author: BBAIR, J.

text:
    TRAVIS COUNTY v. WILLIAMSON COUNTY.
    (No. 7182.)
    Court of Civil Appeals of Texas. Austin.
    Jan. 25, 1928.
    Rehearing Denied March 14, 1928.
    1. Counties Survey of county boundary line in 1883 contrary to statutes then in force was illegal.
    Survey in 1883 of boundary line between counties which was made under orders of the commissioners’ court, instead of the county court of respective counties as required by statutes in force at that time, was illegal.
    2. Counties <&wkey;8 — Survey in 1859 of part of county boundary line was not illegal where not prohibited! by statutes then in force.
    A survey in 1859 of only a part of boundary line between counties was not illegal where there were no provisions in statute in force at time requiring whole of county boundary line to be surveyed or that survey of only portion in dispute would not he authorized.
    3. Counties ¡&wkey;8 — Plaintiff county held to have burden of proving alleged recognition by both
    - counties of surveys establishing boundary line.
    Where, in dispute between counties as to county boundary line, plaintiff county alleged that line had been definitely established and marked and been recognized for many years by respective counties as boundary line, plaintiff county had burden of proving recognition of surveys by the two counties.
    4. Counties <&wkey;8 — Possession for length of time to acquire title by disseisin, is prerequisite to establishment of recognized' or marked boundary line between counties (Rev. St. 1925, art. 1606).
    Under Rev. St. 1925, art. 1606, possession for sufficient length of time as may give title by disseisin is a necessary prerequisite to the establishment of an agreed or recognized or established and marked boundary line between counties.
    5. Boundaries <&wkey;>46(3) — Counties <&wkey;>8 — Where possession by parties or counties is retained after attempted or agreed establishment, of boundary line, proof must be clear that it was-not adverse.
    Where parties or counties remain in possession after an attempted or agreed survey or establishment of a boundary line, the proof must be clear that possession was not adverse.
    6. Counties <&wkey;>8 — Alleged boundary line between counties held not binding where it was never recognized and defendant county was in adverse possession of land contrary to alleged boundary line (Rev. St. 1925, arts. 15-9'i and 1606).
    In dispute between counties as to common boundary line wherein plaintiff county based its claims on alleged definitely established and recognized line pursuant to surveys, held, that, under Rev. St. 1925, arts. 1591 and 1696, such alleged, boundary line was not binding where there was no proof that counties ever went into possession of land in accordance with such surveys, and the undisputed evidence showed that defendant county was in adverse possession of land claimed by plaintiff county based on such boundary line.
    On Motion for Rehearing.
    7. Counties <&wkey;>8 — Adoption by commissioners’ courts of reports of surveyors appointed to determine county boundary line was not judicial determination and establishment of line.
    A mere formal adoption or approval by respective commissioners’ courts of reports and field notes of surveyors appointed to determine boundary line between counties did not constitute a judicial determination and establishment of boundary line which could not be destroyed by failure to recognize it for a long period of years, since another survey in accordance with field notes is necessary to actually mark and es•tablish line on the ground.
    8. Counties <&wkey;8 — Where alleged boundary line had never been actuaiy marked on ground* or recognized, new line should be established to follow permanent natural objects readily found pursuant to statute defining boundary line.
    Where disputed boundary line between counties, alleged to have been established by adoption of surveyors’ reports and field notes, had never been actually marked upon the ground as required by law nor actually recognized by the counties, line should be established and marked to follow divide between waters of rivers named, as provided by statutes defining said boundary line, which divide constitutes a permanent natural object capable of being readily found and marked upon the ground.
    Appeal from District Court, Burnet Coun- ■ ty; J. H. McEean, Judge.
    Action by Williamson County against Travis County. From the judgment, defendant appeals, and ¡plaintiff cross-assigns error.
    Reversed and remanded, with instructions.
    Ike D. White ánd E. Oartledge, both of Austin, for appellant.
    W. H. Nunn and Wilcox & Graves, all of Georgetown, for appellee.
   BBAIR, J.

This appeal involves a controversy over the common boundary line between Travis and Williamson counties, which. arose as follows: Various legislative acts from 1846 to 1879 fixed said boundary line as beginning at the northeast corner of land granted to Isaac Casner, being the north corner of Bastrop county; thence with the meanders of the divide between the waters of the Brazos and Colorado rivers to the intersection of the southeast line of Burnet county, at a point 26 degrees west from the west comer of John Carothers’ league No. 6 on the west fork of the San Gabriel river. Articles 911 and 925, R. S. 1879; Batts’ Anno. Statutes 1895, vol. 1, pp. 423 and 429. In 1859, under orders of the county court of said counties, respectively, Dennis Corwin,' for Travis, and Wm. IC Duerson, for Williamson, undertook, and, according to their reports which were formally adopted by the respective county courts appointing them, did survey a part only of said boundary, line. In 1883, under orders of the commissioners’ courts of said counties, respectively, John E. Campbell, for Travis, and A. S. How-ren, for Williamson, surveyed the whole of said boundary line, and their reports were formally adopted -by the respective commissioners’ courts appointing them. Neither court ordered these surveyors to do so, but their respective reports show that they tried to follow or resurvey and re-establish the Gorwin-Duerson line of 1859 on the portion covered by it, and with variations which do not appear to be material succeeded in doing so. In 1927, Williamson county sued Travis county under provisions of articles 1591 and 1606, R. S. 1925, alleging that the two surveys were identical over the portion of the line covered by both; that by them the entire boundary line had been definitely established and well marked upon the ground and had been for many years recognized as the boundary line, except as to a small portion or segment of the line covered by both surveys and specifically described, on which 'the markings had become vague and indefinite; that Travis county and its officers had for many years failed and refused to recognize and be bound by said common boundary line so established on this particular portion or segment, were asserting and claiming the line to be farther north and east of where same was so established, and were unlawfully asserting jurisdiction over property of the value of $150,1)00, which was subject to taxation in Williamson county by virtue of said surveys. Williamson county prayed that the court declare the common boundary line to be fixed and established by the Campbell-Howren survey of 1883, and that the portion of the line alleged to be in controversy and on which the markings had become vague and indefinite be resurveyed and re-established in accordance with that survey. By answer and cross-action Travis county contended in the trial court and here contends, among other contentions, as follows:

(1)That the 1883 Campbell-Howren line was illegal because run under orders of the commissioners’ court, instead of by action of the county court of said • counties, as required by the statutes then in force.

(2) That the 1859 Corwin-Duerson line was illegal because it was a survey of only a part of the boundary line, whereas the law then existing required that the whole of said line be run.

(3) That neither of said surveys had ever been recognized by Travis county.

Travis county prayed that the court appoint competent surveyors to survey the whole of said boundary line in accordance with the acts of the Legislature fixing it, and that they be directed to fix, mark, and establish said line in accordance with law.

On a trial to the court without a jury judgment was rendered, declaring the 1883 survey illegal upon the ground contended for by Travis county, but the 1859 survey was declared to be legal, and upon these conclusions of law the court ordered the. whole of the line surveyed in accordance with line fixed by the legislative acts, supra, but directed the surveyors appointed to follow the 1859 survey on the portion of the line covered by it; and from this judgment Travis county has appealed, contending that the trial court should have sustained all of its above contentions and rendered judgment in accordance with its prayer. Williamson county has cross-assigned as error the action of the trial court in declaring the 1883 survey illegal.

The trial court correctly held the 1883 survey illegal because made under orders .of the commissioners’ court, instead of the county court of the respective counties at interest as required by the statutes in force at that tme. Gammel’s Laws, vol. 8, p. 1437; Kaufman County v. McGaughey (a decision by this court) 32 S. W. 927, Id., 11 Tex. Civ. App. 551, 33 S. W. 1020. Williamson county attacks the MeGaughey decision as dictum on the point in question and as an incorrect pronouncement of the law, contending that commissioners’ courts also had jurisdiction over county boundary line surveys by virtue of article 686 to 691, R. S. 1879. These contentions were directly passed upon in the MeGaughey Case and for that reason are overruled, and also because the legality or illegality of this survey is only incidental to Travis county’s third contention that whether legal or illegal it had never recognized the survey,

There is no merit to Travis county’s contention that the 1859 survey was illegal because a survey of only a part of the boundary line. We find no provision in the statute under which this Survey was made requiring that the whole of a county boundary line be surveyed or that a survey of only a portion in dispute would not be authorized. Gammel’s Laws, vol. 2, p. 1537.

But since we are of the opinion Trav-. is county’s third contention, that it had never recognized either of said surveys or lines so established, should be sustained under the undisputed evidence, the question of the legality or illegality of these surveys becomes immaterial, and the trial court should have instructed the surveyors appointed to survey, mark, and establish the said boundary line as fixed by the various legislative acts, supra', instead of requiring them to resurvey and re-establish the 1S59 line on the portion covered by it.

In reference to the recognition of said surveys, Williamson county alleged that by them the said boundary line had been definitely established and marked upon the ground and. had been for many years recognized by the respective counties as the boundary line, but that Travis county was unlawfully asserting jurisdiction to the north and east of said established line at a particularly defined and described point, which was alleged to be the only portion of said boundary line in con-, troversy. Travis county denied these allegations and pleaded that it had never recognized the surveys, and that no part of the said boundary line had ever been legally surveyed, established, and marked upon the ground as required by law. On the issue thus raised by the pleadings Williamson county had the burden to prove recognition of the surveys by the two counties. It offered in evidence the various orders of the respective courts of the counties at interest appointing the surveyors, their reports and field notes, and the respective orders of the courts of the counties approving said reports and field notes, and rested its case. Travis county then showed by undisputed evidence that- as far back as there were any records of such matters it had assumed jurisdiction over the lands and properties situated thereon lying immediately north and east of that particular portion or segment of the boundary line fixed by these two surveys and alleged by Williamson county to be the only portion in controversy, by levying and collecting taxes thereon, and by otherwise assuming such control as a county may over lands and properties situated within its boundary; that the exercise of such jurisdiction was begun long before the survey of 1883 and had continued ever thereafter, and - covering a period of nearly 50 years; that Williamson county has exercised jurisdiction over lands lying west or southwest of the line established by these surveys by taxing them, and was doing so at the time this suit was filed. The proof is also undisputed that a line dividing the waters of the Brazos and Colorado rivers can be definitely fixed and established and marked on the ground; that such a line lies north and east of the line established by the two surveys at the point alleged to be in controversy; and that lands and properties over which Travis county had assumed jurisdiction for nearly 50 years was on its side of such a line. There is no proof that either Travis county or Williamson county had ever been in possession of or exercised jurisdiction over the lands or properties along the particular portion alleged by Williamson county to be in dispute by virtue of or in accordance with these surveys.

In the case of George v. Thomas, 16 Tex. 89, 67 Am. Dec. 612, it was held:

“Where the parties have agreed upon and marked a boundary line, and the possession is in accordance with it for such a length of time as may give title by disseisin, the line cannot be disturbed, although found to be erroneously established, unless there be clear proof that the possession was not adverse. 4 Shep. 23.”

The authority of 9 C. J. 231, also rean-nounces the well-established rule as to boundary agreements, that:

“While execution of the agreement by taking possession of the land is necessary, it is not necessary that this possession should have been continued for the period requisite to acquire title by adverse possession. A possession for such time as will show the intent is sufficient.”

The Commission of Appeals held in the ease of Hunt County v. Rains County, 116 Tex. 277, 288 S. W. 808, that the above rules as to a divisional line between individuals were applicable to a divisional line as between counties. See, also, Pecos County v. Brewster County (Tex. Civ. App.) 250 S. W. 310.

The act of the Legislature (article 1606, R. S. 1925), providing for validation of recognized county boundary lines and invoked 'by Williamson county here, reads:

“The county boundaries of the counties in this state as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.”

It is clear from the above decisions and the statute quoted that possession for a sufficient length of time as may give title by disseisin is a necessary prerequisite to the establishment of an agreed or recognized or established and marked boundary line between counties. It is also clear that where parties or counties remain in possession after an attempted or agreed survey or establishment of a boundary line, the proof must be clear that the possession was not adverse. The possession as relates to counties is the exercise of jurisdiction over the lands or properties involved, such as levying and collecting taxes thereon, or assuming such other control over them as counties may assume over other properties within their boundaries. There is no proof that the counties here ever went into possession of the lands in accordance with these surveys, but the contrary is shown by undisputed evidence, and the possession of lands claimed by Wil-. liamson county by virtue of these surveys is alleged to be in the possession of Travis county adversely to it, and the proof is undisputed that such possession was and is adverse to Williamson county.

It follows from what has been said herein that we reverse the judgment of the trial court, and we here direct the trial court to declare the said boundary line to be fixed and established by the various acts of the Legislature, supra, and to order and direct the surveyors appointed in the premises to survey, establish, and mark said line as required by law.

Reversed and remanded, with instructions.

On Motion for Rehearing.

The contention is made on rehearing that since we hold the 1859 survey to be a legal one, it should now be followed. We only hold the survey legal with respect to the question discussed, but we further hold that the line described by the field notes of the 1859 survey was never actually recognized by either county and was never marked upon the ground as required by law.

The contention is also made that the filing and approval by the respective commissioners’ courts of the reports and field notes of the surveyors appointed constituted a judicial determination and establishment of the boundary line here involved, which neither county could annul nor destroy by merely failing to recognize it for a long period of years. The contention is without merit. One of the primary purposes of the statutes with regard to county boundary line surveys is to provide for surveying and actually marking of such a line upon the ground in order that all concerned may see it and be informed of their respective rights in the premises. Nothing short of a substantial marking upon the ground as provided by statute will suffice to establish a county boundary line. The most that can be said for the' surveys of 1859 and 1883 is that field notes were made and approved which described certain natural objects with courses and distance calls from which a line might be established on the ground. Those field notes and surveys do not show that the line was actually marked and identified on the ground. The proof is to the contrary. There is no showing whatever that survey lines were marked at the point -where the county line was supposed to have crossed them so that landowners might know their rights. And the mere formal adoption or approval by the commissioners’ courts of the survey- or’s, reports and field notes will not suffice, because another survey in accordance with the field notes so approved is necessary to actually mark and establish the line upon the ground. Each county is here insisting that at least a portion of the line is indefinite and unmarked, and each is asking a survey with legal markings upon the ground. The only way to now establish the line is to again survey, either in accordance with the field notes which were never actually recognized though formally adopted, and which would be merely a course and distance survey, or in accordance with the dividing waters of the rivers named and the line fixed by the statutes. Certainly the Legislature did not intend by the various validating acts with regard to “established” county boundary lines to bind a county to á line merely because it had adopted reports and field notes of surveyors appointed to survey it, where the undisputed evidence, shows that no actual markings upon the ground were ever made locating the line. The boundary line the Legislature intended to validate was one actually established and marked upon the ground, and not a line which might be established from course and distance calls of approved field notes of surveyors appointed to survey such line, but which had never been actually marked upon the ground as-required by law, and which had never been actually recognized by the counties. We therefore conclude that the line now to be established and marked should follow the divide between the waters of the rivers named and as provided by the statutes defining said boundary line, which divide constitutes a permanent natural object capable of being readily found and marked upon the ground. In that conclusion we are supported by the case of Pecos v. Brewster County, supra, which is very similar in point of fact to this case. In that case a resurvey was ordered because the surveyor making first one did not build nor erect monuments on the line as required by law, for which reason the line was declared to be an unmarked and unidentified line. Such is the exact situation here presented. Although two surveys of the line have been made, it was not marked upon the ground and the'parties at interest do not know, nor have they ever known, its exact location on the ground according to the undisputed evidence.

The motion will be overruled.

Overruled.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, C. J.

license: Public Domain

text:
    CITY OF MEMPHIS v. BROWDER.

    (No. 2877.)
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 12, 1927.
    Rehearing Denied Nov. 9, 1927.
    1. Monopolies <&wkey;'6 — Contract granting waterworks owner right to furnish city and citizens water for 25 years at specified rate held void ' as monopolistic (Const, art. I, § 26).
    Contract whereby city, for a consideration, granted owner of waterworks system the privilege and right to use city streets and alleys for constructing, maintaining, and operating a waterworks plant for supplying water to the city and its citizens for 25 years at fixed rate held violative of Const, art. 1, § 26, prohibiting monopolies, and entire contract was thereby rendered void.
    2. Waters and water courses <&wkey;>203(l2) — Suit to enjoin increase in water rates, based on franchise, did not raise issue of right-to regulate rates independently of franchise.
    Where city’s suit to enjoin owner of waterworks system from charging and collecting more than specified rate was based on contract as evidenced by original franchise and amendments thereto, city’s right to regulate rates independently of the franchise was not an issue raised by petition and could not be considered.
    Appeal from District Court, Hall County; R. L. Templeton, Judge.
    Suit by City of Memphis against J. D. Browder. Prom an order sustaining a demurrer to plaintiff’s first amended original petition, plaintiff appeals.
    Affirmed.
    Sam J. Hamilton and Elliott & Moss, all of Memphis, for appellant.
    Pires & Williams, of Childress, for appel-lee.

      writ of error granted.

   HALL, C. J.

This is an appeal from an order of the district court of Hall county, sustaining a demurrer to the plaintiff City of Memphis’ first amended original petition, in which the city sought to enjoin Browder, as the owner of the waterworks system, from charging and collecting $1.50 flat rate from such inhabitants of said city, who used water for- servants’ houses, in addition to the same flat rate used by such inhabitants in the principal residences owned by the several users.

The amended petition alleges in substance that Memphis is a city, duly incorporated and existing under chapter 2, title 18, of the Revised Statutes of 1895, and that Browder is the owner of the waterworks system in said city, doing business rmder the. style and firm name of Memphis Waterworks; that on the 7th day of May, 1907, the city, by and through its duly elected officers, entered into a contract with D. Browder, evidenced by a franchise of that date, by the terms of which it granted D. Browder, by Ordinance No. 30, the privilege and right to use the streets, alleys, etc., of the city, in erecting, constructing, •maintaining and operating a waterworks plant, for the purpose of supplying water to the city and its citizens; that in consideration for said Ordinance No. 30, Browder accepted its terms and conditions, a copy of which is made an exhibit to the petition, and thereby agreed and bound himself to furnish water to the city of Memphis and its inhabitants. Section 7, set'out in the petition, fixes the rate for each residence at $1, and authorizes an additional charge for each closet, and private stable for each horse or cow, of 25 cents. It is further alleged that Browder constructed and operated the plant under and by virtue of the franchise, and has furnished water in accordance with the terms fixed by said ordinance, and by section 7 thereof, until on or about the 7th day of September, 1920, upon which date the rates to- be charged were changed by the enactment of Ordinance 156; that prior to the enactment of this ordinance, J. D. Browder became a .part owner with D. Browder in the ownership of said waterworks plant; that the recited purpose of said Ordinance 156 was to amend certain sections of the original Ordinance No. 30, and did amend section 7 of said ordinance No. 30, by adding the following:

“A minimum meter rate of $1.50 for the first 1,000 gallons and 50 cents for each additional 1,000 gallons, may be charged all residence and business connections, and that a minimum flat rate of $1.50 per month be charged for each tap in equipping a meter.”

That since said amendment the Browders, in accordance with the terms thereof, have been furnishing water to the city of Memphis, and its citizens, until the death of D. Brow-der ; that since his death, his son, J. D. Brow-der, is now the owner of said waterworks system, and is controlling and operating the same; that notwithstanding said rate regulations, above referred to, which have been acquiesced in and acted upon by the parties as hereinabove shown, the said J. D. Browder on or about the 1st day of June, 1926, and for some time prior thereto, violated such rate regulations by charging and demanding the additional sum of $1.50 from each resident having a servant’s house and servants therein, within the yard or curtilage of said residence; that said charge for servant houses was in addition to the $1.50 flat rate theretofore charged for the family residence of the owner of such principal residence or curtilage; that such charge and demand was made without the consent of the occupants of such dwelling houses, and in violation of the rate regulations above referred to, and that Browder is threatening and continues to make threats of cutting off the water supply to each of such residences, occupied by such families, unless the additional charge of $1.-50 flat rate is paid for each servant house. The petition further alleges that because such damage as may occur by reason of the wrongful cutting off of tl}e water supply would be indefinite and uncertain and impossible of estimation, that plaintiff has no adequate remedy at law.

By a second count in the petition, it is alleged:

That relating to that part of Ordinance 156, numbered as section 3, regulating the rates to be charged by the defendant in furnishing water to the city of Memphis and its citizens, the city council passed Ordinance No. 210 for the purpose of defining- the word “residence,” as used in said Ordinance 156, section 3 thereof. That said Ordinance No. 210 provides as follows:

“Provided that only one such meter rate or minimum flat rate shall be charged to one residence and business connection, and servant houses on the same premises, and used in connection with such residence, shall be construed as a part of the residence, and no additional meter charge or minimum flat rate charge shall be collectable from any such servant house; that all provisions contrary hereto be and the same are hereby repealed.”

That notwithstanding such amendments to such original franchise, the defendant is still demanding such additional charge of $1.50 for each servant house, whether the said servant house be connected with the defendant’s mains or not, and even though the water used by such servant house is measured through the meter and paid by the master occupying the principal residence or dwelling on said premises.

The prayer is that a writ of injunction issue, restraining the defendant from demanding and receiving such additional and illegal charges and from the collection thereof, and the enforcement of same, and from cutting off the water supply of any such residence or dwelling house, by reason of the failure of such resident to pay such additional and illegal charges, and that said injunction upon final hearing be made perpetual, and for such other and further relief, both general aiid special, in law and equity, that it may show itself entitled to.

The original franchise, made an exhibit to the petition, contains section 4, which is, in part, as follows:

“During the life of this franchise, the grantee shall furnish to said city all necessary water for its corporate purposes, and the city hereby contracts for fire plugs,'not to exceed 12 in number, to be placed and maintained at such points as may be designated by the street and alley committee of said city, of -at least 2½. inches in diameter, said plugs to be installed within ten months from the date when this ordinance shall take effect. The counsel of the grantor shall within 30 days from this date furnish to the grantee a plat showing the location of the desired fire plugs. The said city further agrees with the grantee that it will pay to the said grantee a sum not to exceed $25 per an-num for the use of each of said fire plugs, and should said city demand additional fire plugs to be placed, it shall pay to said grantee not to exceed the sum of $25 per annum for each additional plug required.”

The petition alleges that the city of Memphis has more than 2,000 inhabitants.

The defendant demurred generally to the petition.

The principal contention urged upon this appeal, and which was raised and sustained by the trial court, is that because the petition alleges the contract made May 7,1907, between the parties for a fixed period of 25 years, by the terms of which Browder became obligated, for a consideration, to furnish water to said city during said term of years, at a fixed rate for both the city and the inhabitants thereof, and because it is shown that on September 7, 1920, another ordinance, amendatory of the original, was passed, fixing a rate for a definite time and consideration, that the petition is insufficient, showing a contract contrary to and violative of the provisions of the Constitution of Texas, which prohibit the grant by municipalities of exclusive franchises which create a monopoly. This proposition must be sustained. The doctrine it announces is so well established in this state a further discussion is unnecessary. City of Brenham v. Brenham Waterworks, 67 Tex. 542, 4 S. W. 143; Ennis Waterworks v. City of Ennis, 105 Tex. 63,144 S. W. 930; Id. (Tex. Civ. App.) 136 S. W. 513; Altgelt v. City of San Antonio, 81 Tex. 436,17 S. W. 75, 13 E. R. A. 383; City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960.

The fact that one paragraph in a franchise of this character violates that part of artiele I, § 26, of the state Constitution, prohibiting the creation of a monopoly, has the effect of rendering the entire contract void, because it cannot be said how much of the obligation is based upon the illegal consideration. Hartford Fire Ins. Co. v. City of Houston (Tex. Civ. App.) 110 S. W. 977; Edwards County v. Jennings, 89 Tex. 621, 35 S. W. 1053.

Ordinances 156 and 210 are simply amen-datory of original Ordinance No. 30, and cannot be construed as an effort on the part of the city to fix rates under R. S. 1925, art. 1119, if indeed this e.ould be done — a point which we do not decide.

Besides, the city’s suit is based upon the contract as evidence by the original franchise and the two amendments, and therefore the right of the city of Memphis to regulate the rates independently of the franchise is not an issue raised by the petition, and cannot, therefore, be considered. Bevers et al. v. Hughes et al. (Tex. Civ. App.) 195 S. W. 651.

We find no reversible error, and the judgment, is. therefore affirmed. . .
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SCRUGGS v. WHEELER.
    (No. 2885.)
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1927.
    Rehearing Denied March 14, 1928.
    1. Nuisance <&wkey;3(5) — Cotton gin, though not nuisance per se, may become such because of its location, construction, or operation.
    Cotton gin is not a nuisance per se, but may be adjudged a nuisance because of its location or the manner of its construction or operation.
    2. Nuisance &wkey;>23 (I) — Contemplated structure will not generally be enjoined unless it is certain that when completed it will constitute nuisance.
    "As a general rule, an injunction will not be issued in advance of structure complained of as nuisance, unless it is certain that the structure when completed will actually constitute a nuisance.
    3. Municipal corporations <&wkey;60l — Inclusion of all “other manufacturing * * * establishments” within ordinance regulating location of elevators, gins, and ioe plants embraced merely industrial plants of character specified, and did not render ordinance invalid.
    Ordinance limiting territory in city within whRh elevators, gins, ice plants, and “all other manufacturing and industrial establishments” might be erected merely extended to industrial plants of the same kind and character as those specified in the ordinance, and reference to other establishments did not therefore render ordinance void.
    [Ed. Note. — For other definitions, see Words and.Phrases, Second Series, Manufacturing Establishment.]
    4. Municipal corporations <⅞=>805 — .Ordinance restricting location of cotton gins held authorized under statutes giving cities power to locate offensive manufacturing establishments, abate nuisances, and regulate works dangerous in promoting fires (Rev. St. 1925, arts. 1015, 1068).
    Ordinance'making it unlawful for any person to erect cotton gin except in designated district along railway track in city held, authorized under Rev. St. 1925, arts. 1015 and 1068, giving cities power to abate nuisances, direct location of offensive or unwholesome business, and to regulate works dangerous in promoting fires, and in any event ordinance was not unreasonable.
    5. Municipal corporations &wkey;>l 11 (3) — Ordinance passed pursuant to specific legislative authority cannot be successfully attacked as unreasonable except on constitutional grounds.
    ' Where Legislature in terms gives a municipality power to pass ordinances of a specified and defined character, ordinances so passed cannot be successfully attacked as being unreasonable except upon constitutional grounds, . though they may be so impeached if passed under merely incidental or general powers.
    6. Municipal corporations <&wkey;601— Ordinance restricting cotton gins to district adjacent to railroad tracks held reasonable in view of fire hazard and noise, smoke, and offensive odors incident to ginning.
    Oity ordinance restricting location of cotton gins to district adjacent to railroad tracks, even if not specifically authorized by statute, held reasonable in view of highly inflammable character of cotton lint, and noise, dust, and offensive odors incident to ginning cotton.
    7. Municipal corporations <&wkey;63(2) — Courts may inquire as to reasonableness of ordinance passed without express authority.
    Where no express authority is given municipality to pass upon ordinance, reasonableness of municipality’s action is subject to inquiry by the courts.
    8. Municipal corporations &wkey;>63(2) — Courts will not interfere with exercise of discretionary power by municipalities, unless clearly unreasonable.
    Courts will not interfere with or attempt to control the exercise of the discretionary powers of municipalities unless they are clearly unreasonable.
    9. Municipal corporations <&wkey;60l — inflammable character of lint produced and noise, dust, and offensive odors resulting from cotton ginning may be considered in passing upon ordinance excluding gins from residential districts.
    Inflammable and combustible character of lint produced fay ginning cotton, and noise, dust, smoke, gases, and offensive odors incident to the business of ginning, while possibly not all matters of which court may take judicial notice, may, nevertheless, be considered in determining reasonableness of ordinance which excludes gins from residential districts.
    10. Municipal corporations <&wkey;63(2) — Reasonableness of city ordinance is generally question of law.
    Reasonableness of city ordinance is, as a general rule, a question of law for the court, and courts will generally defer to judgment of municipal authorities in determining necessity and reasonableness of ordinance.
    Appeal from District Court, Wheelfer County ; Newton P. Willis, Judge.
    Suit by R. L. Wheeler against Arthur Scruggs for an injunction. Judgment for .plaintiff and defendant appeals.
    Affirmed.
    Reynolds, Hill & Engledow, of Shamrock, for appellant.
    J. W. Sanders, of Canadian, and Clayton Heare, of Shamrock, for appellee.
   HALL, C. J.

The appellee, Wheeler, filed this suit, praying for an injunction restraining the appellant Scruggs from erecting and operating a gin plant on four certain lots in the town of Shamrock. He alleged in substance that the erection and operation of such gin would be in violation of city ordinance No. 80. In a second count, he alleges that if the gin is erected and operated it will be a nuisance and will interfere with the comfortable and peaceful enjoyment of his home, because, in operating it, lint, dust, smoke, etc., would be blown from the gin onto his lot and into his residence, thereby becoming a nuisance.

The appellant answered by a general demurrer and special exceptions, and alleged specially that the character of the gin which he proposed to erect and operate was of the most modem type; that its operation would not interfere with the comfortable enjoyment of appellee’s home or be injurious to the health of appellee or his family. He further attacked said ordinance No. 80 as being void and of no force and effect, because it was arbitrary, unreasonable, and deprived him of the right to use his property in a lawful manner, without due process of law, in violation of the Constitution and the laws of this state.

The case was tried to the court without the intervention of a jury, and resulted in a judgment in favor of appellee perpetually enjoining appellant from the erection and operation of said gin. Prom this judgment, this appeal is prosecuted.

The record contains a statement of facts. The trial judge filed findings of fact and conclusions of law, which are, in substance. as follows:

(1) That on January 25, 1927; the defendant Scruggs purchased the four lots described in the petition, within the corporate limits of the city of Shamrock, and on February 15th thereafter commenced the erection of a cotton gin thereon; that the city of Shamrock was duly incorporated under the general laws of the state of Texas; that he purchased said four lots with .the intention and for the purpose of erecting and operating a cotton gin thereon.

(2) That prior to the purchase of said property, Wheeler had acquired four certain other lots in the same block, and that his homestead was situated upon two of said lots, where he resided with his family and where he intended to reside in the future.

(3) That the cotton gin which the defendant Scruggs proposes to erect upon his lots will be, as to the property line thereof, 250 feet from plaintiff’s' residence, and that the nearest improvements or accessories to the cotton gin upon defendant’s lots will be 310 feet from the plaintiff’s residence.

(4) On November 30, 1926, the city of Shamrock, by and through its city council, duly enacted ordinance No. 80, by which it was made unlawful for any person to erect a cotton gin within that part of the corporate limits of said city in which the plaintiff resided and in which the defendant proposed to erect said gin; that said ordinance was regulatory and provided that a cotton gin might be erected in any part of that territory of the city which was situated 400 feet from the center of the main track of the Chicago, Rock Island & Gulf Railway Company which ran through- said city, and said ordinance further provided a penalty for the erection of a cotton gin elsewhere in said city.

(5) There have been located within said city at least six gins similar in a general way to the one which defendant proposes to build, and that prior to the passage of said ordinance, the said six gins had become offensive to the inhabitants thereof, by emitting clouds of dust and lint from the cotton, which had been transmitted to residential property situated in the vicinity of said gins; that the collection of automobiles and teams around said gins has caused noises and offensive odors and increased the fire hazard to residences, making the insurance rate higher by reason of the danger of fire, and had subjected such residential districts to deposits of dirt and lint in and upon the premises of residents in proximity thereto; that certain prevailing winds carried such dust, dirt, and cotton into and upon the premises and residences to such an extent that tne manner in which said gins had operated and in which they likely might be operated was a nuisance to the people of said city, causing physical discomfort, disturbing the peace and quietude, and depriving them of the comfortable enjoyment of their homes, and were, therefore, obnoxious to the general welfare of the people who resided near by; that by reason of such matters, there was a reasonable necessity for the passage of said ordinance No. 80 in order to abate the operation of cotton gins, because the same had proved to be nuisances when operated in the districts where residences were situated, and that such was likely the actuating motive of the city of Shamrock in the passage of such ordinance.

(6) That it is the purpose and intent of the defendant to attempt to operate his proposed gin with certain improved machinery; that a gin could be constructed with improved machinery, similar to that which the defendant proposes to use, in such a way as ■ that the objectionable features hereinbefore- enumerated might be greatly reduced, but that, even with such machinery, which has been placed upon other gins within said city, the operation of the gin might be so conducted as that it would be a nuisance in the same way as other gins have proven to have been nuisances; that, even with all the modern improved machinery which might be placed therein, there is, nevertheless, some dust emitted and some lint that might be deposited, and if defendant should be permitted to erect his gin upon the lots, the same might, with reasonable probability, be operated in such a way as that it would constitute a nuisance to plaintiff Wheeler; that said gin will be located south of plaintiff’s- residence, and the dust and lint may he carried to plaintiff’s premises in such way as would be obnoxious to the welfare, peace, comfort, and enjoyment by plaintiff and his family of their home.

(7) The erection of said gin would violate the terms of the ordinance above referred to and is forbidden by said ordinance to be erected in the place where defendant proposes to build it.

(8) The erection of such gin would have the effect of depreciating plaintiff’s residence to the extent of one-half of its present value; that the value of said property is $5,-000, and it would greatly increase the fire hazard and result in increasing his insurance rate; that, it will hinder the growth and affect the appearance of the shrubbery in plaintiff’s yard.

The court concluded, as a matter of law, as follows: (1) That the construction and operation of the gin, as other gins have been with similar machinery, would be a nuisance in law to plaintiff and his family in that it would destroy the peaceful and quiet enjoyment of their home and would be deleterious and destructive of their welfare and impair the value of their residence property. (2) The ordinance passed by the city of Shamrock was reasonably necessary to abate tne ■operation of cotton gins in residential districts of said city and was a regulatory ordinance coming within the purview of the police power of the city, and was within the powers granted said city by statute to regulate' the location of such gins which might be nuisances; and, therefore, the ordinance is valid and is not void upon its face, and that its effect is to prohibit the erection of said gin, as a matter of law, and therefore plaintiff is entitled to and should have the injunction herein sought made permanent.

Appellant presents the case here upon two propositions. He contends first that ordinance No. 80 is void, and, second, insists that unless it is certain that the gin, whén constructed, will be a nuisance, an injunction should not be issued in advance of its construction, and that the court was, therefore, not authorized to enjoin its construction and operation until, in fact, it became a nuisance by reason of being improperly operated.»

The injunction is sought because the erection of the gin violates ordinance No. 80, amd for the further reason that its erection and operation at the designated place would constitute a nuisance and result in injuries, for which a judgment for damages would not compensate him. He did not sue for damages in any sum. The trial court heard the evidence and found that, the erection of the .gin would reduce the value of plaintiff’s property 50 per cent., or $2,500, and would increase his fire hazard and fire insurance rate, and that, if built with such machinery as had been used in other gins then in the ■city, “the same might, with reasonable probability, be operated in such a way as that it would constitute a nuisance to plaintiff, Wheeler.”

Appellee frankly admits that the court’s findings are conflicting, and will not support the injunction against appellant upon the ground that it would be a. nuisance, since the court did not find that the erection of the gin at that, place would certainly be a nuisance, but found only that it might be so constructed and operated as to become ’ a nuisance thereafter. However, appellee contends that the city council, in enacting and enforcing said ordinance was legally and properly exercising its police powers; that such ordinance being valid upon its face, casts the burden of proving its invalidity and unreasonableness upon the defendant. The ordinance declares that it shall be unlawful for any person to erect, a gin, ice plant, etc., “or other manufacturing or industrial establishment within the corporate limits of the city except” within a certain specified district along the railway track, and provides a penalty of $100 per day for a violation of its provisions.

A cotton gin is not a nuisance per se, but may be adjudged a nuisance because of its location or the manner of its construction or operation. Hamm v. Gunn, 51 Tex. Civ. App. 424, 113 S. W. 304; Gose v. Coryell, 59 Tex. Civ. App. 504, 126 S. W. 1164; Strieber v. Ward (Tex. Civ. App.) 196 S. W. 720.

The general rule is that an injunction will not be issued in advance of the structure unless it is certain that when completed it will constitute a nuisance. Waggoner v. Floral Heights Baptist Church, 116 Tex. 187, 288 S. W. 129. So, if the injunction is to be sustained, it must be upon the ground that the ordinance is a valid and reasonable regulation under the facts proven.

The ordinance is not invalid because it designates elevators, gins, ice plants, etc., as being the businesses to be regulated, and further says: “All other manufacturing or industrial establishments” shall not be built except within the prescribed district. By applying the rule of ejusdem generis in the construction of this ordinance, the general words quoted above simply mean industrial plants of the same kind and character as those specified in the ordinance. Maryland Casualty Co. v. Scruggs (Tex. Civ. App.) 277 S. W. 768; Stockwell v. State, 110 Tex. 550, 221 S. W. 932, 12 A. L. R. 1116; Village of Euclid, Ohio, v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 ; 36 Cyc. 1119.

Whether the ordinance is valid as against the other objections urged depends upon the authority of the city council, in the exercise of its police powers to enact it. The ordinance is not prohibitory but regulatory in its provisions. 43 C. J. 410.

R. S. 1925, article 1015, provides;

“The governing body [of cities, towns and villages] shall also have power: •* * *
“(9)' Location of Establishment — To direct the location of business * * * and any manufacturing establishments * * * and all other establishments or places where any nauseous, offensive or unwholesome business may be carried on. * * *
“(11) Nuisances — To abate and remove nuisances and to punish the authors thereof by fine, and to * * * declare what shall be nuisances and authorize and direct the summary abatement thereof; and to abate all nuisances which may injure or affect the public health or comfort in any manner they may deem expedient.”

Article 1068 provides:

“Eire Regulations — The city council shall have power: * * *
“(5) To regulate or prevent the carrying on of manufactories and works dangerous in promoting or causing fires; to prohibit or regulate . the building and erection of cotton presses and sheds.”

The appellee insists that, under these statutory provisions defining the powers of the city council, the right of the council to regulate the erection of gins, by confining them to the designated district along the railway, is expressly granted and such ordinance is a legal and reasonable regulation, and that the trial court did not err in so holding.

We are inclined to the opinion that, the statutes quoted authorize the city council to pass this regulatory, ordinance. The court’s findings that the construction of the gin as proposed might constitute a nuisance when it was completed and operated, and that it would diminish the value of plaintiff’s home 50 per cent., would increase the appellee’s fire hazard and his rate of insurance, might not be within themselves grounds for an injunction because it might not result in being a nuisance, and appellee might he compensated in damages for the probable injury; nevertheless, we think these facts, when considered with the fact that all the other gins similarly equipped were nuisances, show the reasonableness of the ordinance in question.

“In the exercise of their police powers,"municipal corporations may enact such regulations as are necessary for the prevention of and protection from fires, and it is the duty of municipal corporations to do so. * * * Eire municipal regulations must be reasonable and not arbitrary, but the courts will not declare such regulations unreasonable unless in clear cases of abuse. The power to prevent fire carries with it the right to employ the most effective means to that end. In the exercise of the power, the erection or use of 'buildings for the purpose of a more or less dangerous character may be prohibited.” 43 O. J., § 439.

“Building regulations must have the tendency to promote the health, safety or general welfare and must be reasonable and not arbitrary.” 43 C. J., § 357. ‘
“While an individual has an inherent or natural right to engage in any lawful business, occupation or trade, and may use his property for that purpose, yet the nature of the business, oc- ‘ cupation or .trade sought to be carried on may be such as to render it subject to regulatory control by municipal corporations in the exercise of their police powers or authority delegated to them by the Legislature or Constitution, as under authority granted to restrict or prohibit nuisances. Such regulation is permitted in the interest of the public peace, health, morals and general welfare of the municipality. The authority of the corporation in the premises must be granted by the state, either expressly or by obvious implication. It is not inherent.” 43 C. J., § 357.
“The power must be exercised reasonably, within constitutional limitations, not arbitrarily, or in restrain of trade, without discrimination, fair to all alike, and with some reasonable reference to the public peace, health, morals, safety or general welfare of the municipality. The ■ question whether a limitation upon the conduct of business or trade has a reasonable relation ■ to the accomplishment of a legitimate public purpose is one that must be decided upon a view of the particular legislation and the circumstances to which it is applied. The question is largely one of fact.” 43 G. J., § 408.

The rule is generally announced that where the Legislature in terms gives a municipality power to pass ordinances of a ■ specified and defined character they cannot be successfully attacked, except upon constitutional grounds, as being unreasonable,. though they may be so impeached if passed. under merely incidental or general powers. Chimene v. Baker, 32 Tex. Civ. App. 520, 75 S. W. 330; H. & T. C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S. W. 648, 654, 70 L. R. A. 850; Invader Oil & Refining Co. v. City of Eort Worth (Tex. Civ. App.) 229 S. W. 616; 43 C. J. 316.

If we are mistaken in thinking that the city had express authority to pass the ordinance in question, then we hold that under all the circumstances the ordinance is reasonable. Where no express authority is given a municipality to pass the ordinance in question, the reasonableness of such action is subject to inquiry by the courts.

“While courts are reluctant to declare municipal regulations or other acts invalid by reason of their unreasonableness, and the power to do so must be carefully exercised, and such regulations or other acts will not be declared invalid by reason of their unreasonableness, unless the unreasonableness thereof is made clearly to appear, when such unreasonableness clearly appears the courts may declare them invalid. If there is room for a fair difference of opinion as to the reasonableness of a municipal regulation, the courts will not hold it void.” 43 C. J. 316.

The courts .will not interfere with or attempt to control the exercise of the discretionary powers of municipalities, unless they are clearly unreasonable. 43 C. J. 317.

With reference to police powers, it is saidr

“When a municipal corporation exercises its-police power, the means appropriate in the ex-; ercise thereof rest in the discretion of the corporation, and the courts will not interfere in the absence of a clear abuse of discretion. While following the general rule, whether a police regulation is reasonable, is not a question for the courts when it is enacted in pursuance of express legislative authority, the reasonableness of regulations enacted by municipal corporations, in the exercise of their police powers, is subject to judicial inquiry when it assumes that power by virtue of its incidental or general grant of power. In the exercise of its police powers, the courts will not interfere with the action of the governing body of the corporation, where the regulations provided are adapted to the object sought and are not manifestly unreasonable. The court will not disturb a police municipal regulation where there is room for a difference of opinion of whether or not the public safety or welfare is promoted by its provision. Where two constructions are possible, one which will sustain the regulation or ordinance, and the other which will defeat it, the court will adopt the construction sustaining it.” 43 O. J. 318.

It is held that, it is a matter of common knowledge, of'which the courts will take judicial notice, that hay is an inflammable substance. Hamburg-Bremen Fire Insurance Co. v. Swift (Tex. Civ. App.) 130 S. W. 670.

That the lint produced by ginning cotton is a highly inflammable and combustible material, on account of which gins are classed as extrahazardous risks by insurance companies; that during the ginning season cotton gins frequently run day and night; that they serve the rural population only; that all cotton ginned must be shipped from this country by rail; that much of it is hauled from the farms to the gins by wagons and teams; and that there is necessarily unusual noise, dust, smoke, gases, and offensive odors, to a greater or less extent, incident to the business of ginning, are also matters of' common knowledge. While possibly the courts may not take judicial knowledge of all these facts, nevertheless, they may be considered in determining the reasonableness of a city council’s action in passing the ordinance in question, which excludes gins from residential districts and confines them to a designated industrial district near the railway company’s track. These considerations, as well as the particular provisions in the ordinances of the city of Dallas, clearly distinguish this case, upon principle, from Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387, and the other Dallas cases cited by appellee, which involve the issue of nuisance.

The general rule is that reasonableness is a question of law for .the court. Munger Oil & Cotton Co. v. City of Groesbeck (Tex. Civ. App.) 194 S. W. 1121. Our Supreme Court has held, that where that issue is controverted it should be submitted to' a jury, Austin v. Austin City Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114, in which it is also held' that the burden; of establishing the unreasonableness of an ordinance is upon the party attacking it. MeQuillin also says the rule is that municipal corporations are prima facie the sole judges respecting the necessity and unreasonableness of their ordinances, and hence the legal presumption is in their favor, and in ease of doubt the courts are inclined to defer to the judgment of the municipal authorities in determining the questions, and, in passing upon their reasonableness, the courts will consider all the facts and circumstances which probably influence the council in its action. 2 MeQuillin Municipal Corporations, §§ 729, 730, 731, 732. See, also, 1 Cooley’s Constitutional Limitations, pp. 417-423.

The trial court who heard the evidence having held that the ordinance was a reasonable regulation, we do not feel that we would Ibe justified in reversing his ruling. The judgment is, therefore, affirmed.

       other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    DANNENBAUER v. MESSERER’S ESTATE et al.
    (No. 3508.)
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1928.
    Rehearing Denied March 29, 1928.
    1. Wills <&wkey;>297(4) — Testator’s statements indicating he had not made subsequent wills as contestants alleged held not inadmissible as conclusion.
    In will contest in which issue was whether testator had made subsequent wills revoking will offered for probate, testimony as to testator’s statements indicating that he had not made subsequent wills held, not inadmissible as legal conclusion, notwithstanding testator’s use of words “will” and “signed” in referring to what he had previously done.
    2. Wills <&wkey;>290 — Proponent of will must prove it has not been revoked.
    Proponent of will held to have burden of proving that will offered for probate had not been revoked.
    3. Wilis <&wkey;297(l) — Where testator’s state of mind becomes proper subject of inquiry, his declarations are admissible to show such state of mind.
    Where state of mind of testator becomes proper subject of inquiry in will contest, his declarations are admissible to show what that state of mind was.
    4. Witnesses <&wkey;(78(3) — Proponent of will called as witness by contestants cannot, on cross-examination, testify to conversation with testator except those as to which she was interrogated by contestants. •
    Where proponent of will was called as witness by contestants, she was competent to testify on cross-examination as to all relevant statements made by testator in conversation ■with her as to which she had been interrogated on direct examination, but she was not competent to testify as to conversation and transactions about which she had not been interrogated by contestants.
    On Motion for Rehearing.
    5. Wills <&wkey;297(4) — 'Testator’s statements indicating that he had not made subsequent wills, as contestants contended, held admissible, and not hearsay.
    In will contest in which issue was whether testator had made subsequent wills revoking will offered for probate, testimony as to testator’s statements indicating that he had not made subsequent wills held, admissible as showing state of mind, as against contention that they were hearsay.
    6. Wilis <&wkey;290 — Proponent producing will and proving execution made prima facie case without proof that will had not been revoked.
    Where proponent produced will and proved its execution according to statutory provisions, she Aade out prima facie case authorizing court to admit will to probate and was not required to go further and prove that will had not been revoked.
    7. Wills &wkey;>288( I) — Proponent making prima facie case was not relieved of burden to show instrument offered was testator’s last will when prima facie evidence was weakened.
    Proponent who produced will and proved execution according to statutory provisions was not relieved of burden of producing preponderance of evidence to show instrument offered was last will of testator when prima facie evidence was weakened, for, while weight of evidence may shift, burden of proving legal right to relief remains on proponent throughout trial.
    Appeal from District Court, Fannin County ; George P. Blackburn, Judge.
    In the matter of the estate of Fritz Messerer, deceased. Will contest by Mrs. Mary Compton and others, opposed by Mrs. Margaret Dannenbauer, proponent. From a judgment of the county court admitting the will to probate, contestants appealed to the district court. The district court entered judgment refusing to probate the will, and proponent appeals.
    Reversed and remanded.
    • Cunningham & Lipscomb, of Bonham, for appellant.
    Beauchamp & Lawrence, of Paris, and J. I. Warren, of Honey Grove, for appellees.
   HODGES, J.

This appeal is from a judgment in the district court of Fannin county refusing to probate the will of Fritz Messerer. The will was dated November 29, 1897, and was executed in compliance with the forms required by the statute. By its terms the will devised all of the testator’s property, after the payment of his debts, to his sister Mrs. Margaret Dannenbauer. Messerer died on the 25th day of January, 1927, leaving an estate valued at more than $200,000. His only heirs were two sisters, one brother, and the- children of one or more deceased, sisters. When the will was presented in the county court for probate it was contested by Mrs. Mary Compton, a sister of the testator, and the children of a deceased sister. The grounds of the contest were undue influence and revocation, which will be more fully stated hereinafter. From a judgment of the county court admitting the will to probate the contestants appealed to the district court.

The following is, in substance, a part of the family history of the testator and the parties to this suit: Fritz Messerer was born in Germany, and came to America in 1882. A few years later he was followed by his two sisters, who are parties to this suit, and a brother. He was never married, and lived with other members of the family. About 1897 his sister Mary, now Mrs. Compton, married a native American. This marriage seemed to offend her brother Fritz, and shortly thereafter he made the will which is now being contested, leaving all of his property to his sister Margaret, Mrs. Dannen-bauer. However, in course of time he became reconciled to his sister Mary, and showed evidences of affection for her and her children and friendship for her husband. There was testimony tending to show that he made other wills before he died which either expressly or impliedly revoked the will of 1897. The last of those wills, it is contended, gave some of the property to his sister Mary, one of the contestants. The contestants pleaded that the resentment of Messerer towards his sister Mary because of her marriage was aggravated and intensified by the proponent, Margaret Dannenbauer, who, it is claimed, took advantage of that state of mind and persuaded her brother to make a will in her favor. They further pleaded that Messerer made three other wills after the will of 1897. One, it is alleged, was made in 1900; another in 1907 or 1908; and a third in 1919. None of these wills could be produced, and it was alleged that they were lost.

In the trial evidence was produced tending to support the facts pleaded by contestants. In response to special issues the jury found against the contestants upon the issue of undue influence.. They also found that no will had been executed by Messerer in 1908. But they further found that Messerer did execute a second will in 1900,- and a third in 1919, and that each of those wills revoked all previous wills. ,Upon those answers the court entered a 1 judgment refusing to probate the will of 1897. The contestants did not attempt to probate any other will, but only sought to defeat the probate of the first will. They were apparently willing to take part of the property under the law of descent and distribution. ■’

The real controversy in the trial below was, Did Eritz Messerer make a will after 1897 revoking the will offered for probate'? The principal complaint in this appeal relates to the exclusion of statements and declarations of the testator which tended to show that no subsequent will, was made by him, and that the first was the only will he had ever made. As proof of the execution of a will in 1900 the contestants offered the testimony of J. A. Underwood, the substance of which is as follows:

Witness was well acquainted with Messerer, and was president of a bank in which Messerer held stock, gome time in 1900 he had occasion to assist Messerer in the preparation of a will. He did that at Messerer’s request. Messerer wanted to -dispose of his property by will, and his sister Mrs. Dannen-bauer put in charge of it on account of some objection to her husband. He did not. want her husband to have the management or control. Messerer requested witness to write a will for him, to which the witness finally consented, and used as a guide a form book. Erom the data furnished him by Messerer he wrote a will, which devised all of the testator’s property to his sister Margaret, and she was made executrix. When asked if the will contained a clause revoking former wills, the witness stated that according to his best recollection it did, but he was not certain. He was certain, however, that if the form book contained a revoking clause, then that clause was written into the will. He stated that the will was signed by him as a witness, and by another adult person, whose name he had forgotten. He said:

“I signed it and this other person signed it, and then I turned it over to Eritz and I have not seen that will since. I read the will over to Eritz, and he signed his name to it then. Eritz signed his name first. I was present when he signed it, and he was present when I signed it and when the other person signed it. The explanation that he gave for wanting to make the will was that he wanted to fix his property and the management of it in ‘Sister Margaret.’ At that time he was of sound mind, and remained so as long as he lived, so far as I know.”

As proof of the execution of the will of 1908 contestants offered the testimony of E. G. Armstrong, who testified, in substance, as follows:

In 1908 witness was engaged in the practice of law in Honey Grove, and was acquainted with Messerer, who was in business at the same place. In the practice of law witness was associated with J. W. Gross, who wrote a will for Messerer in 1897. He remembered the occasion of Gross writing a will for Messerer about 1908. He thought he read the will, or most of it. He remembered distinctly standing at the back of Gross while he was writing it, who told witness .what he was doing. He did not remember the terms of the will, except that it appeared to be rather liberal with the nieces and nephews of the testator. Witness could not state whether or not that will was ever signed by Messerer or by witnesses.

As evidence of the execution of the will of 1919 contestants offered the testimony of Miss Lillian Knox, tlie substance of which is as follows:

She was employed as stenographer in the office of J. N. Baldwin, an attorney residing in Honey Grove, during the years 1918 and 1919. While she worked for Baldwin he did much work for Messerer. He wrote deeds for Messerer, and a will also. Witness recalled distinctly the occasion of Baldwin’s writing a will for Messerer some time in March, 1919. In response to a message Baldwin went over to Messerer’s place of business. A short time later both Baldwin and Messerer returned to the office, and while Messerer was there Mr. Baldwin dictated a will, which she wrote on her typewriter. Witness stated that .she remembered the following clause in the will:

“I, Fritz Messerer, of Honey Grove, Fannin county, Texas, being of sound mind and memory, do hereby make this my last will and testament, hereby revoking all wills heretofore made by me.”

In the second clause he wanted a decent Christianlike funeral and his debts paid. The will then went on to bequeath property to different ones. Witness recalled Mrs. Dan-nenbauer’s name. Several others were mentioned in the will, including a brother, a sister, and some nieces and nephews of Fritz. Messerer remained in the office until the will was finished, and witness saw him sign it. Mr. Baldwin signed the will as a witness, and she did also, according to her best recollection. She was positive that the will was signed and witnessed. No one else was in the office at the time except those three. After the will was signed, Messerer told Mr.' Baldwin to take it to the State National Bank for him. Witness put the will in an envelope and sealed it.

Testimony was offered by proponent tending to impeach the witnesses Underwood and Miss Knox by showing that they had previously made statements to the contrary of what they testified in the trial, after each of those witnesses denied making the conflicting statements.

During the trial the proponent, Margaret Dannenbauer, was called as a witness by the contestants and was asked this question: “Did Fritz ever tell you about writing another will?” to which she answered, “No.” On cross-examination the witness was asked by her counsel this question: “I will ask you if Fritz had any trouble in the way of sickness when he sent for the will?” to which the witness answered, “Well, he was kind of sick last winter.” Counsel then said: “I will ask you if he did not at that time tell you this was his will and that he had never made any other?” At that juncture the contestants objected to any statements made by the deceased as to the contents of the will or what he had done, and further because the witness was disqualified under the law to testify to any transactions between herself and the deceased. The objection was sustained. The bill of exception shows that if the witness had been permitted to do so, she would have answered as follows: “Fritz Messerer had stated to her during his last illness that this was the only will that he had ever made, and that he had never made any other.”

Proponent’s witness Henry Allen was asked the following question:

“Now, Mr. Allen, I will ask you to state what,' if anything, Mr. Messerer said as to whether or not his will [the will offered for probate] was the only will he had written, and whether he desired to change it.”

Contestants objected upon the ground that the testimony sought to be elicited, would be hearsay, too remote, and a legal conclusion of deceased as to the effect of any instrument which he might have signed. The court sustained the objection. The bill of exceptions shows that if permitted to do so, witness would have answered:

“Fritz Messerer stated to me at that time that the will prepared by Will Gross in 1897 was the only will that he had ever signed or attempted to execute, and that he desired his property to go according to the direction of the will.”

R. T. Lipscomb was called by the proponent as a witness, and testified without objection that he visited Fritz Messerer in Honey Grove, Tex., at his request during the early part of the year 1927. He was then asked the following question:

“What did he tell you, if anything, with reference to the will that is offered for probate?”

That testimony was objected, to upon the ground that it was irrelevant, immaterial, and inadmissible for any purpose, being the statement of the testator made 30 years subsequent to the making of the will offered for probate. The court stated, in effect, that he would admit the testimony upon the issue of undue influence, but would restrict it to that alone. The witness was then permitted to answer:

“As stated, he [Messerer] went-back to the back part of his business and sat down, got this out [the will offered for probate], and handed it to me and had me read it over, and I did, and he told me that the will as it was written was the way he wanted his property to go. He told me that he wanted his property to go to his sister Mrs. Dannenbauer. He said in that connection that he had a sister, as I remember, at Denton, or at least Had lived there.”

On objection, the court refused to permit the witness to further state:

“That this sister at Denton, Mrs. Compton, had not been there and helped him as much, as Mrs. Dannenbauer, and that there had been some claim by Mrs. Compton as to an interest in the property, and that it was his desire, and had been all along, that Mrs. Dannenbauer have all the property after his death.”

There was other similar testimony excluded, but that which has been quoted is sufficient for a discussion of the controlling questions presented in this appeal.

In the trial of the case the only contested issue material to be considered was, Had the will offered for probate been revoked by the execution of one or more subsequent wills? The question before us is, Were the declarations of the testator, excluded in the trial court, admissible as evidence tending to prove that the testator had not executed such revoking instruments? It is conceded by counsel for both parties that there is much contrariety of opinion on that subject among the courts of other states. The diversity is such that we think it unnecessary to refer to those decisions, except such as have been approved and cited in opinions rendered by the courts of this state. It also appears that there is at least an apparent conflict in the decisions of our own court of last resort upon that subject.

Contestants rely mainly upon the case of Kennedy v. Upshaw, 64 Tex. 411, in which the opinion of the court was written by Justice Stayton. That was a case in which an application was made to probate a will with a codicil. The codicil merely revoked that provision of the will which named certain parties as executors, and appointed others. The probáte of the codicil was resisted upon the ground that it was not executed by the testator, but was forged: As evidence tending to prove that the testator had not executed the codicil, the contestants were permitted by the trial court to introduce in evidence the following declarations of the testator made a short time before his death:

“No, I have not made any change in my will or in the disposition of my property, and I am not going to; and I am surprised that you ask me such a question.”

On appeal, it was held that those declarations should have been excluded. It appears from the extracts from other decisions quoted by Justice Stayton that he based his ruling upon the ground that such declarations, not being res geste, were hearsay. While that case has not been expressly overruled, the allusions made to it in later decisions by our Supreme Court indicate a view that- it should, be limited to the particular facts there involved, or that the declarations offered were inadmissible upon the ground that they were the statements of a legal conclusion by the testator.' * The latter view 'is expressed by Chief Justice Phillips in Scott v. Townsend, 106 Tex. 322,166 S. W. 1138, although no such objection was ¡made when the declarations, were offered.

The difference between the question decided in Kennedy v. Upshaw and the controlling question in this case is slight. In that case the revoking or modifying codicil was produced and presented for probate, and the question was, Had it been signed by the testator? While in this.case the revoking instruments cannot be produced in court, and the question is, Were any such instruments ever executed?

If the case of Kennedy v. Upshaw stood alone as the last explicit expression of our. Supreme Court on that subject, there would .be much difficulty in evading its force as a precedent supporting the action 'Of the trial court in excluding the declarations of the testator in this ease. In view of their approval by later decisions of our Supreme Court, two cases involving somewhat similar issues, which were decided before Kennedy v. Upshaw, may be referred to in this connection as appropriate precedents. Those cases are Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619, and Johnson v. Brown, 51 Tex. 65.

In the Tynan Case an application was made to .probate a will which could not'be produced. Its probate was resisted by the heirs at law on the ground that no such will had ever been executed. In the trial court a witness was permitted to testify that he at one time had the will in his possession, and during that time he received a letter from the testator, then in another state, directing witness to destroy the will; that later, when the testator returned to Texas and was informed that the will had not been destroyed, he expressed much gratification and stated, in effect, that he wanted his property to go to the beneficiaries named in the will. The trial court instructed the jury that those declarations were not legal evidence of the execution of the will, but were admissible as tending to corroborate the evidence of its execution and to destroy the presumption of its cancellation. That charge was approved on appeal, but the case was reversed on the ground that the evidence in its entirety was not sufficient to prove the execution of the will in accordance with statutory requirements.

. In Johnson v. Brown an application was made to probate a will produced in court which was contested on the ground that it was forged. In the trial court a witness was permitted, over objection, to testify to declarations made by the testator showing feelings of hostility towards two of the devises in the purported will. After discussing a number of authorities, the court held that the declarations were properly admitted, stating:

“Not, of themselves, as proof sufficient to overcome ■ the testimony of the subscribing witnesses, but as a circumstance, in a case of this character, proper for the consideration of the jury in connection with all the other facts and circumstances in evidence.”

In McElroy v. Phink, 97 Tex. 147, 76 S. W. 753, 77 S. W. 1025, there was an application to probate a will alleged to be lost. The question on appeal was, Did the evidence support a finding that the will had not been revoked? The evidence justified the conclusion that such a will had once been made, but there was cogent evidence tending to show that it had been subsequently destroyed by the testatrix. During the progress of the trial the contestant offered to prove by a witness that a Short time before the death of the testatrix he had a conversation with her about the will; that in that conversation the testatrix told witness that she had sent for the will and had burned it, that she did not want the beneficiaries named in the will to have the property. Those declarations were excluded, and that ruling was assigned as error on appeál. The Supreme Court held that the declarations should have been admitted. In discussing the objection that such declarations should be excluded upon the ground that they were hearsay, the court said:

“Two reasons are urged against the admissibility of such testimony: First, that it consists of mere declarations of one not a party to the suit, and is therefore hearsay; and the second is that it opens a door to fraud and forgery. As to the latter, it is sufficient to say that we deem it of very little weight, because, as we think, the same may be said of much other parol testimony, the admission of which is never questioned. As to the first ground, the general rule is that the declarations of third parties are not competent evidence. But conceding, for the sake of the argument, that the declarations of a testator are properly classed as declarations of a third party, the question presents itself whether they ought not to be considered as standing upon a different basis, and to be treated as an exception. Exceptions are made in other cases as to the declarations of deceased persons. For example, declarations as to pedigree and declarations made in the usual course of business by persons who have since died are admitted. The position of the testator is very different from that of an ordinary third person, whose declarations may be offered in support of an issue upon the trial of a case. Both the proponent of the will and the contestant claim under him. As a very general rule, he best knows the facts about which he makes the statement. His will is ambulatory, and subject to be changed or revoked. No one has any right under it until his death. He has a right to make such disposition of his property as he may wish, and, as a rule, he has no interest to induce him to make a false statement about the matter. The testimony which was offered and rejected in this case, and which we are now considering, strikingly illustrates the views we have just expressed. It tended to show that what McEIroy said to Hanna when he went for • the will was, ‘My wife wants it,’ and that the testatrix had changed her mind, and had got the will into her possession, and had destroyed it for the purpose of revoking it. We are of the opinion that the introduction of such testimony is not forbidden by sound policy, and that it violates no rule of law. We conclude that the court erred in excluding the evidence.”

The cases of Tynan v. Paschal and Johnson v. Brown were approvingly cited by Justice Gaines, who wrote the opinion. Kennedy v. Upshaw was referred to as being in conflict with the earlier cases, but as not overruling those cases. In that connection Justice Gaines said: .

“When the declarations of an alleged testator consist, in effect, of the naked assertion that he has made a will, or that he had revoked one that is proved to have been executed, they are generally excluded; and we think such action is proper, for the reason that such declarations are merely statements of a legal conclusion and not a statement of the facts from which that, conclusion should be deduced.”

In Buchanan v. Rollings (Tex. Civ. App.) 122 S. W. 962, an effort was made to probate a will which could not be produced. It was contested by the husband of the testatrix and an heir at law. The proponents were permitted to prove declarations made by the testatrix a short time before her death, that she had made her will and had therein provided for her nephew, in whose behalf the effort was being made to prohate the will. The testimony in that ease showed that the last time the will was seen it was in the possession of the testatrix. A writ of error was refused by the Supreme Coart upon an application which presumably assigned as error the admission of those declarations.

So far as we have been able to ascertain, those are the latest rulings made and approved by our Supreme Court.

The question then is, Did the trial court err in excluding the proffered testimony of the witness Allen and in restricting the testimony of the witness Lipscomb to the issue of undue influence? Under the record before us there are but two grounds upon which those rulings of the trial court can be justi-Sed. One is that the declarations offered are hearsay, and the other is that they were mere expressions of legal conclusions. If we adhere to the rule stated by Justice Gaines in the quotation from McEIroy v. Phink, then, clearly, the declarations should not have been excluded upon the ground that they were hearsay. There is nothing in the evidence to indicate that Messerer was not at that time in his normal state of mind, or that his memory had been impaired by age or disease. There was no apparent, reason why he should not have been candid in discussing his affairs. If he had made any other will, he could have had no motive for concealing that fact from -the men to whom he was then talking. So far as the record shows, neither of them had any beneficial interest' in the disposition of his property, or represented any one who did have such an interest. If there was any uncertainty arising from the execution of prior conflicting' instruments which he knew to be wills, that was an appropriate time to remove that uncertainty by the execution of still another will.

The next question is, Were the declarations offered the expressions of a legal conclusion? It is true that, in detailing their conversations with the testator, the witnesses state that he used the word “will-’ in referring to what he had previously done. But when we take into consideration the particular circumstances surrounding the parties at that time it is clear, we think, that Messerer was not using the term as descriptive of a legal instrument, but to designate a particular document which he then had before him and which had just been read in his hearing. That particular instrument, which had been written many years before by Gross, was what Messerer evidently had in mind, if he made the declarations attributed to him by Allen and Lipscomb. It is also to be noted that he used in that connection the word “signed,” which is clearly expres-' sive of a fact.

We are of the opinion that the court should not have excluded the testimony of Allen, and should not have restricted the testimony of Lipscomb to the issue of undue influence. The facts of this case do not present a situation where the testator may have been mistaken as to the legal character of an instrument executed by him. Those relied on as constituting a revocation, if executed, contained all the formal provisions of a will, and were signed and witnessed according to the requirements of the statute. If the testimony of contestants’ witnesses be true, there could have been no mistake on the part of Messerer about the legal character of what he had done in executing such instruments.

The proponent in this case had the burden of proving that the will offered for probate had not been revoked.' In the trial she was confronted with testimony tending to show that it had been expressly revoked.

The proof of such revocation depended on the credibility of parol testimony which bad been to some extent impeached. The state of the evidence was such that the jury might have found either way on the issue of revocation. The proponent was therefore entitled to have the jury consider every legitimate fact and circumstance which tended to discharge the burden which she has assumed. It has uniformly been held that where the state of mind of the testator becomes a proper subject of inquiry his declarations are admissible to show what that state of mind was. In this instance the state of mind disclosed by Messerer in his conversations with Allen and Lipscomb, and his conduct in recognizing the will of 1897 as the only will he had ever made, is a circumstance wholly inconsistent with any act revoking that instrument. We think the jury should have been permitted to consider what he said and did on those occasions for what they were worth in passing on the issue of revocation.

Appellant has assigned as error the action of the court in giving certain special charges to the jury after her counsel had made the concluding argument. A controversy arose between the trial judge and counsel for appellant as to the language used by counsel in that argument. As a result two sets of bills of exception are presented in the record; one by the court, and another signed by bystanders under the provisions of the statute. In addition to these bills, contesting and supporting affidavits were filed by the parties. However, in view of what has been said concerning the admissibility of the rejected testimony, it is not necessary to pass upon those assignments, as the same questions are not likely to arise upon another trial.

Complaint is also made at the refusal of the court to admit testimony of Mrs. Dan-nenbauer in answer to an interrogatory propounded by her counsel on cross-examination. If Mrs. Dannenbauer, who was the proponent, when called as a witness by contestants had been interrogated as to a conversation occurring between her and the testator, she was a competent witness to testify on cross-examination as to all relevant statements made by the testator in that conversation. Rut she was not a competent witness to testify as to conversations and transactions about which she had not been interrogated by contestants. The bill of exceptions does not make it clear whether the testimony sought to be elicited on cross-examination by her counsel related to the same conversation or transaction about which' she was interrogated by contestants. We are not prepared to say that the court committed an error in excluding her testimony upon the statutory ground alone.

The remaining assignments of error which do not raise questions substantially the same as those discussed are overruled.

• For the reasons stated, the judgment will be reversed and the cause remanded for a new trial.

On Motion for Rehearing.

In their motion for a rehearing, counsel for the appellees have presented what we regard as an able and conservative argument defending the ruling of the trial court in excluding the declarations of the testator. They insist that such declarations, when offered as evidentiary statements that an act has been done or has not been done, fall within the general rule of those made by third persons and should be rejected as hearsay. In Scott v. Townsend, previously referred to, it was held on appeal that the declarations of the testator, Scott, as to what his wife has said and done with reference to his making a will should have been excluded as hearsay. On the other hand, in McElroy v. Phink it was held that the declarations of the testatrix as to what she herself nad done were admissible. In the second case the declarations were distinctly narrative of a transaction, and their probative value depended upon the truth of what the declarant had said. The distinction between the two cases above referred to is that-in the first the declarations related to the acts and conduct of a third person, whereas in the second they related to the acts of the testatrix herself. If in this case our holding upon the proposition stated by ap-pellees is in conflict with Kennedy v. Up-shaw, it is in harmony with the ruling of the Supreme Court in the later ease of McElroy v. Phink.

It is further contended that the declarations of the testator should not be admitted as primary evidence of a fact which the proponent was required to establish— that the will offered -had not been revoked. The argument is that when the will of 1897 was produced in court and its execution proved in the manner required by statute, the burden then shifted to the contestants to prove that it had been revoked. Doubtless that was the practical effect of the proceedings in the trial court. When the proponent produced the will and proved its execution according to the statutory provisions, she made out a prima facie ease which authorized the court to admit the will to probate. She was not required to go further and prove that the will had not been revoked. McElroy v. Phink, supra. But that proof was prima fatíe only, and did not relieve the proponent of the burden of producing a preponderance of the evidence essential to prove the instrument offered by her was the last will of the deceased when the prima facie evidence had been weakened. While the weight of the evidence may shift, the burden of proving a legal right to the relief .sought remains upon the plaintiff throughout the trial. Clark v. Hills, 67 Tex. 148, 2 S. W. 856; Boswell v. Pannell, 107 Tex. 433, 180 S. W. 593; Pierce v. Baker (Tex. Civ. App.) 238 S. W. 699.

However, in determining the admissibility of the declarations here involved, it is immaterial where the burden of proof rested. They were offered as evidence tending to show that the will of 1897 had not been revoked by the making of a subsequent will. If they were admissible for that purpose, it is of no practical importance in this appeal at what stage of the trial those declarations were offered.

If we concede the correctness of the argument by counsel as to the burden of proof the case presents this situation: Contestants were undertaking to prove the execution of one or more wills by Messerer subsequent to 1897. None of those wills could be produced in court. Under the rule announced in the cases previously cited and discussed, contestants might have claimed the right to offer as evidence any declarations made by the testator which tended to show the making of one or more of those lost wills. If Messerer had made statements expressive of dissatisfaction with his former will, or of hostile feelings toward the sole beneficiary in that will, or of an altered state of his feelings toward his relatives who had not been provided for in that will, and a desire that they share in his estate after his death, such declarations, if offered by contestants, might have been admitted, not as supplying a lack of the proof required by the statute, but as a circumstance tending 'to strengthen that proof. If declarations favorable to the contestants upon that issue were admissible, upon what ground should equally as relevant unfavorable declarations be excluded?

As stated in the original opinion, we think the chief evidentiary value of the declarations made by Messerer consisted of the state of mind which those expressions disclosed. The fact that at such a time and under such conditions he made those declarations in connection with the exhibition of his first will was a circumstance which the proponent had the right to present for the consideration of the jury in determining whether or not the subsequent wills had been executed as alleged. .

The motion is overruled.
      «gsjFor other cases see same topic.and IvEY-N CMB ER. in all Key-Numbered Digests and Indexes-

      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .