Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 399
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1884.] HIAYS v. T. & P. R'Y Co. 399
Opinion of the court.
company when Hays purchased, and he having full knowledge of
this fact, his vendor's right to sue did not pass to him by the purchase.
The appellee has not appeared in this court to sustain these
rulings, and we know of no good grounds upon which they can be
rested.
Our action of trespass to try title is intended to serve all the purposes
of an action of ejectment as known to the law of England and
of other states. Whenever ejectment will lie at common law, trespass
to try title may be used under our statutes. It is in its nature
a suit to recover possession of land unlawfully withheld from the
owner, and to which he has the right of immediate possession.
It is not important, so far as his right to the action is concerned,
whether the defendant is upon his property under a claim of title or
as a naked trespasser. It is enough that he is there without right
or authority. If the defendant is not in possession, then he must
set up a claim to the land in order to justify the proceeding; but, if
in possession, how he came there becomes unimportant, if the occupancy
is illegal. This is the rule in actions of ejectment, and is to be
inferred from the very language of our own statute regulating the
action of trespass to try title. R. S., art. 4790; Sykes v. Hayes, 5
Biss., 529; Gibbons v. Martin, 4 Saw., 206; Greer v. Mezes, 24
How., 277.
A party in possession of another's land claiming an easement is a a
trespasser if his claim is without foundation. If, in a suit by the
owner of the soil, the plaintiff shows title to the land, and the defendant
to the easement, the plaintiff recovers subject to the right
of the defendant to enjoy the easement. If the defendant shows
no title of this character, the owner of the land dispossesses him
altogether.
These principles are well settled, as will be seen by reference to
the authorities, a few of which we cite: Armstrong v. St. Louis, 69
Mo., 309; Graham v. R. R. Co., 27 Ind., 260, 262; Strong v. Brooklyn,
68 N. Y., 1, and cases hereinafter referred to.
Nor does the fact that the trespasser is a railroad company, and
that our statute provides a summary method by which lands may
be condemned to its use and damages assessed to the owner, interfere
with the latter's right to prosecute an action of trespass to try
title, when the company has taken possession of his land without a
resort to this method of condemnation.
Whilst it is held, perhaps by the weight of authority, that this
summary remedy is exclusive of all others when damages alone are
sought by the owner, yet, if he seeks to regain possession and
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/421/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .