Crocker v. McGill

COBBS, J. Appellants sued appellees and sought a temporary restraining order against them and *1113 against A.' M. French, the surveyor, restraining them from surveying lines across lands of appellants, and from building fences across the same, and from tearing down the old Parker fence, being a boundary line fence between appellants’ lands and those of appel-lees, and for a mandatory injunction requiring appellees to restore to its original condition certain parts of the said old line fence which they had taken down, alleging that the appellees were wrongfully and unlawfully doing the things complained of, and asking for general and special, legal and equitable, relief. While the petition is not in the simple form of an action to try title and appellants do not sue for damages and do not ask for a writ of possession, yet it is practically a suit to establish title to land. The appellees filed an answer under oath, and, after urging special exceptions to the effect that it did not negative an adequate remedy at law,- plead general denial, not guilty, and a special plea to the effect that they owned the title to the lands upon which they were building a fence, and a judgment formerly rendered against appellants in favor of the immediate grantors of appellees. The real question involved in the controversy was the title to the land, and appellants’ right to a temporary restraining order pending the determination of the suit. There is no adequate allegation of the solvency of appellees, nor that damages may not be recovered and collected against appellees for the alleged wrongs. , The trial court heard the evidence, then rendered judgment dissolving the temporary restraining order theretofore issued . and denying the temporary injunction, prayed for by appellants, with an additional provision in the judgment suspending the order of dissolution of the restraining order pending perfection of an appeal. The question of the title to the land was one of thé disputed issues of fact. While it is incumbent on the part of one claiming title to land and seeking an injunction, to show at least a claim of right and a probable wrong or injury likely to be committed, yet the disputed issue of the title to the land must be tried out in a legal contest. Butler v. Borroum (Tex. Civ. App.) 218 S. W. 1117. We do not mean to say it might not be tried out at all, except in an equitable suit to try title to the land, and that the threatened wrongs could not be restrained otherwise because of the insolvency of the defendants. Here there is no allegation that the defendants are insolvent so that the appellants could not be adequately compensated with damages. We do not think the court erred in refusing the temporary restraining order, and. the judgment is affirmed.