*1 SOUTHWESTERN part. upon' assign- course, mixed their the Of conclusion the witness if the third' question ordinary overruled, necessarily in ment is also of law and fact of care the fourth handling your opin- assignments shipment: “What, joint assign- will the be. These ments, ion, general and would market if have been the verdict support appellant, value of the at Rosalia as died en finds as cattle to either assignments route, there, or ar- the died or died after their must be overruled. au- See there, Digest, Ap- rival thorities cited in 1 into consideration the Decennial peal Error, (1). jus- condition that the cattle should have been The evidence finding, tified a when delivered at if which destination and handled we will attribute to considering verdict, way, Missouri, en route in that the usual Kansas & Railway handling Company Texas negligent- that the cattle should have re- of Texas ly delayed they unloading ceived and the condition have would of the cattle after delivery ordinary been in with that usual han- to it Texas Pacific dling?” “What, your Company Hodge, would at and that such negligence Rosalia, Kan., injuries be the market value at resulted in the for which damages against shipment company cattle involved in the not did were al- they die, transportation during appellant, lowed. also if As had to the been handled there is trip question evidence of several de- lays, though, ordinary customary way shown, delays as and with further usual and points, occurred at divisional carriers?” The wit- care on the where some de- lay always “Considering expected, to be ness answered as follows: and it they that from jury at time evidence the condition of these cattle also were they authorized to company; find but, should started arrived at the condition as already, indicated appellants with usual since destination ordinary customary have seen handling, was treat there cause of the by jointly two roads destination, assigning as one a market value for them at judgment; verdict and the 21 head were dead had a market there we do not find necessary value, value, or had determine this would have such market matter. disposes assignments per head, destination, of all of from $24 $30 appellants; “Considering including freight,” the condition of the remainder of the cows excluding shipment, steers they cattle, the dead deliv- were DE company WITZ et al. v. ered to the railroad Horn Van SANER-WHITEMAN ordinary LUMBER usual, customary, CO. with the run handling shipment that said should of Civil of Texas. Galveston. they shipped 1913. On Motion received for the distance Rehear- ing, April 17, 1913.) per was $24 head —about that —at destina- 'Taking tion. But the actually condition which Lumber —Dam ages —Manufactured Value. the bruised condi- delivered —in To warrant a of the manufactured quite tion, and there was a number of them value trees taken from the land say calves, I that had slunk their it must have been within the knowl- edge of the taker that he was about 35 or 40 of them —their market or he must negligence of such in the condition $18 was about $17 knowing that he would be The second which were delivered.” taking being that he knew the and without the was, perhaps, improper question propounded belief faith that taker appropriation. was entitled to make the in H. and in violation of the rule announced Trespass, [Ed. Note.—Eor other Ry. Roberts, 101 Tex. & T. C. Co. v. 137, 138; calling 808, as for a conclusion of the Tenancy (§ 24*) Cutting in Common Tim question fact, witness on a mixed of law and Liability ber Damages. Taker’s Measure oe fall but the answer was not such with- company, having Where defendant of that rule. That the condemnation lumber purchased an undivided three-fourths interest improper material, cannot land, cut, in certain manufactured, improper it fails elicit evidence. It has timber, sold the which was of size for held, believe, never witness that it did not own the interest, .testify usual, one-fourth cannot who knows fact .took a deed to the whole customary, run, time, or man- paid taxes, mortgages all the executed ner, like. etc., ants or the did not constitute an ouster of the coten- remaining assignment complains one-fourth [4] The third in view express of defendant’s in- contrary great weight the verdict terest and readiness to account for the overwhelming preponderance and timony, of the tes the timber on setting particulars out the wherein hence the was not willful so as to render defendant liable for the manufactured value of deficient, the same and the fourth that but it was liable for one-fourth submitting at all the court erred case of the value of the timber. as to these because the com Tenancy [Ed. Note.—For other plete Common, 65, 66; absence of evidence of oases same Key-No. section in Dec. & Am. NUMBER Series & Rep’r Indexes *2 Tex.) DE WITZ v. SANER-WHITEMAN LUMBER CO. '981 for an undivided one-fourth of manufactured have been knowing liable and manufactured value of the act of willful and without the the one-fourth interest for their' ate value should one and it into making er that he was knew that value.” jury pellants. Blount & pellee acres, pine ed the priated upon ing but nevertheless cut all such timber and able plaintiffs they appeal. had cut County; lants fourth thereof therein. one-fourth undivided’ interest and others to the county. sought for Lumber of the entitled value cepted fourth the ed, The facts Appeal [1] In order June McMEANS, try title, appellee. parlance of the timber that under into appellee he Alfred Moore pine removed the resulted timber brought of one-fourth of the timber sought timber proceeds. demand had the ato C. advantageous by appellee liable A trial James I. Company. recovery stumpage Under it that he for less than timber lumber, and, from District three-fourths undivided former ready Appellee within the he knew there was an Harris, to sum of on the entire 80 the trees taken whenever brought by appellants to recover to recover the value this case before us on taken from the of the in a J. to warrant a after it had been for the manufactured value? try it. of 80 acres of land an before into growing upon Perkins, When This is a suit of the same, title account to the of judgment it. $197.50 having opportunity allegation survey in facts Strong, Under these From would be timber cut from lumber, holding use of the the Saner-Whiteman Nacogdoches, for the manufactured sold, the relief In by belief in in the it did this outstanding make Court, value of one-fourth an undivided one-fourth and of the Appellants, claim- Judge. region must for their a Robert of trees land, manufactured judgment appropriation merchantable Nacogdoches, Nacogdoches Nacogdoches manufactur- of or alternative, proportion- appropriat- of words, court, of demanded, “stumpage merchant- owners taken, without a De land called he must the tak trespass it must of one- for title appeal. the 80 out appro- based faith itself land, ful as to land, Witz they “The one- cut ap- essential ap- for ex- of taken and seems that committed, the measure of in the absence of a statute or dividual growing.” counting ing stricted to the value-of the trees This con has no tenant ful, the eotenant and to the the timber is taken the under the gard. the estate before clusion is borne ities. Civ. trees should have first of the would denial contrary, tenancy in fee.” This statement of not. value, citing Y.) 505, case where one trees, knowing 333 cannot er, trees ant a tenant in common with others? We think Pickering, tion for tenants it, approvingly of the real ing tion, 251, thereof. adopted following sole owner of the Co., 5 Tex. is [2] held that doing common for for in working or to have cotenant so does removal of trees, sold. App. appellants’ recovery But has the rule In In . From this Civ. may 24 Am. control over Freeman between any appellants; and, so another from the cases; said in circumstances and would many of the timber 55 Tex. Civ. land In it is said that: “If timber stand common, even take App. recovery in over the timber for advantageously arises, estate only that Cyc. the value one lawfully doing Baker v. to is to be cut on the land innocently cotenants, followed benefit under acted Coleman’s Gillum rule of valuation in court, rule out, the trees an S. W. certain is of tenant where a instances person any the time that he he tenants in land, on he party’s action of cotenant follows, and that the trees consideration was the has been justifies, to him could exercise proceed 23 S. require sense makes no unusual use which he is a Cotenancy which his Wheeler, Werner Stave Co. by think; acquired any application App. 632, of favor of by ores that but that he is rule is thus stated: Appeal, cuts and sells the interest in that re taken. Nor Railway Company, knowledge trespass when the occasion land from which some of v. the rule is own common Young If, then, agreement W. his share to be a either stating from the use of unintentionally, common estate we Jones, size and condi to cut who took by and therefore timber while practically case, wrong being wrong state substantially properly line into 8 Wend. require partition the consent think, 62 Pa. relation to and Parti v. Lumber remedy 119 S. W. the eoten of is not .the had been he in do them, trespass may 34 Tex. held one co- author the co- an ac tenant quoted in the tenant itwas of to that. not, sell cut “It (N. re in he in of v. 155 SOUTHWESTERN ready adjacent neighbor's measure itself to account tim- owners of the one-fourth interest the mineral is the value of place, when share the value of at the farthest ber taken say: demand severed,” goes case trees taken whenever “But the first *3 taking it. We think a deed more still is entitled to of the defendants trespasser, tract, paying taxes regard whole of the than that of favorable though by upon executing mortgages ignorance. There mistake or repudiation .wrongfully did not in amount law to a of of property appellants’ one-fourth, in title to view in common a tenant his will. Here express recognition it, their right their to take exercises his undoubted readiness to account to the owners thereof property, means he has no other taking portion of the value obtaining than his own share of at upon compan- of the timber and in same time shares place event the the circumstances is there- ions. The value oré appel- only just as rendered To of account.” basis fore Wilbert, lee liable for the manufactured La. is Patureau same effect rehearing language The motion for a 782, is overruled. 355, this South. Ann. can how “We cannot see defendants is used: tort or be held liable for have one-half in which WHITE et al. v. COWLES. simple coproprietor by the the other removing manufacture of trees Civil of Texas. Ft. Worth. 15, Rehearing Feb. 1913. affairs, Denied sale in course 1913.) 22, destruction.” waste or without 1. (§ 238*) applied Husband Wife the court We think that Actions Against Judgments Mabried Women case, measure of judgment Validity. therefore must be 1911, providing Rev. Civ. St. art. entering judgment against married woman shall decree execution property Rehearing. levied on either the common or her On Motion separate property plaintiff, discretion re- for a motion insist their plaintiff, is for the benefit of and the failure of upon the wife’s to award an execution hearing as the property does not render the that, beyond question while trial show void. lants eases, [Ed. Note.—For Husband other see removed from which of the land Wife,. Dig. 853-855, 858, 860-863, §§ Cent. Dig. lumber, Dec. § 238.*] manufactured into appellee purchased ad- a title nevertheless (§ 238*) Husband and Wife —Collateral Attack. and held cotenants and claimed verse to its judgment against The a married them,, and that the land doing appellee arising specifically woman from its failure to repudi- appellants and ousted property, award execution the wife’s provided by title, that, Rev. Civ. St. art. ated does judgment subject not render the to collateral trespasser as such law attack. pro- of their for portion the manufactured cases, [Ed. Note.—Por other see Husband and upon taken. The facts the timber Wife, Dig. 853-855, 858, 860-863, 983; Cent. §§ Dig. based are Dec. which this contention 238.*] during his was the owner West Houston 3. Attachment 182*) —Liens—Deeds. filing controversy. record of a He the 80 acres corrected deed lifetime of property conveyed attachment of the surviving intestate, and left him died wife, grantee superior confers no Melvina, and six children. Afterwards creditor, the debtor ’original attachment executed w*here the deed Hoya purchased Melvina and fatally Charles defective. cases, [Ed. Attachment, Note.—Por three-fourths undivid- the children certain of Dig. 577-580; §§ Dec. Hoya conveyed land. then ed (§§ 29, 154*) acres; Homestead the latter the entire Selection- Rights of Parties. conveyance knowing that time of the the Hoya only The husband has the to choose the a three-fourths interest. owned family homestead for the and to abandon a conveyance homestead. made was and After rendered for [Ed. on, taxation, paid Note.—Por Homestead, taxes §§ gave 154.*] times divers the entire (§ 5. Homestead finally upon cut and trust deeds of —Abandonment—Acts Constituting. merchantable'pine timber there- occupying premises a’ Where widow as a from, same into lum- and manufactured married, homestead and she and her husband voluntarily on the premises, cutting, removal, left the At the no ber. intention again the husband to make the appellee knew there was a manufacture family, property same the homestead of the superior title to one-fourth of subject became to execution sale. and took the timber Homestead, [Ed. Note.—Por other 312-314; it; and, our held Cent. stated Dig. Key-No. Rep’r &Am. other oases see same section NUMBERin Dec. Series Indexes
De Witz v. Saner-Whiteman Lumber Co.
155 S.W. 980
Tex. App.1913Check TreatmentAI-generated responses must be verified and are not legal advice.