Mary M. Mann v. John Durst, 90 Tex. 76

GAINES, Chief Justice. This is a reversed and remanded case. In ■order to show jurisdiction of this court, the applicant asserts, “that this court has jurisdiction of this case, notwithstanding it was reversed. Because two of the Courts of Civil Appeals hold differently on the question of law herein presented, to-wit: 1. The Court of Civil Appeals for the Sec-ond Supreme Judicial District holds that the defendant below would be liable for rents under the facts of this case. (See St. Louis Cattle Co. v. Vaught, 1 Texas Civ. App., 388.) 2.

The Court of Civil Appeals for the Fifth Supreme Judicial District holds that defendant below would not be liable for rents under the facts of this case. (See Abbey v. Shiner, 5 Texas Civ. App., 287.)” We have carefully examined the two cases cited in the application in order to show the conflict, and we find that in neither of them was presented the precise question which was decided in the case now before us. It is true, there is conflict between the case of St. Louis Cattle Co. v. Vaught, 1 Texas Civ. App., 388, and Abbey v. Shiner, 5 Texas Civ. App., 287.

In the cases cited the lands of the respective plaintiffs below were entirely enclosed by the lands of the respective defendants, so that the latter in enclosing their own lands necessarily included those of the plaintiffs. In the present case the lands of the respective parties join each other, but those of the defendant below, the applicant here, do not surround those of plaintiff. In order to enclose her land, she constructed her fence on two of his outer lines.

It is evident that there is a marked distinction between the cases referred to in the application and the case here presented. ' They involve very different questions. In order to give this court jurisdiction of a reversed and remanded ease upon the ground that two Courts of Civil Appeals have held “differently on the same question of law,” that question must be the same as that presented in the ease in which the writ of error is sought. Because we are without jurisdiction over the ease, the application is dismissed. Application dismissed.