Kolb v. Bankhead

18 Tex. 228

• Court: Texas Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Wheeler, J.

The principal question is, whether it was necessary, to enable the plaintiff to maintain this action, that he should have deraigned his title from the Government. And we are of opinion that it was not. He had been in possession, holding under a deed of conveyance purporting to be from the original grantee, duly proved and recorded. His title was generally known and recognized, and his actual possession continued down to a period shortly before the trespass ; and its discontinuance is explained in such a manner as to raise no presumption against his right. The deed, the prior possession, and the general notoriety and recognition of his ownership, were sufficient prima facie evidence of title, carrying with it constructively the legal possession, to maintain trespass, against a mere stranger and wrong-doer. It has been held that an entry upon land under a deed, claiming title to the same, and cutting and selling timber from time to time, and exercising acts of ownership, is a sufficient possession to maintain an action of trespass guare clausum fregit against a stranger. (Sawyer v. Newland, 9 Verm. 382; 2 Greenl. Ev. 618.)

There was no necessity to allege the value of the timber cut and carried off the plaintiff's land. The injury done to the plaintiff's possession was the gist of the action ; and the value of the timber was admissible in proof of the damage sustained.

The proof as to boundaries was sufficient. The plaintiff's line was known and plainly marked. It was the recognized dividing line between the plaintiff and defendant; and was sufficiently proved to be the same claimed by the" plaintiff in his petition. The locus was sufficiently identified by the proof.

In estimating the damages, the jury were not confined strictly to mere compensation for the timber cut and removed. It was their right to look to the particular circumstances of the case, and give such damages as the facts were deemed by them to warrant, and as would, in their judgment, be adequatej not only for compensation, but also for prevention.

We see nothing in the charge of the Court considered, as a whole and in reference to the evidence, calculated to mislead ; and are of opinion that the judgment be affirmed.

Judgment affirmed.