author: DUNKLIN, J.

text:
    PARLIN & ORENDORFF IMPLEMENT CO. v. CHADWICK et al.
    (No. 11906.)
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 4, 1928.
    Rehearing Denied March 10, 1928.
    1. Justices of the peace <@=3133 — Notations on justice court docket showing execution issued on judgment did not show prima facie that executions were placed in hands of proper officer, who made due return.
    In suit to enforce, against real estate, lien, of judgment obtained in 1897, in which proof showed that in justice court in which judgment was obtained all papers in suit had been lost, notations on justice court docket showing execution issued held not to establish prima facie showing that executions were placed in hands of proper officer, who made dpe return thereon.
    2. Justices of the peace <@=>133 — Judgment of justice court becomes dormant after year, where execution is not placed in hands of-officer.
    Where execution, though noted on docket of justice court in which judgment was rendered as having been issued, was not placed in'hands of sheriff or constable, judgment became dormant after one year, and no judgment lien is created by subsequent filing of abstract- of judgment with clerk of county court.
    3. New trial <@=150 (4) — Motion for new trial for newly discovered evidence must show failure to discover testimony before trial was not fault of moving party.
    Refusal of new trial on ground of newly discovered evidence held not error, where motion contained no showing that failure to discover testimony before trial was not due to lack of diligence on part of moving party; only allegation being that testimony was “newly discovered evidence.”
    4. Appeal and error @=>1071 (I) — In suit to enforce judgment, findin'g that judgment filed with clerk was not properly indexed, if error, held harmless, where executions were not delivered to officer.
    In suit to enforce, against real estate, lien of judgment obtained in justice court in 1897, finding that abstract of judgment filed with clerk of county court was not properly indexed, if error, held harmless, where plaintiff failed to shpw that executions issued on judgment were delivered to sheriff or constable for service.
    On Motion for Rehearing.
    5. Judgment @=>853(4) — Failure to place 1907 execution in hands of officer for service prevented enforcement of lien of 1897 judgment.
    In suit to enforce, against real estate, lien of judgment obtained November 8, 1897, finding that execution issued October 7, 1907, was not placed in hands of sheriff or constable for service.held to support judgment for defendant, regardless of validity of execution issued November 19, 1897.
    Appeal from District Court, Olay County; Vincent Stine, Judge.
    Action by the Parlin & Orendorff Implement Company against Cary Chadwick and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Bonner, Bonner & Fryer, of Wichita Falls, for-appellant.
    W. G. Eustis and Wantland & Glasgow, all of Henrietta, for appellees.
   DUNKLIN, J.

This suit was instituted by Parlin & Orendorff Implement Company against the heirs of Mr. and Mrs. Allen A. Spangler, deceased, to enforce a judgment lien against certain real estate situated in Clay county that belonged to the community estate of Mr. and Mrs. Spangler. From a judgment denying plaintiff any relief, this appeal has been prosecuted.

The lien sought to he enforced against the property in controversy was by virtue of a judgment recovered by Parlin & Orendorff Implement Company against Allen A. Spang-ler on November 8, 1897, in the justice court of Dallas county, precinct No. 1, before Ed. S. Lauderdale, justice of the peace, for the sum of $127.16, with interest thereon at the rate of 10 per cent, per ánnum, and an abstract of said judgment was filed with the clerk of the county court of Clay county on February 5, 1917.

Mrs. Allen A. Spangler died on July 2,1917, and Allen A. Spangler, her surviving husband, died on April 22, 1918. All her community interest in the property in controversy was devised by Mrs. Spangler to Allen A. Spang-ler,-and at the time of his death the latter was seized and possessed of the fee-simple title to the property. At the conclusion of the introduction of evidence upon the trial, the court instructed a verdict in favor of the defendants. The trial judge also filed findings of fact and conclusions of law, which appear in the record.

A certified copy of the judgment rendered by the justice of the peace was introduced in evidence; also a certified copy of the annotations on the docket of that court. These no- ■ tations read as follows:

“No. 19" 1897 Execution issued, Nulla Bona 11/19/97
Oct. 7,1907, Al Ex issued to Dallas Go. Texas. 2/15.11 Pluries ex issued to Dallas Co.
•2/15.11 Pluries ex returned Nulla Bona.
2/2/7 2nd Pluries Execution issued to Dallas Oo.
2/2/7 2nd Pluries Execution returned Nulla Bona.”

Aside from those notations on the justice court docket no proof was offered to show that the executions referred to in the first two notations were ever placed in the hands of any officer charged by law with the duty to enforce them. The trial judge recited those facts in his findings, and from the same concluded that the plaintiff had failed to discharge the burden of showing that those two executions were ever placed in the hands of the sheriff or constable for service, and such failure of proof was made one of the grounds for denying plaintiff any relief.

Error has been assigned to that finding. The proof showed that in the justice court all the papers in the suit had been lost and could not be found after diligent search. In view of such loss appellant insists that the first two notations on the justice court docket mentioned above established a prima facie showing that those executions had been placed in the hands of a proper officer, who had made due return .thereon as required by law. We have reached the conclusion that this contention is without merit.

The following statement in the syllabus of the opinion of our Supreme Court in Schneider v. Osborn Dorsey, 96 Tex. 544, 74 S. W. 526, reflects the holding of that court in that case:

“An execution showing that it was issued within a year from the rendition of the judgment, but not appearing from the officer’s return or other evidence to have -been placed in the hands of the sheriff, is not sufficient to preserve the judgment lien under the provisions of article 3290, Rev. Stats.”

Bourn v. Robinson, 49 Tex. Civ. App. 157, 107 S. W. 873, was quite similar in facts to the present suit. In that opinion the following was said:

“The only testimony offered by the appellant tending to show that an execution had been issued upon his judgment within 12 months consisted of the entries on the execution docket of the clerk of the Circuit Court of the United States in which the judgment was rendered. These entries consisted of dates entered under an orderly arranged system of ruled lines, showing date of issuance of execution to be November 16,1901, returnable to February term, 1902. There was no other evidence of what disposition was made of the writ after it had been prepared by the clerk — nothing to show whether or not it had been delivered to the plaintiff or his attorney, or to the marshal of the district. Upon this testimony alone the appellant depends to establish the fact that he had complied with the law requiring executions to be issued within 12 months from the rendition of a judgment in order to prevent its becoming dormant. The trial court held that it was insufficient to establish that fact, and we are'asked to reverse that finding. If the mere clerical writing out and attestation of the writ is all that is required to ‘issue’ an execution, then the appellant has proven the desired fact; but such is not the law regarding the use of that term in the statute relating to the duty imposed upon the holders of judgments. The term ‘issue’ means more than the mere clerical preparation and attestation of the writ, and requires that it should be delivered to an officer for enforcement. Schneider v. Dorsey, supra; 1 Freeman on Execution § 9a; 17 Ency. of Law and Procedure, 1083. The law requires that, when an execution has been placed in the hands of a sheriff, he shall note upon it the hour and the day received, and shall, within the time prescribed by the execution, make due return of what he has done, in compliance with the requirements of the writ. We cannot, in the face of the record, indulge the presumption that the clerk, upon the preparation and attestation of the writ, delivered it to the proper officer. The law does not require him to do that, and hence we cannot assume, from the mere entries upon his record, that he has done more than what was required of him. For aught that appears to the contrary, he may have delivered the writ into the hands of the plaintiff or his attorney or it may have been left among the papers, and lost or misplaced without ever reaching the marshal. If we are required to presume one fact from the existence of another, the presumption would naturally be against such a thing having been done; for, if he had delivered it to the proper officer, it will be presumed, in the absence of evidence to the contrary, that the officer to whom it was delivered would have done his duty and made some return upon the writ showing what official action he had taken thereunder. In the case of Schneider v. Dorsey, supra, it was distinctly decided that in order to be a compliance with the statute the writ must be placed in the hands of the officer whose duty it is to execute it; and, until this is done, there has been no sufficient compliance with the law requiring executions to be issued within a year from the rendition of the judgment in order to preserve its validity. The issue as to whether or not an execution had been issued, as required by law, being one of fact, and having been decided adversely to the appellant in the court below, we do not think the evidence contained in the statement of facts would justify us in setting that finding aside.”

The reasoning so advanced in that opinion appeals to us as convincing, and we have quoted the language so used as applicable here. If the execution noted on the docket as having been issued November 19, 1897, was never placed in the hands of the sheriff or constable, then the judgment became dormant and no judgment lien was created by the filing of the abstract of judgment on February 5, 1917, even though it could be said that the other executions noted on the docket were duly issued and placed in the hands of the sheriff or constable for service; the statutes being that execution must issue within one year after rendition of the judgment, otherwise the judgment then becomes dormant. And the same result would follow if the execution issued in the year 1907 was not placed in the hands of the sheriff or constable. In this connection it should be noted that while Ed. S. Lauderdale testified that the notation on his docket, ‘‘Nulla Bona, 11/19/97,” was in his handwriting, he further testified that he had no independent recollection as to what he did with the writ, nor did he testify to any custom of his to deliver such writs to the sheriff or constable after issuance. . Furthermore, aside from the second notation on the docket, no .independent evidence was introduced to show that the execution referred to as having been issued on October 7, 1907, wasl ever placed in the hands of the sheriff or constable for service. Nor was there any testimony to show who was the justice of the peace on that date, or that it was the custom of the one then holding that position to place such writs in the hands of the sheriff or constable as soon as they were issued.

Appellant has cited Hernán v. Larkin, 99 Mo. App. 294, 73 S. W. 218, a Missouri ease. In that case a judgment was asserted against, certain property of the judgment debtor, and whether or not a lien was shown hinged upon proof that an execution was issued and delivered to the constable. The only evidence offered was an entry on the justice court docket showing that an execution had been issued and delivered to the constable. It is noted in the opinion that it was contended by the plaintiff that the word “issued” imports delivery. That contention, however, was overruled, but it was held; that the court should have admitted secondary proof offered to show that such delivery was in fact made. The secondary evidence so offered consisted of testimony of a deputy constable that it was the custom of the justice of the peace when he issued executions to immediately deliver them to the constable, and that it was likewise the custom of the constable and his deputies to place the issues in a certain drawer and to daily take those writs therefrom. On account of the exclusion of such secondary evidence the judgment of the trial court denying to plaintiff the enforcement of the judgment lien was reversed and the cause remanded, in order to permit the introduction of such secondary evidence.

The decision last noted is cited by appellant in support of another assignment presented to the refusal of the trial court to grant a new trial, on the ground of newly discovered evidence. The newly discovered evidence consisted of an affidavit of Eloyd E. Ard that he and Frank Raney were clerks of Judge Edwards, who was justice of the peace of precinct No. 1 in 1907, successor to Judge Lauderdale, who rendered the judgment in the justice court; that Judge Edwards and Frank Raney were both dead; that the entry on the justice court docket “Oct. 7, 1907, alias ex. issued to Dallas County, Texas,” is in the handwriting of Frank Raney; that at that time the constable’s office was in the same room with the justice of the peace, the two offices being separated only by a small railing; that it was the custom of the justice of the peace and the clerks in his office, during the year 1907, immediately upon the issuance of an execution, to place the same in the hands of the constable, and affiant believed that the-execution referred to in that notice was in fact delivered to the constable promptly upon its- issuance.

It is insisted that such newly discovered .testimony would have been sufficient to show that the execution issued on October 7, 1907, was in fact delivered to the constable, and that the trial court erred in overruling the motion for new trial based on that ground.

This assignment is overruled, since the motion contains no showing whatever that the failure to discover the testimony of Floyd E. Ard before the trial was not due to any lack of diligence on the part of plaintiff; the only allegation being that that testimony was “newly discovered! evidence.”

The trial judge further found that there was no sufficient proof that the abstract of judgment filed with the clerk of the county court of Clay county in the year 1917 had been properly indexed as required by the statute. Error has been assigned to that finding also. The only proof offered by appellant to show such indexing was a certificate of the county clerk attached to a copy of the judgment as abstracted, which contained the statement that it had been properly indexed. No objection was made to the introduction of the certificate of that fact, nor was any evidence offered to show that the abstract of judgment was not properly indexed. Under such circumstances it may be, although it is unnecessary for us to so decide, that the court erred in holding that there was no proof that the abstract of judgment was properly indexed in the judgment lien records of the county. See Abee v. Bargas, 45 Tex.Civ. App. 243, 100 S. W. 191, and decisions cited in the opinion in that case. However, the error in that finding, if error it be, would not require a reversal of the judgment, in view of plaintiff’s failure to show that the executions purported to have been issued in the years 1S97 and 1907 were delivered to the sheriff or some constable for service.

One or two other assignments of error are presented to some of the findings of the court, but they will not be discussed, since a determination thereof in no way bears upon •the points discussed above, and a decision thereof is unnecessary.

Accordingly, the judgment of the trial court denying plaintiff a recovery is in all things affirmed.

On Motion for Rehearing.

In opinion on original hearing, it was stated that the trial judge found that plaintiff had failed to discharge the burden of showing that the two executions, of date November, 19, 1897, and the second, of date ' October 7, 1907, were placed in the hands of the sheriff or constable for service. The findings of the trial judge were in writing and constitute a part of the record here, from which it appears that there was such a finding with respect to the execution dated October 7, 1907, but not of the one dated November 19, 1897. However, the finding with respect to the execution dated October 7, 1907, would of itself support the judgment without the aid of a similar finding with respect to the other execution, since the failure to place that execution in the hands of the sheriff would render the judgment dormant, and therefore the abstract of judgment filed created no lien upon the property in controversy. Furthermore, as pointed out in the opinion on original hearing, the evidence would have supported the same finding with respect to the execution dated November 19, 1897.

With this correction of our original opinion, the motion for rehearing is overruled.
      <@=>Por other eases see same topic and KEY-NTJMBER In all Key-Numbered Digests and Indexes

      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    QUANAH ACME & P. RY. CO. v. SWEARINGEN.
    (No. 2871.)

    Court of Civil Appeals of Texas. Amarillo.
    Oct. 12, 1927.
    Rehearing Denied Nov. 9, 1927.
    I. Municipal corporations c&wkey;697(l)—Owner of lots abutting on alley dedicated to public use held entitled to mandatory injunction to restrain maintenance of railroad’s loading platform obstructing alley, damages at law being Inadequate (Pen. Code 1925, art. 784).
    Owner of lots abutting on alley dedicated to public use, specially injured by construction and maintenance of loading platform which obstructed alley, held entitled to mandatory injunction to restrain railroad from maintaining loading platform built in violation of Pen-. Code 1925, art. 784 and without city’s consent, since under such circumstances relief by way of action at law for damages would be inadequate.

      2. Municipal corporations <&wkey;692 — City had right to refuse consent to railroad to main-, tain loading platform across alley dedicated to public (Rev. St. 1925, art. 6344).
    Where alley was dedicated to public use, city had unqualified right to refuse its consent to railroad to close end of alley for loading' platform for railroad, notwithstanding railroad’s right to maintain necessary structures for handling freight, under Bev. St. 1925, art. 6344.
    3. Eminent domain &wkey;>47 (I) — Railroad could not condemn easement in alley dedicated to public use, for loading platform, where other, locations were equally convenient for public (Rev. St. 1925, art. 6344).
    Where railroad could locate loading platform at another place with equal convenience to the public, railroad was not, under Bev. St. 1925, art. 6344, authorized to condemn property owner’s easement in alley dedicated to public use, for erection of such platform, merely because its location there would save expense and add to convenience of railroad.
    4. Highways <&wkey;80 — Municipal corporations <&wkey;683( I)— Abutting property owner owns fee in street or alley or highway to center thereof unless grant otherwise declares.
    Owner of property abutting on street, alley, or public highway owns fee to the center of the street, alley, or public highway unless otherwise declared in grant.
    Appeal from District Court, Hardeman County; Bobert Cole, Judge.
    Suit by D. D. Swearingen against the Qua-nah Acme & Pacific Bailway Company, in which defendant asserted a cross-action. From a judgment in plaintiff’s favor on both the original and cross-action, defendant appeals.
    Affirmed.
    Hamilton & McMath, of Matador, for appellant.
    C. X. Welch, of Quanah, and B. Y. Cummings, of Wichita Falls, for appellee.

      writ of error refused.

   JACKSON, J.

This suit was instituted by appellee, D. D. Swearingen, in the district court of Hardeman county, Tex., against the appellant, the Quanah Acme & Pacific Bailway Company, to secure a mandatory injunction, requiring appellant to remove a platform which it had constructed across the alley running through block No. 11, in the city of Quanah.

Appellee pleads that he is, and was at all of the times alleged, the owner of lots Nos. 4, 5, 6, 7, and 8 in block No. 11 of the original townsite of Quanah, Tex., and that appellant is and was the owner of lots Nos. 2 and 3 in said block, which lots lie lengthwise along front street, and are separated, by the alley in said block; that said block is bounded on the east by Green street, on the west by Du Bose street, on the north by Front street, and on the south by Clark street; that in the platting of the original townsite of Quanah, said alley was left in said block, running from north to south, and opens into Front street on the north and into Clark street on the south, and that appellee’s lots abut upon the east side of said alley; that on each of appellee’s lots there is a residence, one of which is occupied by himself, as his home, and each of the others by tenants; that he has an interest in said alley and is entitled to the free and unobstructed passage therein, superior to the rest of the citizenship of the city of Quanah; that said alley has been used by him and those occupying his property at all times since the platting of the town, which is of great convenience to the use and enjoyment of his said property in affording a rear entrance thereto and allowing the passage of vehicles therein and- on and into said premises; that for a great number of years appellant had maintained its depot one block east of the north line of block No. 11, near which depot it maintained its platform, for the purpose of loading and unloading its freight cars, and while its platform was so located it did not interfere with the rights of appellee; that on October 1, 1926, appellant abandoned the maintenance of its platform located near its depot, and built the new platform on lots 2 and 3 and extending across the alley running through said block, which completely obstructs passage through the alley; that, immediately west of block 11, the appellant owned other property adjacent to its railway tracks, upon which said new platform could have been located and constructed, and that so located, it would not have inconvenienced or interfered with any property owner; and that such new platform was erected and com structed across said alley without the permission of the city council of the city of Quanah, and in defiance of - the city ordinances of said city, and against the orders and instructions of the city council thereof.

The defendant answered by demurrers, general denial, and pleaded specially that it was granted a franchise by the city of Qua-nah to place its tracks upon the middle 30 feet zone of Front street, and that it had built and operated its tracks thereon and by reason of the increase in its business, and to enable it to serve the public expeditiously, it became necessary that it enlarge and extend its platform facilities for the purpose of loading, reloading, unloading, and transferring freight from one ear to another; that to serve the public it was necessary to erect and construct the platform complained of; that there was no other place to erect such platform; that it had acquired the property across the north end of block 11 and blocks 28 and 53, in the city of Quanah, lying west of block 11, years ago, for the purpose of enlarging its facilities when its business should demand it. It denied that it built the tracks and platform maliciously or capriciously, and alleged that it applied to and secured permission from the city to construct such tracks and platform, on the condition that it did not obstruct traffic through the alleys in said blocks; that said platform was 8 feet wide and 200 feet long, and across the north ■ end of the alley in block No. 11; that the end of said alley was virtually a cul-de-sac, ending at Eront street occupied by. appellant’s railroad tracks, and that there was no road or alley extending north from Eront street, as the property immediately north thereof is occupied by the Fort Worth & Denver reservation, with no streets and alleys across it.

Appellant also, by way of cross-action, alleged that, it was a common carrier, duly incorporated under the laws of the state and owned and operated a railroad through Har-deman and other counties and into the city of Quanah; that it has heretofore constructed its industrial tracks and a transfer platform along the north side of blocks 11, 28, and 53 in the city of Quanah, which tracks and platform was located upon its own property, except that part of the alley running through block No. 11, which it crosses; that as such common carrier it has the right of eminent domain, and requests that upon a trial of the cause that all property rights and interests of appellee in and to the alley be condemned for appellant’s use, and that proper judgment be rendered, fixing appel-lee’s damages therefor.

A trial was had on the merits of the case •before the court, without the intervention of a jury, and judgment rendered granting ap-pellee a permanent mandatory writ of injunction, commanding appellant to remove its new platform from across the alley in controversy, and refusing appellant’s right of condemnation under its cross-action, from which judgment this appeal is prosecuted.

On June 23, 1926, the appellant made application to the city council of the city of Quanah to lay certain railway tracks and construct its new platform across the alley •in controversy. “The city council, having duly considered such application, and being fully advised in the premises,” granted the application upon the special condition and stipulation that neither the tracks nor the platform should be built in such a way as to close the alley, but that it should be left unobstructed and so maintained as to allow the use of the alley for traffic. The record tends to show that this alley was dedicated on the original plat of the townsite of Qua-nah, and that for 21 years appellee has owned lots 4, 5, 6, 7, and 8, in said block 11, according to said original plat, and that said lots abut on the alley in question; that the platform as constructed across said alley is 8 feet wide, and over 5 feet high, and completely obstructed the entrance of the alley into Front street; that appellee’s residence which he occupies is situated upon one of his said lots, and his other residences upon said lots are occupied by his tenants; that the platform materially interferes with the use and enjoyment of his property; and that the city council had ordered the appellant to remove the platform from the alley, which order was ignored. There is considerable testimony disclosing how freight is loaded and unloaded upon and from appellant’s platform, the use and occupancy of the space on either side of the platform by trucks hauling freight to and from the platform, the conduct of the employees of appellant, the noise made, and the profane language used by them, and the proximity of the nearest tenant house to said platform; but we deem it unnecessary to state this part of the-testimony in detail.

The testimony tends to show that the increase of the business of the appellant necessitated greater platform capacity than it had, prior to the construction of the new platform across the alley in controversy, which was erected for the purpose of facilitating the handling of its business. Mr. J. F. Sommer, the vice president of appellant, testified substantially that he knew at the time the platform was erected that it was done in violation of law, and that he had been notified to take it down, but that he thought the platform was more of a public necessity than the alley; that appellant owned six lots in block 153, and has a tract cornering on said lots as a turnout; that it could build a platform 600 feet long on block 153 without crossing a street or alley, but the lots in block 53 were more than 600 feet further from the depot than the new platform as located, and appellant could not get to a platform on said block without buying additional property; that the platform as located across the alley in controversy was much nearer to the depot and much more convenient for the transaction of business than a platform would be erected on the lots in block 153.

The appellant assigned as error the action of the trial court in rendering judgment against it, for the reason that appellee had an adequate remedy at law in his recourse for damages for whatever injuries he may have suffered on account, in closing the end of the alley.

It is undisputed that appellee was the owner of the lots abutting on the alley, that, the alley had been dedicated to public use, and that he had an interest in the alley .not, common to the general public and was specially injured by the construction and maintenance of the platform.

Appellant constructed its platform across the alley in block No. 11 in violation of Penal Code 1925, art. 784, and its conduct was willful because the platform was built without the consent of the city, and with the knowledge that the law was being violated.

“In addition to the right of the public to maintain a suit in equtiy for an injunction, private citizens who are specially injured by an obstruction and interested in preventing its continuance may, upon a proper showing, maintain a suit in equity for an injunction,” and “if the nuisance is a continuing one, invading substantial rights of the complainant in such a manner that he would thereby lose such rights entirely but for the assistance of a court of equity, he will be entitled to an injunction, upon a proper showing, notwithstanding the fact that he might recover some damages in an action at law.” 2 Elliott, “Roads and Streets,” pp. 1108, 1109.
“Any unauthorized obstruction which unnecessarily impedes or incommodes the lawful use of a highway is a public nuisance, at common law.” * * *
“So, it is a nuisance to erect a gate or a fence across a highway, to construct a building thereon, or to cut a ditch or millrace across it without bridging the same or otherwise restoring the way to its former safe and convenient condition so as not to impede or endanger travel.” 2 Elliott, “Roads and Streets,” p. 827.
“The obstruction of a public highway is a nuisance, and the right of a private party to restrain such nuisance is dependent upon sustaining some special injury different in kind from that sustained by. the public.” Santa Fe Townsite Co. et al. v. Norvell (Tex. Civ. App.) 207 S. W. 960.
“A way over land set apart for public travel in a town or city is a street, no matter what it may be called. It is the purpose for which it is laid out and the use made of it that determines its character. ‘Street’ is a general term, and includes all urban ways which can be and are generally used for the ordinary purposes of travel. A narrow way, less in size than a street, is generally called an ‘alley’; and, if the alley is a public one, it is a highway, and, in general, is governed by the rules applicable to streets. * * * An abutting owner has rights not shared by the public at large, special and peculiar to himself, which arise out of the very relation of his lot to the street in front or alley in the rear of it. These rights are property, and as such are as sacred from legislative invasion as his right to the lot itself. * * * And it is well settled that equity will grant relief to a party entitled to a right of way over a street, and protect him in the enjoyment thereof, by restraining the erection of obstructions thereon. Id., § 661. The owner of land abutting' upon a street or alley, one end of which is obstructed so that he cannot have egress from his property to other streets in that direction, suffers an injury peculiar to himself by reason of the public nuisance (Bannon v. Murphy [Ky.] 38 S. W. 890 [18 Ky. Raw Rep. 889]), and is entitled to such relief.” Kalteyer v. Sullivan et al., 18 Tex. Civ. App. 488, 493, 46 S. W. 290, 291; also, Bone v. Clark (Tex. Civ. App.) 214 S. W. 607.

While it is the duty of a city to vacate a nuisance, such as closing a public street, “the citizen who suffers a special injury is not left without remedy in ease the city fails to respond to its duty, nor is he remitted to Ms action for damages alone, although the injury suffered by him may he compensated in damages.” Ort et al. v. Bowden et al. (Tex. Civ. App.) 148 S. W. 1145.

Under the facts disclosed by this record, in our opinion, these authorities are decisive against appellant’s contention, and this assignment is overruled.

Appellant assigns as error the action "off the trial court in refusing to grant it the relief asked in its cross-bill, in which it. sought to condemn the rights and interests of appellee in the easement enjoyed by him in the alley, because the testimony showed that appellant was a common carrier, and that it was essential that it use and occupy such alley for the maintenance of its platform.

Article 6344, R. C. S. 1925, authorizes railway corporations to erect and maintain all necessary and convenient buildings, stations, fixtures, and machinery for the accommodation of its passengers and the handling of freight in the operation of its road.

“Since in the nature of things, a general law for the incorporation of railroad companies could not point out the particular spots upon which the shops were to be located, it follows that they must have authority to choose the locations. But it does not follow that it was the intention of the Legislature to empower them to make the selection arbitrarily; that is to say, without reference to the rights of persons who might own property in close proximity to such locations. Did the Legislature intend to authorize a railroad running in the city of Austin to establish and operate structures of the character in question, so near to the Capitol as to render it unfit for the purposes for which it was constructed? The same question may be asked as to the courthouse of the county or the public school buildings and churches of the city. We should be loath to answer this question in the affirmative. Yet if the 'Statute empowers a railroad company to establish its shops in such proximity to a private dwelling as to depreciate its value and to bring great discomfort upon the occupants, no sufficient reason suggests itself to our minds why the ¡same might not be done as to the Capitol, the courthouse, and other public structures.” Rainey v. Red River, T. & S. R. Co., 99 Tex. 303, 89 S. W. 772,13 Ann. Cas. 580,122 Am. St. Rep. 622, 3 L. R. A. (N. S.) 590.

The city of Quanab, in refusing to give its consent to the appellant to close the end of the alley through block No. 11, opening into Front street, acted within its unqualified right. Kansas City, M. & O. Ry. Co. of Texas v. City of Sweetwater, 104 Tex. 329, 137 S. W. 1117.

This alley had been dedicated to public use. In Sabine E. T. R. Co. v. Gulf & I. Ry. Co. of Texas, 92 Tex. 162, 46 S. W. 784, in answer to a certified question from the Court of Civil Appeals for the First Supreme Jur dicial District, as to the right of one railway company to condemn for its use the property of another railway company, the Supreme Court says:

“To the second question we reply that, under the facts found by the Court of Civil Appeals, the law does not authorize the condemnation of property which has already been dedicated to-a public use, when such condemnation would practically destroy the use to which it has been devoted. No express authority is given by our statutes to condemn such property, and the authority cannot be implied from the general power conferred by the law unless the necessity be so great as to make the new enterprise of paramount importance to the public, and it cannot be practically accomplished in any other way. * * * grst occupier of the ground is entitled to all the advantages derived from the establishment of the public use therein, and no question of convenience nor expense to the company seeking condemnation can be considered unless it be such as to render the performance of the duty enjoined by law practically impossible by any other means which can be used by the constructing company.”

The testimony in the record discloses that the location of the platform across the alley in controversy was not of paramount importance to the public, and it is uncontro-verted that the platform could have been located at another place. Appellant owned lots west of block No. 11, on which it could have erected its platform for loading and unloading its freight, which the testimony tends to show would have served the public as expeditiously and efficiently as the platform in controversy, and the question of expense and, convenience to the appellant would not authorize it to maintain its condemnation proceedings.

It is apparently settled in this state that an owner of property that abuts on a street, alley, or public highway, owns the fee to the center of such street, alley, or public highway, unless otherwise declared in the grant. Roaring Springs Townsite Co. v. Paducah Telephone Co. (Tex. Civ. App.) 164 S. W. 51, and authorities cited.

Einding no' error in the record, the judgment is affirmed.
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text:
    GOLDEN v. WILDER.
    (No. 11899.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 14, 1928.
    Rehearing Denied Feb. 11, 1928.
    1. Clubs <&wkey;i I — Members of club associating themselves to construct telephone line were liable as partners for injuries, resulting from negligence of their employees.
    Where members of a luncheon club associated themselves together for purpose of building a telephone line as a commercial venture for profit, they were liable as partners for injuries resulting from negligence of their employees to same extent as if they had entered into ordinary partnership agreement.
    2. Clubs <&wkey;>!2 — Members of club building telephone line being liable jointly, and severally, judgment was recoverable against one member without necessity of suing others.
    Where members of luncheon club associated themselves ' together to build " a telephone line for their mutual profit, they were liable jointly and severally as partners for injuries resulting from negligence of their employees; and hence in action for personal injury to lineman, judgment was recoverable against single member of association without necessity of other members thereof being sued.
    3. Tria^ <&wkey;>352(5) — Issue whether defendant was member of company was not error because assuming there was a telephone company, where defendant’s testimony showed conclusively organization of telephone company.
    In lineman’s action for personal injury against member of luncheon club, which was building a telephone line, since defendant’s testimony showed conclusively organization of a telephone company, submission of issue as to whether defendant was a member of such company was not error because issue was on weight of evidence in assuming there was a telephone company.
    4. Trial <&wkey;352(5) — Issue assuming that defendant’s failure to provide sufficient crew was negligence without finding of jury to that effect held error.
    In telephone lineman’s action for personal injury, submission of issue as to whether defendant’s negligence in failing to provide sufficient crew of men to do work assigned to plaintiff was proximate cause of injury without any finding of jury to such effect held, error.
    5. Appeal and error <&wkey;l062(l) — Error in submitting issue whether failure to supply sufficient crew was proximate cause of injury held harmless, where jury found other negligence.
    In telephone lineman’s action for personal injury, error in special issue submitting whether defendant’s negligence in failure to provide a sufficient crew to do work assigned to plaintiff was proximate cause of his injury, without requiring finding to that effect, was harmless, in view of jury’s finding on other issues that defendant was negligent in causing automobile truck to be driven too fast and that such negligence was also proximate cause of injury.
    6. Appeal and error &wkey;>!050(l) — Admitting de- . fendant’s affidavit showing association applied for charter and defendant subscribed for practically entire capital stock held not prejudicial.
    In telephone lineman’s personal injury action against member of park association, which was constructing a telephone line, admitting defendant’s affidavit, made three weeks after injury, showing association applied for charter and that defendant subscribed for practically entire capital stock, was not prejudicial, where its only effect was to show that defendant had theretofore been a member of the association, a fact which defendant admitted.
    7. Appeal and error <&wkey;l73(l3) — Defense of assumption of risk could not first be urged on appeal.
    Where defendant in personal injury action did not plead that plaintiff assumed risk, nor was issue thereof passed on by jury or requested, defendant could not urge defense thereof for first time on appeal.

      On Motion for Rehearing.
    8. Clubs &wkey;>l I — Defendant as member of telephone association was liable as partner for tort committed by it acting through its agents.
    Where defendant became a member of an association designated as a telephone company, which was a business and not a charity, he thereby became liable as ' partner for any tort committed by the association acting through its duly authorized agents, even though the association was not a partnership in ordinary meaning thereof.
    9. Master and servant <©=> 1 — Relation of master and servant as between telephone lineman and association was created when association’s agent hired lineman to work.
    Relation of master and servant was created as between telephone lineman and a park association organized to construct a telephone line for profit at time agent of association hired the lineman to perform services as such.
    10. Clubs <&wkey;ll — Where agent of association hired laborers to construct telephone line, association was liable for agent’s negligence.
    Where agent of association building telephone line for profit hired laborers and superintended work of construction of the telephone line, association was liable for negligence on agent’s part in discharging such services.
    11. Clubs &wkey;>ll — Members of association were liable individually for injury to lineman while constructing telephone line for association (Rev. St. 1925,'arts. 6137, 6138).
    In view of Rev. St. 1925, arts. 6137,' 6138, providing- that judgment against association is binding on individual members served with citation and that individual members may be sued, members of association organized to construct telephone line were liable individually to lineman injured while constructing a telephone line for the association.
    Appeal from District Court, Wichita County; W. W. Cook, Judge.
    Action by W. H. Wilder against Walter Golden and others. From a judgment for plaintiff against defendant Golden only, he appeals.
    Affirmed.
    Weeks, Morrow, Francis & Hankerson, of Wichita .Falls, for appellant.
    Bill Davenport, of Wichita Falls, for ap-pellee.
   DUNKLIN, J.

Members of a luncheon club of Iowa Park associated themselves together for the purpose of building a telephone line from Iowa Park to Kemp City, a distance of some 30 miles. The money necessary to carry out the project was contributed by different citizens of Iowa Park, and with the money so raised they constructed the line, buying out a telephone line formerly owned by the Southern Oil Corporation. Walter R. Golden was one of the members of the association, and he was selected as active trustee for the purchase of the material and for the receiving and paying out of the funds raised to construct the line. The enterprise was undertaken for the purpose of affording telephonic communication with certain trade territory of the town of Iowa Park where the members of the association resided and did business.

Curtis Young was appointed by the association to hire laborers to do the work of constructing the telephone line, and Walter Golden'paid the men for their services out of funds held by him as trustee of the association.

W. H. Wilder was employed by Young as a lineman to assist in stringing the telephone wires, and after working at that employment for some two months, he sustained an injury. On the occasion of his injury he was following a truck from which the wire was unrolled, holding one of the wires in each of his hands, and while so engaged one of his feet struck a snag in a gutter in which he was traveling in a trot, in consequence of which his foot was injured, and that injury also resulted in a swelling and soreness of his leg.

Wilder instituted this suit against Walter Golden, J. A. Kemp, Frank Kell, W. P. Ferguson, and Douglass Johnson to recover damages for the injury so sustained by him. Judgment was rendered in his favor against Walter Golden for the sum of $500 as damages, but judgment was also rendered in favor of the other defendants. The defendant Walter Golden has prosecuted this appeal.

Plaintiff’s suit was based upon allegations of negligence in two particulars: (1) That the defendant’s driver of the truck, from which the telephone wires were unreeled, drove the truck so rapidly that plaintiff was required to go in a trot in order to properly do his work; (2) in failing to employ a sufficient number of men to do the work. In connection with the latter ground of negligence, it was alleged that by reason of the scarcity of the linemen plaintiff was required to hold and keep in position a wire in each hand with his hands raised above his head. According to allegations in the petition, while thus holding the two wires his vision was necessarily • fixed in an upward direction, on account of which he could not see the obstruction upon which he stumbled prior to reaching it. According to further allegations, if he had been required to hold only one wire he would have discovered the presence of the obstruction in time to have avoided striking it.

The trial was before a jury, who found that plaintiff was injured while employed by the defendant ás a lineman, as alleged in his petition, and for such injury damages was assessed at $500.

The issues of negligence alleged in plaintiff’s petition and in findings of the jury thereon were as follows:

“Special issue No. 4. Did the defendant or its agents fail to provide a sufficient crew of men to do the work assigned to plaintiff and the men working with him ? A. Yes.
“Special issue No. 5. Was defendant or its agents guilty of negligence, as .that term is hereinafter defined, in causing the truck to be driven too fast, if the same was driven too fast, at the time and place of the injury, if any? A. Yes.
“Special issue No. 6. If you have answered either of the issues Nos. 4 and 5 ‘yes,’ then was such negligence, if any, the proximate cause of plaintiff’s injury, if any? A. Yes.”

Assignments of error present in different forms the contention that since, as shown in plaintiff’s petition, his claim of liability of the defendants was upon allegations that they were members of the partnership firm of the Park Kemp Telephone Company, there could be no recovery against Walter Golden because, as contended by him on this appeal, the evidence failed to show such partnership. While it is true that the evidence does show that there was no formal agreement between- the members to enter into a partnership as such, and while the evidence further showed that the defendant, Golden, never realized any money from the operation of the telephone line, yet the proof did show without controversy that appellant was one of the members of the association formed for the construction and operation of the telephone line, and that the enterprise was undertaken for the purpose of increasing trade patronage from the resident citizens of the territory covered by the telephone line. It thus appears that the project was a commercial venture for profit in the way of expected increase of trade, even though no profit should be realized from tolls over and above the cost of construction and maintenance. The members of the club having associated-themselves together with that end in view and for that purpose, they were liable as partners for injuries resulting from the negligence of their employees to the same extent as if they had entered into an ordinary partnership agreement. If profits had been realized from such tolls, then in the absence of proof to the contrary the same would have belonged to the contributing members. At all events, the undertaking was by all the contributing members, who were therefore liable to plaintiff jointly and severally, independently of a question of partnership. 13 Corpus Juris, 241. Such liability was the basis of plaintiff's suit, and it was immaterial that the Park Kemp Telephone Company, which was the name of the association, was not an ordinary partnership arrangement. And. since appellant’s liability was several, judgment could be recovered against him without the necessity of suing other members of the association. McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721.

The testimony, including that of appellant himself, shows conclusively the organization of the Park Kemp Telephone Company,. and therefore there was no merit in the objection to the submission of the issue as to whether or not appellant was a member of that concern, on the ground that the issue in the form submitted was upon the weight of the evidence in assuming that there was such an organization.'

While issue No. 4, copied above, relative to whether or not the defendant failed to provide a sufficient crew of men to do the work assigned to plaintiff and those working with him, was proper, yet, in assuming, in issue No. 6, that such failure would be negligence, without any finding of the jury to that effect, was erroneous. However, that error will not require a reversal of the judgment, since, as shown in special issues Nos. 5 and 6, the jury also found that the defendant was guilty of negligence in causing the truck to be driven too fast and that such negligence was also a proximate cause of plaintiff’s injury.

The testimony showed that the Park Kemp Telephone Company was engaged in the business for which it was organized for some two months prior to July 3, 1926, when plaintiff sustained his injury. Error has been assigned to the introduction of appellant’s affidavit, made on July 24, 1926, showing that the members of the association had applied for a charter of incorporation of the enterprise, and that he (appellant) had subscribed for practically the entire capital stock of $5,000. That evidence could have no possible effect except as tending to show that appellant had theretofore been a member of the organization, and no 'reversible error was Committed in admitting it, since the formation of the association and its purpose and operation was proved beyond controversy by appellant himself, who further testified that he was one of its members from its inception.

[I] Appellant did not plead that plaintiff assumed the risk of his injury, nor was that issue passed upon by the jury or requested by the appellant. Hence that defense, which is urged in this court for the first time, is overruled. I. & G. N. Ry. Co. v. Garcia, 54 Tex. Civ. App. 59, 117 S. W. 206 (writ of error denied); K. C. M. & O. Ry. Co. v. Hall (Tex. Civ. App.) 152 S. W. 445.

Accordingly, all assignments of error are overruled, and the judgment in favor of plaintiff against appellant is affirmed. The judgment in favor of the other defendants in the trial court, of which no complaint is made, is left undisturbed.

On Motion for Rehearing.

Appellant insists that the evidence conclusively shows that he did not realize any profit from the enterprise for which the Park Kemp Telephone Company was organized, and that there was an absence of any proof to show that he ever contributed thereto; and we find that the contention so made is borne out by the record. However, as pointed out in our original opinion, the testimony of appellant himself conclusively shows that he was one of the participants in the organization of the Park Kemp Telephone Company, and that he undertook to act as a trustee of the funds raised by the contributing members and pay out the same for liabilities incurred in the prosecution of the work. Under such circumstances, we do not believe it can be doubted that he became a member of the association'designated as the Park Kemp Telephone Company, which was a business and not a charitable venture, and that he was liable as a partner for any tort committed by the association acting through its duly authorized agent, even though it be said that the association was not a partnership, in the ordinary meaning of that term. McCamey v. Hollister Oil Co. (Tex. Civ. App.) 241 S. W. 689, affirmed in 115 Tex. 49, 274 S. W. 562; Continental Supply Co. v. Adams (Tex. Civ. App.) 272 S. W. 325, 329 (writ of error denied).

When Curtis Young, the duly authorized agent of the association hired W. H. Wilder to perform services as a lineman and the plaintiff undertook to perform such services, clearly the relation of master and servant as between .Wilder and the association was created; and' the association would be liable for any negligence of the master acting through its agent to the same extent and under the same conditions as of any other master. At all events, Curtis Young, who hired the laborers and who superintended the work of constructing the telephone line, was the agent of the association, and the association would be liable for any negligence on his part in discharging those services under the doctrine of principal and agent. In 13 Corpus Juris, p. 244, the following is said:

“Contracts implied in law, or more properly quasi or constructive contracts are a class of obligations which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex contractu. . They rest solely on a' legal fiction, and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises not from consent, as in the case of true contracts, but from the law or natural equity. So, when the party to be bound is under a legal obligation to perform the duty from which his promise is inferred, the law may infer a promise even as against his intention.”

The following is taken from 5 Corpus Ju-ris, pp. 1363 and 1364, pars. 97 and 99:.

“97. An unincorporated association organized for business, or profit, is in legal effect a mere partnership so far as the liability of its members to third persons is concerned; and accordingly each member is individually liable as a partner for a debt contracted by the association. As each partner represents his copartners, so each member of the association represents his eomembers, and each is bound by the acts of the others in the common behalf. This liability for the debts of the association is imposed on each member by law. It arises out of his membership as a necessary incident thereto. It does not depend upon any stipulation in the laws of the society making him thus liable, or upon his assent to the contract out of which the debt arises; nor is it necessary that the members should have held himself out as a partner, or that the credit should have been extended to him rather than to the association. But, on the contrary, by becoming a member, he subjects himself to liability for all debts contracted by the association within the scope of its object and during the period of his membership.”
“99. The members of an unincorporated association are responsible for tortious acts committed by the society, where it can fairly be assumed that they were within the scope of the purposes for which the organization was formed, and they are liable for torts committed by the association’s agents, acting within thé scope of their employment.”

Chapter 2, tit. 105, Rev. St. 1925, provides that a suit may be brought by or against any unincorporated joint-stock company or association in its company or distinguishing name, and article 6137 of that chapter provides that in the event of a judgment against the association, it shall be equally binding upon the individual members served with citation, and execution may issue against the property of the individual stockholders or members, as well as against the joint property, but that execution shall not issue against the individual property of the stockholders or members until execution against the joint property has been returned without satisfaction. Those statutes are cited to show the recognized common-law liability of the individual members of an unincorporated association, whenever the action is brought against the association in its collective name. But while the statutes noted have application only when the suit is against the association in its collective name, yet article 6138, which is the concluding article of the chapter, expressly provides that the provisions of the former articles of the same chapter shall not impair the right if any person to sue the individual stockholders or members, and that the preceding provisions of the chapter shall be construed as merely cumulative of other remedies existing under the law.

Accordingly, we have reached the conclusion that, even though it could be said that the Park Kemp Telephone Company was not organized for profit and therefore was not, strictly speaking, a partnership, and that appellant was not liable as a partner, nevertheless the members thereof were liable individually under the rules governing in the law of master and servant, of the law of principal and agent, at all events.

The motion for rehearing is overruled.

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