of it except momentarily and temporarily as his operations required. Nor does it appear that his codefendants expected or desired him to do otherwise.

It is to be inferred that had defendants not been restrained, the defendant Rice would have continued, pending the suit, to fell and remove plaintiffs’ timber and thus to convert the same to his use and that of his 'codefendants.

Under the circumstances recited, defendants, Rice included, are to be treated here as if they were mere trespassers.

(5) Plaintiffs made no effort to show that defendants were unable to pay such a judgment for damages as they might recover against defendants for the acts of Rice. There was proof from defendants indicating that those other than Rice could pay any judgment for' damages which plaintiffs "could have recovered against them; and while the trial court was not required to accept this proof as true, the burden of showing .thát defendants could not pay a judgment for damages rested upon the plaintiffs, if that matter was of any legal significance, and we may therefore assume,- for the purposes of argument, that defendants were solvent arid were able to pay whatever judgment for damages might be rendered against them-.

Nor is there any proof that plaintiffs were unable to, or that they had attempted to, sequester the land.

(6) Plaintiffs acted promptly to stop Rice’s conduct and to prevent the loss of their timber. Plaintiff Ira Gillen testified that he learned of Rice’s trespass about a week before the date of the hearing in the trial court, that he communicated with Rice and instructed him to stop his operations1 on the land, and that he filed the suit on Rice’s refusal to comply with his demand.

(7)We have read the order appealed from in the light of the proof before the trial court, and we construe that order as being consistent with the statements made above concerning the possession of the land. We note especially the first sentence, of the paragraph of that order next to the last paragraph directing defendants to enter n.pon the land in suit, and to remove some logs on the land. This statement shows that the trial court did not regard the defendants as being in actual possession of the land.

Opinion.

Defendants have filed two Points of Error for reversal, saying that the trial court erred in granting plaintiffs the temporary injunction appealed from, on the ground that plaintiffs were not entitled to injunc-tive relief if they had an adequate remedy at law, and that, 'on the record made in the trial court, they had two. adequate' legal remedies, first by way of a 'judgment against defendants for damages, and second, by way of sequestration.

Defendants’ Points of Error are overruled. The defendants were engaged" in destroying a valuable part of the subject matter of the ".controversy between plaintiffs and defendants, indeed, that part of the subject' matter which-seems to1 have provoked Rice’s acts and caused1’this suit to be filed; and the restraint imposed on the defendants was authorized by Subdiv. 2 of Art. 4642, R.S.1925, as construed in Houston Oil Co. of Texas v. Village Mills Co., 109 Tex. 169, 202 S.W. 725, 226 S.W. 1075.

This decision, in contrast with defendants’ argument that damages is an adequate remedy, gives legal significance to plaintiffs’ wish to keep and not to sell or be deprived of their timber.

Sequestration would not be an adequate remedy for plaintiffs because it might cost the plaintiffs a dominion and a constructive possession they actually had, and an actual possession of land which they might have assumed at will. Under Rule 696 et seq., Texas Rules of Civil Procedure, plaintiffs are the last in a line of three to whom the right of possession might pass by virtue of the issuance of a writ of sequestration. Possession is first to be taken 'by an ■officer of the court, and defendants next have the right to replevy. For an illustration, see: White v. Sparks, Tex.Civ.App., 118 S.W.2d 649; Id., 119 S.W.2d 114.

Defendants have made some point of plaintiffs’ allegation of ouster; but this allegation is formal, required by the Rules whether true or not; and the availability or adequacy of sequestration will be tested by the proof and not by this allegation.

The order appealed from is affirmed.