No. 6734. | Tex. App. | Jun 18, 1914
This appeal is from an order of the district court of Newton county refusing to grant appellant a temporary injunction in a suit of trespass to try title brought by appellant against appellees to recover 460 acres of land, a part of a tract of 810 acres on the Seth Swift league, in Newton county. In addition to the usual allegations in an action of trespass to try title, plaintiff's petition alleges that defendants have cut and removed a large quantity of timber from plaintiff's land, and that said defendants —
"are still cutting, felling, and removing the timber from said 460-acre tract of land owned by plaintiff without the consent and over the protest of plaintiff, and without any authority or right whatever so to do, and without any reasonable grounds for believing that they have any right so to do, and plaintiff says that, unless restrained by your honor's most gracious writ of injunction, said defendants will continue to cut, fell, and remove from said tract of land owned by plaintiff the timber growing thereon, and will appropriate the same and the proceeds thereof to their own use and benefit, to the great and irreparable damage of this plaintiff."
In addition to a prayer for the recovery of the land and the value of the timber taken therefrom by the defendants, the Petition contains the following prayer:
"Plaintiff further prays that your honor grant to it your most gracious writ of injunction, restraining and enjoining said defendants, and each of them, their agents, representatives, servants, and employés, from further trespassing upon said 460-acre tract of land above described, and from further cutting, felling, or removing any of the timber therefrom, save and except such timber as had already been cut and felled by them, and now laying on the ground, but, as to said timber as had already been cut and felled, by said defendants, plaintiff does not ask that they be enjoined from removing the same, for the reason that this plaintiff is not in a position to take care of same, and, if left to remain upon the ground in its present state, will deteriorate and ruin."
The petition was properly verified. It was presented to the district judge on February 24, 1914, and a hearing upon the application for temporary injunction was set for March 2, 1914, and notice thereof ordered issued to defendants. Upon the day set for the hearing the defendants appeared and answered. The hearing upon the petition and answer and evidence introduced by the parties resulted in a judgment refusing plaintiff's prayer for an injunction.
It appears from the pleadings and evidence introduced upon the hearing that the defendant Taliaferro owns a tract of 350 acres on the 810-acre tract mentioned and described in plaintiff's petition, and that the remainder of said 810-acre tract is owned by the plaintiff. The defendants denied that they had cut any timber from plaintiff's land, and claimed that all of the timber cut by them was taken from the 350-acre tract owned by appellee Taliaferro. The only issue of fact raised by the evidence was in regard to the location and boundaries of the 350-acre tract. Upon this issue the evidence was conflicting, but there is ample evidence to sustain the finding that the location and boundaries of said tract are as claimed by defendants, and that defendants have not cut any timber on plaintiff's land, and are not threatening to cut any timber thereon. There is no allegation that defendants, or either of them, is insolvent, or that they are not amply able to respond in damages if, upon a final trial, it be found that they have cut any timber on appellant's land. Upon this state of the record we cannot hold that the trial court erred in refusing the injunction, and the judgment must be affirmed.
Affirmed.