author: HALL, C. J.

text:
    BISHOP et al. v. SANFORD.
    No. 3541.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 4, 1931.
    Rehearing Denied March 4, 1931.
    Cooper & Lumpkin and Morgan, Culton, Morgan & Britain, all of Amarillo, for appellants.
    Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellee.
   HALL, C. J.

On September 13, 1918, the appellee, Sanford, executed to appellant Grover C. Bishop an oil and gas lease upon 8,640 acres of land in Carson county. The lease provides for the-payment of 30 cents per acre annual rental and permits the postponement of drilling operations by the annual payment of said rental for a period of five years. The lease recites that it is executed “for the sole and only purpose of mining and operating for oil and gas, the laying of pipe lines and the building of tanks and power stations and structures thereon to produce, save and take care of said products.” It further contains the usual stipulation that the lease shall remain in force for a term of five years from its date “and as long thereafter as oil or gas or either of them is produced from said lease by the lessee.” It is further stipulated that, if the first well drilled proves to be a dry hole and a second well is not commenced within twelve months, the lease should terminate as to both parties unless payment of rentals be resumed. It is declared that the estate of either party may be assignable in whole or in part, that the lessee is to deliver to lessor in tanks or pipe lines one-eighth of the gas from each well where gas only is found while the same is used off of the premises. It is specially provided that the lessor may have gas free for all stoves, inside lights for his dwelling, and the lessee shall pay $50 per year for gas produced from any oil well. The last paragraph of the lease is: “This lease shall terminate as to both parties hereto on Sept. 16, 1923, unless oil or gas is being produced in paying quantities.”

The lessee, Bishop, sublet and assigned to numerous parties and corporations smaller tracts of the lands covered by his lease; 1,800 acres included in his lease reverted to the lessor, Sanford, by reason of the failure of certain assignees and sublessees to pay the annual rentals. None of this 1,800 acres is involved in this suit.

In 1922 the Humphreys Oil Company acquired from Bishop and other lease holders one-half of the acreage held by them, amounting to approximately 3,000 acres; the consideration for said transfers being tbe agreement by tbe Humphreys Oil Company to drill a well. It was stipulated that tbis lease was in force on August 14, 1923. In July or August of 1923 the Humphreys Oil ■ Company drilled a well on the N. E. ⅛ of Sec. 11, block 3, which was included in its lease, and found gas in enormous quantities, estimated at about 140,000,000 cubic feet per day. The lessor, Sanford, being desirous of having the well deepened in an effort to secure oil, agreed with the Humphreys Oil Company that the latter should undertake to drill deeper, and, in order to secure a deeper test, Sanford stipulated that he would not assert any forfeiture of the lease on the forfeiture day if the well was ruined in an effort to secure oil. Acting under this contract, the Humphreys Oil Company endeavored to drill deeper, but, after having its drilling tools blown out of the hole on several occasions, it gave up the effort, capped the well, and a few weeks fifter the expiration of the primary term removed its derrick, bunkhouses, and all drilling equipment from the leased premises. The well was# capped and abandoned in the latter part of 1923 or early in 1924, and was in that condition at the time of the trial about 2⅛ years thereafter.

About the 1st of March, 1924, the portion of the premises leased to the Humphreys Oil Company, including the capped gas well, was conveyed to the Pure Oil Company, and this latter company, in February, 1926, pursuant to notice from plaintiff, Sanford, entered into a written agreement with Sanford relinquishing its interest in the premises, and at the same time Sanford executed and delivered to the said company a new and separate lease covering the same property for a consideration of $15,200 in cash, certain reserved rights in the gas well, and $5 per acre contingent payment out of oil.

On the 20th day of July, 1926, Sanford filed this suit in the district cdurt of Carson county. The first count is a formal action in trespass to try title. -The second count is in three subdivisions wherein the plaintiff seeks to cancel the lease and have the leasehold interests terminated, because: First. There has been a cessation of user and of production after the expiration of the primary term. It is insisted in this part of the petition that there has been no production within the meaning or sense of the lease after the expiration of the primary term, and has therefore been a complete cessation of the uses and purposes of the lease. Second. That there has been an abandonment of the lease and of the leasehold estate by the defendants. In the third subdivision plaintiff seeks a forfeiture of the lease because of the alleged breach of implied covenants to market the gas, after the discovery well, and to further prospect and develop the lease for oil.

The original lease to Bishop covered all of surveys 12 and 14 in block 3, as well as the remaining sections going to make up the 8,640 acres of the original lease. On October 10, 1925, the plaintiff, Sanford, executed and delivered to Sue Stevens, Perry Stevens, Sam B. Vaughn, A. A. Lumpkin, and S. B. Tarkington, a royalty deed which recites a consideration of $100 cash and other valuable considerations, the granting clause of which is as follows: “Have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, assign and deliver unto said grantees an undivided one-fourth interest in and to all of the oil, gas and other minerals, in, on and under and that may be produced from the following described land situated in Carson County, Texas, to-wit: First tract: The N. W. ⅛ of Sec. No. 12, Block No. 3, original grantee Adams, Beaty & Moulton, and containing 160 acres of land; Second tract: The N. E. ⅛ of See. No. 14 in Block No. 3, original grantee Adams, Beaty & Moulton, and containing 160 acres of land; together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing same therefrom.”

The deed contains this further recitation: “The above mentioned and described lands are now under an oil, gas and mineral lease executed by the grantor herein and it is understood and agreed that this sale is made subject to the terms of said lease or leases, but covers and includes one-fourth of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease or leases. It is understood and agreed that one-fourth of the money rentals which may be paid to extend the term or terms within which a well may be begun under the term of said lease or leases is to be paid to the grantees herein and in the event the above described lease or leases for any reason become can-celled or forfeited, then and in that event an undivided one-fourth of the lease interests and all future rentals on said land for oil, gas and other minerals in, on and under the above described lands, together with an undivided one-fourth interest in all future funds.” This recitation is followed by the usual habendum et tenendum and warranty clauses. The instrument was filed for record and duly recorded in the clerk’s office of Carson county on the 13th day of October, 1925.

This instrument was introduced in evidence upon the trial, and the appellants insist that it shows that the grantees, Stevens et al., are necessary and indispensable parties to this suit. The issue was not raised in the trial court, but is urged here as fundamental error. The appellees insist that the contention is without merit under the general rules governing the making of parties defendant and for tlie further reason that the parties had entered into a written stipulation on the 16th day of April, 1930, which was introduced during the trial, the material portions of which are as follows:

“1st. That on or about September 16, 1918, the plaintiff J. M. Sanford as lessor executed and delivered to the defendant Grover 0. Bishop as lessee, that certain oil and gas lease set out in plaintiff’s petition herein, which is recorded in the deed records of Carson County, Texas, in Vol. 20, at page 183, et seq., and at the time plaintiff executed and delivered said lease- he was the fee simple owner of. all the lands and premises described in said lease, including all of the lands now involved in this suit.
“2nd. That plaintiff has remained and is still the fee simple owner of said land involved in this suit, subject to said lease, if the same is now subsisting and in force, and if said lease has terminated upon said land, then the plaintiff owns the reversion thereof and all of said former leasehold estate therein has become reinvested in the plaintiff.
“3rd. That if said lease is still subsisting and in force upon the lands in controversy, but legal ground and cause exists to cancel same, then the plaintiff is entitled to claim and enforce such cancellation.”
“11th. That any party hereto many introduce this stipulation in evidence upon the trial of this cause to establish the facts herein stated and no further proof shall be required upon any fact herein stipulated. However, at the option of any party additional proof upon any subject herein may be offered consistent herewith.”

In its final analysis, this is a case in which the plaintiff, Sanford, seeks to enforce equitable rights through the equitable remedies of cancellation and rescission. The rules of equity with reference to parties control in such cases, and, when measured by these rules, we think Sue Stevens, Perry Stevens, Sam B. Vaughn, A. A. Lumpkin, and S. B. Tarkington are necessary and indispensable parties.

21 O. J. 258, § 253, states the rule as follows:

“It is a general rule of equity pleading that all persons who are materially interested in the event of the suit or in the subject-matter, however numerous, should be made parties either as plaintiffs or as defendants. This Rule is everywhere recognized, and it is stated in more or less similar terms in almost every case wherein the subject of parties in equity has been under discussion. In code practice the rule remains the same.
“The reason for the rule is found in the principle of public policy enforced in courts of equity, that a decree should finally and completely determine the rights which all persons have in the subject-matter decided, so that the parties may safely obey and act upon the decree, and a multiplicity of suits or a circuity of proceedings may be avoided. To this end it is necessary to bring all the parties before the court, as otherwise' their interests will not be concluded, for, as a general rule, no binding decree can be rendered against a person who is not a party to the suit.”

On page 273, § 276, Id., a further statement of the rule is made as follows:

“Necessary or indispensable parties are those without whom the court will not proceed to any decree, even as to the parties before it.
“This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Accordingly, persons whose interests will necessarily be affected by any decree that can be rendered are necessary and indispensable parties, and the court will not proceed to a decree without them, while parties whose interests will not be affected by the decree sought, although they may have an interest in the subject-matter, are not ordinarily necessary parties, although they may sometimes be proper parties under the general rule, in order to avoid a multiplicity of suits. Therefore the object rather than the subject of the suit must be looked to, and only those are necessary parties whose rights are involved in the purpose of the bill. Therefore, also, the prayer for relief is important in determining the requisite parties, as one need not be made a party against whom no relief is demanded, provided his rights will not necessarily be affected.
“But all those against whom relief is prayed are neeessaTy parties, and persons whose rights will be affected by the decree are necessary parties, although no relief is prayed against them. The term ‘necessary parties’ also includes persons who, while not necessary or indispensable on account of their own interest, yet are so connected with the subject-matter of the controversy that it is necessary to have them before the court for the proper protection of those whom the decree will necessarily and directly affect.”
And, further, on page 280, Id., it is said: “It is, of course, impossible to divest or destroy a title by suit in which the holder of the title attacked is not a party and therefore, where the decree is to affect a title, all holding or claiming such title must be brought in. =s * * Where the execution of the decree would throw a cloud upon a person’s title, such person is an indispensable party in an action to quiet title or to remove cloud.”

In 9 C. J. 1225, § 126, it is said: “It is the general rule in suits for rescission or cancellation that all persons whose rights, interests or relations with or through the subject-matter of the suit would be affected by the cancellation or rescission, should be brought before the court so that they can be heard in their own behalf. This is in accordance with the well settled rule that in suits in equity, every person having or claiming equitable or legal rights in the subject-matter must be made a party. The Court can not undertake to cancel a written instrument without having before it all the parties to be affected by the proposed cancellation and where a final decree in a suit to cancel deeds cannot be made without materially affecting the interests of persons not made parties, neither the court of original jurisdiction nor review should proceed further until the omission is corrected, although no objection is made by any party litigant.” Citing Hurst v. Knight (Tex. Civ. App.) 164 S. W. 1072, with cases from other jurisdictions supporting the general rule.

In 47 C. J. 91, § 182, the rule in Texás with reference to necessary parties is stated thus: “In accordance with the policy of the law in this state to determine all issues in one proceeding so far as practicable all parties necessary for that purpose should be joined and it is well settled that all persons materially interested in the subject-matter and object of the suit should be made parties, either as plaintiffs or defendants, and every person who will be directly affected by the judgment in the case is not only a proper party but is, in fact, a necessary party, either as plaintiff or defendant”-citing Southern Surety Co. v. Solomon (Tex. Civ. App.) 4 S.W.(2d) 599; Collin County School Trustees v. Stiff (Tex. Civ. App.) 190 S. W. 216; Hume v. Perry (Tex. Civ. App.) 136 S. W. 594; Sanger v. Corsicana National Bank (Tex. Civ. App.) 87 S. W. 737; Id., 99 Tex. 565, 91 S. W. 1083; Denison v. League, 16 Tex. 399; Hardin v. Hardin (Tex. Civ. App.) 1 S.W.(2d) 708; Logan v. Ludwick (Tex. Civ. App.) 283 S. W. 548; Georgia Casualty Co. v. Campbell (Tex. Civ. App.) 266 S. W. 854; Stokes v. Paschall (Tex. Civ. App.) 243 S. W. 611; Waldrep v. Roquemore, 60 Tex. Civ. App. 138, 127 S. W. 248; Matagorda Canal Co. v. Markham Irr. Co. (Tex. Civ. App.) 154 S. W. 1176; McDonald v. Simons (Tex. Com. App.) 280 S. W. 571; Wilson v. Reeves County Water Improvement District (Tex. Civ. App.) 256 S. W. 346; Nail v. Taylor (Tex. Civ. App.) 223 S. W. 719; Parrish v. Williams (Tex. Civ. App.) 53 S. W. 79.

In 7 Tex. Jur. 972, § 54, it is said: “In accordance with the general rules as to parties, all persons in whose favor or against whom there may be a recovery, however insignificant, and all persons who are interested, although indirectly, in the subject-matter of the suit, or in the relief granted, and whose rights may be affected by the decree, must be made parties. The rule is settled in Texas that all parties to a deed, contract, or other writing or interested in the contract, must be made either party plaintiff or defendant in an action for cancellation and rescission of such an instrument. The reasons for the rule are that the decree operates in personam rather than in rem and that the rights and interests of all persons growing out of or connected with the- subject-matter of the dispute, must be adjudicated in one suit” — citing many eases, amongst them being Runck v. Gates (Tex. Civ. App.) 14 S.W.(2d) 885; Business Men’s Oil Co. v. Priddy (Tex. Com. App.) 250 S. W. 156 (affirming [Tex. Civ. App.] 241 S. W. 770); Christian v. Hood (Tex. Civ. App.) 19 S.W.(2d) 621; Dial v. Martin (Tex. Civ. App.) 8 S.W.(2d) 241; Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063; Gulf Production Co. v. Colquitt (Tex. Civ. App.) 25 S.W.(2d) 989; McKay v. Phillips (Tex. Civ. App.) 220 S. W. 176; Perkins v. Terrell (Tex. Civ. App.) 214 S. W. 551; McNeill v. Cage, 38 Tex. Civ. App. 45, 85 S. W. 57; Cabaness v. Holland, 19 Tex. Civ. App. 383, 47 S. W. 379.

On page 974, § 55, Id., it is said: “In a suit to cancel a conveyance, it is necessary to join the grantor and the grantee. Necessary or indispensable parties include persons owning a part interest in the land.”

See, also, 4 R. C. L. 517; Black on Rescission & Cancellation, §§ 552, 639, 657.

1 Pomeroy’s Eq. Jur. (4th Ed.) § 114,' says:

“The equitable doctrines with respect to parties and judgments are wholly unlike those which prevail at the common law, different in their fundamental conceptions, in their practical operation, in their adaptability to circumstances, and in their results upon the rights and duties of litigants. The governing motive of equity in the administration of its remedial system is to grant full relief and to adjust in the one suit the rights and duties of all the parties which really grow out of or are connected with the subject-matter of that suit. Its fundamental principle concerning parties is that all persons in whose favor or against whom there may be a recovery, however partial, and also all persons who are so interested, although indirectly in the subject-matter and the relief granted that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall be made parties to the suit;- and it is hot ordinarily a matter of substantial importance whether they are joined as plaintiffs or 'as defendants, although this question of procedure is regulated to a certain extent by rules based upon considerations of convenience rather than upon any essential requirements of the theory. The primary object is tbat all persons sufficiently interested may be before tbe court so that the relief may be properly adjusted among those entitled, the liabilities properly apportioned, and the incidental or consequent tial claims or interest of all may be fixed and all may be bound in’ respect thereto by the single decree.”

The royalty deed in this case is in all essential matters the same as that construed in the case of Hoffman et al. v. Magnolia Petroleum Co., 273 S. W. 828, in which the Commission of Appeals, speaking through Stayton, Justice, held that the instrument in question conveyed am interest in the mineral rights of all of the land described in the original lease. This being true, the appel-lee’s offer to disclaim as to certain portions of the original leased premises held by one of the lessees under Bishop and described in the royalty deed does not relieve the situation. If the Hoffman Case fixes the rights of Stevens et al., then they are interested in the royalties to be obtained from all of the land described in the original lease. Nor does the stipulation quoted above have any effect upon the issue of necessary parties. Written stipulations, when properly executed and filed undet the rules, are ordinarily binding upon the trial court, in so far as they establish the existence of certain facts mentioned therein, and to that extent they relieve the parties to the agreement of the necessity and burden of proving the facts therein recited, but the parties cannot in this case bind either the trial court or this court as to the matter of necessary and indispensable parties. It appears from the pleadings and the facts that the grantees in the royalty deed, being necessary and indispensable parties and not having been properly brought into the case, their rights can in no degree be affected by a, stipulation made between other necessary parties to the suit, even though the stipulation is approved by the trial court. Stringer v. Franklin County, 58 Tex. Civ. App. 343, 123 S. W. 1168. According to the royalty deed, Stevens et al. acquired an undivided interest in the oil and gas royalties provided in the leases, and to that extent they are certainly interested in both the subject-matter of this suit and in the object sought to be attained. Royalties, like rents, are classed as incorporeal here-ditaments, and their rights are inseparably and indivisibly connected with the rights of all the parties to this suit. If .Sanford succeeds in canceling the lease and recovering the mineral .rights, it will certainly adversely affect the rights of Stevens et al. under their deed. They have bought the interest in good faith, and, so far as this record shows, are entitled to the per cent, of the royalties stated in their deed, and it is inequitable to permit Sanford to cancel his lease, upon which their right to royalties depends, without giving them an opportunity to be heard. The duty devolved primarily upon him to make them parties.

We think the following cases decide the specific question in favor of appellants’ contention: Gulf Production Co. v. Colquitt (Tex. Civ. App.) 25 S.W.(2d) 989; Cox v. Sinclair Gulf Oil Co. (Tex. Civ. App.) 265 S. W. 196: Vaughan v. Littlefield (Tex. Civ. App.) 4 S.W.(2d) 153; Hitson v. Gilman (Tex. Civ. App.) 220 S. W. 140; Edinburg Irr. Co. v. Ledbetter (Tex. Civ. App.) 247 S. W. 335; Id. (Tex. Com. App.) 286 S. W. 185; Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063, 1069.

For the reasons stated, the judgment is reversed, and the cause remanded.

JACKSON, J., not sitting.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    BOARD OF WATER ENGINEERS et al. v. BRISCOE et al.
    No. 9539.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 12, 1930.
    Appellees’ Motion for Rehearing Denied and Board’s Motion Granted in Part Feb. 5, 1931.
    Appellees’ Second Motion Refused Feb. 19, 1931.

      Wirtz & Weinert, of Seguin, for appellants Jackson and Lehrer.
    Robert Lee Bobbitt, Atty. Gen., and W. W. Caves, Asst. Atty. Gen., for appellant Board of Water Engineers.
    Wolters, Blanchard & Woodul, and A. M. John, all of Houston, for appellees.
   GRAVES, J.

This litigation — coming here as the residuum of two consolidated suits the appellees filed below against the state board of water engineers and the individuals Jackson and Lehrer, whereby they sought to have undone the prior action of the board granting the two persons named a permit to take and appropriate water from the Brazos river, and to have such a permit granted to, or right thereto vested in, themselves instead — calls for an interpretation of the policy of the state with reference to the use of its public waters, as is reflected in title 128 of our Revised Civil Statutes (article 7466 et seq.), and especially in articles 7492, 7496a, and 7590 thereof, having reference to what are therein termed “presentations” and “applications” for permits looking to such use.

The 'trial court, sitting without a jury, over pleas to the jurisdiction by the two personally sued defendants and of privilege by the members of the state board asserting, respectively, that the action — essentially one for mandamus against officers of an executive department of the government of the state— was exclusively cognizable by Ihe Supreme Court of Texas under Rev. St. article 1735, and that such board members, pursuant to Rev. St. article 7567 and article 1995, subd. 20, were entitled to be sued only in Travis county where they officially resided, entertained and tried as one both declared upon causes of action against all defendants, and adjudged that the appellees Briscoe and Turner had a prior right as against appellants Jackson and Lehrer to a permit from the board to divert and appropriate water from the Brazos river at the location in Fort Bend county covered by the antecedent permit that body had granted for the same purpose to such two appellants, and, through the writ of mandamus against the board, directed that it accordingly cancel its former orders to the contrary, and in lieu thereof issue its permit to Briscoe and Turner.

On the appeal, in which the board of water engineers and the two individuals so cast below make common cause as appellants, this court reverses such action of the trial court, and directs the reinstatement of the permit in all respects as first granted to Jackson and Lehrer, holding in material substance in so doing upon the controlling questions raised:

(1) The district court of Fort Bend county had jurisdiction and venue of the suit as an action between the two sets of individuals, Jackson and Lehrer on the one side and Briscoe and Turner on the other, to determine which of them had been entitled to the permit both sought from the state board to take the water out of the river at the same place for irrigation purposes, pursuant to the respective “presentations” and “applications” they severally filed with the board;

• (2) That court erred in undertaking to nullify the permit first granted by the board to Jackson and Lehrer, and to compel that body by the writ of mandamus to issue its later permit instead to Briscoe and Turner, because the original and prior “presentation” looking to the permit as filed by Jackson and Lehrer was substantially sufficient for the purpose, and, along with their subsequent action, under it, entitled them to its issuance as a matter of law, leaving only a ministerial duty to be performed by the board of water engineers in accordingly granting it.

(3) The board of water engineers is neither the head of an executive department of the state government that can only be sued in Travis county under subdivision 20 of Rev. St., article 1995, nor did this suit necessarily involve such act or duty on its part as was exclusively cognizable by the Supreme' Court of Texas in accordance with R. S. article 1735.'

(4) This action could not properly be treated as an appeal from the board’s decision under article 7590 of our Revised Statutes, but, if it could be, the venue would still be in Fort Bend county under the express terms of that statute, in that the diversion was proposed to be made there.

(5) As concerns the matter of fees for the permit, the record shows, not only that the board so treated it, but also that each set of applicants substantially complied with the statutory requirements.

Briefly elaborating these holdings, more directly concerning the dilatory pleas first, it seems clear that the district court sitting in Port Bend county not only had the jurisdictional power to hear this cause, but also that the venue of it was properly laid there; true, the state board of water engineers was a party, and the writ of mandamus to control its action was both applied for and issued, but such direct control of that body’s official functions was not the sine qua non to the appel-lees’ obtaining what they resorted to the court for — that is, a judicial determination that, at the time the board had acted upon the contest between them, they and not their rival applicants, the appellants, had been entitled to take and appropriate the water, and were then still so entitled; in other words, the two opposing sets of individuals were the real parties at interest, and the substantive bone of contention or issue over which they were at loggerheads was which of them was entitled to the preferential right to such use of the water; thus there was tendered a question, justiciable in equity, that lay back of the mere granting of the permit by the board, which did not constitute this pre-existing right itself, but was only evidentiary of it. Yuba River Power Co. v. Nevada Irrigation District, 207 Cal. 521, 279 P. 128; Fairbanks v. Hidalgo County Water Imp. Dist. No. 2 (Tex. Civ. App.) 261 S. W. 542, 548.

Wherefore the action, as we see it, was not in essential nature nothing but a mandamus suit against the state board of water engineers, but an appeal to the equity powers of the court to determine a controversy between individual interests, to which the board was not even a necessary party; there is no doubt, we think, that the court’s authority, to determine such a question was paramount to any vested in that agency of strictly circumscribed powers by the statutes creating it — indeed, one of them, R. S. article 7513, expressly so recognizes. Fairbanks v. Hidalgo County Water Imp. Dist. No. 2, supra. That statute requires the immediate certification of any court judgment affecting the title to any water right or other matter over which the Board is given supervision, to the latter’s office, the effect of which filing there is to cancel “any record theretofore existing contrary to it,” Fairbanks v. Hidalgo County Water Imp. Dist. No. 2, supra.

So that the court in this instance, by its superior power over the subject-matter of the controversy between the real parties at inter- ' est, the two sets of individuals, who were themselves personally before it, could have determined the essentials of the whole matter -without the board’s presence, irrespective of the then outstanding permit primarily issued, and such judicial determination would have been none the less effective in settling the title to the water right both sought.

Obviously, also, such power of the court was not improperly invoked in Fort Bend county, because neither individual defendant challenged the laying of the venue there by filing a plea of privilege, or otherwise, and one of them, Mr. Lehrer, admittedly both had his domicile and resided in that county. Subdivision 4 of R. S. article 1995.

The holding that the suit was not merely one for mandamus, and that the board of water engineers was not a necessary party, really obviates any necessity for determining whether it and its members constitute such a head or officers of a department of the state government as come within the purview of B S. articles 1735 and 1995, subd. 20; our view, however, as indicated supra, is that they do not, under such authorities as Sterrett v. Gibson (Tex. Civ. App.) 168 S. W. 16; Herring v. Bank (Tex. Civ. App.) 241 S. W. 540; Betts v. Johnson, 96 Tex. 360, 73 S. W. 4.

If, however, we are in error in the contrary view, and it should .be held that the board was a necessary party, then, under the express provisions of R. S. article 1995, subdivisions 4 and 29a, it was suable in the county of the suit along with its individual codefend-. ants, one of whom resided there; in no event, therefore, did the overruling below of the pleas of privilege by its members constitute any prejudicial error.

It further follows from these views that this proceeding could neither be held to constitute an action coming within the provisions of, R. S. article 7567, hence maintainable in Travis county alone, as is urged by appellants, nor yet an “appeal” from the de-cisión of tlie board -within the meaning of R. S. article 7590, and on that account properly-brought in Fort Bend county, as the appellees contend; the former statute plainly seems to relate only to complaints by going concerns already “engaged ' in furnishing water,” presumably to consumers, over some rate, or other regulatory order, adopted by the board and governing that special service—not to applications to take and appropriate water in bulk from the river in the first instance, which are exclusively provided for in preceding articles 7492-7523.

While the latter (7590), we conclude, likewise has nothing to do with primary applications to merely take and appropriate water from the river, with which alone we think this litigation was concerned, but is only intended to apply after that process has first been gone through with pursuant to the foregoing articles 7492-7523, and when the applicant for such a privilege desires to go further and divert water from one natural water shed into another, no appeal from the action of the board in granting or refusing an application for a permit to take and appropriate only being provided for (Motl v. Boyd, 116 Tex. 82, 286 S. W. 458), and the gist of the applications on neither - side in this instance being anything else, obviously no claim of an appeal from the board’s refusal of their application for a permit is available to the ap-pellees.

If we are mistaken in these holdings with reference to the effect and applicability of article 7590, and if this independent resort, to the court on appellees’ part should be regarded as in effect an appeal under its provisions, then that statute expressly prescribed the venue of it, since the evidence showed that the diversion, or taking of the water from the river, was to occur in that county.

On the merits, the controlling question as to which firm was entitled to the water right is, in our view .reduced by the undisputed evidence to the single inquiry of whether or not the Jackson and Lehrer “presentation” was in sufficient compliance with R. S. article 7496a; we think it was, and that the water board was in consequence not privileged to take other action than it did upon it. Having been filed more than two years in advance of the appellees’ “presentation,”, and, admittedly, being still in force with the right thereunder neither expired nor terminated when the application pursuant to it was thereafter in like manner duly filed on August 31, 1929, it imperatively carried the prior water or permit-right with it, notwithstanding the ap-pellees had quickly followed .their belated presentation with the filing under it of an earlier application than appellants’ on August 21, 1929.

The Jaqkson and Lehrer presentation was as follows:

“The State of Texas, County of Colorado.
“Know all Men by These Presents: That we, G. M. Jackson and W. S. Lehrer, represent to the Board .of Water Engineers for the State of Texas, -that we desire to investigate the feasibility of a project hereinafter more definitely defined, having for its object the appropriation and beneficial use of water in , quantities greater than twenty thousand acre-feet storage, or fifty second-feet diversion, or for generation of two thousand hydro-electric horsepower, and represents and shows that we have an organized engineering force adequate to proceed in an expeditious manner with such investigation.
“The said Jackson and Lehrer further represents and shows to said Board that the proposed location of said proposed project is as follows.: On the Brazos River in Fort Bend County. Beginning at the intersection of the north line of the Wm. Little survey with the Brazos River, thence downstream to the intersection of said river with the Brazoria County line in Cow Creek. The purpose being ■to locate a diversion point for the irrigation of about one hundred thousand acres and the use of one hundred thousand a.cre-feet annually.
“We hereby make this presentation, and accompany same with a deposit of Two Hundred and Fifty Dollars ($250.00) in conformity with the requirements of section 16 et seq., Chapter 88, General Laws, Regular Session of the 35th Legislature of the State of Texas, 1917, as amended by Senate Bill No. 349 passed by the 39th' Legislature, State of Texas, at its regular session, 1925, for the purpose of protecting our priority of rights.
“[Seal] G. M. Jackson.
“W. S. Lehrer.
“Subscribed and sworn to before me this the 23rd day of October, A. D. 1926.
“Paul Juergens, Notary Public,
“Travis County, Texas.”

In all material respects both these applications the parties thus respectively followed their “presentations” with, which were substantially of the same purport, conformed to the requirements of R. S. articles 7492-7494, inclusive, and each was filed under and in connection with its foregoing presentation.

, At the request of the board, the Attorney General of the state rendered an opinion holding, in substance, that the Jackson and Lehrer presentation was sufficient under the statutes to support their application for a permit to appropriate the quantity of water at the diversion point set out therein,. whereupon the permit was regularly issued to them, the board having on previous hearing considered the two opposing claims to it together.

In that opinion we concur; the quoted presentation, being duly sworn to, not only almost literally followed the first requirement of article 7496a by reciting that Jackson and Lehrer desired to investigate the feasibility of such a project, and had an organized engineering force adequate to proceed expeditiously with the investigation thereof, but also met in reasonable substance its further provisions as to description of the contemplated project, its location, purpose, and the quantity of water to be applied by measure, if known, and, if not, “by statement as near as possible of the quantity of water necessary to the contemplated use,” by setting forth: (1) The proposed location is on the Brazos river in Fort Bend county, beginning at the intersection of the north line of the Wm. Little survey with the Brazos river, thence down stream to the intersection of the river with the Brazoria county line in Cow creek; (2) the purpose being to locate a diversion point for the irrigation of about 100,000 acres; (3) the quantity of water is set out as 100,000 acre feet annually.

No greater particularity nor exactness, even concerning the description of its location, it seems to us, was reasonably in contemplation in the enactment of article 7496a, which, in its form as amended by the Thirty-Ninth Legislature in 1925, as contradistinguished from articles 7492-7494 relating to subsequent “applications” for a permit, only has to do with antecedent “presentations” for or temporary options on designated areal confines from within which it is expected the public waters will be appropriated and applied to a beneficial use; palpably these were merely intended to cover preliminary and exploratory operations, or, more nearly in the language of the statute itself, “investigations as to the feasibility” of the undertaking, .the exact engineering details required by the “application” articles (7492-7494) not having yet been obtained, wherefore a less detailed and more general statement was called for; two separate and distinct procedures are thus prescribed, and there must have been some legislative purpose in doing it that way; we can think of no other than that the “presentation” was to be a somewhat general forerunner of the more exacting “application,” which was to protect a contemplated project to the proponent thereof until his investigation with an adequate engineering force should so determine its feasibility as to enable him then to furnish the additional facts requisite to the issuance of the final permit.

The description merely of an area along a river’s course within which a diversion site for the extraction of a specific quantity (in acre-feet in this instance) of water is sought, in the nature of things, requires no such mathematical descent into exact details as does that of a “metes and bounds” designation of particular tracts of land that are proposed to be irrigated, and that — a diversion site or point for the extraction of so much water by volume — was all Jackson and Lehrer either sought or obtained under the presentation they filed with the board in this instance.

As further expressive of our own view as to the sufficiency of their presentation, as well as the extent of the right they thereby acquired, we quote with approval from the opinion of the Attorney General to the board, as follows:

• “It is our view that the Jackson and Lehrer presentation embraces the left or east hank of the river from its intersection with the north line of this William Little survey to the point of the nearest approach of said hank to the point where the Brazoria County line in Cow Creek intersects with the right or west bank of the river; that is, that the river area in reference to which the investigation for a point of diversion was to he made was that part of such area lying between a line across the river at right angles with its course at the intersection of the river with the north line of this William Little survey, and a line across the river at right angles with its course at the intersection of the river with the Bra-zoria County line in Cow Creek.
“This being true, it is our view that by reason of the filing of the Jackson and Lehrer presentation they thereby became vested, as a matter o.f law, with a right to select, and to designate in their application for a permit, such a diversion point as they might choose within this designated river area, and, having so selected and designated this point, that their right of diversion at such point is continued and preserved through their appliea- • tion for a permit, and that upon the granting to them of a permit under and in pursuance of their presentation this right will have “priority date” and will be effective from the date of the filing of their presentation. We think this is also true as to their right to appropriate for irrigation purposes, by diversion at this point, so much of the unappropriated water of this stream as may be designated in their permit. This does not mean, of course, that by reason of the filing of their presentation Jackson and Lehrer acquired, nor that under such permit as might be issued to them thereon they would or could be vested with, any right to the occupancy or use of any privately owned lands at this point of diversion. Such .right can not be so acquired. Onr reference is only to their right of diversion as relating to the waters involved.
“No lands are designated or described in the Jackson and Lehrer presentation to he irrigated, or as constituting any part of their contemplated project.”

The water board, acting within what appears to have been its prerogative with reference to the statutory requirements concerning the permit fees, treated the engagements of both sets of applicants in that regard as sufficient, and no good reason for interfering with that action has been presented here.

Further discussion is deemed unnecessary, as these conclusions determine the merits of the appeal; they require the reversal of the trial court’s judgment, and that this court’s judgment enter decreeing that the appellees take nothing by their suits; it has been so ordered, with direction to the clerk of this court to forthwith transmit to the office of the board of water engineers a certified copy of this decree.

Reversed and Tendered.

On Motion for Rehearing.

After being favored with oral as well as written arguments on rehearing from counsel for all parties, we have been constrained to adhere to all our former conclusions 'in this cause, save the holding that the board of water engineers does not constitute the head of a department of the state government within the meaning of R. S. article 1995, subd. 20; pursuant to a reconsideration of the authorities cited by the Attorney General, we now think it should be held to be such. Revised Civil Statutes of Texas of 1925, subdivision 20 of article 1995; Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S. W. 813; Herring v. Houston National Exchange Bank, 114 Tex. 394, 269 S. W. 1031.

However, since it was originally further determined that the board and its members were not necessary parties to the suit, as to which no error has been perceived, no other change in that judgment is entailed than their dismissal from the cause. It has accordingly been ordered that the board of water engineers of the state and its members be dismissed from this suit, and that in all other respects the several motions for rehearing be overruled.

Overruled.


author: HIGGINS, J.

text:
    RIO GRANDE, E. P. & S. F. R. CO. et al. v. DUPREE et al.
    No. 2409.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 5, 1931.
    Rehearing Denied Feb. 26, 1931.
    Turney, Burges, Culwell & Pollard, of El Paso, for appellants.
    R. L. Holliday and Henry T. Moore, both of El Paso, for appellees.
   HIGGINS, J.

On March 24, 1928, Dr. W. A. Dupree was killed in a collision between a Ford truck in which he was riding and a freight train operated by the Atchison, Topeka & Santa Fé Railway Company on the track of the Rio Grande, El Paso & Santa Fé Railroad Company.

This suit is by the appellee, Mrs. Dora Du-pree, surviving wife of the deceased, suing in her own behalf and as next friend for her two minor sons, against the companies above named, to recover damages for the alleged negligent killing of her said husband. The collision occurred in El Paso county at a public crossing known as tbe Tendick Crossing.

Tbe case was submitted upon tbe general issue resulting in verdict and judgment in favor of plaintiff for $50,000. Upon tbe motion for new trial a remittitur of $14,000 was required by tbe court and entered by tbe plaintiff and judgment finally rendered for $36,000 against both defendants, apportioned $24,000 to the widow, $5,000 to- one child, and $7,000 to tbe other.

As against the defendants tbe only issue of negligence submitted was tbe failure to give tbe statutory signals in approaching tbe crossing. Upon this issue tbe evidence was conflicting, and by tbe verdict resolved in tbe plaintiffs’ favor. As to tbe conclusive effect of that finding, no point is here made.

At tbe time of tbe collision Dr. Dupree and bis son John were riding in tbe truck. Dr. Dupree was killed instantly and bis son so crushed and mangled be died in a few minutes after tbe collision. Tbe evidence does not disclose which of tbe two was at tbe wheel of tbe car when tbe collision occurred.

Tbe issue of contributory negligence on tbe part of tbe driver of tbe truck or Dr. Dupree, in failing to keep a proper lookout for tbe approaching train, was submitted.

It is asserted that under tbe evidence contributory negligence, as a matter of law, is shown, and verdict in tbe 'defendants’ favor should have been peremptorily instructed.

Tbe evidence upon this issue is undisputed-except perhaps in some minor and noncon-trolling features.

At tbe place of the collision tbe track is straight for quite a distance. Tbe paved state highway leading from El Paso to Las Cruces, N. M., runs parallel with the track and adjacent to tbe railroad right of way. This is a heavily traveled highway. Dr. Du-pree’s home is a short distance from the highway and across tbe railroad. He and bis son were thoroughly familiar with tbe Tendick Crossing, having used it daily for some months prior to tbe accident. At the time in question tbe truck came along tbe highway traveling in tbe direction of Las Cruces. Tbe train consisting of an engine ;and twelve freight cars was traveling in tbe opposite direction. When tbe crossing was reached tbe truck turned to tbe left and proceeded to the track in the direction of tbe Dupree home when tbe front left fender and wheel struck tbe locomotive. Tbe point of impact was back of tbe cylinder bead of tbe locomotive about 10 feet from tbe pilot. According to tbe testimony of tbe witness Bryant, fireman upon tbe engine, tbe man- riding upon tbe right side of tbe truck grabbed tbe steering wheel just before tbe collision. This evidently swerved tbe truck to tbe right in an effort to avoid the collision and caused the impact to occur at tbe front left fender and wheel of the truck instead of the truck running head-on into tbe side óf tbe locomotive. The train was traveling thirty-five or forty, miles an hour. Tbe truck was traveling ten or twelve miles an hour on tbe highway as it approached tbe crossing. There is a double row of telegraph and telephone poles between the railroad track and tbe highway, one row being on tbe railroad right of way, tbe other on tbe highway between tbe pave: ment and railroad right of • way. Between the pavement and the railroad right of way is a salt cedar or tamarack bush about 12 feet high and 14 or 15 feet in width. This bush is about 460 feet from tbe crossing and upon tbe side of tbe crossing from which the train came. At tbe time a severe windstorm was blowing and tbe atmosphere impregnated thereby with dust and sand. ' It is 69 feet from tbe pavement to tbe railroad track, and at that point tbe track is about 2 or 2½ feet higher than tbe highway.

Excerpts from the testimony of various witnesses follows:

Sheppard, brakeman on tbe train, testified:

“Prior to that accident, I was riding on tbe engine on tbe brakeman’s seat, directly in front of tbe fireman. That is on tbe left-hand side of tbe engine. * * * There is a highway running along beside tbe railroad, tbe highway was on my side of tbe engine. I bad a view of tbe highway. That highway is very much in use. I saw tbe truck prior to tbe collision, that we were in collision with afterwards, but I didn’t pay much attention to it until just about tbe time when it bit tbe train. When I first saw tbe truck, it was pretty close to tbe crossing, I couldn’t say bow close. It was on the highway, coming straight up tbe highway. There was nothing about it-to indicate be intended to turn there. I did not know be was going to turn there. * * * He was continuously in my sight up to near tbe time of the collision. I noticed him turn off, just a few seconds before tbe collision. • He did not stop. I couldn’t tell whether be looked around to see whether a train was coming or not, I couldn’t see through tbe -windshield, I couldn’t tell just who was in tbe car. It didn’t seem to me be slowed down, it didn’t seem that tbe speed of tbe automobile perceptibly decreased. I didn’t do nothing until they bit, and I hollered at tbe engineer we bit a car on tbe side of tbe train. Probably ten seconds intervened • between tbe time I saw him turn off and the time tbe collision occurred, something like that, I don’t know, a very short time. I didn’t have time to do nothing from tbe time I saw be wasn’t going to stop until tbe collision. The automobile bit tbe engine. It bit tbe engine right on tbe front drivers, back about ten feet from tbe pilot, back of tbe cylinder head-. From 'the time I saw him tarn off and saw he wasn’t going to stop, there wasn’t anything I could have done to prevent that accident.”

Bryant, the fireman, testified:

“I saw the truck prior to the accident, I saw it about the time it left the paved highway there. I formed an estimate that the truck was going about ten or twelve miles per hour. He did not stop before undertaking to cross the tracks. As to what those in the automobile did, as far as I could see, from the time they left the highway until the accident, — well, the only thing that I sawi them do was the man riding on the right side, it seemed he grabbed for the steering wheel just before the accident happened. Just before they ran into the side of the engine, it seemed to me that the man on the right side of the truck grabbed the steering wheel of the truck. The man that was riding on the left-hand side of the truck was the man behind the steering wheel, and the man on the right side, it seemed to me, tried to grab the steering wheel just before the accident. The time that intervened between the time I saw them leave the highway until the collision happened, was just a matter of a few seconds. * * ⅜ ¶⅛ car struck the engine just back of the left cylinder. That is about ten or twelve feet from the cowcatcher. I believe that was a Ford truck they were driving. I believe it had a top or cab around the front part.”

The witness Phillips testified:

“I recall the incident of the death of Dr. Dupree on March 24th, 1928. I saw the train prior to this accident. Just prior to this accident, I was just above the crossing, driving a truck for the Gulf-Refining Company. I was coming to El Paso. * * * The day wás an unusually windy day, and it was blowing sand at that crossing, I mean where the accident happened. There was a field just fresh plowed, I believe, just on the opposite side of the railroad track, and the wind was blowing hard, and right there at that crossing the sand was coming pretty bad. I don’t think there was enough sand being blown at times to interfere with or obstruct a person’s view entirely on the highway. If a car was coming against that wind, as the sand was blowing, it would have a whole lot to do with one’s view and it would interfere with or obstruct it to a certain extent. A person coming against it, and not going with it as I was, would have considerably more difficulty in seeing ahead of him than one going in the direction I was. As the gusts of wind or gusts of sand would blow across the highway from time to time, I would think in one way there would be enough wind and sand to obstruct one’s view coming from El Paso, and that would be in getting their eyes full of the sand, but as far as obstructing the view, why, I wouldn’t think so, more than in that way. If I kept looking into the wind and sand blowing in it, it would get to the point it would considerably obstruct my view, it would fill my eyes full of dirt. I didn’t hear the train as it came by me, I couldn’t hear it as it rolled along by. I saw the truck prior to the accident, when I first saw it, it was coming-going up the highway. It was not but a short distance before it turned that I first observed it. I saw it turn. It would be hard to say how far the train was from the crossing when it turned in there at this crossing. At the time it left the pavement, why, the train wasn’t — couldn’t have been far up the track, and just what distance, I wouldn’t know just what to say, but it couldn’t have been far. I don’t remember whether I testified on the other trial that the train was about, half way between the whistling post and the crossing when the truck turned in. That is somewhere near about the fact. It could have probably been something like half way, I think I stated before that it was something like half way. It could have been a little further off or closer. My observation is that at the time the truck turned off the paved highway to that crossing, that the train was near about half way between the crossing and the whistling post. When the truck turned in, I wasn’t giving it no thought, I was coming on down the highway, but when it got to where I thought it ought to stop, why, I began stopping, and I did stop. I was'just above the salt cedar at that time. From where I was, it would be hard to say just how far the truck was from the track when I saw there was going to be a collision, but probably it was ten or fifteen feet, but from where I was I couldn’t tell. It could have been a little further and it could have been closer.
“There was nothing to indicate to me, when I saw that truck on the highway, that he was going to turn off to that crossing. I never thought about it. When the car made the turn to cross, he didn’t stop. I judge the truck was going anywhere from ten to fifteen miles an hour. As far as I could tell, he didn’t slow down any more than you would slow down at any crossing. He didn’t bring his truck to any perceptible stop - after he turned, that I could tell. I formed the opinion in my mind that he wasn’t going to stop, that is what I thought, and I stopped. • It is hard to say just why I stopped, I got excited. I saw there was going to be-a collision and I intuitively put my feet on my own brakes, I thought it was time he was stopping. I wondered why he didn’t stop, and he didn’t do it. It is a fact that that truck ran into the side of the train. The train didn’t strike the automobile at all, the automobile struck the train. * * * I couldn’t tell whether it was the young man or the old man that was at the wheel. So far as I could tell, they made no effort to stop before they undertook to cross the track, and made no effort, so far as I could tell, to ascertain whether a train was coming. Trains go along there every day. * ⅜ ¡S I colii(i not tell whether the Duprees were looking for a train or what they were doing, taking into consideration the distance I was from them. I didn’t mean to tell the the jury what they were doing.”

The witness Carter, county surveyor, testified:

“I am familiar with the concrete highway from El Paso up towards Cruces and I show that on the map before me. I also show the Santa Eé tracks. I did have the difffirence once between the track level and the highway level, I think it is between two and two and a half feet. As to the condition of this crossing, and the character of the crossing and material of this crossing, at the time I made this map — well, these two lines represent the concrete pavement, and the crossing was a gravel crossing, n^de from gravel from the hills. There was a board crossing across the railroad at the time. I don’t say what it was, but I am satisfied it represents a board crossing. I am not sure whether it was board at that time or not. As I remember, it was a right narrow crossing, as it actually crossed the tracks (Scaling map). About 15 feet. It would be narrow for two cars to pass at the same time. The way you would go across the crossing, there was a depression in here and here (referring to each side). On the left-hand side as you go across, that is, toward El Paso, I believe the depression would run from about a foot up to probably three feet; and on the right-hand side I believe it is about the same, I am not very sure about that. I don’t remember where, at the time I did this wort, it was considerably more on the right-hand side, going over. My map shows the pole lines along the right-of-way of the highway and also of the Santa Eé. There is a pole here, a pole there, there is a pole here, a pole here, a pole here, a pole here, and then a few poles on up a little further. It is a fact that there are two lines of poles along the right-of-way of the Santa Eé tracks, all the way up and down the valley, one within the right-of-way and the other on the State highway. Each of these poles has one or more cross bars and each has wires. At the time I made that sketch, there was a salt cedar tree there. At that timé it was between ten and fifteen feet high, twelve feet I think would probably hit it, and about fourteen or fifteen feet in width. At the time I made this sketch, there were also other bushes there, other than that salt cedar. There was a couple of tor-nillo bushes, I believe they were tornillo bushes, located about half way between the salt cedar and' the crossing. They weren’t together, they were, probably thirty, forty, or fifty feet apart. I show them on the sketch, about thirty feet apart. In height they -were quite a ways over a man’s head, I would say they were ten or twelve feet high. * * * At the time I made this survey, I did not make a very close observation to see whether or not this salt cedar I referred to and these tornillo bushes and these poles would obstruct a train from above the whistling post from the view of a person approaching this crossing about where you would naturally turn off, but I have done it since. Those things I show there are obstructions to the view of a person in a car, approaching that crossing, that would obstruct the view of a ■train coming down toward El Paso. * * * In other words, it is 460 feet above the crossing, where these people would turn, up to where that tree is. That tree would be an obstruction to one going toward Las Cruces in an automobile, so they couldn’t see a train on the railroad track, anywhere from this point, from in here (pointing). I stood right in here and watched a train come down, and anywhere from there on down to here, from that tree on back this way, your view is obstructed, it is impossible to recognize a train coming down between those. As to whether I mean to tell this jury that there is any placel along that highway that one in an automobile, and looking that direction, can’t see a train of twelve cars and an engine,— I will say I mean to say that a person coming along anywhere in here, it is impossible for him to see and recognize a train coming down this track in this direction.”

L. 'W. Tendick testified:

“I recall the, incident when Dr. Dupree and his son were killed on March 24th, 1928. They were killed at my crossing, named for me. Trains pass up and down that track at various times a day, going both ways. The special train that Dr. Dupree was killed by was supposed to come between 3:30 and 4:00, that day it came in at 1:35. Ordinarily, trains run along there between three and four. They go from Cruces to El Paso and from. El Paso to Cruces. * * * There is an obstruction, when one is coming from El Paso going to my house, the way a person would ordinarily drive, that would’ obstruct or partially obstruct a person’s view, riding in a car, of a train approaching that crossing. There is a cedar tree that obstructs it when you come off the main highway, about forty or fifty feet before you start in, until you get about even with the railroad, before you can see the locomotive at the whistling post. There is also a double line of poles there, that obstructs it to a certain extent. * * * It was windy the day of the accident, very windy. At times it would blow dust so you couldn’t see ten feet before you, and stop and start again. There was a high wind and the ground plowed, and it picked up small gravel.”

J. O. Clark testified:

“There certainly was wind .blowing that day.- Before the accident I had made a call-well, in from the Borderland Inn towards the river, to service a truck that broke down, and the sand was blowing so bad I couldn’t hardly see to travel myself. I didn’t know what rate the wind was blowing, but I know it was blowing hard enough it was pretty hard to control an automobile on the road at any speed at all. In the first place, you couldn’t hardly see where you were going, the sand was so bad. I took the truck back with me.”

Geo. E. Wood testified:

“I was born and raised in that country and knew just how it happened, the way the wind was blowing, it was one of those windy days in March, it was awful. On account of the country being leveled, any place between here and Canutillo is is pretty dusty, in February and March especially, when the wind is blowing. It was an awfully windy day. I know where that salt cedar bush was just before you got to this crossing. At the time of this accident, besides the salt cedar, there were two lines of telephone poles, one inside of the right-of-way and one on the highway, and they had crossbars. There were also other bushes there at the date of this accident. I know where Dr. Dupree’s house is. A person going north from here and going across that crossing, those poles and that brush that was there, those cedar trees, made a regular curtain there, you couldn’t see a train coming down there, because that train comes off a hill down, into that low place where that crossing is, and on account of those poles and that brush there you couldn’t see a train, and the way the wind was blowing that day.”

• Howard Henson testified:

“As to the character of the weather the day of this accident, — well, that morning the wind started about ten o’clock, as it usually does in March, and it gradually increased all morning, and by the time I got down there it was nothing short of a gale. I mean from the time I came from Las Cruces down there. There was much sand blowing, especially along there' on account of the plowed ground, the cotton fields. I mean the plowed ground on the right of the railway tracks, coming down. There was enough wind and sand blowing to obstruct a person’s view on the highway.”

Judson E. Doss testified:

“The wind was blowing very hard that day and sand was blowing.”

R. C. Thomas testified:

“As to the character of the day of March 24th, 192S, — well, working there on the farm, we were putting up a chicken house and had been at work there laying hollow tile, and we almost had to stop work, it was so windy. Most of the country was plowed up at that time and this wind was sweeping the dust, the field west of my place was plowed up, and it was so dusty we could hardly work.”

With reference to the character and condition of the Tendiek Crossing, Mrs. Dupree and the witness Carter were permitted to testify over objection of appellants as follows:

Mrs. Dupree testified:

“At the time it was a narrow crossing with a ditch on either side. It was a crossing that just gave good leeway for one car and the ditches were deep, three, four, or five feet, I don’t know, something like that, quite deep, on either side; and at that time the rails stuck above the planks there. It was a narrow one-car crossing. The dumps were ditched on the side. The road came up this way over the tracks on a rise and on either side there were falls down to the level of the surrounding country. They went down there, four or five feet, something like that. You had to go up hill from the highway to the railroad crossing.”

Carter testified:

“These two lines represent the concrete pavement and the crossing was a gravel crossing made from gravel from the hills. There was a board crossing across the railroad at the time. I don’t say what it is, but I am satisfied it represents a board crossing. It was a right narrow crossing about fifteen feet. It would be narrow for two cars to pass at the same time. On the left hand side there was a depression. I believe it would run from about a foot up to probably three feet and it is about the same on the right hand side.”

It is unnecessary for us to here review the eases cited by appellants wherein the injured parties in crossing cases were held to be guilty of negligence as a matter of law. Suffice it to say these were cases where the evidence conclusively showed that the injured parties exercised no care for their own safety, but recklessly or heedlessly went upon the tracks in the path of approaching trains or cars.

On the other hand,. the general rule prevailing in this state in crossing cases is “that the failure of one about to go over a public railroad crossing to look and listen for an approaching train, does not, of itself constitute negligence as a matter of law,” and ordinarily the question is one of fact for the jury. Trochta v. Ry. Co. (Tex. Com. App.) 218 S. W. 1038.

There is no direct evidence in this cáse that the occupants of the truck failed to look or listen for the approaching train, nor does such conclusion necessarily follow in view of the evidence adduced.

It appears the car approached the track at a moderate rate of speed. It could have been halted in a few feet. We attach but little, if any, importance to the telegraph and telephone poles as an obstruction to the view of the occupants of the car, but the testimony of various witnesses discloses that the tamarack bush was a serious obstruction and photographs in the record seem to be confirmatory thereof. It is true the bush ceased to be an obstruction the moment the locomotive passed the same, but at the rate the train was traveling it took but a few seconds for the locomotive to reach the crossing. The most important phase of the evidence upon the issue is the violent windstorm raging at the time which undoubtedly seriously obscured the vision and impaired the hearing of Dr. Dupree and his son. The air was filled with dust and dirt. Conditions attendant upon such storms are matters of common knowledge in this section of the state. Again, this train, while not a scheduled one, passed considerably earlier than usual.

The condition of the crossing as testified to by the plaintiff and Carter is also important as explaining the failure of the occupants of the car to see the approaching train. Kansas City, M. & O. Ry. Co. v. Perry (Tex. Com. App.) 6 S.W.(2d) 111; Chicago, R. I. & G. Ry. Co. v. Laro (Tex. Civ. App.) 273 S. W. 684, 689.

The matters to which we have referred bring this case within the general .rule in this state that the issue of contributory negligence was one of fact for the jury and its findings should not be set aside by this court. See the cases above cited and Galveston, H. & S. A. Ry. Co. v. Duty (Tex. Com. App.) 277 S. W. 1057, Missouri, K. & T. Ry. Co. v. Merchant (Tex. Com. App.) 231 S. W. 327; Galveston, H. & S. A. Ry. Co. v. Leifeste (Tex. Civ. App.) 8 S.W.(2d) 764; Beaumont, S. L. & W. Ry. Co. v. Sterling (Tex. Civ. App.) 260 S. W. 320.

Complaint is made of the exclusion of evidence to show the interstate character of the train in question. Appellants sought to. prove that the train was transporting cars and merchandise which originated beyond the limits of this state, and that the train crew so originated. Briefly stated, the point presented is that the interstate character of the train renders applicable, upon the issue of contributory negligence, the rule of decision announced by the Supreme Court of the United States in Baltimore & O. Ry. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645.

This point is ruled against appellants in Galveston, H. & S. A. Ry. Co. v. Wells (Tex. Civ. App.) 15 S.W.(2d) 46. Upon the authority of that case we overrule the point presented. See, also, Galveston, H. & S. A. Ry. Co. v. Leifeste (Tex. Civ. App.) 8 S.W.(2d) 764.

With reference to the objection of immateriality urged against the admissibility of the testimony above quoted of Mrs. Dupree and Carter, concerning the condition of the crossing, this testimony was relevant to the issue of contributory negligence and properly admitted. Kansas City, M. & O. Ry. Co. v. Perry and Chicago, R. I. & G. Ry. Co. v. Laro, above cited, and Gulf, C. & S. F. Ry. Co. v. Hector (Tex. Civ. App.) 283 S. W. 562. Appellee pleaded the facts shown by this testimony, and we regard it as clearly relevant to the issúe of contributory negligence.

The complaint made of the court’s charge upon contributory negligence is without merit. If, in fact, the main charge upon the issue was too restricted under the facts, the same is fully corrected by special charges Nos. 6 and 8 given at appellant’s request. These special charges present the issue as favorably as could be expected by appellants.

By bill of exception it is shown that:

“While the Hon. Robert L. Holliday was making the closing argument to the jury in said cause, he stated in said argument to the jury practically as follows:
“ ‘Gentlemen of the Jury, the failure of this crew to blow the whistle and ring the bell has taken a life. Mrs. Dupree has lost her husband and her sons a father. It might have been you. It might have been me. Some of you gentlemen have sons. It might just as well have been your son. Remember that when you render your verdict, to do unto others as you would have them do unto you.’
“To which argument when so made defendants’ counsel objected and excepted for the reason that said argument was an appeal to passion and prejudice, had no evidence to sús-tain it; that the measure of recovery as therein asked by plaintiff’s counsel was not a proper measure of recovery, but rather an appeal to sympathy; that same was inflammatory and highly prejudicial to the defendants, whereupon the court stated to the jury:
“ ‘Gentlemen, I withdraw from your consideration that part of the argument of counsel in which he said ‘Consider if you had boys and judge as you would be judged.’ That is not the measure you judge by, but follow the charge as written.’
“Whereupon Mr. Holliday stated:
“ T add my request if the Court considers the argument improper, and apologize to the jury.’ ”

The remarks of counsel perhaps exceeded the bounds of strict propriety, but we do not regard the same as reversible in view of the court’s instruction to the jury at the time and Mr. Holliday’s request. Galveston, H. & S. A. Ry. Co. v. Hill (Tex. Civ. App.) 202 S. W. 358; Schmidt v. Houston Electric Co. (Tex. Com. App.) 242 S. W. 1019; Galveston, S. & S. A. Ry. Co. v. White (Tex. Civ. App.) 216 S. W. 265.

These assignments are also overruled which complain of the verdict and judgment as excessive. In view of the remittitur of $14,000, we regard the amount of the judgment as amply supported by the evidence. Beaumont, S. L. & W. Ry. Co. v. Sterling (Tex. Civ. App.) 260 S. W. 320; Galveston, H. & S. A. Ry. Co. v. Wells (Tex. Civ. App.) 15 S.W.(2d) 46; Hines v. Mills (Tex. Civ. App.) 218 S. W. 777; Texas & N. O. Ry. Co. v. Harrington (Tex. Civ. App.) 241 S. W. 250.

Affirmed.


author: FUNDERBURK, J.

text:
    COSDEN OIL CO. v. SIDES et al.
    No. 802.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 6, 1931.

      •Ike A. Wynn, of Fort Worth, and Brooks & Woodward, of Big Spring, for appellant.
    Clyde E. Thomas and Martelle McDonald, both of Big Spring, for appellees.
   FUNDERBURK, J.

Cosden Oil Company was defendant below, and this appeal is from a judgment against it in favor of Lillie Opal Sides and her husband for damages in the sum of $1,-112.50 for injury to a certain 52-acre tract of land and growing grass thereon, alleged to have resulted from “oils, oil waste and oil products” being permitted to flow upon same. The case was tried with a jury, to whom was submitted special issues, of which one, with the answer thereto, was as follows:

“If you answer Special Issue No. 2 in the affirmative, or ‘yes,’ then answer in dollars and cents the following special issue:
“Special Issue No. 3: What would fairly compensate plaintiff, if paid now, in cash, for such damage, if any? Answer: $1,112.50.-”

We are first called upon to determine if the evidence was sufficient to support the finding of the jury in answer to said special issue No. 3. This question involves a consideration of the nature and amount of damages, if any, recoverable under the pleadings. Upon one theory plaintiff sought recovery of damages, measured by the market value of 15 acres of land out of a 52-aere tract. The 15 acres were alleged to have been of the market value of $100 per acre, and which market value was totally destroyed, amounting to $1,500. Upon an alternative theory there was sought to be recovered as damages the value of grass or hay for the year 1929, and for each year thereafter, including ten years, amounting to $150 a yeari or an aggregate of $1,500. Under both theories facts were alleged sufficient to show a permanent injury to the land. The damages recoverable, if any, for that character of injury, was the amount of depreciation in the value of the land proximately resulting from the injuries. Under the second named theory the value of grass or hay was recoverable only for the year 1929. Damages measured by the value of crops of grass or hay for the future years were not only not recoverable because of being too remote as a matter of law, but were precluded by affirmative allegations of plaintiffs’ pleading, to wit: “The injuries and damages complained of above have all accrued to this date and plaintiffs are in this_ petition suing for and asking for only such damages as have actually been caused by defendant to this date.” Assuming plaintiffs’ pleadings to have been sufficient to authorize recovery of some amount of damages, and that the two theories of recovery stated as alternative were not in fact inconsistent to the extent-of one being exclusive of the other, the only damages that could be recovered under the pleadings were: (1) For permanent injury to the land, measured by the difference in the value of the land just before and just after the injuries complained of, excluding the value of the grass; (2) for the destruction of grass or hay, measured by the value of same. “Where an injury to pasture or meadowland results in the destruction of the grass or hay thereon, considered as a crop, the measure of damages is the value of such crop at the time and place of destruction. Where the injury also results in an injury to the land itself, as by destruction of the turf or grass roots, plaintiff is entitled to a further recovery which, by some authorities is measured by the diminution of the value of the land, or, which is probably equivalent, such amount as will compensate for the injury done to the turf and roots, taking into consideration the purposes to which the owner was appropriating or desired to appropriate the land, or to which it was adapted.” 17 O. J. 893.

Among many Texas cases supporting the text, and particularly the proposition that the measure of damages for a permanent injury to the land is the difference in the value before and after the injuries,- there may be mentioned the following: Ft. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; Fort Worth & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365; Trinity, etc., Co. v. Gregory (Tex. Civ. App.) 142 S. W. 657; Tex., etc., Ry. Co. v. Prude, 39 Tex. Civ. App. 144, 86 S. W. 1046; Mo., etc., Ry. Co. v. Malone, 59 Tex. Civ. App. 254, 126 S. W. 936; I. & G. N. Ry. Co. v. McIver (Tex. Civ. App.) 40 S. W. 438; Gulf, etc., Co. v. Hendricks (Tex. Civ. App.) 25 S. W. 433; M., K. & T. Ry. Co. v. Goode, 7 Tex. Civ. App. 245, 26 S. W. 441.

Under the principles declared in these authorities, we are not prepared to say that the evidence was wholly insufficient to sustain a finding of damages for the value of the grass or hay destroyed. Under the pleadings, however, the maximum amount that could have been allowed for that item of damage was in all events limited to the sum of $150. The remainder of the damages found by the jury must be sustained, if at all, by evidence from which the jury could determine the amount, if any, of depreciation in the value of the land, exclusive of the value of the growing grass. If the land had, as alleged, a market -value, that would be controlling. No witness testified to the market value of the land either before or after the alleged injury. No witness testified that the land had no market value. Situated as it was, but a few miles from a city'shown by one witness to have a population of 12,000 or 13,000, we cannot presume that it had no market value. Testimony with reference to intrinsic value, in the absence of evidence that there was no market value of the land, was incompetent. Being incompetent,, it is not to be considered in determining the sufficiency of the evidence. Henry v. Phillips, 105 Tex. 466, 151 S. W. 533. There was no other evidence of facts sufficient to justify the jury in finding any particular amount as the amount of decrease in the value of the land. We are therefore of opinion that the evidence was insufficient to support the verdict.

It was objected to special issue No. 3, calling for a finding of the amount of damages, that the court’s charge furnished no guide to the jury upon which they might determine the proper measure of damages. It will be observed that the issue itself did not submit the elements of damages claimed. Sufficient has already been said to show that this was a case wherein it was peculiarly imperative that the court give the jury appropriate explanations to enable them to properly. measure the damages. The failure to do so was reversible error. Glasscock v. Shell, 57 Tex. 215; G., H. & S. A. Ry. Co. v. Le Gierse, 51 Tex. 189; Texas Nursery Co. v. Knight (Tex. Civ. App.) 292 S. W. 589; K. C., M. & O. Ry. Co. v. Worsham (Tex. Civ. App.) 149 S. W. 755; Quanah A. & P. Ry. Co. v. Galloway (Tex. Civ. App.) 154 S. W. 653; H. & T. C. Ry. Co. v. Buchanan, 38 Tex. Civ. App. 165, 84 S. W. 1073; Beeman St. Clair Co. v. Caradine (Tex. Civ. App.) 34 S. W. 980; Hazlewood v. Pennybacker (Tex. Civ. App.) 50 S. W. 199.

A difference of opinion on the part of appellant and appellees regarding the nature of the suit is disclosed in the briefs. In view of another trial, it may be well to indicate our views on this question, although the matter is not directly presented for determination. Appellant construes the plaintiffs’ pleading as alleging a cause of action based upon negligence. Appellees in their statement of the nature and result of the suit assert the contrary, and say: “Appellees’ petition (plaintiffs in the trial court) does not predicate their cause of action upon ‘negligence’ of the appellant and nowhere in appellees’ petition can be found any clause, sentence or paragraph setting up the cause of action based upon negligence.”

Plaintiffs’ petition alleged no facts to show that the injuries complained of resulted necessarily from the operation of the refinery business, but, to the contrary, did allege that “* * * it was not in any manner necessary to the proper operation of the refinery,” etc. The case, therefore, is wholly unlike that, for instance, of M., K. & T. Ry. Co. v. Williams (Tex. Civ. App.) 5 S.W.(2d) 575, 577, wherein similar injuries resulted as “the necessary consequence of the operation of the extensive terminal yards” on which certain railroad operations were carried on. In that case it was said: “The test may be followed in the present facts, because the use of the premises and the operation of the yards in the manner complained of appear to be necessary for the company to do, and to continue to do,” etc. Where the things necessary to be done in the operation of a lawful business cause injury to others, the right to compensation where allowed is not dependent upon the existence of negligence.

The true rule governing the distinction in cases where a recovery is allowed regardless of any question of negligence, and those where the right of recovery is dependent upon the existence of negligence, is well stated in Corpus Juris, vol. 46, p. 664, as follows: “A distinction has been made between acts lawful in themselves done by one upon his own premises which may result in injury to another if not properly done or guarded, and those which in the nature of things must so result; in the former case, a person could only be made liable for actual negligence in the performance of the act or mode of maintaining it, while in the latter he would be liable for all consequences of his acts, whether guilty of negligence or not. The one can only become a nuisance by reason of the negligent manner in which it is performed or maintained, while the other is a nuisance per se.”

We are of opinion that no right of recovery was shown independently of the existence of negligence. The leading case on the question in this state is that of G., C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 1000, 52 L. R. A. 293, 86 Am. St. Rep. 835. In that case the Supreme Court quotes with approval the rule stated in Bishop on Non-Cont. Law, § 829, as follows: “One may not, either voluntarily or negligently, cast earth or other substance from his own ground on a neighbor’s; or upon his own bring or erect anything, or change the natural position of anything, from which the air, the moving water, or any other force of nature will bear to another on other land what is distinctly injurious to him; or, by any excavation, structure, or other change of his premises from their natural condition, render them unsafe to other persons and their property lawfully thereon; while yet these restraints will not be drawn so closely as substantially to deprive him of the use of his lands, or the ordinary pursuit of his own interests, or to render him answerable for inevitable accidents injuring others.”

In G., H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 1077, 10 L. R. A. (N. S.) 367, the Supreme Court interpreted its own holding in the Oakes Case in the following language: “In the absence of some law forbidding or regulating the keeping or use of the thing, the fundamental question is one of negligence vel non, depending, as in other cases of negligence, upon the inquiry whether or not there has been a neglect or violation of the duty which the law imposes upon all persons to use due care in the use of their property or the conduct of their business to avoid Injury to others. Some of the older cases in England seem to assert the absolute liability of an insurer, "but it is settled, in this state ,that the question is one of negligence. (G. C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 52 L. R. A. 293, 86 Am. St. Rep. 835.)” (Italics ours.)

In Mo. Pac. Ry. Co. v. Platzer et al., 73 Tex. 117, 11 S. W. 160, 161, 3 L. R. A. 639, 15 Am. St. Rep. 771, the court says: “Every person has the right to kindle a fire on his own land, for any lawful purpose, and, if he uses reasonable care to prevent its spreading' and doing injury to the property of others, no just cause of complaint can arise, yet, although ‘the time may be suitable and the manner prudent, if he is guilty of negligence in taking care of it, and it spreads and injures the property of another in consequence of such negligence, he is liable in damages for the injury done. The gist of the action'is negligence. * * * (Italics ours.)

In H. & T. C. Ry. Co. v. Anderson, 44 Tex. Civ. App. 394, 98 S. W. 440, the wreck of a train transporting oil cars caused oil to flow down a ravine and injure the property of the plaintiff. The railroad, having shown that it was guilty of no negligence causing the wreck, was acquitted of liability for injury to the plaintiff’s land, save and except for negligence in permitting some of the oil to run upon the land after the wreck was cleared up which due care would have prevented. The Supreme Court in M., K. & T. Ry. Co. v. Carter, 95 Tex. 483, 68 S. W. 159, and the Court of Civil Appeals in H. & T. C. Ry. Co. v. Laforge, 84 S. W. 1072, held that the duty of the railroad company to equip locomotives with approved appliances for preventing fires was not an absolute duty of an insurer, but the measure of duty was to use reasonable or ordinary care to do so.

The distinctions dealt with in the foregoing quotation from Corpus Juris may not have been recognized, and properly applied in all eases. Whether this be true of Texas Company v. Earles (Tex. Civ. App.) 164 S. W. 28; T. & P. Ry. Co. v. O’Mahoney, 24 Tex. Civ. App. 631, 60 S. W. 902; Texas Company v. Giddings (Tex. Civ. App.) 148 S. W. 1142; and Teel v. Rio Bravo Oil Co., 47 Tex. Civ. App. 153, 104 S. W. 420, it is unnecessary for us here to express our opinion. We believe that plaintiffs’ petition in .this case affirmatively showed no right of recovery, in the absence of the existence of negligence, and we further believe that said petition was sufficient to state a cause of action for negligence to the extent at least as hereinbefore considered. Upon another trial, if the facts as to negligence be in dispute, suitable issues as to same should be formulated and submitted to the jury.

For the reasons discussed, the judgment of the trial court should be reversed and the cause remanded, and it is accordingly so ordered.