text:
    Ira CAMBRON, Appellant, v. CO-OPERATIVE DISTRIBUTING COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Rehearing Denied Sept. 16, 1966.
    Allen Schmitt, Louisville, for appellant.
    James jVL Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   MONTGOMERY, Judge.

Ira Cambrón appeals from a judgment holding that his workmen’s compensation claim is barred by the one-year filing limitation under KRS 342.270(1) on appeal he contends that the actions of the adjuster for the insurance carrier of his employer, Co-Operative Distributing Company, lulled him into thinking that his claim would be paid and thus estopped his employer from asserting the statute of limitation.

Cambrón was injured October 29, 1962. He employed an attorney, other than his present counsel, who went to see Cambrón at the hospital on February 13, 1963. This attorney was in communication with the insurance adjuster concerning the claim. Appellant’s claim for compensation benefits was filed by his attorney on January 20, 1964, eighty-three days after the expiration of the time allowed by KRS 342.270(1) and three hundred and forty-two days after employment of counsel.

Appellant sustained a serious back injury. He had previously received compensation for a similar injury. The last injury necessitated repeated surgical treatment. On the first three hospital visits he paid no deposit. He was admitted upon verification that his was a workmen’s compensation case. The hospital refused to admit him on the fourth visit, August 12, 1963, until he signed a note. Appellant described it thus:

“They told me that the insurance company’s liability had run out and they made me sign a note before they would admit me.”

Appellant could not be certain of the time but stated that sometime after January 15, 1963, an adjuster from his employer’s insurance carrier talked with appellant and made out an injury report. Apparently that was the only conversation between them, and it was had after appellant had been hospitalized the first time. Appellant testified as follows concerning statements made then by the adjuster (Mr. Barrett) :

“26 — Now what was your conversation with Mr. Barrett at that time?
“A — He came out to make a report of the injury, and he made the injury report. And I asked him when I would start drawing my compensation checks and he told me that it would be about 2 weeks because it would have to clear the Home Office in Dallas, Texas.”
* * * * * *
“39 — While you were still talking to Mr. Barrett there did you ask Mr. Barrett for any money or to settle your claim with you at that time ?
“A — I told him that I thought I ought to have my money since I didn’t have anything to live on. And he said ‘As soon as we get a report from your doctor as to the amount of your disability we will settle with you.’ ”

After the employment of counsel the communication was between appellant’s counsel and the adjuster. In short, it consisted of statements to the effect that a settlement of the claim would be made when the appellant’s disability could be medically determined. In one conversation the adjuster indicated that one problem related to a settlement would be an apportionment between the new injury and the old injury.

Upon this testimony appellant insists that he was lulled into security that his claim would be paid and therefore failed to file an application for benefits within the one year allowed after the accident. Appellant is immediately met by a number of decisions holding that the provision for filing an application within one year after the accident is mandatory. Laswell v. Carrollton Furniture Mfg. Co., Ky., 251 S.W.2d 296; Pipes Chevrolet Company v. Bryant, Ky., 274 S.W.2d 663; Miles v. General Electric Company, Ky., 280 S.W.2d 529. In the latter two cases actual payment of medical bills was held not to toll the running of the statute of limitation. An offer of settlement did not toll the statute in Jefferson Development Co. v. Olinick, Ky., 272 S.W.2d 676.

In Whitis v. O. P. Link Handle Co., Ky., 378 S.W.2d 612, it was held that the payment of temporary total disability for a given time does not constitute an agreement so as to suspend the running of the statute of limitation. An amendment to KRS 342.-270(1) became effective in 1964 following the latter decision. Appellant relies on cases decided prior to 1948 when the statute was changed to include the present one-year-after-accident provision. For this reason those cases are not in point.

Further, appellant is met by Pospisil v. Miller, Ky., 343 S.W.2d 392; Burke v. Blair, Ky., 349 S.W.2d 836; and Cuppy v. General Accident Fire & Life Assurance Corp., Ky., 378 S.W.2d 629. In each of these cases it was held that there was no estoppel and that the statute was a bar. As is pointed out in each case the claimant is not entitled to rely on his adversary, the insurance adjuster, in the absence of false representation or a fraudulent concealment. Neither is claimed here. In the present case the facts are stronger than in the last three cases cited because appellant had employed counsel long before the statutory period had expired and further had notice that the insurance company was not assuming liability when he entered the hospital on the fourth visit. Under the facts of this case appellant is not entitled to claim estoppel as a bar to the operation of the limitation provided under KRS 342.270(1). There is no distinction between workmen’s compensation insurance cases and other insurance cases, as is urged by appellant.

Judgment affirmed.


source: Caselaw Access Project

author: STEAKLEY, Justice.

license: Public Domain

text:
    BRAZOS RIVER AUTHORITY, Relator, v. Waggoner CARR, Attorney General, Respondent.
    No. A-11544.
    Supreme Court of Texas.
    July 27, 1966.

      McCall, Parkhurst & Horton, Dallas, Ray Hutchison, with above firm, Dallas, Beard, Kultgen & Beard, Waco, for relator.
    Waggoner Carr, Atty. Gen., Austin, Paul Phy and Roy B. Johnson, Asst. Attys. Gen., for respondent.
   STEAKLEY, Justice.

This is an original proceeding in which the Relator, Brazos River Authority, seeks a writ of mandamus to require the Respondent, the Attorney General of Texas, to approve the following two issues of bonds:

(a) Brazos River Authority 1966 Canal Revenue Bonds, Series A, dated March 1, 1966, authorized in the amount of $1,675,000, all to mature and become due on March 1, 2006, and to bear interest at the rate of 3% per annum to March 1, 1976, and thereafter at the rate of 3.667% per annum, evidenced by interest coupons maturing semiannually; and
(b) Brazos River Authority 1966 Canal Revenue Bonds, Series B, dated March 1, 1966, authorized in the amount of $3,050,000, all to mature and become due on March 1, 2006, and to bear interest as follows:
(i) 1% per annum evidenced by coupons due semiannually in specified amounts; plus
(ii) The interest due on supplemental coupons, due annually, and in which, by reference to the resolution authorizing the bonds, the Authority agrees to pay up to 2½% additional interest per annum to the extent net revenues are available therefor, on a non-cumulative basis, and, consequently, if not available the coupons due that year will be paid pro tanto and the remainder canceled.

The bonds are being issued for the following stated purpose:

“* * * acquiring unencumbered water transiting channels and facilities and equipment in connection therewith, located in Fort Bend, Harris, Brazoria and Galveston Counties, Texas, and rights, properties and assets in connection therewith * *

The properties referred to are owned by a private corporation, American Canal Company of Texas. A note of the corporation in the principal sum of $1,099,365.38 is held by some of its stockholders secured by a mortgage lien against the properties of the corporation. It is proposed that Relator acquire the properties of the corporation in a single transaction by the following procedure: Relator will deliver the bonds in question to the stockholders of the corporation in exchange for all of the capital stock of the corporation and the note of the corporation with its supporting mortgage will be cancelled, following which all of the properties of the corporation will be conveyed to Relator and the corporation will be dissolved. Neither the procedural authorization for the bond issues and the properties acquisition, nor the purposes therefor, is questioned. However, the proposal involves novel questions of law and the Attorney General declined to approve the bond issues for reasons stated as follows:

“1. The bond order provides that these bonds are to be exchanged for the capital stock of the American Canal Company of Texas, a corporation. There is no statutory authority for this transaction.
“2. The above stated exchange of bonds for the capital stock of a corporation is prohibited by Sections 50, 51, 52 and 53 of Article III and Section 3 of Article XI of the Texas Constitution.
“3. A portion of the bonds are to be used to purchase a note from certain private citizens. Such a transaction violates the Texas Constitution as it constitutes a loan of credit. This transaction is not consistent with the bonds’ purpose clause and constitutes the issuance of bonds for a pre-existing debt.
“4. The supplemental coupons for the Series B Bonds provide for an indefinite, except as to maximum, interest rate. The resolution is silent as to any unqualified promise to pay these coupons. These coupons are not negotiable instruments as they do not provide for payment of a sum certain. We are not aware of any previous approval of coupons of this type in the manner so provided.”

The statutes governing Relator appear as footnotes to Article 8280-101, Vernon’s Texas Civil Statutes. Section 11 was added to the governing statute by the 44th Legislature in 1935; it provides in part:

“Section 11. The bonds issued by authority of this Act may either be (1) sold for cash, at public or private sale, at such price or prices as the Board of Directors shall determine, not to be for less than par and accrued interest, provided that the interest cost of the money received therefor, computed to maturity in accordance with the standard bonds tables in general use by banks and insurance companies, shall not exceed five (5%) per cent per annum, or (2) may be issued on such terms as the Board of Directors shall determine in exchange for property of any kind, real, personal or mixed or any interest therein which the Board of Directors shall deem necessary or convenient for any corporate purpose, or (3) may be issued to refund any bonds issued at any time under authority of this Act. All such bonds shall be authorized by resolution or resolutions of the Board of Directors concurred in by a majority of the members of the Board * * [Emphasis added.]

Section 5-c was added by the 53rd Legislature in 1953; it provides in part:

“Sec. 5-c. In addition to all other powers Brazos River Authority is authorized to issue its negotiable revenue bonds for permanent improvements to accomplish its corporate purposes, payable from and secured by a pledge of its revenues to the extent and in the manner prescribed by the Board of Directors of the Authority. The provisions of Section 11 of Chapter 368, Acts of the First Called Session of the Forty-fourth Legislature shall govern the authorization, issuance and sale of such bonds except that:
“(1) The bonds may be sold at public or private sale, at such price or prices as the Board of Directors shall determine, provided that the interest cost of the money received therefor, computed to maturity in accordance with the standard bond tables in general use by banks and insurance companies, shall not exceed five per cent (5%) per annum; (2) Refunding Bonds bearing interest at rates averaging not more than five per cent (5%) per annum may be issued either in exchange for, or through sale thereof to provide funds to redeem or repurchase and retire bonds theretofore issued by the Authority. * * * ”

We consider only the reasons which form the basis of the disapproval action of the Attorney General. Cf. Trinity River Authority of Tex. v. Carr, 386 S.W.2d 790 (Tex.Sup.1965). The first reason is the fact that the bond order provides that the bonds are to be exchanged for the capital stock of the American Canal Company of Texas, a corporation. Section 11, previously quoted, enacted in 1935, provides that bonds issued by the Authority may be on “such terms as the Board of Directors shall determine in exchange for property of any kind, real, personal or mixed or any interest therein which the Board of Directors shall deem necessary or convenient for any corporate purpose * * This is statutory authorization for the terms of the bond issues as a manner and method of acquiring the properties of the corporation, viz., by means of acquiring the stock, together with the concurring mechanics of the purchase transaction. It is the position of the Attorney General, however, that Section 5-c of the 1953 amendment exclusively prescribes the manner in which the bonds of the Authority might thereafter be issued and preclude what is here proposed. The applicability to Section 11 and Section S-c of the maxim “expressio unius est exclusio alterius,” is argued, the contention being that Section 11 is a general law, whereas Section 5-c is controlling as a special law. Our view is otherwise. Section 5-c expressly provides that the provisions of the section shall continue in effect except for the added provisions, and quite clearly was not intended to embrace all the authority governing the authorization, issuance and sale of bonds. The purpose of the 1953 amendment was to expand — not shrink or restrict — the powers of the Authority and there is no antagonism between the 1935 and the 1953 statutes. There is no basis for what in effect would be a repeal by implication. See Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138 (1962); Lasater v. Lopez, 110 Tex. 179, 217 S.W. 373 (1919).

The Attorney General is of the further view that the proposed exchange of bonds for the capital stock of American Canal Company of Texas, and the acquisition of the note of the corporation for cancellation, are violative of the following provisions of the Texas Constitution:

Art. 3, § 50. “The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State in aid of, or to any person, association or corporation, whether municipal or other, or to pledge the credit of the State in any manner whatsoever, for the payment of the liabilities, present or prospective, of any individual, association of individuals, municipal or other corporation whatsoever.”
Art. 3, § 51. “The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever; * * *.”
Art. 3, § 52. “The Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company; * * *.”
Art. 3, § 53. “The Legislature shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the State, under any agreement or contract, made without authority of law.”
Art. 11, § 3. “No county, city, or other municipal corporation shall hereafter become a subscriber to the capital of any private corporation or association, or make any appropriation or donation to the same, or in anywise loan its credit; but this shall not be construed to in any way affect any obligation heretofore undertaken pursuant to law.”

In view of the singleness of the proposed transaction, the coincident execution of its various parts, and the immediacy of the dissolution of the corporation, there is not in the sense of these constitutional provisions either a pledging of credit, or a grant of public money, for the payment of a private debt; nor will the Authority become a stockholder in a corporation.

The reasoning of the Court in Barrington v. Cokinos, 161 Tex. 136, 338 S.W.2d 133 (1960), is pertinent. Relator is not prohibited from business dealings with a private corporation, and a bond issue for direct accomplishment of purposes for which it was created is not rendered invalid by the fact that the method of handling the transaction is beneficial to the corporation and its stockholders. The latter receives no gratuity. City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818 (1923). The contract and manner of consummation is no more than quid pro quo for that given up and received. San Antonio River Authority v. Shepperd, 157 Tex. 73, 299 S.W.2d 920 (1957). “No net gain accrues to” the corporation or its stockholders under the method of handling the acquisition of its properties by Relator. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960). The abuses and results which the constitutional provisions under review were designed to prevent cannot occur here. In fact, the Authority will be enabled to acquire the properties at less cost than would be the case in a cash purchase transaction, even if such could be accomplished, and this redounds to the benefit of the public which is served by the Authority. See Cawood v. Coleman, 294 Ky. 858, 172 S.W.2d 548 (1943); Long v. Mayo, 271 Ky. 192, 111 S.W.2d 633 (1937); City of Springfield v. Monday, 353 Mo. 981, 185 S.W.2d 788 (1945) ; State ex rel. Johnson v. Consumers Public Power Dist., 143 Neb. 753, 10 N.W.2d 784, 152 A.L.R. 480 (1943) ; People ex rel. Murphy v. Kelly, 76 N.Y. 475 (1879); Wheeler v. City of Philadelphia, 77 Pa. 338 (1875). Cf. Pleasant Township v. Aetna Life Ins. Co., 138 U.S. 67, 11 S.Ct. 215, 34 L.Ed. 864 (1891); Sun Printing & Publishing Ass’n v. Mayor, etc., of New York, 152 N.Y. 257, 46 N.E. 499, 37 L.R.A. 788 (1897). The Authority is not entering into a joint venture with private enterprise or becoming a participating stockholder as in City of Tyler v. Texas Employers’ Ins. Ass’n, 288 S.W. 409 (Tex.Com.App.1926), and Lewis v. Independent School Dist., 139 Tex. 83, 161 S.W.2d 450 (1942), upon which the Attorney General relies. Moore v. Myers, 282 S.W.2d 94 (Tex.Civ.App.1955, writ ref. n. r. e.), is disapproved to the extent of any conflict with our holding here.

The final reason assigned by the Attorney General for his disapproval rested upon the asserted nonnegotiability of the Series B Bonds supplemental coupons. The coupons in question pay to the bearer “an amount of interest (not exceeding 2½%) under the conditions and to the extent provided for in the resolution authorizing this issue of Revenue Bonds * * Section 4.03 of the resolution of May 24, 1966, of the Authority states:

“Supplemental coupons are payable solely from the Series B Supplemental Interest Fund established by this Resolution. To the extent that money is available in the Series B Supplemental Interest Fund it shall be applied to the full or pro rata payment of the next maturing Supplemental coupons; to the extent that Supplemental coupons are not so paid they shall be can-celled.”

The Series B Bonds provide on their face:

“Brazos River Authority, a governmental agency and a body politic and corporate in the State of Texas for value received, hereby promises to pay to bearer on the 1st day of March, 2006, the principal sum of FIVE THOUSAND DOLLARS and to pay interest from the date hereof at the rate of 1% per annum evidenced by attached coupons to become due on March 1, 1967, and semi-annually thereafter on September 1 and March 1 of each year to maturity, and additional interest from December 1, 1966, at a rate not to exceed 2½% per annum in any one Fiscal Year, evidenced by Supplemental Coupons due on December 1, 1967, and annually thereafter on December 1 of each year except the final coupon which shall become due on March 1, 2006. Supplemental Coupons are payable solely from the Series B Supplemental Interest Fund established by the Resolution. To the extent that money is available in the Series B Supplemental Interest Fund it shall be applied to the full or pro rata payment of the next maturing Supplemental Coupons; to the extent that Supplemental Coupons are not so paid they shall be cancelled.”

It is clear under both the Negotiable Instruments Law and the Uniform Commercial Code that the bonds and coupons in question are not negotiable instruments. Art. 5932, Section 1(2), V.A.C.S., of the Texas N.I.L. provided that:

“Sec. 1. An instrument to be negotiable must conform to the following requirements: * * * 2. It must contain an unconditional promise or order to pay a sum certain in money * *

As of midnight, June 30, 1966, the Texas N.I.L. was superseded by the Texas U.C.C., and Section 3-104(1) (b) thereof (acts 59th Leg., R.S.1965, ch. 721, p. 57) states:

“(1) Any writing to be a negotiable instrument within this Article must * * * (b)contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this Article * * * »

The only exception authorized directly applicable to the coupons in question is that of Section 3-105(1) (g) :

“(1) A promise or order otherwise unconditional is not made conditional by the fact that the instrument * * * (g) is limited to payment out of a particular fund or the proceeds of a particular source, if the instrument is issued by a government or governmental agency or unit * *

The requirement of a “sum certain” within the meaning of Section 3-104(1) (b) is defined by section 3-106, as follows:

“(1) The sum payable is a sum certain even though it is to be paid
(a) with stated interest or by stated installments ; or
(b) with stated different rates of interest before and after default or a specified date; or
(c) with a stated discount or addition if paid before or after the date fixed for payment; or
(d) with exchange or less exchange, whether at a fixed rate or at the current rate; or
(e) with costs of collection or an attorney’s fee or both upon default.
“(2) Nothing in this section shall validate any term which is otherwise illegal.”

The resolution of the Board of Directors of the Authority authorizing the bond issue purported to declare the bonds negotiable; it reads:

“Section 5.03. NEGOTIABILITY. The Bonds shall constitute negotiable instruments under the Uniform Commercial Code. Nothing contained in the Bonds or in this Resolution shall affect or impair the negotiability of the Bonds.”

To attain negotiability, however, the bonds with the interest obligation represented by the attached coupons must meet statutory requirements or fall under a statutory exception. See City of Erlanger v. Berkemeyer, 207 F.2d 832 ; 38 A.L.R.2d 918 (6th Cir. 1953); Hunter v. City of Louisville, 208 Ky. 326, 270 S.W. 841 (1925); Pulaski County v. Ben Hur Life Assn., 286 Ky. 119, 149 S.W.2d 738 (1941); State v. Special Road & Bridge Dist. No. 4, 133 Fla. 119, 182 So. 583 (1938); Bay County v. State, 116 Fla. 656, 157 So. 1 (1934). “It is not necessary that the exact language of the Code be followed in order to create a negotiable instrument; but a nonnegotiable instrument does not become negotiable merely because there is an expressed intent that it should be negotiable.” Anderson, Uniform Commercial Code, Commentary § 3-104:3 (1961). See Pulaski County v. Ben Hur Life Assn., supra; Munro v. City of Albuquerque, 48 N.M. 306, 150 P.2d 733 (1943). See also Farnsworth, A General Survey of Article 3 and an Examination of Two Aspects of Codification, 44 Tex.L.Rev. 645, 647 (1966), where it is pointed out that Section 3-104 (1) of the U.C.C. sets forth formal requisites that need be complied with only if an instrument is to be negotiable “within this Article.” Comment 1 to Section 3-104 of the U.C.C. explains that this “leaves open the possibility that some writings may be made negotiable by other statutes or by judicial decision.”

We turn, then, to Section 5-c of the statute governing the Authority to determine if the bonds with the indefinite interest rate provisions, and the interest coupons corresponding thereto, have been declared statutorily negotiable. Section 5-c, enacted in 1953, reads in part:

“In addition to all other powers Brazos River Authority is authorized to issue its negotiable revenue bonds * * * payable from and secured by a pledge of its revenue to the extent and in the manner prescribed by the Board of Directors * * [Italics added]

When Section 5-c was added by the Legislature in 1953, negotiability vel non of bonds issued in Texas was determined by the N. I. L., of which Art. 5932, Section 3, provided:

“Sec. 3. An unqualified order or promise to pay is unconditional within the meaning of this Act, though coupled with: * * * 2. A statement of the transaction which gives rise to the instrument; but an order or promise to pay out of a particular fund is not unconditional.”

Revenue bonds such as issued by the Authority were nonnegotiable under the N. I. L., because their interest and principal were payable solely out of the particular designated revenue fund which might not be sufficient to pay them. See Moore v. City of Nampa, 276 U.S. 536, 45 S.Ct. 340, 72 L.Ed. 688 (1928); 12 Am.Jur.2d, Bonds § 53. It is reasonable to conclude that the Legislature in the 1953 amendment added the term “negotiable” to make certain that the revenue bonds would be construed as negotiable despite the fact that they were payable out of a particular fund and were not general obligations. Cf. City of Erlanger v. Berkemeyer, supra. This statutory grant of negotiability has been codified in the U.C.C., in which a promise to pay is considered unconditional despite the fact that it is limited to a particular fund, if the promissor is a governmental agency or unit. Texas U.C.C., Section 31-05(1) (g).

While recognizing that the interest coupons are not negotiable in form as it is contended are the bonds themselves, Relator asserts that by the use in Section 5-c of the term “negotiable revenue bonds” the Legislature declared that all revenue bonds issued by the Authority are to be negotiable regardless of the nature of the obligation represented by the bonds, and that it may be implied that this legislative declaration of negotiability extends to interest obligations represented by interest coupons attached to the bonds. Alternatively, as to the latter, Relator contends that in any event the question is not one of negotiability of the coupons but of the power to issue bonds with interest coupons in such form as may be prescribed by the Board of Directors of the Authority. We disagree. In our opinion the legislative history of the statutes governing the Brazos River Authority will not support the proposition that the 1953 amendment adding Section 5-c has the effect of rendering the Series B Bonds negotiable, notwithstanding the nature of the interest payment obligation.

“Coupons attached to a bond are a part of it, affected by its infirmities, as well as endowed with its strength, and their character is not changed by detaching them from the bond without the consent of the purchaser thereof.” See 2 Jones, The Law of Bonds and Bond Securities, § 602 (4th ed. 193S). Interest coupons not negotiable in form do not become negotiable instruments when separated from the bonds, although the bonds are themselves negotiable; and the purchaser of the detached interest coupons takes them subject to all defects in title. Interest coupons serve no independent purpose until negotiated and are mere incidents of the bonds while in the hands of the holder. 12 Am.Jur.2d Bonds § 56.

Finally we note that Section 11 of Acts 44th Leg., 1st C.S.1935, ch. 368, p. 152, provides that no bonds of the Brazos River Authority shall be issued and sold without prior approval by the Attorney General as having been issued in accordance with law. The statute further provides that such approval renders the bonds incontestable for any cause, and supports the legislative intent that bonds issued by the Authority are to be negotiable instruments in all respects. In City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028 (1940), we underscored the reasons for prior approval by the Attorney General before county or municipal bonds may be issued and sold:

“The evident purpose of article 4398, R.C.S.1925, and other relevant statutes which impose the duty upon the Attorney General to pass upon the validity of bonds proposed to be issued by any municipality or political subdivision of this State, is not only to protect the particular locality and its inhabitants against the imposition of unauthorized or illegal obligations, but also to give assurance to the State Board of Eductaion and other intending purchasers of such bonds that if and when such bonds are so purchased, the purchaser will acquire an indefeasible title thereto. The duty thus imposed upon the Attorney General is important and is in no sense perfunctory.”

The writ of mandamus is denied. No motion for rehearing will be entertained.

      . Acts 1935, 44th Leg., 1st C.S. p. 1527, ch. 368.

      . Acts 1953, 53rd Leg., R.S., p. 531, ch. 194.


author: McDONALD, Chief Justice.

text:
    Dorothea Sims Torbett CLEGG, Appellant, v. John M. CLARK et ux., Appellees.
    No. 4521.
    Court of Civil Appeals of Texas. Waco.
    Aug. 4, 1966.
    Rehearing Denied Aug. 25, 1966.
    Robert G. Carter, Marlin, for appellant.
    Richard Owens, Walter S. Fortney, Fort Worth, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Clegg from a take-nothing judgment in a partition suit.

Plaintiff Clegg sued defendants Clark, alleging plaintiff and defendants were joint owners of a house and lot in Marlin, Texas; and prayed for partition and such other relief to which plaintiff may be entitled. Trial was before the court without a jury. The trial court found that plaintiff owned no interest in the property and entered judgment that plaintiff take nothing against defendants.

Plaintiff appeals, contending:

1) The trial court erred in overruling plaintiff’s motion for arrest of judgment; and
2) When the trial court found that owners of interests in the property sought to be partitioned were not parties to the suit he should have arrested the proceedings until all owners had been joined, because he could not make a binding decree without having all of the joint owners before the court.

The property sought to be partitioned was the homestead of Dr. and Mrs. J. W. Tor-bett. Plaintiff was the widow of Dr. and Mrs. Torbett’s deceased son, and filed the instant case believing she had inherited an interest in the house from her husband. The trial court found (and such finding is not challenged) that the property passed under the provisions of Dr. and Mrs. Tor-bett’s will and became the property of John W. Torbett III and Karen Lynn Tor-bett (grandchildren of Dr. and Mrs. Tor-bett). When the trial court determined the two grandchildren, who were not parties to the suit, owned interests in the property, and that plaintiff owned no interest he announced that judgment would be entered that plaintiff take nothing. Plaintiff then filed motion in arrest of judgment, praying that the proceedings be arrested until John W. Torbett III and Karen Lynn Torbett be made parties. The trial court overruled such motion and entered judgment that plaintiff take nothing against defendants.

It is true that when in course of a partition suit it is disclosed that all who have an interest in the property to be divided are not parties, it is the duty of the court to arrest the proceedings until they are made parties, and unless this is done no binding decree of partition can be entered. Ward v. Hinkle, 117 Tex. 566, 8 S.W.2d 641; 44 Tex.Jur.2d 288.

But here the trial court has not entered a judgment of partition. The trial court simply entered a take-nothing judgment against plaintiff, whom the trial court found had no interest in the property.

Plaintiff’s points are overruled.

Affirmed.


author: WALTER, Justice.

text:
    PAN AMERICAN PETROLEUM CORPORATION, Appellant, v. Guy U. ROBINSON et al., Appellees.
    No. 4094.
    Court of Civil Appeals of Texas. Eastland.
    July 29, 1966.
    Rehearing Denied Aug. 26, 1966.

      James K. Smith and Harry O. Hickman, Ft. Worth, for appellant.
    Alexander & Martin, Ft. Worth, John P. Ritchie, Mineral Wells, Brooks, Tarlton, Wilson & Gilbert, Ft. Worth, for appellees.
   WALTER, Justice.

Guy U. Robinson and others, hereinafter referred to as Robinson, recovered a judgment against Pan American Petroleum Corporation for $6,123.37 for minimum royalties under an oil and gas lease. The oil company has appealed.

Robinson executed an oil and gas lease to Pan American on July 31, 1958, for a primary term of five years on one-half interest in approximately 6,978.31 acres in Palo Pinto County. The oil company complied with the terms of the lease during the primary term. During the primary term two producing gas wells were completed on the property. Attached to the printed lease is a typewritten rider providing, among other things, the following:

“ * * * After the expiration of the primary term of this lease, if the royalties paid under the provisions of Paragraph 3 hereof for any given year commencing on the 31st day of July and ending on the 30 th day of July of the succeeding year do not amount to as much as $13,956.62 or $2.00 per acre for each net mineral acre then held hereunder, then the difference between the amount so paid and the said sum of $13,956.62 or $2.00 per acre for each net mineral acre then held hereunder shall be paid to Lessor so that Lessor shall receive not less than $2.00 per net mineral acre during each year after the primary term for each such acre so held by this lease. Shut-in payments under Paragraph 3, during the primary term or thereafter, shall always equal the minimum royalty hereinabove provided, and such amounts of minimum royalty or minimum shut-in payments shall be paid within ninety (90) days from the expiration of said given year. * * * ”

A portion of paragraph 4 of the printed form is as follows:

* * * Lessee may at any time execute and deliver to Lessor or to the depository above named or place of record a release or releases covering any portion or portions of the above described premises and thereby surrender this lease as to such portion or portions and be relieved of all obligations as to the acreage surrendered, and thereafter the rentals and minimum royalties or shut-in-payments payable hereunder shall be reduced in the proportion that the acreage covered hereby is reduced by said release or releases.” (Emphasis Ours.)

The first year following the primary term began on July 31, 1963. Pan American continued to exercise dominion and control over all the acreage until it recorded a partial release to all but 640 acres. This release was filed of record on July 29, 1964. The record reveals that Raven Oil Company drilled a well under a farm out agreement with Pan American on some of the acreage that was released in May or June of 1964. Robinson testified that Raven “didn’t get out until after the 1st of August.” The record is clear, however, that the well was plugged and abandoned prior to July 30, 1964, but that the filling of the slush pit and repairing the roads and some clean up operations were performed after that date.

Pan American had paid minimum royalties for the last year of the primary term, namely 1962-1963. It contends that such payment, coupled with production, perpetuated the lease on all the acreage for the first year after the primary term, namely 1963-1964. It released all the acreage except 640 acres two days before the expiration of the first year after expiration of the primary term. Robinson owned a one-half interest in the 640 acres. Pan American contends that Robinson received more than $640.00 from production and~was not due any money under the minimum royalty provision based on the entire acreage.

Robinson contends he is entitled to recover minimum royalties based on the acreage held by the oil company during such first year after the primary term because the lease provides for such payment and the oil company is not relieved from paying such minimum royalties until after it has released the acreage. We agree with Robinson’s contention and affirm the judgment.

Neither party contends that the lease is ambiguous. In Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781 (1956) the court said:

“All parties agree that the lease is unambiguous, and we also agree that there is no ambiguity in the lease; therefore, it is a question of the construction to be given to the lease. It must be given the legal effect resulting from a construction of the language contained within the four corners of the instrument. * * * ”

Under the quoted provisions of the lease, Pan American was obligated to pay the minimum royalties for the year 1963-1964. Paragraph four sets forth in clear and unambiguous language the agreement on this point. By the use of the word “thereafter” in that paragraph, it is shown the parties intended for the oil company to be relieved from paying minimum royalties on released acreage after it released it, but not before.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: SHARPE, Justice.

text:
    SAN ANTONIO RIVER AUTHORITY, Appellant, v. Curtis R. HUNT, Appellee.
    No. 167.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 16, 1966.
    Rehearing Denied Aug. 18, 1966.

      Harvey L. Hardy, Fred N. Pfeiffer, San Antonio, for appellant.

      Pat Gardner and Ralph G. Langley, of Foster, Lewis, Langley, Gardner & Hawn, San Antonio, for appellee.
   OPINION

SHARPE, Justice.

Appellant herein originally filed suit against certain owners of irrigated tracts of land along the San Juan Mission Ace-quia, individually, and as representatives of a class, for declaratory judgment to determine questions concerning the liability or non-liability of appellant to those owners for the taking, damaging or destruction of their properties in connection with the changing, straightening, widening and deepening of the channel of the San Antonio River, a flood control project. The decision of the Supreme Court of Texas on that phase of the case, in which summary judgment was involved, is styled San Antonio River Authority v. Lewis, et al, reported in 363 S.W.2d 444 (Tex.1962). The final opinion of that court was rendered on motion for rehearing, with four justices dissenting. The judgment of the Court of Civil Appeals at San Antonio, 343 S.W.2d 475 (arrived at with the Chief Justice dissenting), reversing and remanding the case for trial, was thereby affirmed by the Supreme Court.

Thereafter, by agreed order, the cross-action of appellee was severed for trial and the parties realigned with appellee as plaintiff and appellant as defendant. After jury trial, judgment was rendered in favor of appellee for $8,500.00 with interest from March 25, 1958. The parties will sometimes hereafter be referred to as “Hunt” and “SARA”.

At the outset we believe that consideration should be given to the context in which the instant severed proceeding was tried in the court below. Hunt is one of several individual owners of separate tracts of land in the vicinity of Old Mission San Juan Capistrano in Bexar County, Texas. That Mission was established by the Spanish Government on the east side of the San Antonio River in the year 1730, and an acequia or irrigation ditch was built there in the year 1731. Water was diverted from the river by a dam installed in the bed of the river, which raised the level of the water and permitted it to enter the San Juan Ditch by gravity flow through a head-gate, thus making it available to the Mission and for irrigation of lands adjacent to the ditch. In 1824, after Mexico became an independent nation, grants of land and water were made by the Mexican Government to settlers along the San Juan Ditch. In 1958, SARA, in connection with a flood control project, destroyed the San Juan Dam and opened a new channel for the river some two hundred feet west of its original bed. The new channel is deeper than the old river bed, which is left high and dry except at flood stage when water might flow through. After Hunt and the other owners of property along the San Juan Ditch lost the gravity flow of water into it, the instant controversy arose and resulted in the filing of a suit by SARA against said owners for declaratory judgment. In that suit SARA claimed that it was not liable to the owners because they had no vested property rights which were taken, damaged or destroyed by the changing of the river channel; and that, in any event, the changing of the river channel was an exercise of the police power of the State for the consequences of which there was no liability in damages. The trial court granted the motion for summary judgment of SARA on the premise that although the owners of property along the San Juan Ditch had “irrigation rights” which were “vested property rights”, such rights were held subject to the police power of the State which authorized the taking thereof without payment of compensation,, and that such taking was, therefore,. damnum absque injuria. The Court of Civil Appeals at San Antonio, with the Chief Justice dissenting, held that the owners “have vested property rights in the San Juan Dam, head gate and ditch, of which they cannot be deprived without adequate compensation, and that the trial court erred in holding that appellants’ (owners’) damages are damnum absque injuria343 S.W.2d 475. The Supreme Court of Texas restricted the issue to be decided as follows: “The question to be decided, then, as the issue has been narrowed, is whether under the Mexican grants respondents (owners) acquired, as against the sovereign, vested property rights to have the waters of the San Antonio River continue to flow in their accustomed channel.” 363 S.W.2d 447, 448. The opinion of the Court, concurred in by five justices, answered this question in the affirmative, and held that the conduct of SARA in changing the channel of the river and diverting its waters constituted a taking of the owners’ property which could not be done without payment of compensation as required by Article 1, Section 17, Constitution of the State of Texas, Vernon’s Ann.St. The judgment of the Court of Civil Appeals, which had reversed the judgment of the trial court and remanded the case for trial, was thus affirmed by the Supreme Court. The opinion of the Supreme Court did not pass upon the question as to whether the owners were entitled to maintain the dam in the bed of the river in order to divert water into the ditch. The dissenting opinion in the Supreme Court, concurred in by four justices, disagreed with both majority opinions of the Supreme Court and the Court of Civil Appeals, and was based on the thesis that the owners have no vested right in and to the bed or banks of the San Antonio River, nor to the dam and headgate located therein, and that they have no right to demand that the river remain in its original channel. However, the dissenting opinion also held that the facts in existence at the time the Mexican grants were made could be considered in determining the rights of the parties, and that because of three factors, i. e., (1) that the sole source of water to supply the San Juan Ditch was and is the San Antonio River, (2) that there was in existence before and at the time.of the Mexican Grants a device for raising the water level in the river to a point where it would flow into the San Juan Ditch, and (3) that a consideration was paid by the grantees to the sovereign for their dulas of water in the ditch, that the sovereign should not destroy the dam in the river which was then being used to supply the ditch with water unless some other means were devised whereby water from the river could be obtained to supply the needs of the ditch, or some compensation were paid because of the destruction of the dam. The dissenting opinion further pointed out that a means was then being provided for supplying the ditch with water which did not involve the use of the dam (i. e. pumping) ; that the problem as to the owners’ damages might arise if and when waters were not delivered to the ditch. The record in the instant severed proceeding establishes that delivery of water to the San Juan Ditch, by pumping or otherwise, had ceased at the time of trial herein, and that the contingency discussed in the dissenting opinion was no longer present. The foregoing statement outlines the general context in which the instant case was tried in the court below and in which our decision must be reached.

In the instant severed proceeding, by answers to seven special issues the jury found in substance as follows: (1) That the Mexican Government made grants of land and water to the persons named in Plaintiff’s Exhibit No. 35 in the amounts therein specified; (2) that the land and water rights belonging to plaintiff emanated from one or more of the grants made to persons named in Plaintiff’s Exhibit No. 35; (3) that the San Juan Ditch Co. and its successors in title have continued to make claims to the right to such water and to make use of the same by gravity flow from May 6, 1914 to March 25, 1958; (4) that the existence of a dam or some other impounding device in the bed of the river was reasonably necessary to the enjoyment for irrigation purposes of the water granted to the users of water from the San Juan Ditch by the Mexican Government as of the time such grants were made; (S) that the existence of a dam or some other impounding device in the bed of the river was reasonably necessary to the enjoyment for irrigation purposes of the water from the ditch as of the time of diversion of the river channel in 1958; (6) that the land belonging to plaintiff suffered a decrease in its market value because of the loss of water by gravity flow in the San Juan Ditch; and (7) that the amount of decrease in market value of plaintiff’s land as a result of the loss of water by gravity flow in the San Juan Ditch as of March 25, 1958, after the flow was diverted, disregarding any pumping activity of defendant, but taking into consideration the right of plaintiff to pump from the San Antonio River, was $8,500.00.

Appellant’s twenty points of error and appellee’s twenty three counterpoints have been grouped for briefing into nine subdivisions and will be considered by us in the same manner as follows: I. Whether a cause of action was plead by plaintiff. II. Whether a right to recover was proved by plaintiff. III. Whether special issue 2 was supported by pleadings and evidence. IV. Whether prejudicial inadmissible documents were received in evidence. V. Whether there was a variance between the pleadings and proof of ownership by plaintiff. VI. Whether plaintiff’s alternative claim based upon appropriative right was erroneously submitted. VII. Whether the need for a dam was submitted without legal basis — either in the pleadings or the evidence. VIII. Whether the proper measure of damage was submitted. IX. Whether defendant was subjected to illegal special damage testimony concerning damages for loss of well water.

I.

(Whether a cause of action was plead by plaintiff)

Appellant’s points 1 and 2 are briefed under the first group. Point 1 asserts that ‘Plaintiff did not plead a cause of action under the opinion of the Supreme Court in S.A.R.A. v. Lewis (363 S.W.2d 444) which opinion established as the law of the case, or as controlling precedent, that the only vested right which could entitle Plaintiff to damages would be the right to have the San Antonio River flow in its accustomed channel directly under Mexican grants made in 1824 to his predecessors in title for compensation.” Point 2 asserts that plaintiff did not plead that he deraigned title to his land and water right from the Mexican grants of 1824 and therefore failed to plead a cause of action; and that the trial court erred in overruling defendant’s special exceptions I and II of its First Amended Original Answer.

Appellant’s basic argument concerning the alleged insufficiency of Hunt’s pleadings is that he was required to plead that title to his land and water rights was deraigned by regular chain of title from the original Mexican Government grants of said rights. This position is not well taken. Having alleged that the water rights were in fact granted, Hunt fulfilled his burden by alleging that he or his predecessors in title were in exclusive and continuous possession of the water rights for a substantial period of time. Reiter v. Coastal States Gas Producing Company, 382 S.W.2d 243 (Tex.1964); City of East Dallas v. Barksdale, 83 Tex. 117, 18 S.W. 329 (1892); Beaumont & G. N. R. Co. v. Yarbrough, 156 S.W. 252 (Tex.Civ.App.1913, n. w. h.)

An examination of Hunt’s trial pleadings reflects that they sufficiently alleged how he derived title to his water rights and land. Among other things, Hunt, as plaintiff, alleged in substance the following: That plaintiff was the owner of about twelve and one half acres of land adjacent to the San Antonio River and the San Juan Irrigation Ditch or Acequia in Bexar County, Texas; that in the year 1731 while Texas was under the jurisdiction of Spain, the San Juan Dam was constructed in the bed of the San Antonio River, and about the same time the San Juan Acequia or Irrigation Ditch was constructed; that the dam and ditch were so planned and designed as to cause a portion of the water of the river as a result of the natural flow thereof to be diverted into the ditch; that water flowing into the ditch from the river passed through the land now owned by plaintiff and portions of the water were used for irrigation and normal domestic purposes connected with the land; that after the waters of the San Antonio River so diverted through the ditch passed through the lands now owned by plaintiff and of other users, the same proceeded back into the San Antonio River at the southermost extremity of the ditch; that a gate was installed in the mouth of the ditch so as to control the flow of waters therein and throughout the years after 1731 the waters of the San Antonio River so diverted into the ditch were used by plaintiff and his predecessors in title; that in about 1824, when Texas was under the jurisdiction of Mexico, a grant was made by Mexico to Juan de Casteneda of two suertes of land aggregating approximately 25.1 acres of land and two dulas of water, and a grant was made by Mexico of one suerte consisting of 16.3 acres of land and one dula of water to Jose Maria Cardenas; said lands being adjacent to the San Juan Ditch; that plaintiff’s land consists of approximately 9.9 acres out of the grant to Casteneda and approximately 2.5 acres out of the grant to Cardenas; that for each dula of water the grantees became entitled to the use of one day of water from the ditch every twenty five days; that in the year 1900 a corporation called the San Juan Ditch Company was organized for the purpose of maintaining and controlling the ditch and administering the use of water therefrom; that persons entitled to use or using water from the ditch conveyed their water rights to the corporation in exchange for shares of that company; that the number of shares determined the amount of water which each shareholder would receive; that plaintiff acquired title to his land in 1925 and at the same time acquired title to twelve shares of the corporation which entitled him to the use of six and one half hours of water from the ditch every ten days; that the San Juan Ditch Company was incorporated for a term of fifty years and its term of existence expired on April 9, 1950, whereupon ownership of all its assets, including all water rights, vested in its shareholders in undivided interests; that after expiration of the charter of the corporation, the shareholders, being the users of water from the San Juan Ditch or Acequia, continued to maintain and control the ditch and to administer the use of the water in the same manner as was done during the existence of the San Juan Ditch Company; that plaintiff was a shareholder of the San Juan Ditch Company at the time its existence ceased and, thus, acquired and had continued to hold an undivided interest in all of the water rights then owned by said company.

It must be remembered that SARA, defendant in this severed cause, initiated this controversy by filing suit for declaratory judgment on August 20, 1958. In its original plaintiff’s petition seeking such relief SARA alleged in part that the defendants therein “ * * * are among what is believed to be some thirty-nine owners of small tracts of land in Bexar County, Texas, on and along the San Juan Irrigation Ditch system, who hold, or claim to hold, said properties, together with easement rights in the irrigation ditch and water rights to use water from the San Antonio River by virtue of grants from the Mexican Government to their predecessors in title dated February 5, 1824; which said grants may be found in the archives of Bexar County, in the vault of the County Clerk of said County.” Appellant’s original petition for declaratory judgment was not only a part of the original record of the case ultimately appealed to the Supreme Court of Texas, but also was admitted in evidence upon trial of the instant proceeding. In that pleading SARA asked the courts to assume the essential fact that plaintiff herein and others similarly situated had title to their water rights under the Mexican grants of 1824. Hunt’s pleading of which defendant now complains contains an express reference to two of the original grants and makes it clear that he is claiming an undivided interest in all of the water rights existing in the San Juan Ditch. Although Hunt’s amended pleadings could have been more explicit, it cannot be said that SARA and its attorneys were not given sufficient information to enable them to properly prepare, plead and try the instant severed proceeding. Suprise or prejudice is not demonstrated. Appellant here places reliance upon cases decided before the adoption of Rule 45, Texas Rules of Civil Procedure, which, of course, are no longer controlling. ■ When we test plaintiff’s trial pleadings by that rule and the cases decided under it, we reach the conclusion that in the entire context of this proceeding, fair notice was given to the SARA as to Hunt’s position. Gulf, Colorado & Santa Fe Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963); Lindsey v. State, 194 S.W.2d 413 (Tex.Civ.App.1946, wr.ref., n.r.e.); McDonald, Texas Civil Practice, Sec. 5.05, pp. 483-487, and cases therein cited.

Appellant’s first group of points (1 and 2) is overruled.

II.

(Whether a right to recover was proved by plaintiff)

Appellant’s points 3, 4 and 5 are briefed under this group. Point 3 asserts that “Plaintiff did not prove a cause of action under the opinion of the Supreme Court in S.A.R.A. v. Lewis (363 S.W.2d 444) which opinion established as the law of the case, or as controlling precedent, that the only vested right which could entitle Plaintiff to damages would be the right to have the San Antonio River flow in its accustomed channel directly under Mexican grants made in 1824 to his predecessors in title for compensation.” Point 4 asserts that the evidence was legally insufficient and point 5 that it was factually insufficient to justify submission to the jury and to support the finding that plaintiff’s title to the land and water rights in question emanated from one or more of the Mexican grants of 1824. Appellant briefs these points as if Hunt had plead a good cause of action, that there were no errors in admission of evidence, and that special issue 1, establishing the original Mexican grants, had been properly submitted and answered.

Appellant’s argument involves (a) the original grants, (b) the period 1824-1873 and on to 1880, and (c) plaintiff’s chain of title to his land from 1880 to 1925. Each category will be separately noted.

The original grants. By the jury finding in answer to special issue 1 it is established that the twenty-one original grants of land and water, as mentioned in Plaintiff’s Exhibit 35 (Register of land sales and water rights), were made by the Mexican Government in 1824. Exhibit 35 names the original twenty-one grantees and reflects that each grantee was charged a price of five pesos per year for four years for each of the twenty-five dulas of water granted. By Plaintiff’s Exhibit 27-34, copies of the original grants were proved up as to eight of the twenty-one original grantees. Plaintiff’s Exhibit 18 is a map made in 1874, showing all of the original Mission grants in the San Antonio area with the last name of the original grantee written inside the boundaries depicted for each tract. The names shown on that map correspond substantially with the names listed on Plaintiff’s Exhibit 35. Plaintiff’s Exhibit 44 is an affidavit recorded with the County Clerk in 1873, purporting to authenticate a Spanish language version of Plaintiff’s Exhibit 35, above-mentioned. Each original grant in the record herein contains a statement substantially as follows:

*'* * * I do hereby grant him in the name of the Mexican Nation, two dulas of water with its corresponding farm land extracted from the Mission San Juarf Capistrano so that he may cultivate and benefit from said land in accordance to the law, as well as his heirs and succesors who shall take full advantage of its utility paying five pesos for each of the two said dulas for a period of four years as seen fit by the most Excellent Deputation after which time he shall have the pleasure of doing whatever he wishes with the said land, at which time a testimonio or testimonios shall be given him upon request to serve as formal and legal title to the said land.”

The period 1824 — 1873 and on to 1880. There is nothing in the record herein between the original grants made in 1824 and the above-mentioned affidavit of 1873 concerning the land and water rights here involved. Between 1873 and 1880 the only item of evidence in the record is the map of 1874, also above-mentioned. The affidavit and map purport to speak as of 1824 and do not describe any subsequent title history. Appellant argues because of such facts that there is a complete void concerning the chain of title to all of the twenty-one original grants for a total of fifty-six years, and that Hunt has not discharged his burden of proof in this case because of such facts.

Plaintiffs chain of title to his land from 1880 to 1925. Appellant concedes that Hunt has shown a regular chain of title from 1880 down to the time of the trial of this case on the merits. On July 15, 1880, Thomas J. Devine, as trustee for the estate of F. Guilbeau, deeded all the San Juan lands to C. Villemain “ * * * together with all and singular, the water and irrigation rights and privileges * * The deed refers to “suertes” (meaning irrigated land), but not to “dulas”. No reference is made to the original grants nor to the origin of the suertes involved. The deed also contained the provision “It is hereby declared that the intention of this conveyance is to transfer to the said Celestin Villemain all the right, title and interest that Francisco Guilbeau, at the time of his death, had in and to the Mission San Juan Lands whether the same be expressly described in this deed or not * * *.” It further appears that C. Ville-main, grantee in the deed from Devine, replatted the tract into lots and that a regular chain of title exists as to one-half of one of these lots from Villemain down and into Hunt. The water rights owned by Villemain were conveyed to the San Juan Ditch Company, a corporation, in 1900. Twelve of the shares of stock in that corporation, out of a total of four hundred seventy-two, were acquired by Hunt when he purchased his land in 1925. Each share entitled him to one-half hour of water every ten days for irrigation purposes.

Most of what has been said in connection with appellant’s first group of points (1-2) is applicable to its second group (3-4). Appellant’s basic argument under the latter is that Hunt had the burden to prove by a preponderance of the evidence that he held a legal right “to the granted waters”— “under the Mexican grants” as such “water grants to (his) predecessors in title were made”, and that the evidence shows beyond dispute that Hunt holds no property rights based on or derived from such grants. In its brief, appellant concedes that Hunt owns his land and has a right to utilize water from the river but says he has never had a Mexican grant thereto by any kind of chain of title or any way known to the law. Appellant relies heavily upon the gap in the chain of title of fifty-six years as to each of the two grants necessary to Hunt’s claim to Mexican suertes, and says there is no evidence herein that the Mexican titles granted in 1824 devolved to a single subsequent grantee. Alternatively, appellant says that even assuming an unbroken chain of title is not required, and that mere “emanation” is sufficient, there is no evidence of such emanation, particularly in view of the fifty-six year gap. Further in the alternative, appellant says that assuming “emanation” is sufficient and that some evidence of it was produced, that the affirmative answer to special issue 2 is against the overwhelming weight and preponderance of the evidence.

We disagree with appellant’s contention that Hunt failed to prove a right to recover herein. Plaintiff did not have the burden to prove a chain of title to his water rights from the sovereignty of the soil. No such burden exists in inverse condemnation suits such as this one. In this case plaintiff satisfactorily discharged his burden of proof by evidence showing that the water rights were granted by the Mexican Government and that he or his predecessors were in exclusive and continuous possession of them for a substantial period of time, and that he possessed title to them by prescription. Reiter v. Coastal States Gas Producing Company, 382 S.W.2d 243 (Tex.1964); City of East Dallas v. Barksdale, 83 Tex. 117, 18 S.W. 329 (1892) ; Beaumont & G. N. R. Co. v. Yarbrough, 156 S.W. 252 (Tex.Civ.App.1913, n.w.h.).

Even if Hunt had been required to de-raign title to his water rights from the sovereign as a part of his proof in this case, we would hold that such burden was discharged on the basis that the original Mexican grants were proved concerning the same property and water rights, and SARA by its pleadings in the declaratory judgment phase of the case, which pleading was admitted in evidence herein, conceded that the present owners had vested rights to take water from the San Antonio River for irrigation. The Supreme Court assumed this in deciding the summary judgment phase of the case on the basis of SARA’s position therein.

A careful reading of the opinion of the Supreme Court in S.A.R.A. v. Lewis, supra, in the light of the other authorities just cited supports the view that Hunt sufficiently discharged his burden of proof to establish title to the Mexican water rights in question.

Appellant’s second group of points (3 and 4) is overruled.

III.

(Whether special issue 2 was supported by pleadings and evidence)

Appellant’s points 6, 7 and 8 are briefed under this group. Point 6 asserts that since plaintiff did not plead the original Mexican grants of 1824 except for two (Cardenas and Casteneda), there is no pleading to support the judgment, or to authorize evidence of the other nineteen original grants, or to authorize submission of and support the answers to special issues 1 and 2. Point 7 asserts that the judgment should be reversed because special issue 2 allowed the jury to find thát emanation of title from one or more of the twenty-one grants made in 1824 was sufficient to vest the property right in question in plaintiff when plaintiff’s theory was that San Juan Ditch Company first acquired all of the water rights emanating from the Mexican Government, and that he, in turn, enjoys his rights therein through an undivided interest in the assets of said company; and, under point 8 that the word “emanation” implied that proof of a regular chain of title back to the original grantees of the Mexican Government was not required, which constituted a comment on the weight of the evidence.

Special issues 1 and 2, together with the answers thereto, read as follows:

“QUESTION NO. 1: Do you find, from a preponderance of the evidence, that the Mexican Government made grants of land and water to the persons named in Plaintiff’s Exhibit No. 35 in the amounts specified in said exhibit?
Answer ‘Yes’ or ‘No.’
We, the Jury, answer: Yes
If you have answered Question No. 1 ‘Yes’ and only in that event, then answer Question No. 2.
“QUESTION NO. 2: Do you find, from a preponderance of the evidence, that the land, and water rights, if any, belonging to Mr. Hunt emanated from one or more of the of the land and water grants, if any, made by the Mexican Government to those persons named in Plaintiff’s Exhibit No. 35 (if you have found they were so made) ?
Answer ‘Yes' or ‘No.’
We, the Jury, answer: Yes.”

Appellant’s point 6 is not well taken in the light of our holdings herein on its points 1 and 2. Plaintiff’s pleadings were sufficient to place defendant on notice that he was claiming an undivided interest in all of the water rights existing in the San Juan Ditch although he claimed that his land fell within two of the original twenty-one Mexican grants, which contention was supported by the evidence. In the complete context of this entire proceeding the pleadings were sufficient to authorize admission of all of such 1824 Mexican grants relating to the San Juan Ditch and to justify submission of special issues 1 and 2. Under points 7 and 8 appellant relies principally upon the position that the plaintiff was required to prove deraignment of title from either Cardenas or Casteneda or from all twenty-one original grantees, which contention we have held bad under our discussion of appellant’s first and second group of points. The word “emanated” permitted the jury to find that plaintiff’s title was derived from the original grants by means other than through -a regular chain of title. We have held this to be proper and, under the circumstances, it appears that special issue 2 as framed by the trial court was not a comment on the weight of the evidence. Plaintiff’s allegations and proof that the San Juan Ditch Company acquired the water rights emanating from the Mexican Government, and that he had an undivided interest in said company, is not inconsistent with his theory as to right of recovery.

Appellant’s third group of points (6, 7 and 8) is overruled.

IV.

(Whether prejudicial inadmissible documents were received in evidence)

Appellant’s points 9, 10, 11 and 12 are briefed under this group. Point 9 asserts that the trial court erred in admitting plaintiff’s Exhibit No. 18 (map of 1874). Point 10 asserts error in admission of Plaintiff’s Exhibit 44 (affidavit of 1873). Point 11 asserts error in admission of Plaintiff Exhibits Nos. 27-34 (eight Mexican grants of 1824), and testimony relating thereto. Point 12 asserts error in admission of Plaintiff’s Exhibit No. 35 (Registry of Dulas).

The pleadings were sufficient to authorize admission of the exhibits mentioned in appellant’s points 9, 10, 11 and 12, and our consideration will be limited to points of evidence.

Plaintiff’s Exhibit 18 is a map made by ex-district surveyor F. Giraud, purporting to show all of the Mission irrigation systems in the San Antonio area together with the names of the original grantees. This map was used by the witness Jack Brown in connection with his testimony that Hunt’s land was part of the tracts originally granted to Cardenas and Casteneda, as plead by Hunt. Plaintiff’s Exhibit 44 is an affidavit made by old inhabitants purporting to list, in Spanish, the same registry of waters and amounts charged therefor, as is shown in Exhibit 35, with possibly some additional information. .

Appellant’s argument' concerning Exhibits 18 and 44 is primarily .based.upon the contention that they were ina'dirlissible as official documents and not; properly authenticated. Appellee sáys that they were admissible under the exception to the hearsay rule relating to ancient documenté. We agree with appellee. The 1874'map appears on its face to be over ninety years of age, is free from suspicion in appearance and comes from proper custody, i.e., the office of the Land Commissioner of Texas. Its use by title companies in Bexar County, Texas, was offered as additional evidence of its authenticity. Unofficial maps similar to Plaintiffs Exhibit 18 have been held admissible as ancient documents in situations comparable to that presented here. Finberg v. Gilbert, 104 Tex. 539, 141 S.W. 82 (1911); Seaway Company, Inc. v. Attorney General, 375 S.W.2d 923 (Tex.Civ.App.1964, ref. n.r.e.); James v. Hitchcock, 309 S.W.2d 909 (Tex.Civ.App.1958, ref. n.r.e.) ; Spencer v. Levy, 173 S.W. 550 (Tex.Civ.App.1914, n.w.h.); Flores v. Hovel, 125 S.W. 606 (Tex.Civ.App.1910, n.w.h.) ; Magee v. Paul, 110 Tex. 470, 221 S.W. 254 (1920) ; Mackay v. Armstrong, 84 Tex. 159, 19 S.W. 463 (1892); Dohoney v. Womack, 1 Tex.Civ. App. 354, 19 S.W. 883 (1892). An affidavit similar to Plaintiff’s Exhibit 44, the affidavit of 1873, was held admissible as an ancient instrument in the case of Magee v. Paul, 110 Tex. 478, 221 S.W. 254 (1920). In any event, Exhibits 18 and 44 were largely a duplication of Plaintiff’s Exhibit 35, the Registry of Land Sales and Water Rights, which we hold was properly admitted. Plaintiff established that certain of the original 1824 grants not in evidence were lost. Under such circumstances they could be proved by recitals or references in other documents. Mackay v. Armstrong, 84 Tex. 159, 19 S.W. 463 (1892); Dohoney v. Womack, 1 Tex.Civ.App. 354, 19 S.W. 883 (1892). Plaintiff’s Exhibits 27-34, being eight of the original 1824 Mexican grants were properly authenticated and admitted.

Appellant’s fourth group of points (9, 10,11 and 12) is overruled.

V.

(Whether there was a variance between the pleadings and proof of ownership by plaintiff)

Point 13 is here involved. Under it appellant contends that plaintiff plead sole ownership of the property in himself, but proved original ownership in himself and wife, Carrie Hunt, as community tenants; that the wife or heirs were not accounted for; and, therefore, the judgment does not dispose of all outstanding interests in the property. These contentions are without merit. There is no requirement that plaintiff plead ownership of the property as being separate or community, and his general allegation of ownership would support the recovery regardless of its character as community or separate. See Taylor v. Higgins Oil & Fuel Co., 2 S.W.2d 288 (Tex.Civ.App.1928, wr. dism.); Hill v. Whitworth, 162 S.W. 434 (Tex.Civ.App. 1914, wr. ref.). Once the existence of the marriage of plaintiff to his wife Carrie was established, it is presumed to continue until dissolution was shown by the evidence. Zieben v. Krakower, 346 S.W.2d 401, 405 (Tex.Civ.App.1961, wr. ref., n.r.e.). There was no evidence here that plaintiff’s marriage had been dissolved and the wife is bound by the judgment. Hall v. Aloco Oil Co., 164 S.W.2d 861 (Tex.Civ.App.1942, wr. ref.). The case of Galveston, H. & S.A.R. Co. v. Becht, 21 S.W. 971 (Tex.Civ.App.1893), relied on by appellant, is not in point. Appellant’s point 13 is overruled.

VI.

(Whether plaintiff’s alternative claim based upon appropriative right was improperly submitted)

Appellant’s points 14 and 15 are involved in this group, and relate to special issue 3. That issue and the answer thereto reads as follows:

“QUESTION NO. 3: Do you find, from a preponderance of the evidence, that the San Juan Ditch Co., and its successors in title, if any, have continued to make claims to the right, if any, to such water, and to make use of the same by gravity flow from May 6, 1914 to March 25, 1958?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer: Yes.”

By point 14, appellant contends that the court erred in submitting special issue 3 because as a matter of law Hunt could acquire no vested right in the accustomed channel of the stream by virtue of a certified filing, or appropriative right which merely permitted beneficial use of not more than a specified amount of water. By point 15, appellant contends that the evidence conclusively shows that the San Juan Ditch Company failed to comply with the mandatory provisions of sections 12 and 14 of the Water Act of 1913 Laws 1913, c. 171 in making a certified filing, rendering it invalid. In reply, Hunt says that he did acquire a vested right to maintain a diversion dam by reason of the certified filing of the ditch company and that there was compliance with the Water Act of 1913 and the certified filing was valid. Although Hunt contends that he plead a right to recover under the certified filing, as well as the original Mexican grants, he concedes that the rights acquired under the certified filing were only cumulative and were not essential to his recovery; but, nevertheless, that such rights under the certified filing served to prove and emphasize the recognition given by the sovereign to the long and continued use of the water and dam by appellee and his predecessor in title. Appellant’s point 15 is without merit. There was substantial compliance with the Water Act of 1913 and sections 12 and 14 supra thereof by San Juan Ditch Company. The affidavit filed by it contained the essential information required by the Statute. A second affidavit contemplated by the Statute to be filed upon completion of the diversion works was unnecessary because it is undisputed here that the works here had been installed and completed long before the initial filing and information to that effect was furnished in an original affidavit. Appellee’s recovery here was not dependent upon the certified filing of San Juan Ditch Company. The finding on special issue 3 did serve to buttress ap-pellee’s contention that he and his predecessors had been in continuous possession of the water rights for substantial period of time and to that extent was proper in any event. Appellant’s points 14 and 15 do not present error or reversible error.

VII.

(Whether the need for a dam was submitted without legal basis)

Appellant’s points 16, 17 and 18 are involved under this group, and relate to special issues 4 and 5, which with their answers, read as follows:

“QUESTION NO. 4: Do you find, from a preponderance of the evidence, that the existence of a dam or some other impounding device in the bed of the river was reasonably necessary to the enjoyment for irrigation purposes of the water granted to the users of water from the San Juan Ditch by the Mexican Government as of the time such grants, if any, were made?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer: Yes”
“QUESTION NO. 5: Do you find, from a preponderance of the evidence, that the existence of a dam or some other impounding device in the bed of the river was reasonably necessary to the enjoyment for irrigation purposes of the water from the ditch as of the time of diversion of the river channel in 1958?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer: Yes”

By points 16 and 17 appellant contends that there was no pleading to authorize issues 4 or 5 and that the evidence was also factually insufficient to support the answers thereto. By point 18, appellant contends that the undisputed evidence showed that appellant pumped water into the ditch in substantial volume for several years without use of or impounding device, and that the trial court erred in submitting issue 5. Hunt’s pleadings were sufficient to raise special issues 4 and 5. The amended pleading was filed following the decision of the Supreme Court in S.A.R.A. v. Lewis, supra, which the trial court could, of course, judicially notice. Womble v. Atkins, 314 S.W.2d 150 (Tex. Civ.App.1958, affirmed 160 Tex. 363, 331 S.W.2d 294); 23 Tex.Jur.2d, Evidence, Sec. 26, pp. 45-47. Plaintiff plead the right to use the dam as a diversion device but did not expressly allege that the dam was reasonably necessary for the diversion of water. However, the latter allegation was implicit from the pleading in the entire context of this case. The evidence was also legally and factually sufficient to support the jury answers to issues 4 and 5.

With reference to plaintiff’s right to maintain a dam in the bed of the river, the Supreme Court, in S.A.R.A. v. Lewis, supra, said:

“ * * * while the sovereign could, indeed, grant the beds to individuals, * * * it will not be presumed to have done so, and will not be held to have done so in the absence of direct and certain evidence that such was its intention. * * * Acceptance of that fact may well mean that respondents did not acquire property rights in the bed of the San Antonio river. The grants do not expressly create easements or impose servitudes for continued maintenance of the dam in the river bed and it may be strongly reasoned from Spanish law that none are to be implied. * * * Continued existence of the dam in the bed of the river appears not to have been reasonably necessary to enjoyment of the water granted from the acequia; there were other methods of capturing and delivering the water into the ditch. But whether the grants do or do not create easements or impose servitudes in the river is not determinative of the true question in this case * *

On the summary judgment phase of the case, the Supreme Court found it unnecessary to pass upon the question as to whether Hunt or the other landowners were entitled to maintain the dam in the bed of the river for the purpose of diverting water into the ditch. However, it appears that such right might well depend upon whether the dam was reasonably necessary for obtaining and using the water granted by the Sovereign. Hunt offered the testimony of a qualified engineer to the effect that a dam or impounding device was reasonably necessary for the enjoyment of the water in 1824 as well as today. Testimony offered by SARA as to pumping operations conducted by it after the river channel was changed did not establish that a dam or impounding device was not reasonably necessary for the enjoyment of the water.

It appears here that the only facilities for obtaining and using the waters of the river were anchored firmly in its existing channel at the time of the grants and made possible a gravity flow of water into the San Juan Ditch. The jury findings that the existence of a dam or some other impounding device was necessary to the enjoyment of water by users of it from the San Juan Ditch at the time of the Mexican grants and at the time of diversion of the river channel in 1958 support the view that such grants included and imposed a servitude in the bed of the river to that extent and the sovereign could not destroy or take the same without just compensation. Such findings had not been made when the case was considered by the Supreme Court on the summary judgment phase of the case. They appear to be material in the present posture of this case where Hunt’s position is based upon a claim of deprivation of gravity flow of water into the San Juan Ditch, both in connection with the majority and dissenting views expressed by the members of the Supreme Court in S.A.R.A. v. Lewis, supra.

Appellant’s seventh group of points (16, 17 and 18) is overruled.

VIII.

(Whether the proper measure of damages was submitted)

Appellant’s point 19 is here involved. Special issue 7, relating to ap-pellee’s damages, and its answer, reads as follows:

“QUESTION NO. 7: What do you find, from a preponderance of the evidence, to have been the amount of decrease, if any, in market value of Mr. Hunt’s land, as a result of the loss of water, by gravity flow, in the San Juan Ditch as of March 25, 1958, after the flow was diverted, disregarding any pumping activity of the Defendant, but taking into consideration the right, if any, of Mr. Hunt to pump from the San Antonio River ?
Answer by stating the amount, if any, or none.
We, the Jury, answer: $8,500.00”
Appellant contends that the trial court erred in not submitting its requested special issues 8 and 9 reading as follows:
“Special Issue No. 8:
Do you find, from a preponderance of the evidence, that the flow of water in the San Juan Ditch can be restored by a pumping operation conducted by the San Juan Ditch Co.?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer: -.”
“Special Issue No. 9:
What do you find, from a preponderance of the evidence, to be the pro rata cost to Plaintiff, Mr. Hunt, of the restoration of water in the San Juan Ditch by the San Juan Ditch Co. through a pumping operation?
Answer by stating the amount, if any, in dollars and cents, or ‘None’.
We, the Jury, answer: -.”

Hunt says that his damages were established to be permanent, not temporary, and the trial court properly refused to submit the “cost to cure” measure of damages, as contained in the requested issues 8 and 9; and that said issues were not substantially correct in form and there was no error in refusing to submit them. We agree with appellee.

Special issue 7 in this case is in substantially the same form as the issues submitted in State v. Blair, 72 S.W.2d 927 (Tex.Civ.App.1934, n. w. h.) and Shofner v. State, 207 S.W.2d 426 (Tex.Civ.App.1948, wr. dism.), and is in accordance with the general rules concerning submission of issues in condemnation cases announced in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, on rehearing, 89 S.W.2d 979. It is undisputed that the injury suffered by appellee here is permanent. There is no occasion to apply the “cost to cure” measure of damages in such instance. The opinions in cases of Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575 (1889), and Gulf Pipe Line v. Hurst, 230 S.W. 1024 (Tex.Civ.App.1921, n. w. h.), relied on by appellant, point out that if the damage is found to be temporary the “cost to cure” measure would be proper; but if the damage is found to be permanent, the “before and after” measure of damages would be correct. In any event, appellant’s requested issue 9, which inquires concerning appel-lee’s pro rata cost of pumping water into the ditch, necessarily includes the assumption that other users of water from the ditch would contribute their pro rata share of such cost. There was evidence on this point to the effect that most of the affected landowners would not or could not afford to contribute to the cost of restoring the water by a pumping operation. No issue was requested by appellant in such connection. Without it a complete ground of defense would not be requested and appellant would not, therefore, be in position to complain of failure to submit the issues actually requested. See Hodges, Special Issue Submission in Texas, Sec. 68, p. 169, and cases therein cited. The evidence concerning the cost of pumping was before the jury and it was instructed to consider appellee’s right to pump in determining the decrease, if any, in the market value of the land. Special issue 7 was correctly submitted under the circumstances shown here and appellant’s requested issues 8 and 9 were properly refused. Appellant’s point 19 is overruled.

IX.

(Whether defendant was subjected to illegal special damage testimony concerning damages for loss of well water)

Appellant’s point 20 is here involved. Under it, appellant contends that the trial court erred in admitting testimony of several witnesses to the effect that diversion of the water from the San Juan Ditch operated to dry up Hunt’s domestic well and caused specific monetary loss, because the same was irrelevant; that Hunt’s water rights entitled him to the use of water for irrigation purposes only; and that such evidence and valuations subjected appellant to liability for double damages or illegal special damages in addition to loss of market value. We disagree with such contentions. Even if appellee was only entitled to use the water for irrigation purposes, nevertheless, the charging of his well was the direct and natural result or irrigation. The testimony supported this view and established that Hunt’s water well dried up when the location of the river channel was changed. The well was dug in 1925 and had been charged by irrigation waters from the ditch since that date. The quantity of water used by appellee was fixed by the grants and was not increased by the use of water for charging the well. It appears improbable that Hunt could have irrigated without charging the well. It was advisable to segregate the decrease in market value caused to Hunt’s land by loss of well water from decline caused by other effects of the loss of water in the ditch. Without such segregation it would have been difficult for the jury to determine the decrease in value of the land in the event it found that the water in the ditch did not, in fact, charge the well. It does not appear that such segregation resulted in assessment of double or additioned damages against appellant. The ultimate issue of decrease in value of Hunt’s land as a result of the loss of water in the San Juan Ditch was submitted to the jury by special issue 7. There was no separate submission of damage caused by loss of well water. Under these conditions appellant’s point 20 is without merit and is overruled.

The judgment of the trial court is affirmed.


text:
    The STATE of Texas, Appellant, v. Clara HILTON et al., Appellees.
    No. 4519.
    Court of Civil Appeals of Texas. Waco.
    Aug. 4, 1966.
    Rehearing Denied Aug. 25, 1966.

      Waggoner Carr, Atty. Gen., Fred Spence, Jr., Austin, for appellant.
    Frank McGregor, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is a condemnation case wherein the State of Texas condemned 19.82 acres of land out of a 66.44 acre tract owned by defendants. Trial to a jury resulted in a verdict of $7,928 for the land taken, and $6,993.75 damage to the remainder. The trial court rendered judgment on the verdict for defendants for $2921.75 ($14,921.-75 less $12,000 deposited by the State after award by the Commissioners).

Plaintiff appeals on 24 points, contending the trial court erred:

1) In denying plaintiff’s motion to have the names of the jurors drawn after the parties announced ready, as provided by Rule 224 Texas Rules of Civil Procedure.
2) In refusing to allow the State’s Attorney to make an opening Statement to the jury before proceeding with the State’s evidence.
3) In denying the State the right to cross examine defendants’ witness Beard, as to the market value he placed on the part taken as a Special Commissioner, after he testified on the witness stand at the trial that he placed $500 per acre value, on the part taken; and the Special Commissioners’ award was $300 per acre on the part taken.
4) In allowing into evidence over the State’s objection Article 6674w-l, Vernon’s Ann.Tex.Civ.St.
5) In entering judgment on the issues since there is no evidence, or insufficient evidence, to sustain the jury’s verdict; such verdict is against the weight and preponderance of the -evidence; and is excessive.

We revert to plaintiff’s first contention. After both parties announced ready, plaintiff’s attorney made motion that the court have the names of each of the jurors placed in a container on separate pieces of paper, mixed, and drawn, as provided and required by Rule 224, TRCP. The trial court overruled such motion. Plaintiff has not shown that a drawing of the names would have placed same in such order that it would have not used its peremptory challenges as it did. Further, there is no showing that because of the court’s action plaintiff was forced to take any obnoxious juror. The court erred in overruling plaintiff’s motion, but under the record, such action was harmless. Rule 434 TRCP. Southwestern Public Service Co. v. Morris, Tex.Civ.App., 380 S.W.2d 648, (n. w. h.); Ross v. Texas Emp. Ins. Ass’n., Sup.Ct., 153 Tex. 276, 267 S.W.2d 541.

Plaintiff’s second contention complains of the refusal of the trial court to permit the State’s attorney to make an opening statement to the jury after the defendant rested and before proceeding with the State’s evidence. The plaintiff was entitled under Rule 265 TRCP to make the opening statement, and the trial court’s action in sustaining objection to same was error. The record reflects, however, that plaintiff read its pleading and made a statement to the jury prior to defendants’ evidence. Under the record, the trial court’s refusal to permit opening statement is harmless. Rule 434 TRCP.

Plaintiff’s third contention complains of the trial court’s action in denying the State the right to cross-examine defendants’ witness Beard. Mr. Beard had served as a Special Commissioner in the case. The Commission placed a value of $300 per acre on the land taken. On trial, Mr. Beard testified the market value of the land taken to be $500. The State sought to cross-examine Mr. Beard with reference to the amount of the award, and the trial court sustained defendants’ objection to such cross-examination. The witnesses Atkinson and Gardner testified the part taken had a value of $500 per acre; the witness Youngblood placed a value of $300 per acre on such land; and the jury found that it had a value of $400 per acre. While the court erred in not permitting the cross-examination of Mr. Beard, under the record we think the error harmless. Rule 434, TRCP; City of Dallas v. Holcomb, Tex.Civ.App., 381 S.W.2d 347, 352; Tex., 383 S.W.2d 585.

Plaintiff’s fourth contention complains of the trial court allowing into evidence, over objection, Article 6674w-l of our Statutes. The Statute involves the definition of control of access and the power of the Highway Commission to change access. The Statute was not admissible but could not have harmed plaintiff. Rule 434 TRCP.

Plaintiff’s fifth contention complains there is no evidence, or insufficient evidence, to support the verdict; that such verdict is against the weight and preponderance of the evidence and is excessive. The jury found the value of the 19.82 acres of land taken to be $7,928, or approximately $400 per acre; and found $6993.75 damage to the remainder of 47 acres, or approximately $150 per acre damage. The witnesses Atkinson and Gardner valued the land taken at $500 per acre; the witness Beard valued the land taken at $500 to $600 per acre; and the witness Youngblood valued the land taken at $300 per acre. The witness Atkinson valued the remainder at $500 per acre before the taking, and $150 to $350 after the taking; the witness Gardner valued the remainder at $500 before the taking, and $260 after the taking; witness Beard valued the remainder at $500 to $600 before, and $175 to $200 after the taking; and witness Youngblood valued the remainder at $300 before, and $300 after (except for $380 to rebuild a fence). The jury placed a value of $400 per acre on the remainder before the taking, and $250 per acre after the taking (making for $150 per acre damage).

A jury in matters of this kind may weigh, consider and accept the opinions as to value, or it may form its own opinion from the evidence and by utilizing its own experiences and matters of common knowledge. McCarthy v. City of Amarillo, Tex.Civ.App., 307 S.W.2d 595, (n. r. e.). Roberts v. State, Tex.Civ.App., 350 S.W.2d 388, (n. r. e.). State v. Dickson, Tex.Civ.App., 401 S.W.2d 361 (n. r. e.).

We think the evidence "ample ".to sustain the verdict, and that such.'is not against the great weight and preponderance of the evidence, or excessive. We overrule the contention.

We have further carefully considered the matters complained of in plaintiff’s contentions 1, 2, 3 and 4, and are of the opinion that the cumulative effect of same did not amount to such denial of the rights of plaintiff as was reasonably calculated to cause and probably - did. cause the rendition of an improper judgment in the case. Rule 434 TRCP. ' ,

Affirmed.