Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 334
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334 CARU v. TuctER. [Term of
Argument for appellee.
1869, was, no doubt, intended to repeal or do away with all
decisions theretofore made on the subject of the increase of
land, as well as to extend protection to personal property and
Then, if this be so, the meaning of the word as given by
Justice Bell, not being inconsistent with the present system
under the new Constitution, but conforming thereto, may well
be considered, as to land, " that which grows out of it or that
"which is produced by the cultivation of it;" and as to personal
property, " any profit, interest or revenue, that may arise
" from its use." That use is as much protected as the property
itself. Both stand on the same ground. Indeed, the " use," in
most personal property, constitutes its value. Take away the
use, and, in many cases, you take away the right. In the
absence of a law or contract to the contrary, the ownership carries
with it the use or compensation for the use. This is the
general rule. If the case at bar is an exception, it devolves on
the appellant to show it. The statute of 1848 cannot be invoked
for that purpose, for it is silent as to increase of personal property,
and is otherwise inapplicable. The decisions heretofore
made on the subject cannot be invoked for that purpose, as they,
if thus applied, would render the provision in the Constitution
of 1869 dormant and inoperative. No contract can be shown,
or any agreement t t that effect, as in this case the entire control
of the horses was taken away from the plaintiff during the pendency
of the suit, when the hire occurred. After the horses
were seized the defendant replevied them, and used them until
he sold them. Both the husband and the wife were alike
removed from the possession and control of the animals.
There was no joint effort on the part of the husband as to the
hire, which lies at the foundation of the system of community
But it may be contended that the protection intended to be
extended to married women in the Constitution of 1869 is
inoperative and dormant, till brought into life and force by an
Act of the Legislature.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/342/: accessed June 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .