Lazarus v. Phelps,
152 U.S. 81 (1894)

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U.S. Supreme Court

Lazarus v. Phelps, 152 U.S. 81 (1894)

Lazarus v. Phelps

No. 225

Argued and submitted January 23-24, 1894

Decided March 5,1894

152 U.S. 81


An owner of grazing land in Texas, who stocks his land with cattle greatly in excess of the number which can be fed upon it and permits them to go on and occupy and feed from the grass growing upon unoccupied land of a neighboring proprietor, with no separating fence, becomes liable to the latter for the rental value of his land so occupied.

Page 152 U. S. 82

This was an action brought in the Circuit Court of the United States for the Northern District of Texas, September 17, 1888, by William Walter Phelps to recover of the plaintiff in error, Sam Lazarus, the rental value of 176,000 acres of land in Texas from April 15, 1887 at eight cents per acre per annum. The facts of the case, as shown by the pleadings and proofs, were substantially as follows:

In 1882, Phelps' vendor leased these lands, the sections of which alternated with sections owned by the Texas Public School Fund, to the firm of Curtis and Atkinson, for five years at two cents per acre for Grazing purposes. It was agreed in the contract of lease that all improvements made by the lessees should become the property of the lessor at the expiration of the lease. Curtis and Atkinson, in conjunction with adjoining owners, built a fence around the north, east, and west sides of their land. These fences included the school sections, as well as those of Phelps. They did not separate the sections leased by them from the alternate school sections by fence, nor did they apply for a lease of these alternate sections from the state until June 12, 1887. Before the lease was granted, however, Curtis and Atkinson sold nearly all the cattle and horses owned by them on the enclosure to Sam Lazarus, plaintiff in error and defendant below. Lazarus applied to the state for a lease of these alternate school lands, and in September, 1887, a lease was delivered to him, to take effect from the date of the application of Curtis and Atkinson, June 12, 1887. There was a penalty under the law of Texas for using the public lands without a lease.

Phelps became the owner of 168,300 acres April 15, 1887, and Curtis and Atkinson held under him, as tenants at will, up to the date of the sale of their stock. After the purchase of this stock by Lazarus, some negotiations were entered into with Phelps for a lease of the lands, but nothing came of them. Subsequently he secured the lease of the alternate school sections to the amount of 162,270 acres.

In the fall of 1887, the owners of the land on the south of these sections in dispute erected a fence dividing their lands from those of Phelps, thus entirely enclosing the 168,300 acres

Page 152 U. S. 83

belonging to Phelps and the alternating school sections in one continuous tract of land.

During the tenancy of Curtis and Atkinson, they had erected two tanks, one upon the land of Phelps. The location of the other was not proven. These tanks were subsequently used by Lazarus. After the purchase by defendant of the stock of Curtis and Atkinson, he contracted to pasture upon this land, besides his own stock, one herd of 3,500 head, for which he received $5,000 for the first year, and $1.65 per head until purchased by him in 1889, and 3,000 calves, for which he received $2,500. The cattle owned and controlled by Lazarus were not confined to the school sections leased by him, but grazed upon the lands of Phelps, and the undisputed proof was that the entire tract was overstocked, but in no other way than by having his cattle in this enclosure did Lazarus prevent the owner of the 168,300 acres from taking possession or from grazing other stock thereon.

Upon this state of facts, and proof as to the rental value of the land, Phelps secured a verdict and judgment for $8,417. The defendant thereupon sued out this writ of error.

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