Sanches v. Newman

158 S.W. 797, 1913 Tex. App. LEXIS 1282

• Court: Court of Appeals of Texas
• Decided: June 12, 1913
• Status: Published

Opinion

HARPER, C. J.

This is an appeal from an order of the district court dissolving a temporary writ of injunction theretofore granted upon application by appellant, which said order restrained the appellees from trespassing upon certain real estate, in that they were building a fence around the premises which appellant claimed to own and to be in actual possession of.

Inasmuch as the rights of the parties to the land may ultimately be determined by trial of the case on its merits, we shall refrain from discussing the evidence.

In order for appellant to be entitled to the relief asked for, it was necessary for him to plead and prove such title as against ap-pellee as would entitle him to possession of the premises, and this is not a suit in trespass to try title, nor has the appellant pleaded any title, so no determinate judgment can be rendered as to whose is the title to the land charged to be invaded; therefore neither can the question of the right to maintain the fence where it now is be determined.

The judgment of the lower court must therefore be affirmed. Paul v. City of El Paso, 131 S. W. 438; Walker v. Haley, 147 S. W. 360.