
    KIBBIN et al. v. McFADDIN.
    (No. 1086.)
    
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 9, 1924.
    Rehearing Denied Feb. 28, 1924.)
    1. Injunction&wkey;f 18(3) — Allegation of petition held sufficient to warrant injunctive relief against assignment of rights under contract and enjoyment thereof hy assignees.
    Allegations of a petition that defendant bad sublet and assigned an interest in a “lease” given him for trapping and fishing purposes in violation of the contract, and was permitting other named persons to exercise the rights thus assigned, showed a breach of the contract and invasion of plaintiff’s rights by trespassers,, which, on a showing of injury, entitled him to injunctive relief, whether the contract made defendant a lessee or granted him only a personal license.
    2. Licenses <&wkey;44(2) — -Grant of right to ‘trap and fish held not lease.
    - An instrument granting the right to trap and fish on certain land for two years, in consideration of only $1, and ptohibiting grantee from subletting or assigning such rights or permitting others to exercise them, held not a “lease,” as therein denominated, but a personal license excluding every one except licensee from exercising such privileges.
    3. Injunction ¡&wkey;46 — Trespasser restrained where no adequate remedy at law.
    Where there is no adequate, remedy at law, a trespasser on land will be restrained by injunction.
    4. Injunction <&wkey;2l3 — Injunction not void because not served until day after return day.
    That an injunction granted the day before and issued on the day the next term of court convened, which was the return day, was not served until ,the following day, did not mate it void.
    Appeal from District Court, Jefferson County.
    Suit by ,W. P. H. McFaddin against John Kibbin and others. Decree for plaintiff, and defendants appeal.
    Affirmed.
    Morris & Barnes, of Beaumont, for appellants.
    Howth & O’Fiel and M. G. Adams, all of Beaumont, for appellee.
    
      
       writ of error refused March 19, 1924.
    
   WALKER, J.

On the 1st day of November, 1923, appellee presented his petition to Hon. E. A. McDowell, judge of the district court, Sixtieth judicial district, Jefferson county, Tex., complaining of appellants, and praying for injunction. In substance, he alleged that be was the owner, in law and in equity, of all the right, title, and interest in and to a tract of about 1,090 acres of land in Jefferson county, Tex.; that on the date of his purchase the land was burdened with what he denominated a “lease,” executed by and between his vendors and appellant John Kibbin, running from date for a period of two years, which Instrument recited the consideration of $1, which said lease was for the period of time of two years commencing on April 1, 1923, and ending, and terminating on April 1, 1925, on certain conditions and stipulations and granting certain rights and privileges in and to said land to the said John Kibbin; and among the said stipulations and grants of privileges, and allegations of appellee’s petition such as are material and relevant to this suit or cause of action, are:

“(a) The said lease was given by the said then owners of the tract of land to the lessee John Kibbin for the purpose of trapping muskrats thereon and other wild, 'fur-bearing animals and fishing, and for no other purposes.
“(b) With the distinct agreement, understanding and contract that the said John Kib-bin should mot sublet or assign any right thereby granted him to others or permit others to exercise or use any privilege thereby granted to him personally, without the express written consent of the said lessors.
“(c) The exact provisions in said contract and Jease applicable and relevant to this suit, and from and in which the above provisions set out in (a) and (b) are set forth in said lease in the following language:
• ‘This lease is given to the said lessee for the purpose of trapping of muskrats on said land and other wild fur-bearing animals, and fishing, and for no other purposes. And it is expressly understood that the giving hereof shall in no manner interfere with or affect the right of the owners and lessors, and those claiming the privilege under them, to use said land for grazing cattle thereon and hunting ducks and other wild game thereon, and any and all other purposes not inconsistent with the trapping and fishing privileges given to lessee. The said lessee shall not sublet or assign any right hereunder to others or permit others to exercise or use any privilege herein granted to lessee, without the express written consent of the lessors.
“ ‘As more fully appears from an exact copy of the whole of said lease and contract marked “Exhibit A” and attached to and made a part of this petition.’ , '
“ * * * And he, the said John Kibbin, thereby became bound and obligated and owed plaintiff the express and legal duty to use and exercise his said rights on the land aforesaid personally and'not to sublet or assign any of said rights to others or to permit others to exercise or use any of said privileges; the said lease providing for and contemplating that the said original lessors to the defendant John Kibbin could and might sell the said land during the life of said lease, and that the said privilege granted therein should also attach to and run with the said land in the event of such sale, and that the said grantee in such sale should succeed to and become entitled to all the privileges and subject to the burdens and protections expressed in said lease, and that the said John Kibbin in such event should and would become bound and obligated to the purchaser and to the same extent as he was to his original lessors, who are plaintiff’s grantors as aforesaid.
“On or about the date aforesaid, to wit, at the time plaintiff acquired title to said land and prior and subsequent to said date, the defendant John Kibbin, in violation of his express and palpable duty and obligations as is set forth in said lease, both to the said lessors and original owners of said land and to plaintiff herein as the present owner thereof, unlawfully sublet and assigned his rights or parts thereof under said instrument t.o others and knowingly and willfully permitted others to exercise and use .such privileges, without the express written consent either of any or of all of said original lessors who are the plaintiff’s grantors, and also without the express written consent and with-, out any consent whatsoever, of plaintiff herein," in that he sublet and assigned such rights and permitted others to exercise such rights and to use said privileges to the other defendants herein, to wit, A. T. Lamaire, D. J. Hebert, L. Lamaire, A. C. Lamaire, Henry W. Goss, - Monty, - Monty, and - Allen, and to others whose names are unknown to plaintiff, • and that every and all of said defendants who are the sublessees of the defendant John Kibbin, as above shown, have been and are now unlawfully using and exercising the said privilege of hunting and trapping of muskrats on said land and other wild, fur-bearing animals, and were and are now also engaged in the occupation of fishing on the said lands and premises and claiming and pretending that they have a legal right so to do by virtue of the pretended grants and permissions given them by the said John Kibbin; and are unlawfully going upon other adjoining lands for said purposes.”

Appellee further alleged that he could not give the terms of the contracts between appellants, that is between Kibbin and those holding under him, but alleged certain terms on information and belief, which do not negative his allegations of subletting and assigning and the use under Kibbin by others of the right granted him under the contract, all of which appellee alleged to be in violation of the contract under which Kibbin was holding. Appellee also negatived all facts that would have given appellants any rights on his land except under the contract Kibbin held with his vendors. He further alleged:

“(7) The said defendant, John Kibbin, though often requested by plaintiff to desist and to cease his acts of subletting and assigning the said privileges to others and permitting others to operate on said land and to' exercise the said privileges therein, has refused, and still refuses, to desist therefrom and to quit and to cease doing said unlawful acts and every and all of the other of said defendants, though often requested to cease and desist from going upon< the said lands and premises and from exercising and using the said privileges of hunting, trapping, and fishing as heretofore alleged, have all refused, and still refuse, to desist or cease doing the said unlawful acts, and refuse to gat off of said land, claiming and pretending that by and through their agreements with the said John Kibbin they have a right to go and to be thereupon for the purposes aforesaid,.

“(8) Every and all of the said defendants, other than the defendant John Kibbin, are during all the times mentioned, and still are, willful and unlawful trespassers upon said property and wholly without any right, legal, equitable, or otherwise, to go or he upon any part of said lands and tenements for any purpose whatsoever, and especially are wholly without any such rights to go or be upon the said lands and tenements for the purposes aforesaid.
“(9) As a direct result of the willful and unlawful acts of every and all of said defendants as above specifically set forth, plaintiff has sustained great and irreparable injuries and damages; in that the said lands and waters thereon and connected therewith are being subjected to great waste, and the fish and the fur-bearing and other animals thereon are being unlawfully exhausted and appropriated by every and all of .said defendants to plaintiff’s great and actual damage in the sum of $5,000; and unless this honorable court will issue its writ of injunction as hereinafter prayed, plaintiff will not have any adequate recourse or remedy to prevent the further unlawful waste, exhaustion, and damage as aforesaid to the lands and tenements described; every and all of said defendants being impecunious, ins'olvent, and financially irresponsible and incapable of responding in damages and unable to pay any judgment that plaintiff might recover against them or any of them, and it would be impossible ever to collect any such judgment.
“Wherefore, plaintiff prays that this honorable court issue its writ of injunction commanding thel defendant John .Kibbin (commonly known as ‘Russian John’) that he desist from and cease granting or giving any pretended rights or assignments in and to the privileges conveyed to him by the said lease, and commanding the said defendant that he revoke and withdraw all such-grants and assignments such as he has already made to me or all of the other of said defendants herein or to any others not now known and mentioned in this petition, whereby he, the said John Kibbin, has granted or assigned or pretended to grant and assign and contract away any of his said rights and privileges' with respect to fishing, trapping, and hunting for the animals above mentioned; and prohibiting him, the said John Kibbin, from ever in the future pretending to grant, or granting, any such privileges to any others whatsoever, and commanding him that he faithfully comply with his express agreement with his original lessors, which said obligation is now due to the plaintiff herein, that for and during the remainder of the term of his lease, in accordance with the provisions thereof, he shall use and exercise personally and by himself alone and in no manner by subletting, assigning,- or otherwise, by and through any others whatsoever, the rights and privileges granted to him in said lease. Plaintiff further prays that a writ of injunction be issued to every and all of the other defendants to wit, to A. T. Lamaire, D. J. Hebert, L. Lamaire, A. O. Lamaire, Henry W. Gose, —-Monty,-Monty, and-Allen, commanding each and every one of said defendants that they cease to go upon the said land or any other land of plaintiff for any purpose, and that they desist from and cease every act whatsoever of fishing and hunting for fur-bearing and other animals thereon, and that they immediately cancel their contracts or pretended contracts of whatsoever nature with the said John Kibbin giving and granting them, or pretending to give and grant, any of such privileges in and upon the said premises. Plaintiff further prays that the said defendants and every and all of them be cited to answer this petition, and that upon final hearing he have judgment for his said damages in the sum of $5,000, and for all costs of court in this behalf expended, and he further prays for all general, special, and equitable relief, to which he may be entitled.”

The writ was ordered to issue “in all things as prayed for.” Bond was duly executed as required, and thereafter, to wit, on the 2d day of November, the writ was executed, and served on the 3d day of November. The writ concluded with the following order:

“This injunction mandatory and prohibitory against you and against every one and all of you as defendants, including the said John Kib-bin, and all of the said codefendants shall be and remain in full force and effect until the further orders of said court, to be holden within and for the county of Jefferson at the courthouse thereof in Beaumont on the 2d day of November. A. D. 1923, when and where this writ is returnable.”

Opinion.

Without reference to the nature of the contract under which Kibbin claimed, ap-pellee alleged-that .Kibbin had sublet and assigned an interest therein in violation of the contract, and that he was permitting others, naming them, to exercise, use, and enjoy the rights thus assigned. This allegation showed a violation of the contract by Kibbin, and on the showing of injury entitled appellee to injunctive relief. No point is made in the case that appellee has not negatived all facts giving appellants the right of access to his land, except as such right might be enjoyed under the contract. No contest was ¡made below, no answer filed by appellants; but the. matter is presented to us on the sufficiency of the allegations of plaintiff’s petition to sustain the action of the court. So, as just said, whether Kibbin’s contract made him a le'ssor, or whether it granted him only a personal license to hunt, fish, and trap on the land, the allegations of appellee’s petition show a breach by him of that contract, an invasion of appellee’s rights by trespassers, and a great injury to appellee.

But though the contract under which Kibbin holds denominates itself a “lease” and appellee so denominates it in his petition, we believe on the allegations of appellee’s petition that it is, in fact, only a personal license to Kibbin to enjoy the rights granted him by its terms, and is in no sense a technical lease, as that term is understood. Under the allegations of the petition, Kibbin was granted a very valuable right, in that it was possible for him to make a large profit by trapping muskrats on the land. The consideration expressed was only $1, and the contract provided for a renewal at the rate of $1 a year. The contract prohibited a subletting or assigning of the rights granted by its terms, and also prevented him from permitting “others to exercise or use any privilege herein, granted.” While the meaning of the terms “subletting” and “assigning,” as related to leases, is well recognized by'the courts (Russell v. Old River Company [Tex. Civ. App.] 210 S. W. 705), it is clear that the parties to this contract were not contracting in relation to the technical meaning of such terms. The use of the expression last quoted shows that the parties thereto were trying to exclude, and had it so in mind, everyone from the use of the hunting, trapping, and fishing privileges, except John Kibbin himself. Appellants would extend the meaning of this contract to the point where, by the use of servants, agents, and employees, they could destroy appellee’s property, which very thing, under the allegations of his petition, they were actually engaged in doing.

Under the allegations of his petition, appellee had no adequate remedy at law. It is the recognized practice in cases' of this character to restrain the wrondoer by injunction. Dunker v. Field Club, 6 Cal. App. 524, 92 Pac. 502; Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378; Prairie Oil Company v. State (Tex. Civ. App.) 214 S. W. 363; Buchanan v. Wilburn (Tex. Civ. App.) 105 S. W. 841; Poe v. Ferguson (Tex. Civ. App.) 168 S. W. 459. A case very much in point in its relation to hunting, trapping, and fishing is Johnson v. Burghorn, 212 Mich. 19, 179 N. W. 225, 11 A. L. R. 234. It appears from the statement made by us that this injunction was granted by Judge McDowell on the day before the convening of his next term of court; that the injunction was issued on the day court convened, on which day it was made returnable, but was not served until ■ the following day. In our judgment this did not make the injunction void.

' It is our order that the temporary injunction granted by the trial court be and the same remain, in effect until the final disposition of this case on its merits,-or until modified or set aside by the court granting the same, but that the case be tried in the court below on its merits and on such pleadings as may be filed. In sustaining this temporary injunction, it is not our purpose to limit appellant’s defenses to appellee’s cause of action.

Affirmed. 
      &wkey;>For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes
     