Fleming Davidson v. Rohleder

135 S.W. 735 | Tex. App. | 1911

⁸²²⁴ Writ of error denied by Supreme Court April 19, 1911. 1. The first five assignments of error are directed against the court's finding of fact relating to plaintiffs' title and possession to the lands described in their petition upon which it was alleged the contemplated trespass was about to be committed by the defendants. These findings are amply sufficient to show that plaintiffs' title and possession of all the land described in their petition were such as the owners could predicate an action upon against one who, claiming no interest in or right of possession thereto, threatened and was about to commit such a trespass thereon as a court of equity is authorized to restrain. Further than this, the court was not required to go in its findings; nor did the plaintiffs have any right, in so far as the merits of this case are concerned, to more extended findings upon such issues.

2. The next three assignments of error relate to the findings of the court as to the effect hunting, fishing, firing guns, going on foot over, and camping in, a pasture stocked with steer cattle would have on such animals. As the court found as facts that the defendants never hunted, fished, fired their guns, or went through plaintiffs' pastures stocked with such cattle without plaintiffs', or their authorized agent's, consent or permission, and that they had not threatened nor contemplated doing so at any time before or after this suit was brought, it is wholly immaterial to this cause, if such findings are correct, what effect such acts, or any of them, would have on plaintiffs' cattle.

3. The ninth, tenth, and eleventh assignments of error complain of the court's finding as facts that the defendants Rohleder had not threatened to hunt, fish, or camp on plaintiffs' premises since April, 1909, and that there was no evidence of the intention of either to do so, unless their signing a certain petition to the Legislature was evidence of such threat or intention as a matter of law. These findings are evidently correct. But the insistence of plaintiffs is that their signing of such petition does show such threat and intention as a matter of law. The petition was addressed to the senator and representative of the senatorial and representative district in which Maverick county was then situated. After certain prefatory representations, the petition proceeds as follows: "We therefore respectfully ask that each of you introduce the bill hereto attached, placing Maverick county among those counties that are now exempt from the provisions of said law, and kindly see that same is enacted. In the event of a law being passed prohibiting hunting in pastures except those of over 50,000 acres (we understand that such a bill has been or will be introduced), we ask that Maverick county be exempted from the provisions thereof, if such be possible."

We fail to perceive any reason why defendants' signature to such a document should be taken as any evidence at all of a threat or intention on the part of its signers to hunt or fish in plaintiffs' pastures. Section 27 of the Bill of Rights provides that "the citizens shall have the right, in a peaceable manner, to assemble together for the common good, and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance." The exercise of this right is beyond the power, control, or limitation of government. To say that its exercise shall be taken as evidence against the citizen of an intention to commit a trespass or wrong would be to deny and scoff at a right reserved by the people to themselves, secure from the touch of the hand of the government which they have instituted and maintain in subordination to it.

4. The remaining assignments relate to the trial court's conclusions of law. These we need not consider further than to say that from facts found by the court below and approved by us it follows as a matter of law that plaintiffs showed no right to the injunction, and that it was properly dissolved.

Affirmed.