Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-08
THE HIGHER COURTS.
synopses OF Decisions Rendered at the Present
Austin Sitting.

synOpses Of Decisions Rendered at the Present
Austin Sitting.
Correspondence of the Gazette.
AUSTIN, Tex, June 6.-J. H. Nolan vs.. John
Mendete, from Grayson county; opinion by
Gaines, J. Appellant and appellee owned ad-
joining lots in Denison. The appellee put on
his lot building, the east line of which ran to
the west line of defendants lot. Defendant
subsequently erected wooden shed on his lot
by enclosing three sides, appellee's wall acting
as an enclosure for the fourth Suit
injury to said wall caused by appellant in at
taching his wooden structure thereto, and also
TO recover compensation for the use of the wall.
The testimony is conflicting as to the question
whether defendants structure was annexed to
and touched plaintiffs wall or not; there was
also some conflict as to the damage done. The
court charged that If defendant used plaintiffs
wall the plaintiff would be entitled TO recover
for such use. If the legal proposition involved
in the charge is correct, then the charge is de-
hcient in not stating what constituted such
use as to make defendant liable. But is
the legal proposition correct? We think not.
The law seems to be that II one proprietor en-
closes his land, putting his fence on his line
the owner of the adjacent land may avail him.
self of the advantage thereby offered him of en-
closing his own land, without having to account
for the use of his neighbours fence, excepting
for injury to it There is no difference between
farm property and city property IN THIS respect;
touching or otherwise encroaching on appellee's
wall the wall simply serving as an Enclosure,
was not liable account for the use of the wall.
Reversed and remanded.
Schneider & Davis, VS.. F. Ferguson & Son,
from Dallas county, opinion by Gaines, J.
Suit brought by apellees TO recover damages for
wrongfully suing out an attachment. In the ir
petition they set out the property levied on and
describe it by saying: That the stock Of goods
on hand at said date consisted of salt, coal
oil, apricots (eDumerat1ng number of
other goods. That all of said
property WINS reasonably worth the
sum of 5000 and that plaintiffs are unable to give
a more accurate description OF the same" a
special exception to the su fficiency of the de-
scripton of the property was overruled. This
was error. Il may happen that the plaintiff
cannot describe each article taken, but in such
a case the piesdings should state the facts rem
dering il impracticablet to give specific descrip-
ton, and should not rest upon the mere allega-
tion that q more particular description IS i'm
possible. The second point made is upon the
admissibility of some testimony which involves
the question whether testimony is admissible to
tachment was incomplete, thereby enabling
plaintiff to recover far more goods than
are shown by this writ to have been taken
In none OF the cases in this state involving the
conclusiveness OF the sherihs return has it
been held that as between the parties to the
suit in which the return was made can the re-
turn be impeached in collateral proceeding.
In other states the authorities are overwhelming
that the return under such circumstances can
not be attacked and we are OF the opinion that in
this suit it was incompetent TO show that more
goods were taken than appeared In the return.
This action being for exemplary as well as actual
damages, 1t proper for plaintiffs to show
that they had made arrangements to repleFy the |
goods taken under prior attachment, and that |
they intended going on with the business; had
so notified defendants agent. On the other |
hand Il was error to exclude proof as to the in
that affected that credit of the firm. Reversed |
and remandcd-
]. II. vasburg, mayer, ct al, vs.. W. D. Nc
Crary, from johnson county; opinion BY Stay !