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LAZARUS V. PHELPS, 156 U. S. 202 (1895)

U.S. Supreme Court

Lazarus v. Phelps, 156 U.S. 202 (1895)

Lazarus v. Phelps

No. 105

Argued December 12, 1894

Decided January 28, 1895

156 U.S. 202


In an action to recover the rental value of plaintiff's land alleged to have been wrongfully taken possession of and occupied by defendant for grazing purposes, a former judgment in plaintiff's favor against the defendant for a like possession and occupation of those lands terminating before the commencement of this action is admissible in evidence against defendant.

A party who is not prejudiced by an erroneous ruling of the judge in the trial below has no right to complain of it here.

The court having instructed the jury that the obligation of the defendant rested entirely upon the theory that he had stocked the plaintiff's lands to their full capacity and enjoyed their exclusive use, it would have been irrelevant to further charge that defendant's liability was limited to the consumption by his own stock.

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.

Page 156 U. S. 203

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, enclosing 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 enclosure, but the settlers, some 150 in number, had about 300 head of cattle running at large and mingling with defendant's cattle. Defendant had within the enclosure 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 four 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.

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