Dean v. State , 34 Tex. Crim. 474 ( 1895 )

The appellant was tried and convicted in the lower court "of unlawfully and knowingly entering upon the land and premises of Dennis Sheehan, and taking and removing therefrom sand and gravel, without the consent of said Dennis Sheehan," etc.

The appellant in this case claims the land in question as the tenant of the State of Texas. Conceding that article 687, Penal Code, includes and applies to tenants as well as owners in fee of the land, which we do not now decide, the question presents itself, was Sheehan such tenant? It appears to be admitted that the locus in quo, which is a piece of ground in front of the city of Austin, and a part of said city of Austin, lying immediately on the Colorado River, between the high and low water mark of said stream, and known as the "Reserve," is the property of the State of Texas. The prosecutor Sheehan claims that he is the lessee of said reserve from W.P. Hardeman, representing the State. The appellant contends, that W.P. Hardeman was never authorized by the State, or any of its legally constituted authorities, to take possession of and rent or lease this particular land. If said Hardeman has any such authority, it is to be found in the Acts of the Legislature, approved February 27, 1891. See Laws Twenty-Second Legislature, p. 14, entitled, "The Texas Confederate Home." Section 8 of said act authorizes the "Superintendent of Public Buildings and Grounds" to rent or lease "all vacant lots or parts of lots and blocks in the city of Austin," etc. The land in question is shown not to be a lot or block, or any part of a lot or block, of the city of Austin, but on the contrary, the evidence establishes that it is open land, lying along the river, and not laid off into lots and blocks, and, in our opinion, the act in question gives to the said Superintendent of Public Buildings and Grounds no authority or control over same, and he had no right or authority to rent or lease said lands; and not having the right to lease same, Sheehan, his lessee, did not obtain such right or interest in the land (it not being shown that he was in the actual occupancy and possession of same) as would authorize the maintenance of this prosecution on the part of the State.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

Judges all present and concurring.