M. H. & F. W. Bonner v. James M. Wiggins, 52 Tex. 125

Gould, Associate Justice. The record shows that under the pleadings, as amended, this was an action of trespass to try title, and to recover damages for an alleged trespass, in entering upon plaintiff’s land, breaking down his fence, and carrying awiiy the rails. The question of title, growing out of a disputed boundary, was found by the jury in favor of defendants, and judgment was. accordingly rendered establishing the boundary claimed by defendants.

The jury, however, by the charge of the court, were allowed to find damages for plaintiff, if, being the owner of the rails, and believing the land to belong to him, he placed them there in good faith, and they were carried away by the authority of defendants. Accordingly they found in favor of plaintiff Wiggins |283 damages, and the court, after establishing the boundary so as to give the land on which the fence was to the defendants, proceeded. to give plaintiff' a personal judgment for that amount.

We look in vain in the pleadings for any' averments as to improvements in good faith, or any other averments entitling plaintiff to recover damages on any other ground than that the land was his, and that, therefore, the fence and rails were his and in his possession. The gist of this action for damages was the injury done to his possession. (Kolb v. Bankhead, 18 Tex., 232.) As against a mere trespasser, possession is sufficient title to support an action. (Linard v.

Crossland, 10 Tex., 464.) But 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. (1 Greenl. Ev., sec. 618; 8 Black., ch. 12; 1 Add. Trusts, secs. 383,446; 1 Chitty’s PL, 177; Sampson v. Henry, 13 Pick., 36; Harris y. Gillingham, 6 H. H., 9; Wentz v. Fincher, 12 Iredell, 297; Houghtaling v.

Houghtaling, 5 Barb., 379.) The rightful owner of land is the owner of the improvements made thereon without his consent. (1 Wash, on Real Prop., 8d eel, sec. 4a.) Our statute, which entitles a defendant in trespass to try title to pay for his improvements in good faith, does not change the common-law rule and make the improvements his. His equity to compensation is recognized, but the value of the use and occupation is to be assessed and set off against it.

Whatever equitable rights Wiggins may have had growing out of his improvements, we think that no facts wore stated in his pleadings entitling him to recover on equitable grounds. For the double reason that the gist of the action was the alleged injury to his possession, and that the pleadings raised no issue as to improvements in good faith, the court erred in its charge on that subject. [Opinion delivered November 4, 1879.] Appellants ask that the judgment be reformed, rejecting so much of the verdict as finds damages for plaintiff.

But while it is true that, under the pleadings, the finding of the jury on the issue .of title or boundary was decisive of the entire case, the jury may have been influenced in their verdict on the question of boundary by the erroneous submission to them of another issue. Their verdict, as returned, was responsive to the charge of the court, and certainly was not designed to be an unconditional verdict, for defendants. (Hutchins v. Bacon, 4G Tex., 412.) Under the circumstances, we think that the entire verdict should be set aside and a new trial awarded.

The judgment is accordingly reversed and the cause remanded. Reversed and remanded. [Bonner, J., did not sit in this case.]