This suit was brought by appellees, Harry Mauritz et al., against Walton W. Griffith, Kerry O. Griffith, Raymond L. Griffith, J. W. Griffith, Vernon R. Griffith, R. P. Clements, J. S. Trahan, and Jimmy Trahan, defendants, for damages and an injunction restraining defendants, and each of them, jointly and severally, from placing, keeping or pasturing more cattle and/or other livestock in the west enclosure of the "Triple T Pasture", than the tract or tracts owned by the defendants, respectively, within such west enclosure, would reasonably pasture, and from other acts in connection with the grazing of such property. From a temporary injunction granted appellees, all of said defendants with the exception of J. W. Griffith and R. P. Clements, have perfected their appeal, filing a $3,000 temporary injunction bond which was duly approved. J. W. Griffith was dismissed from the case, and R. P. Clements though enjoined has not appealed.
The plaintiffs alleged that for more than 20 years immediately prior to the filing of the suit they and their predecessors in title and possession had been in continuous possession, use and occupancy of a pasture established by them and embracing approximately 2,800 acres of land known as the "Triple T Pasture" in the R. D. Moore League in Jackson County, Texas, which pasture includes a large number of tracts in the Francitas Farms Subdivision. They further alleged that during such period of their possession, use and occupancy of said Triple T Pasture they and their predecessors in title have continuously maintained same as a cattle pasture enclosed by fences and natural barriers, including the East and West Carancahua Creeks, upon and along the outside boundaries thereof, capable at all times of turning livestock; that during such time they and their predecessors had owned a large portion of said lands and held pasturage and farming leasehold rights on most of the remainder; that from time to time the Triple T Pasture had been subdivided by cross-fences constructed by or for the plaintiffs and their predecessors in title, and that the only portions of said pasture with respect to which the defendants, or any of them, have any right of ownership or possession are located within the "west enclosure" of such pasture, containing approximately 1,000 acres as described in the petition; that the defendants Griffith and Trahan, or some of them, had acquired title or leases upon certain tracts of land in the west enclosure, amounting in the aggregate to some 70.74 acres; that in recent months, beginning about January 1, 1953, said defendants, or some of them, acting separately or in concert and together, have been placing and keeping in the Triple T Pasture, in the various enclosures thereof, more cattle than the tracts of land owned or leased or claimed to be owned or leased by the defendants would reasonably pasture.
They further alleged that defendants, or some of them, are still placing and keeping in the west enclosure more cattle than the tract or tracts owned or leased by them would reasonably pasture, although at plaintiffs' insistence most of the cattle had been moved just recently out of the portions of the Triple T Pasture lying outside of such west enclosure. They further alleged that the defendants, or some of them, acting separately and in concert with each other, had permitted cattle to feed upon and destroy crops planted by the plaintiff, Gus Lee, and had deliberately left open and unattended gates installed by plaintiffs, and had damaged fences, interfered with, obstructed, and threatened to interfere with and obstruct the plaintiffs in maintaining and preserving various fences and gates and cattle-guard, and that each and all of the defendants had participated in such wrongful acts and conduct. They further alleged that the defendants, or some of them, particularly the defendant Walton W. Griffith, had granted permission for various persons to hunt, fish and camp upon the Triple T Pasture.
They asked that the defendants be restrained from the various acts alleged to have been committed by them, including the pasturing in the west enclosure of more cattle than the tract or tracts owned or leased by the defendants, respectively, within the west enclosure, would reasonably pasture; from pasturing cattle in any portion or enclosure of the Triple T Pasture other than the west enclosure, or more than 5 head of cattle in said west enclosure; from pasturing any cattle within the west enclosure while such land was being cultivated or being prepared for cultivation by the plaintiffs, or any of them, or by their present or future tenants or lessees; from leaving open and unattended any gate or altering or damaging any gate, cattle-guard or fence, cross-fence, well or other property of plaintiffs; and from hindering, obstructing, interfering with or threatening plaintiffs, or any of them, in their construction or maintenance of the fences and gates; from hunting, fishing, camping or trespassing upon the property, or encouraging or causing any person to do so; and from cutting, damaging or removing any grass or hay or crop cultivated or grown by plaintiffs.
Plaintiffs' petition was sworn to. The defendants filed unsworn answers, mainly general denials.
Appellants in their first two points state that the trial court erred in granting a temporary injunction against them in that there was no evidence to show that the defendants did any of the things they were enjoined from doing, or that they would commit such acts in the future unless restrained by the court.
A brief summary of the testimony is necessary to determine whether there was any evidence showing that defendants had been doing the things from which they were enjoined, or would probably commit such acts in the future if not restrained.
W. W. Griffith, the father of the other Griffiths, claimed to own or to have leased a number of 5-acre tracts in the west enclosure. The evidence showed that he had no cattle of his own, but that he took in cows belonging to Mr. Clements by the month and charged him therefor. He also grazed cattle for his son, Raymond Griffith. R. P. Clements testified that he had as many as 20 head of cattle at one time grazing upon the Triple T Pasture. W. W. Griffith testified that he had some cattle in 1953 belonging to Cochran Brothers, he believed it was 66 head, in addition to the cattle of Ray Clements, making a total of 79 head of cattle at that time grazing in the Triple T Pasture.
Kerry O. Griffith, son of W. W. Griffith, lives on Tract No. 2474 in the Triple T Pasture, a short distance from the west enclosure. He claimed that within the last 2 or 3 years he had put no cattle of his own on any of the Triple T area. He grew garden crops and row crops on his tract. He had a well on his tract. He leased some pasture from his father in another area up near the Francitas townsite.
Vernon Griffith lives on Tract No. 2625 of the Francitas Farms Subdivision, which is a part of the Triple T Pasture. He claims title to Lots Nos. 2625 and 2626, 5-acre tracts, and also 2701. He admitted that he had 7 head of cattle presently grazing in the Triple T Pasture area in the west enclosure. He had had arguments and disputes with plaintiff Lee with respect to rights to pasture in the Triple T area and some blows were exchanged between them. He had built a fence in the Triple T Pasture for himself between Tracts 2576 and 2577. This fence was partially removed four or five months before this suit was filed, and the rest of it was taken down after notice of the suit. He started putting cattle in the Triple T Pasture about 1952.
Raymond Griffith, also a son of W. W. Griffith, lives in Matagorda County. In 1955 his cattle were all over the property in question. He claimed the right to pasture by reason of the 80 acres, Tract No. 2743, which he had leased from his father. He had 14 or 15 head of cattle in 1956. In 1956 his cattle ranged for a few months through the balance of the Triple T Pasture. He had participated in rounding up or gathering cattle outside of the 80 acres he leased from his father. He moved some of his cattle out around the 14th of December, 1956.
The defendant, Jimmy Trahan, claimed title to three 5-acre tracts in the west enclosure. He leased the same to W. W. Griffith, he thought for $2.50 per acre. He and his brother, J. S. Trahan, lived together at Francitas. He had no cattle, had never been engaged in the cattle business, had never put any cattle in the Triple T Pasture, and had no improvements on any of his lots except part of a fence on No. 2518. He had never lived on any of the land.
J. S. Trahan owned one Lot, No. 2500, which he leased to W. W. Griffith at $2.50 per acre. He had started to build a house on his lot but had never completed it. There are no fences around the lot and no improvements except the partially completed house. He had bought a few head of cattle, but they were put on a pasture near Francitas some miles away. He has never had any cattle in the Triple T Pasture and has never lived on any of the land.
Marcus Mauritz testified with respect to cattle being pastured down on the west enclosure in excess of what they considered the carrying capacity of the land, and also with respect to fences being erected on land which they owned or controlled. We quote the following hearsay testimony of this witness on cross-examination:
"Q. Who is that? A. The Defendants in this case.
"Q. All the Defendants? A. So far as I am concerned, yes, sir.
"Q. You know they have all been erecting fences? A. As far as I am concerned, they are ...