Butt v. Colbert

24 Tex. 355

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Wheeler, C. J.

The plaintiffs do not show themselves entitled to an exclusive ferry privilege, (O. & W. Dig., Art. 909,) and the injunction, therefore, was rightly dissolved. The allegations of the petition are vague and uncertain; but sufficient, perhaps, on the authority of Dunlap v. Yoakum, 18 Texas Rep. , to entitle the plaintiffs to maintain the action for damages for the alleged trespass. The plaintiffs’ ownership and possession of the landing, is not averred with the distinctness and certainty required by good pleading.

But the exceptions did not question the sufficiency of the petition upon this, but upon other grounds; and on general demurrer, we think the ownership and possession sufficiently appear, to maintaih the action for the trespass upon the landing. Upon such a state of pleading, we do not think proper to decide more.

And if the exceptions had pointed to the want of certainty, in stating the trespass, and consequent damage, and the plaintiffs had still declined to amend, we might have affirmed the judgment dismissing the petition. But as the exceptions did not point to the defectiveness of these averments, so as to indicate the proper amendment, we think there was error in dismissing the petition. The judgment is reversed and the cause remanded.

Reversed and remanded.