Lazarus v. Phelps (156 U.S. 202)

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.

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, inclosing 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 inclosure, but the settlers, some 150 in number, had about 3,000 head of cattle running at large, and mingling with defendant's cattle. Defendant had within the inclosure 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 4 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.

F. C. Dillard, for plaintiff in error.

Leigh Robinson, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.