author: LANGDON, Justice.

text:
    TALL TIMBERS CORPORATION et al., Appellants, v. T. D. ANDERSON et al., Appellees.
    No. 16394.
    Court of Civil Appeals of Texas. Fort Worth.
    July 12, 1963.
    Rehearing Denied Sept. 13, 1963.
    See also 162 Tex. 450, 347 S.W.2d 592.

      George A. Hill, Houston, for appellant, Tall Timbers Corp.
    O. J. Cadwallader, Houston, for appellant, River Oaks Corp.
    Baker, Botts, Shepherd & Coates, Homer L. Bruce, Robert J. Malinak, and Thomas M. Phillips, Houston, for appellees, T. D. Anderson and other individual appellees.

      R. H. Burks, City Atty., and Homer' T. Bouldin, Sr. Asst. City Atty., Houston, for appellee City of Houston.
   LANGDON, Justice.

This is an appeal from a summary judgment. Originally it was a suit for declaratory judgment and a permanent injunction initiated by T. D. Anderson et al., individually and on behalf of the residents and owners of property in Tall Timbers Section of River Oaks Addition to the City of Houston, Harris County, Texas, against Tall Timbers Corporation, defendant in the trial court and appellant herein, decreeing that a 40 ft. easement in said subdivision is a private easement restricted to use for utility purposes and enjoining its use by appellant as a roadway.

River Oaks Corporation, the subdivider of Tall Timbers Section intervened, contending that the easement in dispute had been dedicated to the public as a roadway. The appellant filed a cross-action for declaratory relief and damages and impleaded the City of Houston as a defendant. Ap-pellees then filed an application for a temporary restraining order asking that appellant be temporarily restrained and, after hearing, be temporarily enjoined from using the disputed easement as a roadway. The trial court granted the temporary restraining order requested by appellees, gave notice of hearing and after hearing granted to appellees and to the City of Houston a temporary injunction enjoining appellant from using the disputed easement as a roadway pending the trial of the suit on its merits. From such order the appellant perfected its appeal to the Court of Civil Appeals which reversed the trial court holding that under the undisputed facts in evidence the disputed easement had been dedicated to the public as a roadway, and that appellant, Tall Timbers Corporation, had a right to the use of such public roadway and, as an abutting property owner having purchased by reference to a plat upon which the disputed easement was shown, had an additional private easement in and right to the use of such roadway,, but suspended that portion of its judgment dissolving the temporary injunction pending disposition of appellee’s application for writ of error to the Supreme Court of Texas (Tex.Civ.App., 342 S.W.2d 452).

The application of appellees, T. D. Anderson et al. and of the City of Houston, to the Supreme Court of Texas for a writ of error was granted. By a 5 to 4 decision the Supreme Court reversed the Court of' Civil Appeals and held that the trial court did not abuse its discretion in issuing the temporary injunction, but expressly stated' that such “opinion is not to be construed as-passing on the merits of the case in any respect.” (347 S.W.2d 592).

Thereafter the plaintiffs T. D. Anderson-et al., the impleaded defendant, the City of Houston, the intervener, River Oaks Corporation and defendant, Tall Timbers Corporation, each moved for summary judgment. The trial court granted the motions, for summary judgment of plaintiffs T. D. Anderson et al. and of the City of Houston' and denied the motions for summary judgment of intervener River Oaks Corporation, and of defendant Tall Timbers Corporation. The appellants, Tall Timbers Corporation and River Oaks Corporation,, each has perfected its appeal from such-judgment.

We reverse and render in part and remand in part with instructions to the trial, court.

In order that the questions involved on’ this appeal may be more clearly understood we believe it appropriate to briefly summarize the history and background of the-property involved. Prior to 1939 the River Oaks Corporation had developed its River-Oaks Addition on the western edge of' Houston. It is a widely known and exclusive residential addition. In 1939 the-River Oaks Corporation created the last, extension of River Oaks Addition to the west which was designated as the Tall, Timbers Section. It too is a highly regard•ed residential section. The plat of this area is contained on pages 456 and 457 of the previous Court of Civil Appeals opinion, 242 S.W.2d 452. It reflects the two (2) 40 ft. easements and the north and south reserved sections to which they extend. 'The north reserved tract was sold and a private residence constructed thereon. The north 40 ft. easement is presently being used as an access road to and from such private residence. In 1959 the south re•served tract was sold to the appellant, Tall Timbers Corporation, who proceeded to build some apartments thereon and expressed its desire to use the south 40 ft. easement as a roadway. The 50 residents of the Tall Timbers Section of the River Oaks Addition in protest of such use initiated this action. Subsequently they were joined by the City of Houston.

The original cause of action was filed on October 20, 1959. A temporary restraining order was entered on February 1, 1960. On December 8, 1960, the Houston Court of Civil Appeals handed down its opinion, 342 S.W.2d 452, and on June 14, 1961, the Supreme Court of Texas reversed the Court of Civil Appeals, 162 Tex. 450, 347 S.W.2d 592. Following the first appeal while this action was pending in the trial court, the City of Houston, one of the parties herein, on February 13, 1962, had presented and passed Ordinance No. 62-212, which was approved by the mayor on the same day. It provided in effect that it was closing to the public and abandoning as a thoroughfare the south 40 ft. easement and granting to the owners of lots abutting on either side the right to enclose, use and build upon said strip thus abandoned subject to the rights reserved in said 40 ft. easement for the installation and operation of utilities.

On April 2, 1962, the summary judgment was signed and entered by the trial court and this appeal from such judgment was perfected.

From the above summary one can readily understand the reasons for the positions taken by appellees and appellants as to the opening of the 40 ft. easement and its use as a street.

A study of the record in this case reflects that the material evidence contained therein is substantially identical to that which was before the Court of Civil Appeals on the prior appeal concerning the nature and purpose of the disputed easement. The additional evidence in the record on this appeal which will be referred to as it may become pertinent to a discussion of the various points serves to strengthen and support the previous holding of the Court of Civil Appeals.

The judgment of the trial court is inadequate in that it did not determine and spell out the rights of the parties in the disputed easement. It now becomes the duty of this Court to construe the subdivision plat and document in question and to define and declare such rights. Forbes v. Texas Department of Public Safety, Tex.Civ.App., 335 S.W.2d 439 (no writ history); Republic National Bank of Dallas v. Fredericks, Tex.Civ.App., 274 S.W.2d 431, p. 438, reversed on other grounds, 155 Tex. 79, 283 S.W.2d 39; Voyer v. Gomez, Tex.Civ.App., 258 S.W.2d 859, pp. 861, 862 (no writ history).

It is the further duty of this Court to determine all of the questions presented and if reversible error is found then to render such judgment as the trial court should have rendered. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, p. 400.

Because of the form of the judgment appealed from the appellant’s formal points of error are primarily based on what the court failed to hold rather than what it did hold.

In essence the judgment of the trial court recited that there is no issue as to any material fact and that the motions of the plaintiffs and the City of Houston for summary judgment should be granted and the motions of the defendant Tall Timbers Corporation and of the intervener, River Oaks Corporation, should be denied. The judgment accordingly denied the motion of the defendant and intervener and permanently enjoined Tall Timbers Corporation, its officers, agents and servants from entering the disputed 40 ft. easement and from doing any work on it in connection with building a street, thoroughfare or passageway thereon. Tall Timbers Corporation both as defendant and cross-plaintiff was denied any recovery or relief sought against plaintiffs or the City of Houston as was the intervener, River Oaks Corporation. The Travelers Indemnity Co., surety upon the temporary injunction bond was discharged from all liability to Tall Timbers Corporation upon said bond. All costs were assessed against Tall Timbers Corporation. Other than formal recitations this is the extent of the judgment entered by the trial court.

The record reflects that no depositions were taken or filed by or on behalf of any of the parties to this cause. No oral testimony of witnesses appears. The testimony of witnesses is confined to the verified written matter appearing in the affidavits and sworn pleadings of the parties. It must be assumed that since all parties involved filed motions for summary judgment that each is convinced that the questions involved could properly be resolved as a matter of law on the basis of the affidavits and sworn pleadings. Each contends that the plat and reservations document are plain and unambiguous. We share the same belief. Thus their construction becomes a matter of law and no issue of fact is involved.

On the prior appeal, Tex.Civ.App., 342 S.W.2d 452, the plat involved herein was reproduced for reference on pages 456 and 457. The opinion likewise contains a thorough and detailed discussion of the evidence relating to the material facts involved on this appeal to all of which reference is made for examination of the plat, discussion of the evidence and the designations contained therein on page 455 of the opinion relating to the north reserved tract and the south reserved tract and to the entire opinion. Thus this Court will be relieved of the necessity of undue repetition.

From an examination of the record in this case and a careful study of the opinion on the former appeal it is quite obvious that a unanimous Court of Civil Appeals made an exhaustive and painstaking study of the subdivision plat and document of Tall Timbers, in the light of the undisputed evidence in the record then before them which as previously stated is substantially the same as is before this Court. Upon the basis of such judgment the court held that, “There is nothing in the record to indicate that the 40 foot easements were created or reserved for utilities, much less for utilities only”, 342 S.W.2d 452, p. 460, and on page 461 of the opinion that “It seems to us inconceivable that the owner of Tall Timbers Section and the two 6 acre reserved tracts adjoining would sell all its lots in the subdivision without providing a way of ingress and egress to and from the reserved tracts. The evidence is undisputed that it did not do so. The locations and forms of the 40 foot easements on the plat reflect the obvious purpose to connect the reserved tracts with the subdivision streets.” This Court is in full accord with the above holding based on the same evidence and citations of authorities set out in the opinion.

The Supreme Court of Texas on the prior appeal, 162 Tex. 450, 347 S.W.2d 592, in a 5 to 4 decision made no attempt to analyze or to construe the plat and document or to define the rights of the parties involved. Its ruling was confined solely to upholding the trial court’s action in granting the temporary injunction to maintain the status quo pending a trial on the merits without “passing on the merits of the case in any respect.” The opinion of the Supreme Court is discussed in Texas Law Review, Vol. 40, No. 3, p. 409, February, 1962; South Texas Law Journal, Vol. 6, No. 2, p. 148, Spring, 1962.

Again referring to the previous opinion of the Court of Civil Appeals in 342 S.W.2d 452, 459, 460, 461, (4, 5), (6) and elsewhere in the opinion which pertains to the court’s interpretation of the plat involved herein and being in full accord with the reasoning of the court, its holdings and the evidence and authorities supporting it we hereby adopt same as a part of this opinion to the same extent as though it were fully incorporated herein. Additionally we wish to emphasize that while the 10 and 20 ft. easements are all, with the exception of five 10 ft. easements, •designated for “utilities”, “electric lighting and telephone” and “drainage and utilities” that all of such easements are bounded by dotted lines and cross lots and blocks. That the size, spacing and location of the five 10 ft. easements designated merely as ■“easements” very clearly demonstrate that they were laid out for utilities and designed to serve the same purposes as the other 10 and 20 ft. easements designated for utilities. Further that emphasis and significance should be given the fact that the two 40 ft. easements are bound by unbroken lines rather than dotted lines and do not cross any lot or block, and are of the same width. That the north 40 ft. easement leads directly from Inverness Dr., to the north reserved tract and the south 40 ft. easement, involved in this suit, leads directly from Westlane Street to the south reserved tract. If the north 40 ft. easement had not been created or reserved there would be no way of ingress and egress to the north reserved tract. The record discloses that the north 40 ft. easement is presently being used for access to the north reserved tract. It appears absurd to us to contend that a different purpose or use was intended for the south 40 ft. easement. An objective examination of the plat reflects that both of such easements were intended to be used as a way of ingress and egress to the reserved tracts. Certainly the width is adequate, especially in view of their length. They are shaped like roads, lead from roads and were obviously designed as roads.

In our opinion there is no language on the plat or in the reservations document which viewed objectively and practically is capable of interpretation to the effect that either one of the 40 ft. easements are for utility purposes only. No such limitation is apparent or indicated from an examination of the plat.

From the situation and form of the south 40 ft. easement on the plat of Tall Timbers Section, the natural inference of those who consulted the plat, with a view to purchase, would be, that it was intended to remain an open space, common, or way, for public use. Oswald v. Grenet, 22 Tex. 94.

The plat of Tall Timbers Section shows the south 40 ft. easement as a strip wider than the utility easements, but not quite as wide as the streets named on the plat. To one buying property in Tall Timbers Section, the recorded plat clearly indicated that the strip was intended as a street or an open way reserved for public use. Since this was the condition when appellant purchased the south reserved tract, we construe the plat as a dedication of the south 40 ft. easement for a public roadway. Martinez v. City of Dallas, 102 Tex. 54, 109 S.W. 287, affirmed by the Supreme Court, 102 Tex. 54, 113 S.W. 1167.

The plat of Tall Timbers Section shows on its face a legal dedication of the south 40 ft. easement for a public way. Martinez v. City of Dallas, supra.

If the 40 ft. easements shown on the plat of Tall Timbers Section be not construed as passageways of some kind, the north reserved tract would have no access to a public street. There is no reasonable construction of the plat other than that the 40 ft. strips were intended as passageways between the “Reserved” tracts and Inverness and Westlane streets, respectively, for the benefit of those acquiring the “Reserved” tracts. What designation should be given to these passageways, whether streets, alleys or other ways, is wholly immaterial. Manziel v. Railroad Commission, Tex.Civ.App., 197 S.W.2d 490 (writ ref.).

The south 40 ft. easement, being a way over land set apart for public travel in a city, is a street, no matter what it may be called. Kalteyer v. Sullivan, 18 Tex. Civ.App. 488, 46 S.W. 288 (writ ref.).

If River Oaks Corporation did not intend to dedicate the area in question as a public road, it should not have impressed the said area upon the plat as “Easement”, and then made the plat a part of its dedication deed and recited on the plat that River Oaks Corporation did thereby “make subdivision of said property for and in behalf of said River Oaks Corporation, according to the streets, lines and tracts shown hereon.” Maisen v. Maxey, Tex.Civ.App., 233 S.W. 2d 309 (ref., n. r. e.).

The plat of Tall Timbers Section shows the existence of the south 40 ft. easement. It can be ascertained with reasonable certainty the purpose for which this easement was intended. Appellant purchased the south reserved tract within the platted area in reliance on the plat and thereby acquired by purchase as an incident to its property the right to have such easement left open for the uses and purposes for which it was dedicated. Fall v. Thompson (Tex.Com.App.), 87 S.W.2d 712, opinion adopted by the Supreme Court.

Appellees are bound by the recorded plat of Tall Timbers Section with reference to which they purchased, and acquired no right to enjoin any lawful use of the south reserved tract by appellant, Robbins v. Houck, Tex.Civ.App., 251 S.W.2d 429 (ref., n. r. e.). In the absence of language in the plat or document specifically negativing such assumption, it will be assumed that River Oaks Corporation and the purchasers of lots in Tall Timbers Section contemplated changes in the use of the servient tenement (i. e., the south 40 ft. easement) by the normal development in the use of the dominant tenement (i. e., the south reserved tract). Knox v. Pioneer Natural Gas Company, Tex.Civ.App,, 321 S.W.2d 596 (ref., n. r. e.). The south reserved tract, being the tract of land benefited by the south 40 ft. easement, is the dominant estate, or dominant tenement, and the south 40 ft. easement,, being the land upon which the easement is imposed, is the servient estate, or servient tenement. The south 40 ft. easement belongs to and goes with the south reserved tract. West v. Giesen, Tex.Civ.App., 242 S.W. 312 (writ ref.). Whether the servitude created by the filing of the plat is. a dedication or reservation is of no consequence. As stated in Lamar County v. Clements, 49 Tex. 347, the distinction is merely nominal. It is likewise immaterial whether the City of Houston has accepted the easement as a street, since it is reflected on a plat approved by the City Planning Commission and lots have been sold by reference to such plat. City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924.

The rights of appellant in the south 40 ft. easement are derived from an express grant in the 'recorded dedication of Tall Timbers Section — a grant which appears in appellees’ chain of title and of which, therefor, they were charged with notice and must be held to have agreed to. The result is that appellant’s rights are paramount, to the extent of the grant, to those of appellees. The limits of the south 40 ft. easement being defined in the grant, appellant has not only the right of free passage over the traveled part of the south 40 ft. easement but also over such portions thereof as appellant thinks proper or necessary. Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399.

The principle largely controlling this appeal — namely, that the sale of lands by reference to a recorded plat effects a dedication to the public of the streets, alleys, ways, etc. shown on the plat — presents a question which, in Texas, “is a very simple one”. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, p. 851, and further the Supreme Court of Texas has indicated by its citation of authority in Martinez v. City of Dallas, supra, that this “very simple” principle is uniformly recognized as the law in other jurisdictions.

The cases cited by appellees and the City of Houston to the effect that the dedication of the south 40 ft. easement, to be effective in so far as concerns the public, must be accepted, either expressly or by implication, by the public or by some agency representing the public, have no bearing upon the issue at bar. As between River Oaks Corporation and appellees, under the circumstances undisputed in the record, the dedication is effective and irrevocable by the former. Following the above well-established principle of law, as between appellant and appellees, the dedication is effective and irrevocable. See Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, and page 852 thereof applying this doctrine as between different grantees of the dedicator.

When River Oaks Corporation filed the plat of Tall Timbers Section dedicating the south 40 ft. easement to public use, the public in general acquired a right to the use of such easement. But appellant acquired an additional right to the use of such easement by reason of its contract of purchase. The two classes of easements, the one inuring to the public in general by the filing of the plat and dedication, and the other inuring to appellant by reason of its contract of purchase, are separate and distinct rights which may co-exist in contemporaneous and harmonious operation and one may be destroyed without necessary impairment of the other. Eidelbach v. Davis, Tex.Civ.App., 99 S.W.2d 1067 (writ dism.).

The appellees herein are asserting ownership of the fee title to the disputed south 40 ft. easement on behalf of two of the ap-pellees who own the lots on either side thereof.

The “Reservations” portions of the subdivision document expressly reserved the fee simple title to the “streets, drives, lanes and roads” to River Oaks Corporation. The lots on either side of the south 40 ft. easement were sold by River Oaks Corporation by deeds in which the reservations, restrictions and covenants set forth in such subdivision document were adopted and made a part of such deeds. The Supreme Court of Texas pointed out in its opinion in State of Texas v. Williams, 161 Tex. 1, 335 S.W.2d 834, that the basis of appellees’ claim of title is a mere legal inference, which may be rebutted by the express terms of the grant. The legal inference in this cause is expressly rebutted by the reservations in the deeds under which the owners of the two lots on either side of the south 40 ft. easement claim.

“Since filing for record said plat and reservations document, no conveyance has ever been made by intervenor to anyone including within its description any portion of the tracts of land lying within the confines of the two 40 foot easements.” 342 S.W.2d 452, 455.

However, we are not concerned with the fee title to the south 40 ft. easement, but only with the uses that may be made of it by appellant and the public. Appellees purchased their lots with reference to the recorded plat and are bound thereby. They acquired no right to enjoin the use of the south reserved tract for any lawful purpose since it is unrestricted; nor did they acquire the right to enjoin any lawful use of the 40 ft. easement in connection therewith. Robbins v. Houck, Tex.Civ.App., 251 S.W.2d 429 (ref., n. r. e.,). It is our view that when the south reserved tract was sold, the right to use the south 40 ft. easement for ingress and egress to and from such tract in its then condition or subsequently developed state went with the reserved tract and is now held by appellant. West v. Giesen, Tex.Civ.App., 242 S.W. 312 (writ ref.).

The appellees having purchased their lots by conveyances referring to the recorded plat upon which the south 40 ft. easement is shown as a roadway connecting the south reserved tract of the appellant to Westlane Street are bound by such recorded plat and accordingly are es-topped to deny the dedication of such 40 ft. easement, as a public roadway and to contend that appellant has anything less than an unrestricted right to the use of such easement as a roadway between appellant’s reserved tract and Westlane Street for any and all purposes incident to the use, enjoyment and development of appellant’s reserved tract. Oswald v. Grenet, 22 Tex. 94; Martinez v. City of Dallas, 102 Tex. 54, 113 S.W. 1167; Manziel v. Railroad Commission, Tex.Civ.App., 197 S.W.2d 490 (writ ref.); Wolf v. Brass, 72 Tex. 133, 12 S.W. 159; Fall v. Thompson (Tex.Com.App.), 87 S.W.2d 712, opinion adopted by the Supreme Court; Joseph v. City of Austin, Tex.Civ.App., 101 S.W.2d 381 (writ ref.).

The undisputed evidence herein-above set forth pertaining to the actions and intentions of intervener, River Oaks Corporation, supported as it is by the affidavit of Hugh Potter who, at all times pertinent to the statements verified in his affidavit, was the President of River Oaks Corporation in charge of its business and the pleadings of the intervener, was admissible as it does not vary or contradict the reading and logical interpretation of the plat and document which must be construed together. It is not recited because of any ambiguity in such instruments but because it shows a practical construction thereof, which should be given strong weight by the court in construing them. Tex.Civ.App., 342 S.W.2d 452, 459(1) and cases cited therein.

There is no pleading and no proof that any promise or agreement other than or in addition to that reflected by the plat was intended or was omitted from such plat through ambiguity, fraud, accident or mistake and therefore the opinions, hearsay and other matter alleged or presented to the trial court by the appellees by way of affidavit or pleadings tending to contradict or to vary the plain and unambiguous read-■'vng and interpretation of the plat were inadmissible. Robbins v. Houck, Tex.Civ.App., 251 S.W.2d 429 (ref., n. r. e.); Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399.

It is elementary that an affidavit in support of a motion for summary judgment is fatally defective when it does not allege that it was made on the personal knowledge of the affiant and does not show affirmatively that the affiant is competent to testify as to the matters stated therein. Lawyers Surety Corporation v. Sevier, Tex.Civ.App., 342 S.W.2d 604, 607 (no writ history); Watson v. Druid Hills Company, Tex.Civ.App., 355 S.W.2d 65, 68 (ref., n. r. e.). It is likewise fundamental that affidavits based on hearsay or conclusions of law or of fact are insufficient in summary judgment cases. Such affidavits must contain statements of fact which the affiant knows within his personal knowledge and which are admissible in evidence in the form in which the same are stated, and which the affiant is able to substantiate in the trial of the case on its merits, and that affidavits opposing a motion for summary judgment must meet the same requirements which pertain to affidavits in support of a motion for summary judgment. Leach v. Cassity’s Estate, Tex.Civ.App., 1955, 279 S.W.2d 630 (ref., n. r. e.); Bliss v. City of Fort Worth, Tex.Civ.App., 1956, 288 S.W.2d 558 (ref., n. r. e.); Duffard v. City of Corpus Christi, 1960, Tex.Civ.App., 332 S.W.2d 447 (no writ history) ; Gaston v. Copeland, Tex.Civ.App., 1960, 335 S.W.2d 406 (ref., n. r. e.); Box v. Bates, 346 S.W.2d 317 (Tex.Sup.Ct.), and cases cited therein.

Page 462 of the previous opinion of the Court of Civil Appeals, 342 S.W.2d 452, contains the provisions of Chapter 36, Art. 1, Sec. 36-2 of the Code of Ordinances of the City of Houston and same is discussed on pages 462, 463 and 464 of the opinion. Based upon the same discussion of evidence and authorities we hold that “no in-junctive relief could lawfully be granted to either appellees or the City of Houston enjoining the violation of such penal ordinance under well established law. The rule is clearly stated in Pitman v. State, Tex.Civ.App., 234 S.W.2d 436, 439.” We do not purport to pass upon the validity of the ordinance in question (Sec. 36-2 of Chapter 36, Art. 1 of the Code of Ordinances of the City of Houston) or upon its applicability to the future opening and the construction by appellant of a road in the disputed easement.

The record reflects that the appellant, the owner since 1959 of the south reserved tract by deed making reference to the plat upon which the disputed 40 ft. easement was shown as an abutting roadway had no knowledge, or notice of Ordinance No. 62-212 of the City of Houston (heretofore described) until after its passage. Further that appellant has never consented or agreed to such closing and abandonment. It has to the contrary asserted its right to and need for its use as a public street. That the disputed easement is being used by appellee, J. C. Sutiles, as a private driveway so as to prevent the construction of a roadway in such easement adequate for vehicular traffic. The record discloses that a stack of bricks enclosed by a structure of pipes and wire are situated in the easement near its southwestern terminus in such a way as to obstruct and prevent the construction and use of such roadway at and near said bricks. That same were placed and are maintained therein by appellee J. C. Suttles without the consent and over the objection of appellant.

The City of Houston has asserted and admitted in its pleadings that it intends to refuse appellant any consent to the use of the disputed easement as a roadway. By Ordinance No. 62-212 the City of Houston, as heretofore stated, sought to close and abandon the easement as a roadway and to authorize the 'owners of the lots on either side to use and build upon same subject to rights reserved for installation and operation of utilities.

In Kalteyer v. Sullivan, 18 Tex.Civ.App. 488, 46 S.W. 288 (writ of error refused) pages 290 and 291: An abutting owner has rights not shared by the public at large, special and peculiar to himself, which arise out of the very relation of his lot to the street in front or alley in the rear of it. These rights are property, and as such are as sacred from legislative invasion as his right to the lot itself. Dill.Mun.Corp. § 656a; Story v. Railroad Co., 90 N.Y. [122] 146; [Grand Rapids & Indiana] Railroad Co. v. Heisel, 38 Mich. 62; Adams v. [Chicago] Railroad Co., 39 Minn. 286, 39 N.W. 629 [1 L.R.A. 493]. The abutting owner’s right of access to and from the street, subject to legitimate public regulations, is as much his property as his right to the soil within boundary lines. And when he is deprived of such right of access, or any other easement connected with the use and enjoyment of his property, other than by the exercise of legitimate public regulation, he is deprived of his property. 2 Dill.Mun.Corp. § 487b. * * *

“When a city, without pretense of authority and in direct violation of statute, assumes to grant to a private individual the right to obstruct a public highway, while in the transaction of his private business, it must be regarded as maintaining a nuisance, so long as the obstruction is continued by reason of such license. Cohen v. City of New York, 113 N.Y. 532, 21 N.E. 700 [4 L.R.A. 406], ‘The king cannot license the erection or commission of a nuisance, nor in this country can a municipal corporation do so by virtue of any implied or general powers. * * * The usual power to regulate and control streets has ever been held not to authorize the municipal authorities to allow them to be encroached upon by the adjoining owner by erections made for his exclusive use and advantage.’ * * * The owner of land abutting upon a street or alley, one end of which is obstructed so that he cannot have egress from his property to other streets in that direction, suffers an injury peculiar to himself by reason of the public nuisance (Bannon v. Murphy [Ky.] 38 S.W. [889] 890), and-is entitled to such relief.”-

In a case in which the City of Mission was unable to discharge the burden of proving a valid dedication of the alley the obstruction of which it sought to enjoin, the Supreme Court of Texas has recently condensed, and reiterated, the holding of Kalteyer v. Sullivan, 18 Tex.Civ.App. 488, 46 S.W. 288, supra, into the following unqualified statement of the present law in Texas regarding the powers of a city concerning the closing of its streets (City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, at page 715): “The city controls the streets as trustee for the public. It has no proprietary title nor right to exclusive possession. Its right of control is restricted by its trusteeship. It has the duty to maintain the streets and keep them open and free of obstruction. It can close a street only in the public interest and even then not over the objection of an abutting property owner with a co-existing private easement therein. Kahn v. City of Houston, Tex.Com.App., 121 Tex. 293, 48 S.W.2d 595; Dallas Cotton Mills v. Industrial Co., Tex.Com.App., 296 S.W. 503; 39 Tex.Jur., 603-605.”

In the light of principles enunciated by the Supreme Court of Texas in City of Mission v. Popplewell, supra, the matter of whether or not the alleged Ordinance No. 62-212 of the City of Houston was enacted for a public purpose is immaterial, appellant being an abutting property owner with a co-existing private easement in the roadway which such ordinance purports to close.

The undisputed evidence reflects not only that appellant is the owner of property actually abutting upon that portion of a public street which the purported Ordinance No. 62-212 of the City of Houston seeks to close, but that appellant is the owner of a special private right and easement in and to the use of the disputed easement as a roadway by virtue of having purchased its property by reference to the plat of Tall Timbers Section upon which such easement is shown as a roadway, and also by virtue of the language and legal effect of its deed, conveying to appellant a right to the use of the disputed strip as a roadway as an easement appurtenant to the south reserved tract. In our opinion the cases of Blair v. Astin, Tex. Civ.App., 10 S.W.2d 1054 (writ ref.), and Kahn v. City of Houston (Com.App.), opinion adopted by Supreme Court, 121 Tex. 293, 48 S.W.2d 595, constitute rulings of the Supreme Court of Texas precisely in point to the instant controversy, and holding that, even if the purported Ordinance No. 62-212 be assumed to be within the power of the City as having a legitimate public purpose and in our opinion it does not have, such ordinance cannot affect the private right and easement of appellant in and to the use of the disputed 40 ft. easement as a roadway, and that appellant is entitled to enjoin the closing of such easement by the City of Houston and the obstruction thereof by the City of Houston and appellees.

Appellant’s points of error 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 14, 16, 17, 18, 22, 23, 24 and 25, complaining of the trial court’s failure to hold in accordance with the holdings we have made, are sustained. In view of the disposition to be made by this court a discussion of the other points is deemed unnecessary.

The City of Houston occupies a unique position in this case and at times has assumed positions which are not only untenable but inconsistent.

Based upon the authorities as applied to the facts in this case we are of the opinion that Ordinance No. 62-212 of the City of Houston passed on February 13, 1962, is invalid and judgment is here entered in favor of the appellant vacating and holding for naught said Ordinance which purports to close the easement in question and to grant to the appellees owning lots on either side of the easement the authority to use, enclose and build upon such easement. Further with reference to the City of Houston it appears well settled in Texas and elsewhere in the nation that the owner of property abutting upon a street or highway has a right of access (egress and ingress) to such street or highway and is entitled to just compensation for any interference with or denial or deprivation of this right of access. This is particularly true in the case of appellant herein who has rights as a member of the public and by way of private easement. Any holding to the contrary would arbitrarily deprive the appellant of valuable property rights without any notice or hearing of any kind and without fair compensation.

Based upon our findings and our application of the law to the facts in this case we are of the opinion that the learned trial court erred in granting appellees’ motion for summary judgment. In our opinion the appellant’s motion for summary judgment should have been granted and orders entered by the trial court in line with the relief prayed for by appellant (1) enjoining the appellees from enclosing, using, building upon or in any manner obstructing the 40 ft. easement or any portion thereof so as to interfere with, impair or restrict it to any degree throughout its entire length and to its full width and otherwise providing for the use of such easement as a public street and roadway. And (2) a mandatory injunction requiring the appel-lees responsible for obstructing the south 40 ft. easement in any manner by the maintenance of improvements, structures, bricks or personalty of any kind in such easement forthwith to remove same from the easement so as to permit its use for the purpose of a public street and roadway consistent with the rights of the appellant as defined herein.

Although this court could properly enter the orders above indicated, it is deemed more appropriate from the standpoint of supervision, control, hearings and enforcement to remand to the trial court with instructions as to the entry of such orders. Accordingly the judgment of the trial court is reversed and rendered in part and remanded in part for limited administrative purposes pursuant to the instructions contained herein. Judgment reversed and rendered in part and remanded in part with instructions.


source: Caselaw Access Project

author: FRASER, Chief Justice.

license: Public Domain

text:
    In re ESTATE of Anna T. SORENSON, Deceased. John SORENSON, Appellant, v. The STATE NATIONAL BANK OF EL PASO, Administrator of the Estate of Anna T. Sorenson, Deceased, et al., Appellees.
    No. 5585.
    Court of Civil Appeals of Texas. El Paso.
    July 24, 1963.
    Rehearing Denied Sept. 11, 1963.

      Guinn & Guinn, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, James S. Moore, J. F. Hulse, El Paso, for appel-lees.
   FRASER, Chief Justice.

This is a will contest involving the estate of one Anna T. Sorenson, Deceased, who died on February 2, 1958, in El Paso County, Texas, and was survived by sisters and brothers, nephews and nieces. In April, 1958, the STATE NATIONAL BANK OF EL PASO, Appellee herein, qualified as Administrator of deceased’s estate. Thereafter, in July, 1958, Appellant filed an application for the probate of an alleged “lost will”. Appellees took the position that deceased died intestate. This position was shared by all of the heirs except appellant. In the County Court of El Paso County the Appellant abandoned his effort to prove up the “lost” will, and then sought to prove as a holographic will the probate of two letters written by deceased to Appellant, such letters having been written in February, 1957. These letters were dated prior to the preparation of the so-called “lost” will. The letters and the copy of the alleged “lost” will provided that the entire estate should go to appellant. Appellant, however, abandoned his attempt to prove up the “lost” will when a witness testified that the signed original of such will had been torn into bits in her presence by the decedent in April of 1957, the decedent stating at that time that it was not what she wanted. Then followed the application for probate of the two letters.

The contents of the two letters are as follows:

(1) Letter written on stationery of Southwestern General Hospital, addressed to Mr. and Mrs. John Sorenson, in Corpus Christi, Texas, and apparently mailed in El Paso, Texas on February 17, 1957 (Sunday) :
“Sunday — Dear John and Halley. I expect to soon be out of hospital in fine shape and I wish to ask you and Hallie to do me a great favor — but I would appreciate if the two of you will draw up my will I’m leaving everything to you and her Hallie your wife I think you will have to have a lawyer to make out the will and maybe the two of you work that all out to but just in plain united states English language please do this for me — and after all sickness, and funeral expenses & just debts be paid all goes to you and Hallie — -I’m not able to go to town yet, so as soon as you do this let me know. The bank is going to dig a well on our farm so think of what that will be for you & Hallie Jean is so happy and is in a nice home —John I just notice I did not get letters to you se I intended so this explains, so send stamp — Anna—Thanks.”
(2) Letter written on Southwestern General Hospital stationery, addressed to John Sorenson, in Corpus Christi, Texas, apparently mailed in El Paso, Texas on February 26, 1957 (Tuesday) :
“Monday — Dear Hallie & John. Thanks so much for your nice card but I’m still insisting you & John please carry out my plan about my property (the will) I wont be out yet for a while. I do so much want you to have it, that’s my wish. Enclosed one dollar for which you will buy 3ct stamps for me please as they are out of them here as a rule. This will be a big help for me. Please stamps We all enjoy the riddles I don’t see or hear about Jean but I’m sure she is very happy and the girls doing well in school, her Mother would be as proud of you I know if she were here Well so long — Lovingly your sister Anna stamp please.”

The County Court admitted to probate parts of these letters and rendered its judgment that the appellant was the beneficiary by virtue of such, and therefore entitled to the entire estate. On appeal from the County Count, the District Court rendered summary judgment in favor of those who are Appellees in this court.

Appellant has two points of error, which maintain that the District Court erred in granting the Appellees’ Motion for Summary Judgment, and that there were genuine issues as to material facts which should have been resolved by a trial. After careful study of the letters we believe the District Court acted correctly in granting a summary judgment. It is clear that the decedent here wanted a will drawn up and the letters are evidence of her intention to have this matter attended to. She clearly asks Appellant and his wife to “draw up my will” and suggests that they will have to have a lawyer to do so, and then she further says in her second letter that she insists on this plan being carried out.

Appellant maintains that because she said it was her wish that they should have her estate, and that after the bills and everything had been paid “all goes to you and Hallie”, the letters were sufficient to constitute a will. This last quotation, however, is contained within the sentence where she requests Appellant and his wife to have the will drawn up in plain “united states English language”, the bills paid, etc., because she herself cannot go to town yet. Nowhere in the contents of either letter is there a definite statement conveying or giving her estate to appellant, but merely reiterated assertions that she would like Appellant and his wife to have her estate and then of course she says they must have a will drawn up so that this can be accomplished. That would explain the existence of the purported will which was “torn into bits” by her along with the assertion that it was not written the way she wanted it. We think the District Court was correct in holding that these letters do not meet the test of a testamentary document, or as in this case a holographic will. The animus testandi is not sufficiently or clearly expressed in the letters. There must, in our opinion, be a clear and present intention in order to make the documents presented, a will.

In Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, the court said:

“To give the instrument the legal effect either of a will or other revocation of former wills it must be written and signed with the present intention to make it a will or revocation.”

We think this a good clear statement of the law by the Supreme Court. In Poole v. Starke, 324 S.W.2d 234, a much later case, by a Court of Civil Appeals, the Court said:

“ * * * a will is not established merely by showing an intent to make one.” See also Cay wood v. Caywood, Tex.Civ.App., 216 S.W.2d 821; Crites v. Faulkner, Tex.Civ.App., 245 S.W.2d 1013.

We feel that the matter before us is controlled by the above cases and that as the letters do not meet the rules and tests set forth in the above decisions, the District Court was correct in declining to admit them to probate as a will.

We should also like to point out that in the well known case of Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, the Supreme Court, after discussing the case before it and citing other cases, stated as follows:

“ * * * [w] e are not permitted, however, to lift such statement out of context, but must consider the same in the light of all the provisions of the instruments.”

The statement involved in the above case (Hinson v. Hinson) was “Everything is yours, Darling.” The Court carefully pointed out that such a statement might have been effective to pass decedent’s property had it been contained in a properly executed instrument intended as a will. The County Court in the case before us admitted parts of the letters to probate.

The courts of other states have had this matter before them and several of them have required the same tests to be applied to a document in order that it be entitled to probate as a will. For example, in an old case styled McBride v. McBride, 26 Grat. (67 Va.) 476 (1875), decided in the state of Virginia, the Court there said:

“ * * * it must satisfactorily appear that he intended the very paper to be his will. Unless it does so appear, the paper must be rej ected, however correct it may be in its form, however comprehensive in its detail, however conformable to the otherwise declared intentions of the party, and although it may have been signed by him with all due solemnity, * * * ”

This case was cited in Brackenridge v. Roberts, supra. In California, the court there said (In re Kisling’s Estate, 68 Cal.App.2d 163, 156 P.2d 57) :

“However, before a document will be admitted to probate as the last will and testament of the decedent, it must satisfactorily appear that the maker of the instrument intended by the very paper itself to make a disposition of his property in favor of the party or parties claiming thereunder.”

We have set forth in detail the above authorities,, as well as full copies of the two letters involved, because the courts have always tried as far as possible to give full intent to a decedent’s wishes. However, this can only be done when the document or documents proposed, satisfactorily meet the tests outlined in the above decisions. As we have said earlier, we do not believe the two letters here evidence anything more than an intention or desire on the part of the deceased to dispose of her property to Appellant and his wife by means of a will to be prepared. We cannot find in the two letters any evidence that such were to be the will of the decedent, or were intended to transfer or dispose of any of her property. They were merely manifestations of her intent and desire at that time.

Appellant relies heavily on the case of Barnes v. Horne, Tex.Civ.App., 233 S.W. 859. Without quoting at length from this case we see no conflict, as there is a different type of language involved, as there the writer said

“ * * * I will do everything I can for her and everything I have is hers if I happen to cash in.”

In this opinion, the Court says as follows:

“An instrument is testamentary in character when it makes a disposition of the testator’s property, or a portion thereof, to take effect at his death.”

Also, the Court makes the following statement:

“If, on the other hand, he meant only to say that he expected to make a will, and to state how he intended to dispose of his property in such will, then the language used would not constitute a will.”

In conclusion, we repeat that after careful examination of the letters proffered by the proponent and the authorities cited herein, we are constrained to hold that the letters do not meet the tests as outlined above, and constitute only an intention or a wish to have a will prepared so that Appellant might obtain her property at her death. We cannot find words of present intention or disposition. Therefore, Appellant’s points are overruled, and the judgment of the trial court is in all things affirmed.

Affirmed.


author: BELL, Chief Justice.

text:
    AETNA LIFE INSURANCE COMPANY, Appellant, v. Winifred H. McLAUGHLIN, Appellee.
    No. 13971.
    Court of Civil Appeals of Texas. Houston.
    July 11, 1963.
    Rehearing Denied Sept. 12, 1963.

      Fouts, Moore, Williams & Caldwell, Houston, T. J. Caldwell, Jr., Harold L. Ogden, Houston, of counsel, for appellant.
    Bracewell, Reynolds & Patterson, William H. White, Houston, for appellee.
   BELL, Chief Justice.

Appellee, surviving widow of Washington L. McLaughlin, sued appellant to recover on a group accidental death and dismemberment policy of insurance issued by appellant to Southwestern Drug Corporation for the benefit of the employees of the latter. Mr. McLaughlin was an employee of the Drug Corporation. He was killed when hit by a bus on February 22, 1959. The accident occurred just after midnight on the Houston-Hempstead Highway near its intersection with West Little York Road in Harris County. Appellee’s theory was that death was accidental. Appellant’s theory was that it was the result of suicide. The jury found it was not the result of suicide. The court rendered judgment for appellee against appellant for $6,500.00, the amount of the policy, together with the statutory penalty and interest and $2,184.00 as attorney’s fees.

Appellant’s policy excepted from the risk, among other things, death resulting from suicide by the employee whether he was sane or insane: As an affirmative defense appellant pled in this manner:

“For further special answer herein this Defendant would respectfully show that policy and certificate of insurance sued upon by Plaintiff herein each provide, among other things, that the insurance thereunder does not cover any loss caused directly or indirectly, wholly or partly, or contributed to substantially by bodily or mental infirmity; or suicide, sane or insane. This Defendant pleads the death of Washington L. McLaughlin was caused by suicide(emphasis ours)

The court submitted only an issue on whether death was caused by suicide. The issue and accompanying definition were in this form:

“Do you find from a preponderance of the evidence that the death of W. L. McLaughlin was not the result of suicide?
“Answer: It was the result of suicide or It was not the result of suicide.
“You are instructed that by suicide is meant intentional self destruction and that one may commit suicide although insane or intoxicated so long as the act is the result of the exercise of his own will in any degree, and he understands the nature and probable consequences of his act.”

Appellant objected to the form of the issue in this manner:

“Each and all of the defendants' (there were other defendant insurers under other policies who have not appealed) object to the Court’s definition of the term suicide for the reason that it fails to advise the jury that in order for an act to be suicide it is not necessary that the person so committing suicide have a rational understanding of the nature and probable consequences of his act, and for the further reason that the phrase contained in such definition reading ‘and he understands the nature and probable consequences of his act’ is unnecessary and constitutes a comment on the evidence and should be stricken from such definition, and the defendants move that such phrase be stricken from the definition.”

There were no special issues requested by appellant and no objection to the charge for failure to include other specified issues.

It is appropriate here to notice that in this appeal appellant contends that deceased’s death resulted at least in part from bodily or mental infirmity because he was drunk from the use of alcoholic beverages at the time of his death and this condition could be said to be in part the cause of his death because it caused him to go in front of the bus. Appellant cannot rely on this theory even assuming it to cover the facts developed. First, it was not relied on in the pleading. It is true that appellant pled that such exclusion was in the policy, but it limited its defense by specifically pleading that death was caused by suicide. As shown above, appellant pled this exclusion was a part of the policy and the exclusion where death was the result of suicide, sane or insane, but it immediately followed it with the specific allegation that deceased’s death “was caused by suicide (emphasis ours) The effect is to give notice that it was only relying on suicide as a defense. Had there not been this limiting allegation, the other allegations, in the absence of special exception, would probably have been sufficient. Exclusions in the policy are affirmative defenses and are waived if not pled. Rule 94, Texas Rules of Civil Procedure. Second, it may not rely here on the defense because there was neither a request for an issue submitting this independent ground of defense, nor an objection to the charge for failure to include a submission of this theory. Since such issue would have been appellee’s an objection to the omission would have sufficed. There was thus a waiver of any such defense. Rule 279, T.R.C.P. If it be thought a jury finding was unnecessary because intoxication was indisputably established, it is to be answered that in such case a requested conclusion on the independent ground of recovery must be requested in the motion non obstante veredicto or for instructed verdict. Meacham v. Loving, 155 Tex. 279, 285 S.W.2d 936.

Apart from alleged procedural errors, which we will later notice, appellant ■contends that the jury’s answer finding death was not the result of suicide is so contrary to the overwhelming weight and preponderance of the evidence as to he clearly wrong. In appraising this point we must consider the entire record. In re King’s Estate, ISO Tex. 662, 244 S.W.2d 660. Also the position of appellant is that the charge given was erroneous because its policy excluded death by suicide, sane or insane, and the effect of the charge is to allow recovery even though deceased was insane from drinking alcoholic beverages. Apparently its position here is that if the probable consequences of the acts that the insured does are such as will result in his death, his beneficiary cannot recover even though he may actually have had no purpose to destroy himself. Expressed otherwise, its contention is that even though deceased was so drunk he could form no intention to take his life, there can be no recovery if the acts of deceased were such that had they been committed by a sane person, such person could not recover. Its position is that though deceased may not have been able to rationalize his lunging in front of the bus, still there can be no recovery because a sane person doing that act could not recover. On the other hand, appellee’s position is that to be a suicide there must be a purpose on the part of the deceased to destroy himself. We think the substance of appellee’s position is that by its very definition suicide is intentional self destruction and if one is in such condition that he cannot form such an intent his death cannot be said to result from suicide. Also, appellee contends there was no evidence of insanity. We do not mean this is the sole contention of appellee. She also contends, apart from the mental condition of deceased, the evidence shows his death was purely the result of accident and shows the absence of any purpose to destroy his life.

We do not need to decide whether Texas follows the majority rule that where the policy excludes death by suicide, sane or insane, the acts of deceased will bar recovery, even though he was insane to the extent he could form no purpose to take his life, if such acts had they been committed by a sane person would be a bar to recovery for the death of such sane person. See 35 A.L.R. 166, 138 A.L.R. 829, and 153 A.L.R. 801. The minority view is that if the deceased is so completely insane as to be unable to understand the physical nature and consequences of his acts, then there may be recovery because in such case he does not intentionally take his life.

We think the case was tried below on the theory of the minority view.

We should here notice the evidence. It appears that deceased was a salesman for Southwestern Drug Corporation and had been for about twelve years. He had a fine record with the company and any drinking of intoxicants was not of such a nature as interfered with his work. There seems to have been some estrangement between deceased and his wife though he lived in the home with her. The evidence is such that the jury could easily conclude that there was not what would accurately be called an estrangement, but there was merely a state of complaint by appellee concerning deceased’s drinking and his keeping company at times with other women. Deceased seems to have felt because of appellee’s complaints that he was misunderstood. He nevertheless continued to live with appellee though they had not for some months prior to his death stayed in the same bedroom. Appellee testified their differences were not out of the ordinary.

A woman named Rita Romans was the one with whom he was having an affair at the time of his death. It is not necessary to notice her testimony with regard to the affair other than that he spent some very brief number of days at her apartment from time to time and that he wanted to get a divorce from his wife and then marry her. She was not interested in marriage. We must, however, notice her testimony as to deceased’s conduct from Friday preceding his death until just a short time before his death when lie got out of the automobile on West Little York Road just off of Hemp-stead Highway. About 2 p. m. on'Friday, February 20, 1959, deceased came to her home and they went to look for an apartment. About 7 p. m. they started for Granger, Texas, where deceased was reared. That night they stayed together at a motel in Taylor, Texas. Deceased was drinking whiskey all the way from Houston. Deceased drove around Granger showing his companion various spots that were fond to his heart. Saturday morning they went back to Granger and again visited places deceased remembered from his youth. They took some pictures of some of such places. They visited deceased’s aunt. They rode around until they met an old settler that knew deceased’s family. He and deceased talked about an hour. Deceased and Rita then ate. After eating they went to a motel in Taylor. Deceased got another bottle of whiskey and continued his drinking. She read and he watched television. After a time deceased began telling Rita that she did not love him. He kept “cussing and going on” and Rita took the whiskey and broke the bottle in the sink. He kept up his raving and Rita got mad and hit him on the shin with a pitcher. The pitcher broke, cutting him on the shin, and a piece flew up and cut him on the thigh. The cuts were pretty bad. She rendered first aid to him. Because of his conduct, she tried to call her mother in Houston but he would not let her. He thought she was trying to leave him and stated if she did he would get in front of a car and let it run over him and no one would know she had cut him. She stood in the door to prevent his going into the street and he knocked her down. She tried to call the motel office to ask that the police be called but he jerked the telephone from her. They went to the car. He planned to drive and when she tried to prevent it, he knocked her down. She then went into the motel and called Mrs. Spill-man, deceased’s niece, and told her what happened. By this time it was dark and deceased allowed Rita to drive. They started back to Houston. At Giddings he made her get him some more whiskey. They got to Brenham about 10 p. m. She was trying to find a hospital. She finally found a mats who said he would show her where one was. Deceased then said if she was going to leave him he might as well let a car run over him. Deceased got out of the car and walked down the middle of the street and Rita drove slowly behind him, keeping the car lights on him. He then got back into the car and they headed for Hempstead. Here they ate and he asked her to go to a motel but she said she was going on to Houston. He again started walking down the highway and she followed in the car with the lights on him. He ran in front of a car that pulled off the road. Soon he got back into the car and they drove toward Houston on the Hempstead Highway until they got to West Little York Road. They turned onto that road and he stepped on the brake, stopping the car. He jumped out and started toward the Hempstead Highway. He was walking on the shoulder of the road. She drove on and left him as she said she had had all she could take. She called his niece, Mrs. Spillman, and told her what had happened. She left the car in front of Mrs. Spillman’s and left the keys and deceased’s billfold in the door at Mrs. Spillman’s. She found out the next morning about his death.

In appraising Rita Romans’ testimony it should be noted that cross-examination revealed that she had during investigation been very cooperative with representatives of various insurers who were, or possibly might be, involved, and was extremely uncooperative in letting representatives of ap-pellee know what she purported to know. Too, there were some things she said in her testimony in court that she did not put in her statement to the police. Further, she was shown to be a person of easy virtue.

Mrs. Spillman, the niece, was very close to deceased, having been reared in his mother’s and father’s home with him. She testified the last two or three years of his life he told her he was unhappy because his wife stayed in the room with her mother all the time and would not share his room. Too, he told her he was allowed only a dollar a day expense money. He was a mentally disturbed person. He was nervous, unhappy, and he drank. She knew he was keeping company with Rita. He told her he was in love with Rita. About two months before his death he talked about the possibility of getting a divorce. He told her his wife was hard to talk to. On Thursday before his death she talked with deceased. He was tired and upset and said he was so tired and depressed he felt like walking in front of a car. He had previously said the same thing several times. It began years before when he came back from the army. Rita called her from Taylor and Hempstead, and then from Houston.

On cross-examination it was developed, as in the case of Rita Romans, that Mrs. Spillman was very cooperative in the investigation with insurers’ representatives and very uncooperative with appellee’s representatives. Too, it was brought out that she had not in some statements she had made told of all the times deceased was supposed to have threatened to take his life. When her deposition was taken she was unable to recall any such threats except on Thursday before his death. In her deposition she had said nothing about possible divorce from Mrs. McLaughlin and then marriage to Rita Romans. Though she was told of deceased getting out of the car at West Little York Road, she did nothing to notify Mrs. McLaughlin or go to his assistance.

Mr. Ismonde, an investigator for the Harris County Medical Examiner’s office, who formerly did work with the claims service that investigated this case for the liability insurance carrier who carried insurance on the bus involved, testified when he called Mrs. McLaughlin and notified her of the death she told him she had been expecting something like this to happen because when he had on previous occasions been drinking he threatened to take his life. She said the same at the morgue. This was denied by Mrs. McLaughlin.

Evidence from numerous witnesses who visited deceased and appellee in their home spoke of deceased’s congeniality, his happy nature and the apparent compatibility between them' as husband and wife. They attended church together fairly regularly. Some witnesses worked with deceased. He was well liked. He was a valuable employee. He was in no wise in default in performance of his duties. He was a successful salesman. His drinking did not interfere with his work. There was no showing he was in any financial strain. No one else had ever heard deceased threaten to take his life. Too, he had never talked with his wife about a divorce.

The bus that hit deceased was chartered to take students of Spring Branch High School to a speech tournament at Waco. It was returning at the time of the accident. Mr. Rex Fleming, a teacher who was on the bus, testified about the actual collision. Just before the accident he heard the bus driver say something. The witness looked up and saw deceased in the left lane of Hempstead Highway. This would be the lane to be traveled in going from Houston to Hemp-stead. The bus was in the right lane coming into Houston. It was 50 or 60 yards from deceased. Deceased seemed to hesitate a moment. He then walked to the center lane, looked up at the bus, hesitated a moment and it looked like he was going to turn around and walk back. As the bus approached he threw his hands over his head and lunged in front of the bus. The manner in which he threw his hands up was demonstrated. We do not know what the demonstration portrayed. The jury saw it; they knew what was portrayed. Deceased was moving across the highway toward the shoulder on the right side coming into Houston. This shoulder would be where a person would go to catch a bus on the outskirts of a city. In a previous statement given a day or two after the accident the witness had said deceased moved toward the center and hesitated and then “ventured” in front of the bus. He said nothing about throwing his hands over his head.

Russell White was a student on the bus. He heard the driver honk the horn and looked up and saw deceased standing in thé highway about the middle of the left lane. The bus was traveling 50 or 55 miles per hour. While standing in the left lane deceased looked at the bus, went across to the center lane, stopped, again looked at the bus, and threw his hands over his head and this is when the bus hit him. It looked like he lunged just as the bus swerved. He demonstrated deceased’s movement but we cannot tell from the record what posture was portrayed. In a statement previously given the witness had not said anything about deceased throwing his hands up. He lunged in the direction toward the shoulder on the right hand side of the highway.

The driver of the bus was so upset that apparently he was never able to talk about what occurred. He did not testify.

We are unable to say that in the light of the whole record the jury’s answer that deceased’s death was not suicide is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. The jury could have reasonably concluded that deceased did not deliberately lunge in front of the bus in order to kill himself, but rather he was attempting to cross the highway and on seeing the oncoming bus became confused and at the last moment lunged to get across the road ahead of the bus. The jury could have reasoned he was attempting to cross the road to catch a bus. He lived across Houston from where he was. He could get that great distance only by walking or by catching a ride. It is a matter of common knowledge that intercity buses stop along the highway between cities to take on passengers. While the accident occurred in the city limits, it was at a point about 15 miles from downtown Houston. The jury could have concluded, if it believed he threw his hands over his head, that this was reflex action on seeing he was going to be hit. It did not have to believe he threw his hands above his head because the witnesses in previous statements had not said so. Also there was a dispute concerning whether deceased had previously threatened to take his life and if so how many times. The jury could have well concluded that he had not, in the light of all of the testimony. Too, they could have reasoned, if they believed Mrs. Spillman and Rita Romans about how frequently he threatened to take his life over a period of years, that such threats were idle ones made with no such intent but to gain attention.

We are of the view there was no error in overruling the objection made to the charge. The objection was that it failed to state deceased’s understanding of the nature and probable consequences of his acts did not have to be rational. The definition as given made no requirement that his understanding be a rational one. In the light of the evidence adduced the court was seeking to find out if deceased purposed to take his life. Even though a person be insane to come within the exclusion of the policy he must have a purpose to take his life. Suicide is intentional self-destruction. Un-, der the evidence no issue of insanity, apart from intoxication, was raised. The evidence does show deceased drank whiskey almost continuously from 7 p. m. Friday until his death early Sunday morning. It shows he was drunk. Dr. Crain testified a person could drink to the extent he could not form an intention to take his life. There was, we think, sufficient evidence to raise the issue of temporary insanity produced by the drinking of intoxicants. We are also of the view that if he was so drunk he could form no intention to take his life, then he did not commit suicide even if he walked in front of the bus, and we think it was tried on such theory. In any event, the charge given was sufficient to inquire if deceased purposed to take his life and there is no suggestion that his understanding of the nature and probable consequences of his act must be a rational one.

The charge given was not a comment on the weight of the evidence.

Appellant complains of the admission of the testimony of Dr. Crain, a psychiatrist, that in his opinion in the light of the facts recited to him, the deceased did not intend to commit suicide. Dr. Crain gave his opinion in answer to a hypothetical question. He had never seen deceased. He was asked to read the statement of Rita Romans. Such statement was in substance the same as her testimony above recited. He was asked to assume the facts stated were true except with regard to threats to take life and walking in the highway. He was then asked to assume other facts that were in evidence, ■such as his 24 year marriage, his drinking, his extra-marital affairs, his work performance, the absence of any psychiatric treatment, his good health, and the facts shown in connection with his crossing Hempstead Highway. Objection was made to any expression of opinion on the grounds that some facts proven were not included in the question and because the witness would be invading the province of the jury and the subject of' whether he committed suicide is not subject to expert testimony. The objection was overruled. The witness answered it was his opinion there was no plan to commit suicide, but the character of the deceased evidenced by the facts shown is of a person who seldom commits suicide. Such persons make threats but they are looking for sympathy and attention. Then the witness was asked to assume additionally the truth of Rita Romans’ statement about his threats and his walking in the highway. The witness gave the same opinion. On cross-examination he stated the action of deceased as he was crossing the highway was that of a stumbling drunk who did not know what he was doing.

In appraising the asserted point of error, we must additionally notice that appellant, over appellee’s objection, had introduced in evidence the death certificate. This certificate, signed by the Medical Examiner for Harris County, showed death was the result of suicide. While appellee contends it was not admissible, it suffices to say that it is made admissible as prima facie evidence of all facts stated by Article 4477, Rule 54a, Vernon’s Ann.Tex.St The result of appellant’s action is that it had introduced opinion evidence from a physician as to whether under the facts deceased committed suicide. We think appellee should have been permitted, under such circumstances, to refute the prima facie case of suicide made by this expression of opinion by the introduction of the same character of testimony. See Marker v. Prudential Insurance Co. of America, 273 F.2d 258, 5th Cir.

Appellant next complains of various portions of argument by counsel for ap-pellee. The argument first complained of is that which appellant denominated “Comment on resources of defendants.” Under this it complains of the argument where counsel stated in opening argument the defendant with all of its resources had been unable to find one instance where deceased had tried to commit suicide. In the closing argument it was stated Wilson, the bus driver, was a silent witness and all members of the jury knew defendant with all its resources could have had him present or explained his absence. When objection was made to the arguments the court sustained the objections and instructed the jury not to consider them.

The argument in neither instance was of such a nature as to appeal to prejudice and to contrast the wealth of appellant and ap-pellee. Certainly it is of a nature that any harmful effect could be removed by instruction. Such instruction was given.

The next argument is classified as “Appeal to prejudice and sympathy.” From the opening argument is this statement:

“Now, this obligation (to take care of his wife) he (the deceased) couldn’t enforce about two and a half years ago, and it passed into my hands to see that it was done. I have carried it for two and a half years and I haven’t carried it well at times. I realize that. I have done all that I can do for her. I am passing the obligation to you now. She is in your hands.
“Mr. Gresham wants you to put aside your emotions, be as cold hearted as he is about this thing. Let me say to you this. I want you to use your reason too. When you read these statements you tell us if that is reasonable or not. But I don’t think you need to be afraid of your emotions when it is the right emotion, and you know what I am talking about. The bus driver was crying after he killed this man. I am not castigating him for it but I dare say Mr. Gresham is not going to tell you or criticize that emotion at that time. If it is the right emotion you know deep down in your heart whether it is the right thing to do or whether it isn’t in this case. This is your conscience talking to you, and I say to you you can follow your conscience. She has been the victim of two designing women. She has been the victim of an unfortunate accident, and God help her if she now becomes the victim of these insurance companies.”

On objection the court sustained it and instructed the jury not to consider it. The argument was not of a nature that its harmful effect could not be removed.

The closing argument under this label that is complained of is as follows:

I think it will be a sad day of the insurance business of Texas or any other country when it comes to the point that the investigators of the insurance companies will beat the unfortunate widow to the morgue where the mangled body is * * *.
“Where is the conspiracy when two people unite in an unlawful enterprise to effect an unlawful purpose. What else can you call it but a conspiracy between these two women to get away from the wife of the altar * * * Who did she (meaning Rita Romans) phone after that drunken orgy? She phoned Evelyn Spillman * * * But you cannot reach any other conclusion that Evelyn (meaning the witness Evelyn Spillman) whatever her motive was was working with this Rita Romans in order to effect their unlawful relations * * *.
“McLaughlin (the deceased) made a terrible mistake. He had a weakness about him that he couldn’t overcome the temptation and he yielded to it. But when you tell me that W. L. McLaughlin was all bad and there was no good in him, you are just saying something that I do not agree with. It seems to me like these four insurance companies after having carried these policies and taken his money as long as they did were almost in a position of defaming the name unnecessarily of W. L. McLaughlin * *

No objection was made to any of this argument except the last paragraph. On objection to it, the jury was instructed not to consider it. The argument again was of a nature that an instruction would remove its harmful effect.

The judgment of the Trial Court is affirmed.


author: WALTER, Justice.

text:
    William A. FULLER, Appellant, v. Jack WILKIE et al., Appellees.
    No. 3809.
    Court of Civil Appeals of Texas. Eastland.
    June 28, 1963.
    Rehearing Denied Sept. 6, 1963.

      Carter, Gallagher, Jones & Magee, Dallas, for appellant.
    Rosenfield, Berwald & Mittenthal, Dallas, for appellee Jack Wilkie.
    William P. Gibson and Wallace G. Malone, Dallas, for appellee Texaco, Inc.
   WALTER, Justice.

William A. Fuller filed suit against Jack Wilkie and Texaco, Inc., for breach of contract. The court sustained the defendants’ motions for summary judgment and denied the motion of plaintiff for a partial summary judgment. The plaintiff has appealed.

Fuller alleged that he purchased a service station business from Wilkie at 9507 Garland Road in Dallas, and that Wilkie agreed not to re-enter the filling station business within a radius of three miles from such address within two years from the date of the agreement. He further alleged that Texaco and Wilkie knowingly conspired to break and did break the contract and that he was damaged thereby.

Wilkie and Texaco pleaded that Don Fuller, a son of appellant, executed a release of the restrictive covenant.

Appellant filed a motion for a partial summary judgment and relied on the depositions of Pendell Pittman, Jack Wilkie and W. A. Fuller. He sought a judgment that the waiver executed by Don Fuller was not, as a matter of law, a defense to his cause of action because it was executed without consideration and Don had no authority to execute the waiver.

The last paragraph of Wilkie’s contract, which was not dated, with Fuller was as follows:

“And also as part of the consideration of this sale, it is agreed and understood that I, the said Jack Wilkie, will not go back in the service station business within three miles of 9507 Garland Road and a period for two years.”

Wilkie filed an answer to Fuller’s motion and a verified motion for a summary judgment and relied on the release of the restrictive covenant. He alleged that the release was executed by William A. Fuller, acting by and through his partner and son, Don Fuller; that Don Fuller was expressly or impliedly authorized to execute the release; that William A. Fuller clothed his son with actual and apparent authority to execute the release. Wilkie relied on appellant’s deposition; an application by appellant to the Comptroller of Public Accounts for the State of Texas for a license; a Limited Sales Tax Permit from the Comptroller, and appellant’s reply to Texaco’s request for admissions in support of his motion. Texaco’s motion for a summary judgment alleged that the release was binding upon appellant because it was executed by Don Fuller either as a part owner or with full authority.

The issue involved is whether Don Fuller had authority to execute the waiver of strict compliance with the agreement. We have concluded that the record discloses that he had such authority and affirm the judgment.

Approximately two months after the transfer of his station to Fuller, Wilkie opened a new filling station within approximately 2.6 miles of the station he sold to Fuller. Don Fuller executed an instrument waiving the 3 mile provision in the original contract.

William A. Fuller testified in his deposition that he told a representative of Texaco that his son, Don Fuller, would be in charge of the station and that he did not place any limitation on what his son could do for him while he was operating the station.

In his verified reply to Texaco’s request for admissions, Fuller admitted that he signed an application to the State for a license to operate the business and listed W. A. and Don Fuller as the owners; that he received a Limited Sales Tax Permit from the State which listed W. A. and Don Fuller as the owners and that it was displayed at the service station. Appellant did not deny under oath the allegation of partnership nor reply to appellees’ motion for .summary judgment.

In Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415, 418, the court said: “Citing from Stanolind Oil & Gas Co. v. State, 1940, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 5.69 (1), 570: ‘The authorities hold that where a litigant admits positive and definite facts, which if true would defeat his right to recover, and such statements or admissions are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, he is conclusively bound by such admissions, and cannot successfully complain if the court directs a verdict against him,’ citing numerous authorities from Texas and other cases.”

After the appellees made out their case, it was incumbent upon appellant to come forward with some evidence if he expected to defeat the motion. Our Supreme Court in the case of Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 951, said: “If the defendants expected to defeat the motion for summary judgment by showing an issue of fact as to whether the note was conditionally delivered, it was incumbent upon them to come forward with ‘evidence’ sufficient to raise .that question.”

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

The judgment is affirmed.


author: DAVIS, Justice.

text:
    Mrs. Kathleen MYERS, et vir, Appellants, v. Mrs. Estelle SPHARLER, Appellee.
    No. 7491.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 13, 1963.
    Rehearing Denied Sept. 3, 1963.

      L. L. James, Tyler, for appellants.
    Bath, Turner & Lloyd, Henderson, for appellee.
   DAVIS, Justice.

The opinion handed down in this case on July 16, 1963, is withdrawn and the following is submitted in lieu thereof.

A Will contest. Appellee, Mrs. Estelle Spharler, filed an application in the Probate Court of Rusk County to probate the lost Will of her husband, Edwin C. Sphar-ler, deceased. The appellants, Mrs. Kathleen Myers, joined by her husband, filed a contest. On June 11, 1962, the probate judge denied the application. On June 15, 1962, appellee found the Will which purported to be the same as the lost Will. On the same date she filed a motion for a new trial. On July 2, 1962, the motion for new trial was overruled. An appeal was taken to the district court.

After the appeal was perfected, the ap-pellee filed an amended application wherein she sought to probate the Will. The district judge overruled a motion to dismiss the appeal. At the trial, the appellee proved that the Will was substantially the same as the lost Will which she sought to probate in the probate court. The district judge admitted the Will to probate on the amended pleadings. Appellants excepted and have perfected their appeal. They bring forward 13 points of error.

Points 1, 4, 5, 7, 8, 12 and 13 are without any merit and are overruled.

By their points 2, 3, 6 and 9 they say the court erred in admitting the Will to probate and in holding that the Will that was offered for probate in the district court was substantially the same Will as the lost Will which they sought to probate in the county court. The appellee tried to probate the Will in the probate court under Sec. 85 of the Probate Code, V.A.T.S. 44 T.J. 918. It was proved by the witnesses in the probate court that they had read the Will, and that they had witnessed the same. Such was the proof in the district court. It was further proved that the Will was substantially the same as the lost Will which they had sought to probate in the probate court

The jurisdiction of a district court after an appeal is taken in probate proceedings is appellate only. The issues, are confined to those made in the probate court. The appellee tried to probate the Will in the probate court. She excepted to-the judgment of the probate court and perfected her appeal to the district court. She then filed her amended pleadings, and alleged facts that did not create any new issues. She was merely trying to probate the last Will of her husband. This, she was entitled to do. Saros v. Strickland (Tex.Civ.App.), 148 S.W.2d 865, error dism.; Arredondo v. Arredondo (Tex.Civ.App.), 25 S. W. 336, N.W.H.; McLane v. Paschal, 62 Tex. 102; Mills v. Baird (Tex.Civ.App.), 147 S.W.2d 312, error refused. The points are overruled.

By her points 10 and 11 the appellant takes the position that the court erred in holding that the witnesses testified to facts necessary to support the probate of the Will and in holding that all necessary proof required had been made. On examining the statement of facts we find that the witnesses testified to all the facts necessary to support the Will, and the testimony is sufficient to support the findings of the district judge. The points are overruled.

The appellants will have fifteen days after the date of this opinion to file a motion for rehearing.

The judgment is affirmed.


text:
    Eleanor FARRELL, Appellant, v. Dean F. FARRELL, Appellee.
    No. 3806.
    Court of Civil Appeals of Texas. Eastland.
    July 19, 1963.
    Rehearing Denied Sept. 6, 1963.
    John A. Pace, Dallas, for appellant.
    Wise & Stuhl, Dallas, for appellee.
   WALTER, Justice.

Our Opinion of June 21, 1963, is withdrawn and the following is substituted therefor:

Eleanor Farrell filed suit against Dean F. Farrell for a divorce, custody of their children and for a determination of their property rights. When the plaintiff rested, the defendant filed a motion for an instructed verdict. The court withdrew the case from the jury and granted plaintiff a divorce and custody of their children. He also divided the property. Eleanor Farrell has appealed from such judgment.

She contends that fact issues were made by the pleadings and the evidence on the issue of whether some of the property was her separate property.

Their property consisted of investments in real estate, notes, common stocks and other properties of the approximate value of $286,000.00. Appellant had been successful in buying and selling common stocks. She said: “I have been engaged in the brokerage field since 1937, and I buy and sell, I am a trader, I buy and sell a great deal.” The appellee is an accountant. At the time of his marriage to the appellant in 1944, he owned a house on Glenwood Lane and stocks and other personal property valued at about Twelve or Fourteen Thousand Dollars.

Mrs. Farrell testified that she did not consider that any part of the dividend, rent or interest income belonged to Mr. Farrell. During their marriage she had received approximately $88,927.87 in dividends from stock. At the time of her marriage she owned stock in Anaconda, Chrysler, Shat-tuck Denn Mining, Wheeling Steel, Bethlehem Steel, Pittsburg Screw and Bolt Company, LeTourneau and Rhem Manufacturing Company and some real estate. Mrs. Farrell sold all of the stock that she owned at the time of her marriage except the Shattuck Denn and the Anaconda Copper which was awarded to her. The real estate was sold and the proceeds commingled with community funds. In attempting to trace the proceeds from the sale of the Chrysler stock which she owned before marriage and which she sold after she married for approximately $1,339.00, she was asked the following question: “Now, this Chrysler stock you realized $1,339.31 on, what stock did you buy with that stock?”, and she answered “Mr. McCarthy, it just isn’t possible to go into things like that, it is over a period, because it is over a period of years that the different stocks were bought and they were sold and with the uh — uh—what do you call it, the gain one would say from the sale of one stock and maybe the loss from another would off-set it, you see.”

Appellant attempted to trace the cash payments on the purchase price of some of the real estate to her separate property. She maintained a checking account in the Preston State Bank in her name. She deposited funds that she withdrew from her stock account. She also deposited rents and other income in her bank account. The down payment or purchase price on some of the real estate in dispute was made with checks drawn by appellant on her bank account. With the exception of the life insurance policies and the Anaconda and the Shattuck stock, all of the property awarded to the appellant and the appellee in the judgment was acquired by purchase during their marriage. The court awarded the appellant the stock accounts at Merrill Lynch, Pierce, Fenner & Smith and E. F. Hutton Company and all of the common stocks. She was also awarded a part of the real estate and other property valued by the court at approximately $195,000.00. The property awarded to the appellee was valued by the court at approximately $91,-000.00.

The judgment recites “the court after hearing all of the evidence is of the opinion that with due regard to the rights of each party that a division of said property hereinafter made will be just, right and equitable.” Article 4638, Vernon’s Ann. Tex.Civ.St. reads in part as follows: “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any.” Concerning said article our Supreme Court in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 at page 1005 said: “That statute clearly vests discretion in the trial court in determining the proper division of the community estate of the parties. The court is not required, as a matter of law, to divide that estate equally between them.”

We have concluded that the funds of the parties have been so mixed and commingled that the amounts of the separate and community funds cannot be determined. Appellant’s inability to trace the proceeds from the sale of her Chrysler stock is a typical illustration of appellant’s inability to trace her separate funds. After considering this voluminous record, we have concluded that the trial court’s judgment is correct. Although we have concluded that the judgment is fair, just and equitable, the appellant has not presented a point of error that the division of the property by the trial court was not fair, just and equitable. In Williams v. Williams, 160. Tex. 99, 325 S.W.2d 682 at page 684 our Supreme Court said: “The trial court’s conclusion that the division was fair, just and equitable is an independent conclusion and will support the judgment. It was not attacked by point of error in petitioner’s brief in the Court of Civil Appeals. The judgment of the Court of Civil Appeals may rest on that conclusion.”

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

The judgment is affirmed.


author: BARROW, Justice.

text:
    Walter LEBER, Appellant, v. R. A. ADAMS et al., Appellees.
    No. 14140.
    Court of Civil Appeals of Texas. San Antonio.
    July 24, 1963.
    Rehearing Denied Sept. 4, 1963.
    Bloch & Walton, Corpus Christi, for appellant.
    Luther E. Jones, Jr., Corpus Christi, Burnett & Burnett, Sinton, for appellees.
   BARROW, Justice.

Plaintiffs, R. A. Adams, A. A. Turner and Ivan C. Baucom, sued for and obtained a permanent injunction which ordered Walter Leber to remove a caliche block he had placed in a drainage ditch on his land, and forbade him from doing anything which would impede the natural flow of water through that ditch. Leber has appealed. Leber contends that he had the right to block the unnatural and concentrated flow of waters which pour onto his lands from his neighbors.

Plaintiffs and defendants are owners of flat farm land in San Patricio County, which is burdened with a drainage problem. The plaintiffs’ lands are west of and separated from Leber’s tract by a spur railroad track, a county road and a ditch to the east of the county road. This ditch, hereafter called the “road ditch”, is on the west boundary of the Leber tract and drains both north and south. The plaintiffs’ lands and the Leber tract are bounded on the north by the main line of a railroad and another county road which runs east and west and are intersected by the north-south county road and “road ditch”. These railroad tracks, ditches and county roads prevent the flow of surface water from flow mg' in a diffused state which would naturally be toward the east and northeast. The ditch in question, hereinafter called the “Leber Ditch” intersects the “road ditch” a short distance south of the intersection of the “road ditch” and the main line of the railroad.

For more than twenty-five years before this suit was filed the lands of plaintiffs had been drained, however poorly, through a series of artificially created ditches which go under the spur railroad track and the north-south county road by three culverts into the “road ditch”. There was a block in the “road ditch” just south of where it intersected the “Leber Ditch”. As a result of this block, “Leber Ditch” was burdened only with water that came through one culvert directly west of “Leber Ditch”. Water from the other two culverts flowing into the “road ditch” were required to drain to the south. This was slow drainage and therefore water backed up onto plaintiffs’ lands and caused damage. The water that flowed through “Leber Ditch” went east to a low place on Leber’s land where it formed a temporary lake and damaged his land until it drained across the main railroad line and the east-west county road. The origin of “Leber Ditch” was not established by the evidence, although there is evidence that some of the surface water would naturally flow in the vicinity of this ditch.

Although this drainage solution was unsatisfactory, it was the status which has existed as long as any of the witnesses could remember before the present controversy. The thing which prompted the present suit was the creation of an opening in the block in the “road ditch” by the County Commissioner in December of 1961. This new opening undisputedly caused an increase in the surface water draining through the “Leber Ditch”. Leber in February of 1962 plugged the “Leber Ditch” by dumping caliche into the ditch at a point wholly on Leber’s land. This is the point in controversy. Does Leber have the legal right to plug the ditch where there is no dispute that the natural drainage onto his land has been increased and concentrated by the artificial and man-made system?

It is our opinion that Leber was legally justified in rejecting this water under the rule set forth by the Supreme Court in Bunch v. Thomas, 121 Tex. 225, 49 S.W.2d 421, and by this Court in Willacy County v. Oakes, 239 S.W.2d 692, writ refused. In each of these cases the natural drainage of the surface water was towards the lower lying lands of the respective defendants. However, in each case the natural diffused flow had been diverted and made more burdensome by acts or industry of man. In Bunch v. Thomas, supra, ditches had been placed on the Bunch land which caused the water therefrom to flow into the lower Thomas tract in concentrated form so as to form a gully or rivulet. The Supreme Court upheld the right of Mrs. Thomas to erect an embankment to protect her property. The Supreme Court said: “It is the settled law of this state that while under the statute quoted (Art. 7589a, Vernon’s Ann.Civ.Stats.) the lower estate must receive the surface waters naturally flowing thereon from a higher estate, yet it is not required to receive these waters except in their natural condition, untouched by the hands of man.”

In Willacy County v. Oakes, supra, the natural drainage of surface waters was across Oakes’ land. However, the County placed culverts under an embankment created by the intersection of two roads so that the water approaching and overflowing Oakes’ land was gathered into a stream or concentrated flow by said culverts. Oakes resorted to self-help and erected a dam on his land to keep water from the culverts from flowing upon his property. This Court affirmed the order of the trial court refusing a mandatory injunction commanding Oakes to remove the dam, and Justice Norvell, speaking for the Court, said: “It is well settled that lower lying lands are subject to ‘a service to receive the burden. of surface waters which may flow from the higher estate onto the lower, so long as the surface water from the dominant estate reaches the borders of the servient one ■untouched, and undirected by the hands of man.’ ”

Under the undisputed record in this case, the surface waters did not reach the “Leber Ditch” in a diffused state but were diverted and concentrated by the man-made ditches, embankments and culverts in the area. In this situation appellant was entitled to resort to self-help to prevent damage to his land. The trial court erred in granting the mandatory injunction ordering appellant to remove the caliche block placed in the ditch on his land.

The judgment of the trial court is reversed, the injunction dissolved and the petition dismissed at appellees’ cost.