In an action to recover the rental value of plaintiff's land
alleged to have been wrongfully taken possession of and occupied by
defendant for grazing purposes, a former judgment in plaintiff's
favor against the defendant for a like possession and occupation of
those lands terminating before the commencement of this action is
admissible in evidence against defendant.
A party who is not prejudiced by an erroneous ruling of the
judge in the trial below has no right to complain of it here.
The court having instructed the jury that the obligation of the
defendant rested entirely upon the theory that he had stocked the
plaintiff's lands to their full capacity and enjoyed their
exclusive use, it would have been irrelevant to further charge that
defendant's liability was limited to the consumption by his own
stock.
This was an action originally begun by William Walter Phelps to
recover of the plaintiff in error, Samuel Lazarus, the rental value
of 186,880 acres of land in Texas from February 5, 1890, at 8 cents
per acre. The allegation of the petition was that defendant
permitted large herds of his cattle and horses to graze upon
plaintiff's lands and used them for pasturage for other cattle, for
which he received hire.
The evidence showed that Phelps was the owner in fee simple of
149,716 acres of land situated in four different counties in Texas.
The land was in sections of 640 acres each, alternating with like
sections owned by the Public School Fund of Texas, plaintiff owning
the odd-numbered and the Fund owning the even-numbered sections. In
July, 1887, defendant Lazarus rented from the state, for four years
from that date, the alternate sections of land so owned by it.
Prior to the time of Lazarus' lease, Phelps had a much larger
quantity of land, but before the trial had sold 30,000 acres.
Page 156 U. S. 203
Plaintiff's lands had been rented to Curtis and Atkinson upon a
lease which expired on April 15, 1887. Curtis and Atkinson built
wire fences around the land, or a greater portion of it, enclosing
both the lands owned by the plaintiff and those owned by the state
which were subsequently leased to defendant. The fence was partly
upon plaintiff's land and partly upon the school land. Phelps had
no cattle within the enclosure, but the settlers, some 150 in
number, had about 300 head of cattle running at large and mingling
with defendant's cattle. Defendant had within the enclosure a
number of cattle estimated by the witnesses at 10,500 head.
Plaintiff introduced testimony, which was objected to, showing
that on September 17, 1888, he had instituted a suit similar to
this one against the defendant, and on February 5, 1890, recovered
a judgment for the use and occupation of the land to that date.
Plaintiff's evidence tended to show that the land had been stocked
to its full capacity. Defendant's evidence tended to prove the
contrary. Plaintiff also offered evidence showing the value of the
land for grazing purposes, during the time covered by this suit, to
have been four cents per acre per annum, or $5,988.14. The trial
resulted in a verdict and judgment for plaintiff in the sum of
$5,460.32. Defendant thereupon sued out this writ of error.
MR. JUSTICE BROWN, after stating the case, delivered the opinion
of the Court.
A similar case between the same parties was before this Court,
and is reported in
152 U. S. 152 U.S.
81. In that case, the rental value of the same lands from April 15,
1887, to February 5, 1890, was recovered, and the judgment
sustained by this Court.
1. The first error assigned is to the introduction of the record
of that case. The proof was that, on September 17,
Page 156 U. S. 204
1888, plaintiff instituted a suit in the same court upon a
petition containing allegations similar to those in this case
against the defendant for the use of the land after the expiration
of the Curtis and Atkinson lease, and in such suit recovered
judgment for the use and occupation of said lands up to February 5,
1890, in the sum of $8,417. This evidence was offered to establish
the fact that defendant did have exclusive possession of said land
as charged by plaintiff, and to show that plaintiff had claimed for
the use and value of his land from the time of the original
occupation of the same by the defendant.
If this had been a mere action of trespass on lands, although
the trespass was a continuous one, it might well be said that proof
that certain trespasses were committed upon divers days and times
before a certain date had no legal tendency to prove that the same
trespasses continued beyond that date. But the petition in that
case, which is admitted by the bill of exceptions to have been
similar to the one filed in the case under consideration, averred
not only that defendant, without lawful authority and by force of
arms, entered upon such lands and pastured his cattle there, but
that, during the whole of said time, he converted the said land to
his own use and appropriated and took to himself all of its
benefits; that at the expiration of the lease to Curtis and
Atkinson, the said Lazarus, defendant, purchased all the cattle of
the said Curtis and Atkinson which were then running upon the said
lands; that defendant, instead of surrendering said lands to the
said plaintiff as the said Curtis and Atkinson were bound to do,
maintained possession thereof and has since maintained the fence
around the whole of said lands, excluding others and the cattle of
others therefrom, and "
has held, and is now holding, the
exclusive possession of the same to his own use and benefit."
In other words, the basis of the petition was not only the
depasture of these lands, but the exclusive use and occupation of
the same. The verdict and judgment in that case settled the fact
that the defendant was in the use and occupation of said lands up
to February 5, 1890, and, in the absence of evidence to the
contrary, such possession would be presumed to continue after that
date.
Page 156 U. S. 205
Possession of real property, once proven to exist, is presumed
to continue.
Brown v. King, 5 Met. (Mass.) 173;
Gray
v. Finch, 23 Conn. 495;
Currier v. Gale, 9 Allen 522;
Smith v. Hardy, 36 Wis. 417;
Bayard's Lessee v.
Colefax, 4 Wash.C.C. 38. As the evidence was offered to
establish exclusive possession in the defendant, we think the
record of the former judgment was competent.
2. Exception was also taken to the charge of the court that if
the jury believed from the evidence that since February 5, 1890,
the defendant had possession of the lands of the plaintiff within
said enclosure, and claimed and exercised the exclusive use and
enjoyment of plaintiff's lands for grazing purposes and attempted
to exclude others therefrom either by maintaining fences or line
riding, or by force through his employees, or by any or all these
means, then they should find for the plaintiff such sum as the
evidence showed the reasonable value of the use and occupation of
plaintiff's lands so had by defendant for grazing purposes from
said 5th day of February, 1890, to the date of trial. Defendant
excepted to this charge on the ground that an attempt to exclude
strangers from the pasture would not render him liable, there being
no attempt to exclude plaintiff or anyone claiming under him.
Had all the lands within the enclosure belonged to the
plaintiff, the action of the defendant in excluding others
therefrom would have been evidence from which the jury might
reasonably infer that defendant claimed the exclusive right of
possession of the lands; but the argument is that, as the alternate
sections had been leased by the defendant, he had a lawful right to
exclude everyone from the enclosure, so far as he had leased it,
except the plaintiff or his lessees, and as he could not exclude
others from his own lands without also excluding them from the
plaintiff's, the court erred in leaving this fact to the jury as an
assertion of an exclusive right to the possession of plaintiff's
lands. He had as much right as the plaintiff to exclude strangers
from the enclosure, since, in depasturing plaintiff's lands, they
would also depasture his own. But the decisive answer to this
argument is that the proposition of the court was not laid down in
the alternative --
Page 156 U. S. 206
that is, that if the defendant exercised the exclusive use and
enjoyment of the plaintiff's lands,
or attempted to
exclude others therefrom, he would be liable, but, after charging
them that they must find an exclusive use and enjoyment of the
lands by the defendant, the court added a further requirement,
which appears to have been unnecessary, that they must also find
that he had attempted to exclude others therefrom. Perhaps,
however, all that was meant was to call the attention of the jury
to this fact as tending to prove a claim of exclusive possession.
The court evidently proceeded upon the theory that, under the
pleadings in the case, the plaintiff could only recover by showing
an exclusive use and enjoyment of his lands by the defendant, and
that it was not enough simply to show that he had pastured certain
of his cattle there, without also showing that he had stocked the
lands to their full capacity. In this view, it was quite
unnecessary to add the instruction that they must further find that
he had attempted to exclude others therefrom, but this took nothing
from what the court had previously charged, and was an instruction
of which the plaintiff, rather than the defendant, had a right to
complain. It added to the plaintiff's burden of showing an
exclusive enjoyment of his lands that of showing that defendant had
also attempted to exclude strangers. But it did not relieve him
from the duty of showing such exclusive use and enjoyment. In other
words, the defendant was not prejudiced by the error, and has no
right to complain.
Lancaster v. Collins, 115 U.
S. 222.
3. In this connection too, defendant requested the further
charge that where several persons own separate tracts of land in
the same enclosure, each one has the right to place enough stock
therein to consume the grass upon this part of the lands, and is
not liable to the others therefor; but if he places therein more
stock than his part of the land will reasonably maintain, he will
be liable to the other owners for the excess, and no more, and also
that if the jury believed from the evidence that plaintiff's grass
was consumed by stock of defendant's and other persons, then
defendant would only be liable for the part consumed by his own
stock, to be ascertained by apportioning the total damage in the
proportion that the number of his stock bears to the total number
doing the damage.
But, as already stated, the court put the whole liability of the
defendant upon the theory that he had enjoyed the exclusive use and
occupation of plaintiff's lands, and had stocked them to their full
capacity. If this be so (and there was evidence to that effect),
then undoubtedly plaintiff would be entitled to recover the entire
rental value of the lands for grazing purposes. If it were not so,
then, under the charge of the court, the plaintiff could recover
nothing, though defendant may have pastured thousands of his cattle
upon these lands. Whether the court was correct in its view that,
under the pleadings, plaintiff could not recover for a partial
depasturage of his lands is quite immaterial, since, if the jury
had found such partial depasturage, it would have been their duty,
notwithstanding, to have returned a verdict for the defendant. In
the opinion of the court, the whole obligation of the defendant
rested upon the fact that he had stocked the plaintiff's lands to
their full capacity, and had thus enjoyed their exclusive use and
occupation. The charge requested was therefore irrelevant.
There was no error in the action of the court, and its judgment
is therefore
Affirmed.
