text:
    C. D. MOORE, Appellant, v. LEXINGTON TRANSIT CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    May 19, 1967.
    Rehearing Denied Sept. 29, 1967.

      Lasserre Bradley, James M. Todd, Lexington, for appellant.
    Oscar Geralds, Jr., Moloney & Moloney, Lexington, for appellee, Lexington Transit Corp.
    R. W. Keenon, C. Gibson Downing, Stoll, Keenon & Park, Lexington, for appellees, Maxine Becknell and Dewie Becknell.
   CLAY, Commissioner.

In a traffic accident case plaintiff appellant appeals from a judgment of the Fayette Circuit Court, upon a directed verdict for the defendants Maxine Becknell and Dewie Becknell, and a verdict of a jury in favor of the defendant Lexington Transit Corporation.

Early in the morning, on December 16, 1963, plaintiff boarded a Lexington Transit Corporation bus as a paying passenger. He took a seat on the first perpendicular seat after the long parallel seat in the front of the bus, on the right. The bus headed north on South Limestone and an accident occurred near the point where South Limestone and Leader Avenue intersect.

At the place where the accident occurred South Limestone has two lanes for north bound traffic and a pull-over lane on the extreme right to expedite loading and unloading bus passengers. The bus driver was driving into this pull-over lane to pick up some passengers who were standing at the bus stop in front of Jefferson Davis School when he heard a commotion to his rear which made a sound like metals being rubbed together. The driver, at the same time, saw in his rearview mirror the open door of an automobile on his left. He immediately applied his brakes, causing the bus to come to a sudden stop. The plaintiff was hurled forward and sustained personal injuries.

Within two and one-half or three feet in front of the car involved in this collision a crosswalk existed which was being used at the time by students on their way to the Jefferson Davis School.

It later developed that the eight-year-old son of defendants Becknell had opened the right front door of his father’s automobile into the side of the bus. The Becknell boy was being taken to the Jefferson Davis School by his mother in the family car. The Becknell automobile had just been brought to a complete stop in response to a red light at the intersection when he opened the door. Mrs. Becknell revealed that previously on more than one occasion she had let her son out at this intersection, but she testified that at no time had he ever opened or attempted to open the door unless she had directed him to do so, and on this occasion the door was opened without her knowledge or consent.

At the conclusion of the evidence for the plaintiff, all defendants made a motion for a directed verdict. It was . denied as to the Lexington Transit Corporation, but was sustained as to the Becknells on the ground that the eight-year-old child presumably could not be negligent and no negligence could be imputed to the parents. The trial proceeded as to the Lexington Transit Corporation and the jury returned a verdict in its favor.

With respect to defendant Lexington Transit Corporation, plaintiff contends the trial court erred in giving an “emergency” instruction and in refusing to give a “res ipsa loquitur” instruction.

There can be no question that the bus driver was confronted with a sudden emergency without fault on his part. Something had unexpectedly collided with his bus and the possibility was imminent that continuing to move forward would cause injury to persons in his bus or the automobile. Under the circumstances he was not called upon to exercise the same ordered judgment which otherwise would be required. Lyons v. Southeastern Greyhound Lines, 282 Ky. 106, 137 S.W.2d 1107. It seems to us the immediate stopping of the bus was his only alternative. Under somewhat similar circumstances in Kopp v. Louisville Taxicab & Transfer Co., Ky., 257 S.W.2d 891, we held a directed verdict for the defendant proper. Certainly plaintiff cannot justifiably complain of submitting to the jury the question of whether the act of the bus driver which injured him was excusable because of the sudden emergency created by a third party.

Plaintiff’s contention that the court should have given a “res ipsa loqui-tur” instruction is without merit. That doctrine applies only when an inference of negligence initially arises from some unexplained occurrence which in the ordinary course of events would not normally take place without negligence. See Lewis v. Wolk, 312 Ky. 536, 228 S.W.2d 432, 16 A.L.R.2d 974; Conley’s Adm’r v. Ward, Ky., 291 S.W.2d 568. Here the sequence of events portrayed precisely just how and why this accident occurred, and presented a clearcut issue as to whether the action taken by the bus driver constituted negligence. There was simply no place for an inference of negligence arising out of an unexplained occurrence, or any reason for an instruction on it. The trial court committed no error with respect to instructions involving defendant Lexington Transit Corporation, and to this extent the judgment must be affirmed.

The final question is whether the trial court properly directed a verdict for defendants Becknell. The theory of the trial court was that an eight-year-old child “presumably cannot be guilty of negligence” and that the carelessness of the child cannot be imputed to the parents under the circumstances shown here. Attention is called to Williamson v. Garland, Ky., 402 S.W.2d 80, wherein we have repudiated the rule that a child over seven is presumably not guilty of contributory negligence. The same reasoning would apply to a charge of initial negligence. However that may be, the claim of the plaintiff is not based upon imputing the child’s negligence to the parent, but rather upon the parent’s own negligence in failing to control the child when the failure to exercise due care has made it possible and probable that the child would injure another. See 67 C.J.S. Parent and Child, § 68, page 798. As stated another way in Restatement (2d Ed.), Torts 2d, section 316 (page 123):

“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.”

There can be no question that the action of the child in opening the car door into the side of the bus was a proximate, if not the sole cause of the injury to the plaintiff. Also, it cannot be disputed that the child’s mother had control of him. The issue here is whether a jury could fairly find that under the circumstances she was negligent in failing to anticipate the child might do what he did do, and in failing to take steps to prevent it.

Certain significant facts bear upon this question. At the place where the automobile was stopped it would have been dangerous to the child to attempt to leave the automobile because of possible traffic in the bus loading lane. On past occasions the mother had permitted the child to leave the car at this intersection to walk the rest of the way to school. While she testified that he had opened the car door at this point on prior occasions only at her direction, a careful parent might well have anticipated the child’s doing exactly what he did do without specific direction. The presence of other children crossing the intersection on their way to the same school is a factor. We have consistently recognized the duties of motorists, who are complete strangers, to anticipate the propensities of children. See Liberty National Bank & Trust Co. v. Raines, Ky., 416 S.W. 2d 719, wherein many cases are cited. Certainly a parent should not be held to a lesser degree of care.

We believe a jury question was raised by the proven circumstances. The trial court improperly ruled as a matter of law that there was no negligence on the part of the mother and, therefore, it was error to direct a verdict for defendants Becknell. (The liability of the father, if any, is based upon the principle of agency arising out of a family mission.)

The judgment is affirmed as to appellee Lexington Transit Corporation, and reversed as to appellees Becknell, with directions to grant appellant a new trial consistent with this opinion.

All concur.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    Charles H. MOLTER, Appellant, v. EQUITABLE DISCOUNT CORPORATION, Appellee.
    No. 14612.
    Court of Civil Appeals of Texas. San Antonio.
    July 12, 1967.
    Rehearing Denied July 31, 1967.

      Nugent & Haston, Kerrville, for appellant.
    Robert I. Wilson, Kerrville, for appellee.
   BARROW, Chief Justice.

Obligor appeals from a judgment non obstante veredicto granted assignee in its suit to recover on a negotiable trade acceptance.

On April 11, 1950, appellant, Charles H. Molter, executed and delivered to Sterling Materials Company, Inc., his trade acceptance for the sum of $273.20, payable on or before September 1, 1950. On or about June 9, 1950, appellant was notified that appellee, Equitable Discount Corporation, had purchased the trade acceptance. Admittedly, same was never paid. The trial court concluded that as a matter of law ap-pellee was a holder in due course and disregarded the jury findings to the contrary. Judgment was entered for the sum of $547.37, being the principal sum due together with interest to date of judgment.

Appellant urges as the outset that the trial court abused its discretion in refusing to dismiss this cause for lack of prosecution. The suit was filed by appellee in Bexar County in November, 1951, and not tried until December, 1966. Appellant duly filed his plea of privilege to remove the suit to Kerr County, which plea was not controverted by appellee. However, the cause was not actually transferred until 1957. On October 15, 1965, appellant presented his motion to dismiss the cause for want of prosecution. After a hearing at which only appellee’s counsel testified, the trial court overruled said motion to dismiss.

It is settled that a party who files a petition must prosecute his claim to judgment with reasonable diligence. If he fails to do this, the court has the inherent power to dismiss his claim for want of diligence in its prosecution. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Pollok v. McMullen Oil & Royalty Co., Tex.Civ.App., 383 S.W.2d 837, writ ref’d. The trial court has control of its docket and by an efficient management of same should take affirmative action to see that all unnecessary delay in the final disposition of cases on same is eliminated. Too often, justice delayed is justice denied.

In Bevil v. Johnson, supra, the Supreme Court set forth the applicable test for review of the question presented by appellant’s complaint of abuse of discretion: “The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court.” See also, Pollok v. McMullen Oil & Royalty Co., supra; Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480, writ ref’d n.r.e.; McDonald, Texas Civil Practice, § 17.18.

Appellee’s counsel testified that considerable difficulty was experienced in getting the case transferred to Kerr County after the plea of privilege was filed and that he made several trips to San Antonio to accomplish same. Also, much time was spent in trying to locate the original of the trade acceptance and in conference with appellant relative to a settlement of the case. After this failed, written depositions were required to prepare the case for trial. The trial court found that appellee had announced or given notice that he was ready for trial—apparently at prior settings of the case. The trial court, who was familiar with the history of the case and the condition of its docket, overruled the motion to dismiss the case for want of prosecution. We cannot say from the record before us that there is a clear abuse of judicial discretion in this action.

Appellant admitted execution of the trade acceptance and nonpayment of same. He testified and the jury found that there was a failure of consideration in that the goods sold to him by Sterling Materials Company were not usable. It is recognized that the defense of failure of consideration is not available against a holder in due course. Art. 5935, § 57, Vernon’s Ann. Civ. St. Therefore, the principal question before us is whether the evidence established as a matter of law that appellee is a holder in due course of the trade acceptance.

The original trade acceptance was never introduced, and appellant urges that the trial court erred in admitting a copy of same. See 2 McCormick & Ray, Texas Evidence § 1563 (2d ed. 1956). He does not assert that the copy was not a true and correct copy, but that it was inadmissible. The rules applicable to the admissibility of secondary evidence have been recently restated by the Supreme Court in Travis County Water Con. & Imp. Dist. No. 12 v. McMillen, 414 S.W.2d 450 (Tex. 1967), as follows: “Secondary evidence of the contents of a document directly in issue is inadmissible unless nonproduction of the original document is accounted for. * * * The production of the original document is excused when it is established to the satisfaction of the court that the document in question has been lost or destroyed. * * * Loss or destruction may be established by proof of search for the document and inability to secure it.”

The trial court’s implied finding that the original trade document was lost or destroyed is largely based upon the testimony of the present and former attorneys of appellee. Bert W. Thompson, Esq., who had represented appellee while the suit was pending in Bexar County, testified that the original trade acceptance was mailed with the file to Robert I. Wilson, Esq., when the latter took over the case for appellee. He further testified that no documents were now in his file. Mr. Wilson testified that he had not received the original document, and had made an extensive but futile search for same. The president of appellee testified that he did not know where the document was located. This evidence supports the implied finding that the original trade acceptance was lost or destroyed.

The deposition of Mr. Goodwin, president of appellee, taken upon written interrogatories, was introduced into evidence by appellee to show assignment of the trade acceptance by Sterling Materials Company to appellee. Rule 215, Texas Rules of Civil Procedure authorizes the use of a deposition of a party with like effect with the depositions of other witnesses. This use is not limited to oral depositions.

Mr. Goodwin testified that on or about June 9, 1950, appellee purchased this and several other trade acceptances from Sterling Materials Company and paid $191.24 for this particular one. This sum represented about 70% of its face value. He further testified that it was purchased with the intention of appellee becoming the owner of it and it was endorsed by Sterling Materials Company at this time. This purchase was made in the regular course of appellee’s business of buying negotiable paper, and Mr. Goodwin had no knowledge of any defect in same. Appellant was promptly notified of this assignment. A check stub showing payment to Sterling Materials Company of $191.24 was introduced in evidence. Appellant admitted he was notified by letter dated June 8, 1950, that appellee was then the owner of the trade acceptance.

It is our opinion that this uncontradicted evidence establishes as a matter of law that appellee was a holder in due course of the trade acceptance. We doubt that appellant’s verified allegation that he believed the assignment was either never made or was not a good faith transfer was sufficient denial of the genuineness of the assignment so as to require proof under Rule 93 (i), T.R.C.P. In any event the uncontradicted testimony of Mr. Goodwin, together with assignment to ap-pellee of the trade acceptance, regular on its face, established that appellee was a holder in due course.

At the time of appellee’s acquisition of the trade acceptance it was complete and regular on its face. Appellee, therefore, is deemed prima facie to be a holder in due course. Appellee is presumed to have acquired the trade acceptance for value, in the ordinary course of business, before maturity, in good faith, and without notice of any infirmity of the person negotiating it. Art. 5935, § 52, 1., Vernon’s Ann.Civ.St; Cargill, Inc. v. Continental Grain Co., Tex.Civ.App., 388 S.W.2d 247, writ ref’d n.r.e.; Full Gospel Assem. in Christ v. Montgomery Ward & Co., Tex.Civ.App., 237 S.W.2d 657, writ dism’d; 9 Tex.Jur.2d, Bills and Notes § 97. There is no evidence, or even an inference, of irregularity to rebut this presumption; to the contrary, all evidence herein supports same.

There is no evidence to support the jury finding that appellant did not execute and deliver the trade acceptance, and in fact he admitted the execution of same. Further, there is no evidence to support the findings that appellee did not purchase the trade acceptance prior to its maturity; that the trade acceptance was not purchased in good faith, for a valuable consideration, in the regular course of business, or that appellee had notice of any infirmities or defect in the title of Sterling Materials Company to same. The trial court did not err in concluding that as a matter of law appellee was a holder in due course and in granting it a judgment non obstante veredicto.

The judgment of the trial court is affirmed.

      . Acts 1966, 59th Leg. Vol. 2, p. 1, Ch. 721, enacting the Uniform Commercial Code, repealed Arts. 5932-5947, effective June 30, 1966.


author: KLINGEMAN, Justice.

text:
    Ernesto SOLIS, by Next Friend, Isauro Solis, Appellant, v. The STATE of Texas, Appellee.
    No. 14578.
    Court of Civil Appeals of Texas. San Antonio.
    April 26, 1967.
    Rehearing Denied Sept. 13, 1967.

      Montague & Thurmond, Del Rio, for appellant.
    John R. Foster, Del Rio, for appellee.
   KLINGEMAN, Justice.

This is an appeal from a judgment of the Juvenile Court of Val Verde County declaring appellant a delinquent child, on a petition filed by the County Attorney of such County alleging that Ernesto Solis is a delinquent child, in that he did shoot one Arturo Rodriguez with a pistol, with the intent to murder said Arturo Rodriguez. Prior to such adjudication a complaint had been filed in a Justict Court of Val Verde County, charging appellant with having killed Arturo Rodriguez with malice aforethought. Pursuant to such complaint a warrant was issued for appellant’s arrest. He was arrested and detained, an attorney was appointed to represent him, and a plea to the jurisdiction of the Justice Court was filed on his behalf on the ground that appellant was only 15 years of age, and that exclusive jurisdiction was vested in the Juvenile Court. Such plea to the jurisdiction was sustained, and the matter transferred to the Juvenile Court.

Appellant, in the Juvenile Court, filed a plea in bar to the effect that such court could not proceed on the allegations of assault to murder, as charged in the County Attorney’s petition, because there was already pending before the court an accusation of murder, which appellant contended arose from the same occurrence, event and circumstances; and also filed a plea in abatement stating that since such accusation of murder was pending in the court, that such court should not proceed on the County Attorney’s petition until the accusation of murder with malice was first disposed of. Subject to such preliminary pleas, a general denial addressed to both the accusations of murder with malice and the assault with intent to murder was also filed. After a hearing, the court overruled both of such preliminary pleas and entered judgment declaring appellant a delinquent child and committing him to the care, custody and control of the Texas Youth Council.

Appellant’s points of error on appeal are predicated upon error of the court in overruling his plea in bar and plea in abatement.

The evidence presented at such hearing shows that on August 14, 1966, appellant, then 15 years old, shot Arturo Rodriguez twice with a pistol, the first shot striking him in the chest on the left side near the heart, and the second shot, in the right eye. The pistol used was owned by the driver of the car in which appellant and the deceased were riding immediately prior to the shooting, and, according to the testimony of the owner of the pistol, the last time he saw the pistol prior to the shooting was several days before, when it was in the glove compartment of the car. The evidence also indicates that both shots occurred within a period of about ten minutes.

Appellant’s basic contentions on this appeal are: (1) That under the terms and provisions of Sec. 12 of the Texas Juvenile Delinquent Act, Art. 2338 — 1, Vernon’s Ann.Civ.St., since a complaint charging appellant with murder with malice had been filed in the Justice Court, upon transfer to the Juvenile Court such court was required to dispose of such accusation of murder, and since this was not done the judgment should be reversed and the case remanded to the Juvenile Court for disposition of the accusation of murder with malice. (2) That if Sec. 12, supra, does not clearly compel such disposition that, in keeping with the purposes and objectives of the Juvenile Delinquency Act to secure each child under its jurisdiction such care, guidance and control as will serve the child’s welfare and best interest, it would be manifestly unjust and contrary to fundamental fairness to allow the State to proceed on its allegations of assault with intent to murder, rather than the accusation of murder with malice aforethought, since the obvious basis for doing this, according to appellant, is that at a later date, when appellant becomes amenable to criminal prosecution under our laws, the State intends to have appellant indicted and tried for murder with malice, and perhaps circumvent appellant’s possible pleas of previous conviction, former jeopardy, and deprivation of due process under our Constitution.

In support of the contention that such procedure is fundamentally unfair and contrary to the purposes of the Texas Delinquent Act, appellant relies chiefly on the cases of Garza v. State, Tex.Cr.App., 369 S.W.2d 36, and Sawyer v. Hauck, 245 F.Supp. 55 (U.S.Dist.Ct.W.D.Texas, San Antonio (1965)). Each of these cases involved an appeal where the defendant had been convicted of murder in the district court after he had become 17 years of age, but who had previously been adjudicated a delinquent child under the Texas Juvenile Delinquent Act, and did not involve an appeal from the judgment of a Juvenile Court declaring him a delinquent child. In the Garza Case, Garza had been adjudged a delinquent child when 16 years old and sent to Gatesville State School upon a petition, filed by the District Attorney, alleging that he voluntarily and with malice aforethought killed Antonio Rodriguez by shooting him with a rifle. After he became seventeen, Garza was indicted and tried for the murder of Antonio Rodriguez and convicted. The Court of Criminal Appeals held that such conviction violated principles of fundamental fairness and constituted a deprivation of due process where defendant had previously been adjudged a delinquent child on basis of the same act of murder. In Sawyer v. Hauck, supra, Sawyer, when 15, killed both of his parents and was adjudged a delinquent child upon a petition alleging that he had violated the penal code of the State of Texas of the grade of a felony. The testimony adduced in the hearing pertained only to such murders, and no evidence was introduced with respect to any other violation of the penal code. After Sawyer became 17, he was indicted for murder, pled guilty, and was given a sentence of ten years. A writ of habeas corpus in the state court was denied, but the Federal Court for the Western District of Texas held that under Texas laws a person cannot be indicted for the identical offense for which he was adjudged a delinquent, and that since the indictment, trial, and conviction in the murder case were the same acts for which Sawyer had previously been adjudged a delinquent child and sent to Gatesville School for Boys, that this violated fundamental fairness and constituted a deprivation of due process under the 14th Amendment of the U.S. Constitution.

We do not believe that these matters are before the Court on this appeal. This Court cannot assume that the State will attempt to have appellant indicted and tried for murder when he becomes 17 years old, but if and when it does so, appellant can present his plea of previous conviction, former jeopardy, violation of due process of law, fundamental fairness, that the offenses of murder with malice and assault to murder are not separate and distinct offenses, and any other pleas that he desires to present, to the proper court at such time. We do not pass upon the merit of these matters on this appeal.

The act does not undertake to convict a child for the commission of a crime. It defines a “delinquent child” and the definition furnished the basis for proceeding against such child under the act. The only issue to be determined at the trial is whether the juvenile is a “delinquent child” under the meaning of the act. Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944). The fact that the juvenile has committed a murder does not give him a vested right to have a petition filed against him on the basis of such murder, Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, and there are numerous cases in this State where a murder has been committed by a juvenile and said juvenile declared a delinquent child on petition filed alleging other offenses. Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106; Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929; Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21; Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983.

Appellant’s other contention is that, since a complaint charging him with murder with malice had previously been filed in the Justice Court, under the provisions of Sec. 12 of Art. 2338 — 1, supra, upon transfer to the Juvenile Court such court had to dispose of the accusation of murder with malice, and the Juvenile Court was bound to proceed against appellant upon such complaint of murder with malice as if it had been instituted in that court in the first instance.

The pertinent parts of Sec. 12 provide that “If during the pendency of a criminal charge or indictment against any person in any other court than a Juvenile Court,” it shall be ascertained that the accused is of juvenile age “at the time of the trial for the alleged offense, it shall be the duty of such court to transfer such case immediately * * * to the Juvenile Court of said county. * * * The Juvenile Court shall thereupon proceed to set said case for hearing and to dispose of such case in the same manner as if it had been instituted in that court in the first instance.” Appellant contends that the word “case” as used in said Section 12 means and is restricted to the particular offense complained of in the Justice Court, in this instance, murder with malice. We do not agree with this limited construction. The Juvenile Delinquency Act does not undertake to convict and punish a child for the commission of a crime. Den-dy v. Wilson, supra. It is elemental that an accused cannot be tried in Texas for a criminal offense of the grade of felony except on an indictment of a grand jury. Tex.Const., Art. 1, § 10, Vernon’s Ann. St., Art. 1.05, Vernon’s Ann.C.C.P.; Ex parte Morris, 168 Tex.Cr.R. 281, 325 S.W. 2d 386. Where a Justice Court sits for the purpose of inquiring into a criminal accusation, it sits as an examining court and not as a trial court. Art. 2.11, Vernon’s Ann.C.C.P. Such proceeding in a Justice Court, sitting as a magistrate or examining court, is preliminary to the trial or prosecution of a criminal charge of the grade of a felony. A criminal charge or indictment for murder with malice was not pending before the Justice Court for trial.

We do not believe that a correct construction of Sec. 12 of Art. 2338 — 1, when taken together with the rest of the statute, requires the State to proceed on the penal offense alleged in a complaint filed against a juvenile in a Justice Court when such matter is transferred to the Juvenile Court, and that the Juvenile Court under such circumstances is restricted in its adjudication of such juvenile to be a delinquent child as to such offense alone, or that it must first dispose of the alleged offense in such adjudication. The Juvenile Court of Val Verde County did not err in overruling appellant’s plea in bar and plea in abatement.

The judgment of the Juvenile Court is affirmed.


author: WILSON, Justice.

text:
    Lester L. TATUM et al., Appellants, v. H. W. BLACKSTOCK et al., Appellees.
    No. 4561.
    Court of Civil Appeals of Texas. Waco.
    July 27, 1967.
    Rehearing Denied Aug. 24, 1967.

      Mills, Shirley, McMicken & Eckel, Preston Shirley, Galveston, for appellants.
    Nowlin Randolph, Houston, Graves, Dougherty, Gee, Hearon, Moody & Gar-wood, Robert J. Hearon, Jr., Austin, for ap-pellees.
   WILSON, Justice.

OPINION

Two appeals from judgment in a non-jury trial of five consolidated suits are presented. One of these appeals is by North Clear Lake Development Corporation, (successor in interest to Tatum) in which reversal of an adverse trespass to try title judgment is sought. We reverse and render judgment in this case. The other appeal is by landowners who will be referred to as the “Blackstock group”, who ask reversal of judgment denying them damages and an injunction sought because of the alleged violation of claimed riparian rights. We affirm this portion of the judgment. Findings and conclusions were filed. We will consider the appeals separately.

The matter has been incredibly complicated by a record of over 2000 pages, over 200 exhibits, and several hundred pages of briefs presenting 180 points, cross points and counter points. We have attempted to cut through these (and the accompanying impediments of recriminatory material) to the controlling contentions.

The land over which the principal controversy exists is a tract of about .68 acres (which the members of the Blackstock group say is a part of their lots, and which Clear Lake contends is a strip on the back side of the Blackstock group’s lots), shown as a dark area, which we call area “A” on the appended map. The cross-hatched area northwest of it, variously referred to as “tidal flats,” “peninsula” or “island,” we designate area “B”. Before 1951 it was attached or contiguous to area A and the other land subdivided as El Lago Estates . In 1951 Dr. Harris (the common source) dredged a channel 30 feet wide along the dotted line between areas A and B.

FINDINGS AND CONCLUSIONS

We summarize the material findings of fact: The State of Coahuila and Texas delivered a grant of all the property involved in 1832, at which time area B was upland. It is upland (and not lake bottom) now. In 1949 Dr. Harris subdivided El Lago Estates, and the description of lots in each of the deeds from him, including those under which the Blackstock group claims, were “solely by reference” to a subdivision plat, and “none of these lots, by description as contained in the deeds, extended to Taylor Bayou or Taylor Lake.” As to area A between the lots of the Blackstock group and the channel dredged by Dr. Harris, “while not included within the descriptions as contained in any deed, the statements, conduct, acts and representations” of Dr. Harris to their predecessors in title “amount to an agreed boundary line extending the back line of said lots down to the edge of the man-made channel.”

Further findings were: A 1960 deed from Dr. Harris to North Clear Lake’s grantor conveying other land in the vicinity, specifically excluded area A. In 1962 Harris executed a correction deed “attempting to add” area A to the land described in the 1960 deed. The court concluded the correction deed “was without consideration and is void” as to area A.) Dr. Harris “represented to those who purchased from him the properties now owned by” members of the Blackstock group that the boundaries of their respective properties included the land in area A. These representations were made “at or before the sales of said properties, and as an inducement to bring about such sales.” Dr. Harris granted, for a valuable consideration, to all purchasers of lots 20, 21, 22, 24, 25 and 26, Section one, El Lago Estates, “the free and unrestricted right to use” area A at all times and for all purposes, and represented, as a part of the consideration, to purchasers (of all except lot 21) that they had “the unrestricted right of access to Taylor Lake and Taylor Bayou.” Harris and those under whom the Blackstock group claim, by a series of agreements made at or about the times Harris sold the lots, “fixed an agreed boundary (the dredged channel), which includes” area A within their properties, the boundary being the channel “as to the back line of lots 20,21, 22, 24, 25 and 26.”

The court concluded that no basis for injunctive relief or damages was shown; that North Clear Lake Development Corporation is estopped to claim area A; that each owner of the enumerated lots “has a perpetual easement” across that portion of area A adjacent to his property; and that all parties are held to the channel as an agreed boundary. Judgment was that North Clear Lake take nothing in its trespass to try title action, and the Blackstock group’s prayer for damages and application for injunction were denied.

THE TRESPASS TO TRY TITLE APPEAL

Appellant North Clear Lake Development Corporation, under the court’s findings, which are unassailed by appellees, established that a grant was made to all the land involved in this action, including area A, from the sovereign, the State of Coahuila and Texas. Dr. Harris was stipulated to be the common source of title. Although appellees appear to attack appellants’ “chain of title,” it was of course unnecessary for appellants to deraign title beyond the common source. Rule 798, Texas Rules of Civil Procedure; Burns v. Goff, 79 Tex. 236, 14 S.W. 1009.

The trial court’s findings are that deeds from the common source to appellees, the Blackstock group, did not include area A; and that in 1832 the entire peninsula or island, including area A, was upland, and included in the grant from the sovereign. These, and the other findings, however, do not establish a prima facie title in appellant, North Clear Lake Development Corporation. It had the burden of deraigning title from the common source. This it attempted to do by the 1962 correction deed to its predecessor in title (the 1960 deed from Harris to that grantee having expressly excluded area A). The trial court determined that the correction deed was “without consideration, and is void.”

Appellants’ brief contains a 60th point asserting the court erred in making this conclusion, but the point is not briefed, and we are thereby given no basis for holding the conclusion was erroneous. Ap-pellee, on the other hand, gives us no basis for sustaining it. If the “correction” deed is void as to appellees, appellant has failed to deraign title from the common source, for this is its only claim to record title. Appellees do not rely on its invalidity in their brief. We find no basis in the record for concluding the correction deed is void. It was not void for want of consideration, if this is the ground of the conclusion. The consideration for a correction deed is the correction. It is a sufficient consideration. 26 C.J.S. Deeds § 31. Appellees imply it was held by the trial court to be void because the description “conflicts” with the original deed. The “conflict” is obviously the correction.

The correction deed, then, sufficiently meets the requirements of deraigning superior title to appellant from the common source and entitles appellant to judgment unless the rights of appellees or their predecessors in title intervened. The trial court determined that the deeds from Harris to the enumerated lots did not convey any part of area A because the description did not include it. This finding is sustained by the record.

Appellees say the take-nothing judgment rests on “estoppel, easement and agreed boundary.”

That defendant has an easement over the servient estate is not a ground for denying appellant recovery in trespass to try title. Hays v. Texas & P. Ry. Co., 62 Tex. 397; Hollan v. State, Tex.Civ.App., 308 S.W.2d 122, 125, writ ref. n. r. e., and cases cited.

The trial court concluded estoppel existed. We have examined the record which may be said to relate to this theory. The evidence does not support it as a basis for judgment, and therefore the judgment does not properly rest on estoppel. The representations relied on as a predicate may be said to support an easement, but they do not establish a superior title.

The remaining theory for denying recovery is based on the finding that “by a series of agreements made at or about the time Harris sold the lots” he and those under whom appellees claim “fixed an agreed' boundary” by which area A was included within appellees’ lots. Apparently these “agreements” are the same relied upon to show estoppel or easement. It is not suggested the “series of agreements” was other than by parol, and there is no evidence of such an agreement in writing. This ground is emphasized by appellees.

We have been pointed by appel- . lees to no evidence, and have found none, which sustains a finding of a parol boundary agreement. There is no suggestion of a dispute, doubt or uncertainty about the boundaries of appellees’ lots, which were conveyed by reference to a plat on which lot dimensions are delineated, a straight line on the plat adjacent to “wavy lines” to the north being shown as the northernmost boundary of each lot. Appellees now stress the “wavy lines” on the plat as raising an issue that the lines denote the water’s edge. There is no indication that it caused doubt or dispute; and it is not claimed the lines constitute a “series of agreements”. “The existence of uncertainty, doubt or dispute is essential to the validity of such agreement.” Gulf Oil Corporation v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, 714. It does not exist.

The most the evidence shows is that several years before the dredged channel (which is said to be the “agreed boundary”) was created, Dr. Harris told some purchasers that theirs was a “waterfront lot”, or that it “comes to the water”. The subdivision plat relied on by appellees to show an agreed boundary was made in 1949, two years before the channel, its demarcation or location as a boundary existed, or could have been in contemplation of the parties. There is evidence Harris made similar statements to the predecessors of some of ap-pellees after the channel was dredged, hut there is nothing to show uncertainty or dispute. There is no showing of an “agreed boundary.”

There is ample evidence, however, to support a determination that appellees have an easement “for ingress and egress” or a “right to use”, or “access to the channel” across area A. The issue is not undisputed, however, and the judgment appealed from does not establish an easement in appellees. This is not an easement case. The appeal is from a take-nothing judgment in trespass to try title. Appellees have a number of counter points which they call “cross points”, but there is none attacking the judgment because it does not establish an easement.

There is no sound basis, consequently, upon which the conveyance from the common source to appellant may be held void or ineffective. We find no sound ground, under the unchallenged findings and the evidence, for holding appellees have a superior title.

The judgment in the trespass to try title action is reversed, and judgment rendered that North Clear Lake Development Corporation recover title and possession of the .6785 acres constituting area A as described in the pleadings.

THE INJUNCTION APPEAL

In this appeal the members of the Black-stock group are appellants. They unsuccessfully sought damages and an injunction to restrain appellees Tatum and North Clear Lake Development Corporation from “filling or attempting to fill any portion of Taylor Lake and from asserting their intention to develop any portion of Taylor Lake now claimed by them as a subdivision”; and from “dumping any character of fill into any portion of Taylor Lake lying between North Clear Lake Subdivision and plaintiffs’ homes”. The area described as being a “portion of Taylor Lake” is area B on the attached plat, called the “Tidal Flats”, the “Peninsula” and the “Island” in the record. A take-nothing judgment was rendered.

The trial court determined that area B constituted upland at the time of the 1832 grant from Coahuila and Texas. Appellants say it is lake bottom, and they have riparian rights. The case was tried with, and is appealed on the same record as the trespass to try title appeal.

It is clear that at the time Harris conveyed the lots to appellants, and at the time he dredged the channel between area A and area B, shallow water covered area B, and extended to the platted northernmost line of appellants’ lots. It was “marshy land.”

A major portion of appellants’ brief is devoted to convincing that they were granted by Harris the right to use area A “for access to the water”, and therefore they have riparian rights. They say “the question of who owns the island is immaterial insofar as their riparian rights are concerned.” We are unable to perceive how the asserted easement which, appellants say, “takes us by the hand and leads us across the strip and down to the water”, i. e., the dredged channel, entitles appellants to damages or an injunction. In our opinion the trial court correctly decided that no riparian rights such as entitle appellants to damages or injunction exist. The existence of the easement claimed negatives appellants’ claim of prescriptive title, and sustains the trial court’s judgment. Appellants’ points do not call for reversal, in our opinion.

This portion of the judgment is affirmed.

ON REHEARING

Appellees assert we erred in adjudging title to be in appellant in the trespass to try title action “without reference to the easement” and without providing that such title is subject to the easement rights in area A. We agree with the contention that our judgment omits a determination of the rights, if any, which appellees have to the use of, or easement over area A. Appellant, by numerous points, attacked the trial court’s findings to the effect that each of plaintiffs “has a perpetual easement across that portion” of area A which is adjacent to his property, and that Harris granted purchasers of lots “the free and unrestricted right to use said strip at all times and for all purposes.”

If fee title to area A is in appellees, as the trial court determined, the findings that they have an easement or were granted a “right to use” the land would be incongruous as a basis for judgment. Appellees were not in a position to attack the favorable judgment (as they say we implied they were) on the ground the judgment did not award them an easement.

The proper judgment to be rendered here, then, presents an anomaly. The finding that appellees were granted an unrestricted right to use the area “at all times and for all purposes” is not supported by the record, and it is the only identification in the findings of the type or extent of use, easement, license, right of access or of ingress and egress upon which a judgment could be predicated. As we said in the original opinion, there is evidence to support a determination that appellees have jome such right, but it is not undisputed; and it is far too indefinite to authorize us to attempt to fix the rights included in the trial court’s general finding of “easement” by a judgment. See State v. Black Bros., 116 Tex. 615, 297 S.W. 213, 217, 219, S3 A.L.R. 1181.

We conclude that the equitable disposition is to sever and remand that portion of the action encompassed by appellees claim of easement as alternatively asserted in their trial pleadings in cause No. 595, 229. Rule 434, Texas Rules of Civil Procedure; Durham v. Scrivener, Tex.Com.App., 270 S.W. 161. See cases cited, Appellate Procedure in Texas (1964), Secs. 18.15 and 18.16.

That claim, and the issues as to existence, nature and extent of an easement over area A is severed from the remainder of the action, and is remanded to the trial court for further proceedings, not inconsistent with our opinion, on those issues. Appel-lees’ motion for rehearing is otherwise overruled.