M. B. Evetts el al. v. R. P. Tendick et al., 44 Tex. 570

Ireland, Associate Justice. By the special issues submitted to the jury, and refusal of charges asked by appellant, he was precluded from recovering rents, except on the ground without reference to improvements; and he has brought the case to this court and assigns this ruling as error. It is remarkable that the question here presented has never arisen in our courts before.

The rule adopted in Kentucky, under laws like ours in many of their main features, known there as the “occupying claimant’s law,” was to allow the successful claimant, pay for rents on the improvements in cases where the occupant got pay for first cost of improvements, hut when he recovered the value at the time of the trial, the successful claimant only recovered rents on the land without reference to improvements. (4 Litt., 370; 3 Marsh, 177; 1 Man., 163; 2 J. J.

Marsh, 522.) We believe it would he more equitable to follow the courts of Kentucky on this question, but the uniform and long-established rule with us, has been to allow the successful claimant pay for rents on the property as it is found at the time the suit commenced or during the litigation. This is the uniform construction placed on our statute from 1840 up to the present time, allowing the occupant to pay for the value of improvements at the time of trial, or the amelioration in the value of the land with the improvements over its value in a wild state.

There would be nothing inequitable in courts and juries, in estimating rents and profits and valué of improvements, to take into consideration the fact that the occupant has lost his interest on the money expended in making improvements, and we believe it would be in accordance with correct rules of equity for the Legislature to require this to be done. We do not, however, lay it down as a rule, preferring that the Legislature shall engraft new rules that may he adapted to our law.

The court erred in refusing the charges asked by plaintiff, and in submitting the special issue with reference to rents, for which the judgment is reversed and the cause remanded. Reversed and remanded.