2 Woods 349 | U.S. Circuit Court for the District of Western Texas | 1876
(charging jury). The first question to be considered is the liability of the defendants. There is no question as to the liability of Brown. It is contended by Hancock and West, however, that they have had no possession or use of the properly, but that all they have had to do in relation to it has been in their professional capacity as attorneys-at-law, representing Connett originally, and subsequently Brown as his grantee. It is a general rule that attorneys-at-law, in the exercise of their proper functions as such, are not liable for their acts when performed in good faith and for the honest purpose of protecting the interests of their clients. The public interest demands this. If attorneys cannot act and advise freely and without constant fear of being harassed by suits and actions at law, parties could not obtain their legal rights.
The next question to be considered is the amount of damages. The ordinary rule for the measure of damages in actions of this sort, is the fair rental value of the property, as the plaintiff’s counsel has contended. If this cannot be ascertained, the next best rule is the actual value of the use of the property under prudent management. I do not remember any evidence in the case which showed any rental value. It does not appear that this property, or any similar to it in the neighborhood, had been let at a pecuniary rent, or, if it had, what the amount of the rent was. We can not tell, therefore, precisely what its rental value was. The plaintiff was given evidence of estimates made by witnesses of what they considered the property to be annually worth, based on their calculation of what could be actually made from it. But whether any person would have undertaken to pay a rent for it equal to the amount named by these witnesses may be a question. There are always risks attending the use of such a property and the demand for its products, which more or less affect the rent which parties are willing to give. And, then, no one is willing to give, in rent, all he expects to make from the property. What the defendant did actually make, we have some evidence to show from the testimony o-f Brown himself, and this will have considerable weight in establishing the value of the use during the period of his possession. What he actually did make, however, is not the measure of the plaintiff’s right of recovery. This is not an action for an account of what he actually received; but for what the plaintiff might have received from a prudent use or renting of the property, had he not been deprived of its possession. The defendant may have had bad luck, or he may not have managed prudently. The plaintiff ought not to be saddled with his bad luck, or his unskillful or imprudent management. If the fair rental value can not be ascertained, you must ascertain as near as you can from the evidence, and give to the plaintiff the fair actual value of the property during the period it was in the possession of the defendant, if prudently and judiciously managed.
In making this estimate, you will make allowance for destruction caused by uncontrollable floods, which would necessarily have affected the value of the property had it been in the possession of the plaintiff himself. There can be no legal or actual perception of profits annihilated by the overwhelming powers of nature. Of course, you will consider the several parts of the prop-ert3’, the cultivated part and the timbered part, and the buildings and machinery in connection therewith; and will make due estimate of the value of the timber which was cut, as it stood on the ground. I do not know that I can aid you in making this estimate. You have heard all the evidence, and you will give it the weight which it deserves.
Some question has been made whether the timber cut for Brown’s upper mill was cut before or after the commencement of the suit. If cut before, it will be included in the estimate; if cut since, it will not be. I have no note of what the evidence was on
As to the claim for improvements placed on the property by the defendant, it is my duty to instruct you that he is not entitled to any allowance therefor. He took possession of the property whilst it was in litigation, and that precludes him. The law of Texas is, that if a person acquires and holds possession of land in good faith, believing it to be his own or to belong to the person of whom he holds it, he is entitled to be paid lor the permanent and valuable improvements made by him thereon, though his title proves to be invalid. But after the party having the better title makes a judicial demand by bringing suit to recover the property, the person in possession, or any one taking possession under the same title during the pendency of the suit, can no longer set up the plea of good faith. After this he acts at his peril. The true owner, having done all he can do to get possession of his own, even to the point of resorting to the courts of justice, can no longer be charged with improvements over which he has no control, and which the unlawful possessor chooses to make. A wealthy possessor might otherwise, ruin the owner by making costly improvements which the latter does not want, and has no means to pay for. The possessor cannot even be allowed for renewal of fences, or rebuilding of houses, or replacement of machinery. He does it all at his own risk. Hard cases may, undoubtedly, arise under this rule. But hard cases can not control the law. No doubt the defendant Brown did suppose he had a good title, and no doubt his counsel, Hancock and West, honestly so advised him. But legal good faith •cannot be averred where the real owner has already commenced his action for the recovery of the property.
