Bonner v. Wiggins

Citations

• 52 Tex. 125
• 1879 Tex. LEXIS 119

Syllabus

<p>Damages—Pleading.—A sued C in trespass to try title to recover land, and for damages claimed as resulting from the entry made by C on the premises in dispute, and his removal of rails therefrom placed there by A. The controversy involved the location of a dividing line between adjoining tracts of land. The petition contained no averment of improvements made by the plaintiff in good faith. The jury found, by their verdict, in 0’s favor for the land from which he removed the rails, but in favor of A for damages : Held—</p> <p>1. That in the absence of an averment, under the statute, that A had made the improvements in good faith, it was error to render judgment in A’s favor for damages.</p> <p>2.. The gist of the action for damages was the injury done the possession.</p> <p>3. While, as against a mere trespasser, possession is sufficient to support an action, as against the rightful owner a wrongful possession gives no cause of action for entering and resuming possession, unless done with force and a strong hand.</p> <p>4. The rightful owner of land is the owner of improvements made thereon without his consent.</p> <p>3. The verdict being in response to an erroneous charge, and not an unconditional verdict for defendant, the finding on the question of boundary may have been influenced by the erroneous issue submitted, and the judgment will not be reformed, but reversed.</p>