# McDaniel Bros. v. Wilson

> Court of Appeals of Texas · April 12, 1934 · 70 S.W.2d 618

URL: https://www.frixlaw.com/law-library/cases/9829189

## Case

- **Full name:** McDANIEL BROS. Et Al. v. WILSON Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** April 12, 1934
- **Citations:** 70 S.W.2d 618; 1934 Tex. App. LEXIS 394
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Walker
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9829189

## How later opinions describe it (automated extraction)

- holding that “every -unauthorized entry upon land of another is a trespass” even if no damage is done and “the intent or motive prompting the trespass is immaterial”
- holding that Aevery unauthorized entry upon land of another is a trespass@ even if no damage is done and Athe intent or motive prompting the trespass is immaterial@

## Opinion text

On Rehearing.
As a general proposition it is correct to say that cotenancy is a good defense to an action for trespass by the cotenant, but it is not a good defense where there has been ah ouster; “nor is joint possession a defense where there 'lias been a destruction of the property, or a 'misuse thereof.” 63 C. -J. 943, § 94.' Appellees’ cause of action was not based upo'n a mere entry and use of the alleyway for the purposes of its dedication, but as a ground of recovery they pleaded as follows: “That said defendants 'entered and trespassed, upon the land and premises of plaintiffs, loosening,, displacing and disturbing the earth and materials supporting the walls of plaintiffs’ building, causing the foundations to be exposed to the rain and the elements, . and weakening the same.” The evidence fully sustained these allegations, thus bringing appellees’ cause of action within the principles of the law of cotenancy as announced by Corpus Juris, supra.
In addition to the ground- of trespass ’ discussed in the original opinion', appellees also' relied upon the ordinance of the city of Beaumont, discussed in the opinion on the former appeal; and also contended that, under the 'peculiar circumstances of this case, the common law iihposed upon appellants the same duty to protect appellees’ property as did the ordinance of the city of Beaumont; it was also contended that E. L. Wilson Hardware Company was not released by the employment of independent contractors. Being satisfied with the disposition we have made of this case under the proposition of trespass, we pretermit a discussion of appellees’ additional grounds of recovery.
Motion for rehearing overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9829189. Public record. Not legal advice.