author: TIREY, Justice.

text:
    CHAMBERS COUNTY, Appellant, v. J. M. FROST, Jr., et al., Appellees.
    Na. 3946.
    Court of Civil Appeals of Texas. Waco.
    March 22, 1962.
    Rehearing Denied April 26, 1962.

      DeLange, Hudspeth & Pitman, C. M. Hudspeth, Houston, W. G. Walley, Jr., Beaumont, Eugene T. Jenson, Anahuac, Sam W. Mintz, Houston, for appellant.
    Eastham & Williams, Willard C. Williams, Williams, Lee & Lee, Jesse J. Lee, Houston, for appellees.
   TIREY, Justice.

Chambers County brought this action to establish an easement and right-of-way for highway purposes over four tracts of land that constitute segments in what is designated as the Sykes Road and the Rice Farm Road, which roads, including the portions here in controversy, were claimed by the county to be public roads. The county alleged vast expenditures of public funds for the improvement and maintenance of such roadways, and its claim to such easement was based upon dedication for public use and also upon prescriptive rights that vested in the public to use such roadways, and it sought injunctive relief against interferences by the defendants. The county, in the alternative, sought a decree of condemnation with award to the defendants of their damages. The jury in its verdict found in favor of the county on the dedication issues with respect to the portion of the Sykes Road, and in favor of the county on the prescription issues with respect to the portions of both roads. The Court, on motion of defendants, disregarded the verdict of the jury and rendered judgment that appellant take nothing by reason of its action. On the county’s alternative plea of condemnation, the court decreed a recovery by the county of a right-of-way easement for public road over the tracts in question, and upon the verdict of the jury decreed that the defendants recover from the county the sum of $16,500.00 as damages for the tracts taken, together with interest at the rate of 6% per annum from date of judgment, and all costs of court, and decreed further that the payment of said judgment, interest and costs by the county to the Clerk of the Court shall constitute full satisfaction, and the Clerk is directed to pay the amount of the judgment to the defendants, and decreed in said judgment that upon payment and satisfaction thereof the sum of $30,000.00 theretofore deposited by the county with the District Clerk of Chambers County as security for payment and damages shall be refunded by said Clerk to the county and temporary injunction thereof be dissolved.

Appellant assails the judgment on what it designates as 11 Points. Points 1, 2 and 4 are to the effect that an easement to the Sykes Road was established both by implied dedication and prescription under the evidence and by the verdict of the jury; (2) Points 3 and 4 are to the effect that an easement to the Rice Farm Road was established by prescription under the evidence and by the verdict of the jury; (3) Points 5 to 11, inclusive, are to the effect that the damages assessed by the jury are without support in the evidence.

The jury, in its verdict, pertinent to Points 1 through 4, inclusive, found substantially: (1) That the Sykes Road was used and traveled by the public generally continuously and uninterruptedly for ten years or more before January 28, 1958; (2, 3, 4 and 5) That such use was open, visible, notorious and adverse to the defendants and their predecessors in title, and that such use and travel was under a claim of right, and that such use was with the knowledge of defendants and those under whom they claim; (6) That defendants, and those under whom they claim interposed objections to such use and travel; (7) That during the period of ten years or more, prior to the 28th day of January, 1958, the county repaired and improved the roadway known and described as the Sykes Road with public funds; (8) That defendants, and those under whom they claim had knowledge of such; (9) That defendants, and those under whom they claim, interposed objections to such; (10) That prior to January 28, 1958, the defendants, and those under whom- they claim, intended that the portion of the roadway described as Sykes Road should be used and traveled by the public generally, and maintained and improved with public funds; (11) That the portion of the roadway described as the Rice Farm Road was used and traveled by the public generally, continuously and uninterruptedly for ten years or more from January 28, 1958; (12) That such use and travel was open, visible and notorious; (13) That such use and travel was adverse to the defendants; (14) That such use and travel was under a claim of right; (15) That such use and travel was with knowledge of the defendants; (16) That defendants interposed objections to such use and travel; (17) That during the period of ten years, or more, prior to the 28th day of January, 1958, the county repaired and improved the road known as the High Dump Road, or Rice Farm Road with public funds; (18) That defendants had knowledge of such repairs and improvements; (19) That defendants interposed objections to such improvements; (20) That prior to January 28, 1958, defendants intended that the portion of the roadway described and known as Rice Farm Road should not be used and traveled by the public generally and maintained and improved with public funds; (21) That prior to the 28th day of January, 1958, the county repaired and maintained the roads in controversy with public funds; (22) That defendants had knowledge of such repairs and maintenance; (23) That defendants interposed objections to the county making such repairs and maintenance; “(24) Do you find from a preponderance of the evidence that plaintiff, Chambers County would not have made such repairs and maintenance if defendants had objected thereto?” The jury did not answer this issue. “(25) Do you find from a preponderance of the evidence that the letters of A. W. Marshall, the Chambers County Right-of-Way Agent, written to J. M. Frost, Jr., between January 23, 1947, and June 26, 1947, recognized that J. M. Frost, Jr., owned the road known as 'Sykes Road' or ‘Fairview Road?’” To which, the jury-answered “Yes”. “(26) Do you find from a preponderance of the evidence that after June 26, 1947, the date J. M. Frost, Jr., received the last letter from A. W. Marshall, the Chambers County Right-of-Way Agent, the plaintiff, Chambers County, repudiated its recognition, if any, of the ownership of J. M. Frost, Jr., and commenced the assertion of an open and notorious adverse claim of right to itse a road substantially the entire area of ‘Sykes Road’ or ‘Fairview Road’, as described in Plaintiff’s Second Amended Original Petition?” To which the jury answered “Yes”. “(27) Do you find from a preponderance of the evidence that the County gave notice to the defendants between June 26, 1947, and January 28, 1948, that Chambers County had repudiated its former recognition of J. M. Frost, Jr.’s ownership of the road known as ‘Sykes Road’ or ‘Fairview Road’ ?” To which the jury answered “Yes”. “(28) Do you find from a preponderance of the evidence that the only substantial use made of the road running through the land described as ‘Sykes Road’ or ‘Fairview Road’, before January 25, 1958, was by persons who had express or implied permission to use the road from the defendant, or any of them?” To which the jury answered “No.” “(29) Do you find from a preponderance of the evidence that the letters of A. W. Marshall, the Chambers County Right-of-Way Agent, written to J. M. Frost, Jr., between January 23, 1947, and June 26, 1947, recognized that J. M. Frost, Jr., owned the road known as ‘High Dump Road’ or ‘Rice Farm Road’?” To which the jury answered “Yes”. “(30) Do you find from a preponderance of the evidence that after June 26, 1947, the date J. M. Frost, Jr., received the last letter from A. W. Marshall, the Chambers County Right-of-Way Agent, the plaintiff Chambers County, repudiated its recognition, if any, of the ownership of J. M. Frost, Jr., and commenced the assertion of an open and notorious adverse claim of right to use as a road substantially the entire area of ‘High Dump road’ or ‘Rice Farm Road’, as described in Plaintiff’s Second Amended Original Petition?” To which the jury answered “Yes”. “(31) Do you find from a preponderance of the evidence that the county gave notice to the defendants between June 26, 1947, and January 28, 1948, that Chambers County had repudiated its former recognition of J. M. Frost, Jr.’s ownership of the road known as ‘High Dump Road’ or ‘Rice Farm Road’?” To which the jury answered “Yes”. “(32) Do you find from a preponderance of the evidence that the only substantial use made of the road running through the land, described as ‘High Dump Road’ or ‘Rice Farm Road’, before January 25, 1958, was by persons who had express or implied permission to use the road from the defendants, or any of them?” To which the jury answered “No.” “(33) Do you find from a preponderance of the evidence that the Defendants, Mr. Frost, his family, or those working for him, regularly and systematically prevented hunters from using and traveling the portions of the ‘High Dump Road’ or ‘Rice Farm Road’ and the ‘Sykes Road’ or ‘Fairview Road’ running through the Frost ranch?” To which the jury answered “No.” “(35) Do you find from a preponderance of the evidence that Chambers County, in the first five months of 1957, offered to fence the sides of the roads in controversy, if J. M. Frost, Jr., would cease interfering with the use of these roads?” To which the jury answered “Yes”. “(36) Do you find from a preponderance of the evidence that the offer of the County to fence these roads if J. M. Frost, Jr., would cease interfering with the use of them, if you have found such an offer was made, was a recognition of that Defendant’s ownership of these roads?” To which the jury answered “No.” The testimony includes five volumes totaling 962 pages. Volume 6 contains maps and exhibits relating to the subject matter of this litigation. It is quite obvious that we cannot make an extended summary of all the testimony, and since we have a jury verdict, it would serve no useful purpose. However, since the court disregarded the findings of the jury favorable to the county on the question of dedication and prescription, we think it necessary to make a short statement. The County Engineer testified in part to the effect that he had been acting as such since November 16, 1945, and that prior thereto in 1941 he was a resident engineer for the Highway Department at Liberty and had under his supervision the highways of Chambers and Liberty Counties; that he had been familiar with the roads in controversy since he became County Engineer, and that in November 1945 the Rice Farm Road was shelled all the way to the intersection of the Sykes Road, and the Sykes Road had shell on it from that intersection east toward highway 124, and from the foregoing intersection to the west it was only a graded road; that immediately after he took office he caused regular maintenance and repair work to be done over each of these roads, using maintainers and road graders after each rain. Minutes of the Commissioners’ Court were introduced showing adoption on June 5, 1946, of a program of road improvements to be carried out and financed by a three million dollar bond issue; that Sykes Road and Rice Farm Road existed on the ground at that time, and that he superimposed upon a map tendered in evidence, with a pen, the locations of Sections Nos. 95, 103, 105 and 115, marking all the land in controversy, which were portions of the Sykes Road and the Rice Farm Road; that the Commissioners’ Court proposed that Rice Farm Road be shown as type C road, and that it have 6-inch shell base, and be 16 feet wide, and that the Sykes Road would be type B road, and would also have 6 inches of shell, and would be 18 feet wide. The bond issue referred to was adopted in July 1946. A traffic count map of the county showing the annual average of 24-hour traffic volume during October 1, 1947 to September 30, 1948, was tendered in evidence. This traffic map showed the Rice Farm Road, and the Sykes Road to be graded and drained. This traffic count showed that during a period of 24 hours over 100 cars used the Rice Farm Road, and the Sykes Road between the Rice Farm Road and State Highway 124, that the traffic count was 215 cars per 24-hour period; that on the Sykes Road to the west of the Rice Farm Road the traffic count was 55 vehicles per 24 hours; that in 1946 he applied shell to the Rice Farm Road, and it was completed in 1947, and that he started work on the Sykes Road in 1946, and worked on it a couple of years; that a portion of the cost of repairs and maintenance expended on these roads was expended on the portion of the roads in controversy, and that the amount expended on these portions estimated more than an average cost of the bond proceeds expended; that at the time these repairs were made he knew nothing of any private claim or ownership, and that as County Engineer he first learned that Mr. Frost was contending that the portions of the Sykes Road and the Rice Farm Road were not public roads when Frost fenced them in January 1958; that prior to this time the County had expended on 7¾0 miles of the Sykes Road, including the two miles in controversy, from and after 1946 to May 15, 1957, a total of $81,821.62, which was an average cost of $10,909.55 per mile for shell, truck hire, labor and miscellaneous items; that a source of these funds was the 1946 county road bond issue; that these figures did not include the cost of blading the road that was done after each rain, the blading cost having been paid out of the regular county precinct maintenance fund; that he would not have caused the work to have been done had he not believed that these roads were public, roads, and that he did this work for the County under a claim of right of the County to care for these roads; that in November 1945, as Engineer, he found that the Rice Farm Road, including the portions in controversy, in poor condition with only one or two inches of shell on it, and full of “pot holes”; that the Sykes Road was in worse condition than the Rice Farm Road; that a portion of the Sykes Road located on Sections 105 and 115 was sub-stantially a dirt road; that the width of the Sykes Road through Sections 105, 115 .and 103 were about 80 feet; that the crown of the Rice Farm Road, or the portion used for travel, was about 30 feet in width, and that none of defendant Frost’s tenants or employees ever told him that the road was a private road, or that Frost did not want the county “fooling with his private roads and private cattle guards and wanted the county to leave them alone”, and he knew of no claim of Frost until he built the fence across the road in January 1958; that Dow, a tenant of Frost, called him a number of times to complain about the condition of the road through the sections here in controversy, and that Dow wanted them kept up in good shape, with the proper amount of shell on them, and that if some cattle guards on the road got bad, Dow called him to have them fixed immediately; that he knew of his own personal knowledge that the Sykes Road, including the portions in controversy, was built by the county with county machinery and county men in 1941, and he did not know of his own personal knowledge who originally built the Rice Farm Road. There is an absence of testimony to the effect that Mr. Frost was interfering with the use by the county or the public of either the Sykes or the High Dump Road. The minutes of a special session of the County Commissioners Court were tendered in evidence showing the adoption on June 5, 1946, of a program of road improvement to be carried out and financed by a Three Million Dollar bond issue. The program was set forth by a map attached, a copy of which was introduced in evidence. The witness stated that the Sykes Road and the Rice Farm Road existed on the ground at that time as shown on the County map portraying the 1946 road bond program; that after the bond issue was passed (under the order of the Commissioners’ Court) he applied shell to the Rice Farm Road, which was commenced in 1946, and was completed in 1947; that the County started work on the Sykes Road in 1946 also, and worked on it a couple of years; that a portion of the cost of repairs and maintenance expended on the Sykes Road and the Rice Farm Road was expended on the portions of the roads in controversy, and that the portions of roads here involved entailed more than average cost of bond proceeds expended; that he did not know at the time that he caused these repairs and improvements to be made about any claim under private ownership, and that he as County Engineer first learned that Mr. Frost was contending that the portions of the Sykes Road and Rice Farm Road involved were not public county roads when Mr. Frost had them fenced on January 28, 1958. He further testified that commencing in 1946 the County expended from the proceeds of the bond issue through January 31, 1957, on Rice Farm Road, including the portions in controversy, for shell, truck hire, culverts, labor and miscellaneous costs, a total of $32,643.40, or an average of $6,528.68 per mile; that if the county officials and he had not considered the Rice Farm Road in its entirety a county road from 1946 to the present day, he, as County Engineer, would not have expended the public funds or made the repairs and improvements that he made on that road. F. W. Otter testified in part to the effect that he is 76 years of age, and had lived in Chambers County some 62 years, and that he has been engaged as a county construction worker in Chambers County for 26 or 27 years; that he helped build the entire Sykes Road from the Farm-to-Market Road to State Highway 124; that this was in the year 1942 or 1943; that the road was completed in about one year for dirt work, but not the topping; that prior to that time it was a narrow dirt road that was difficult to travel, and the small bridges would fall down; that it had a 14-foot crown, and the ditches were shallow; that when County Commissioner Broussard took it over he widened it and raised the dirt work, this being the first work that was done on it; that he was hired to help run the machines, and that the County used a cat, blade and maintainers to build the road, and that they had to let the dirt work settle for two or three months before they put on the shell topping; that 40 or 50 trucks were used on the shelling job, and that the entire road was shelled in about three or four months; that the building of the road and topping required about one and one-half years; that after the construction of the Sykes Road, he, as an employee of the County, also worked on the maintenance of the road; that the county had to keep it smooth; that when it got bad the county put more shell on it, from 3 to 6 inches all way through, and not just a patch; that originally 6 inches of shell was put on the Sykes Road, and it was 16 or 18 feet wide; that the county did a lot of patching, but twice they re-built it. With reference to maintenance, he said they would generally try to get out after the rains and work the road, and after the county built the Sykes Road there had been no gates across it and that he did not recall any gates crossing it prior to the time the County built the Sykes Road. With reference to the Rice Farm Road he said substantially that the High Dump Road was started in about 1937, and about the year 1939 the rice farmers who were farming in that area wanted the dump leveled down and shelled so that they could use it to bring their rice out; that the farmers made a road out of it; that he was there, and that as an employee of the county, leveled down the High Dump Road, and that until 1939 or 1940 when the county leveled the road for topping, that it could be used only on horseback; that the county leveled it in the year 1939 or 1940, and as soon as it was leveled the county put the first coat of shell topping on it, being a 6-inch coat, and 14 or 16 feet wide; that thereafter the county maintained the road and did patch work on it, and that the county has re-shelled it from one end to the other, two or three times, and that this re-shelling was done since Mr. Pinchback became County Engineer; that he had never seen anyone else shell or maintain that road, and that he and four other county employees ran the maintainers; that he never say any signs on the road to the effect that they were private roads for the Frost family until five or six months ago, (time of trial 1960) and that the witness traveled up and down these roads on an average of 8 or 10 times per year. Ap-pellee, J. M. Frost, Jr., testified in part to the effect that he first saw Sykes Road at the time it was built, and that he imagined that it was completed during the Summer of 1941; that he first started using the Sykes Road in 1942, but could not say whether it was completed at that time from the Farm-to-Market Road all the way over to the Winnie-High Road; that during the year 1948 or 1949 he saw the county blading the High Dump Road; that he asked the man who was on the maintainer what he was doing on his road; that it was a private road, and the man told him to talk to Mr. Pinchback, his boss, and that that was the last of that. He further testified that he did not shell any portion of the Sykes Road.

“Q. You have never * * * had a gate across Sykes Road or High Dump Road here involved in this controversy?
“A. No, Sir, my attorney told me—
“Q. You have answered my question and if you have anything further Mr. Williams can ask you about it, but you never locked any gates on Sykes Road for any period of two weeks ?
“A. No, Sir.
“Q. Never been a gate on there?
“A. I don’t recall any.
“Q. And there has never been a fence completely across the road to stop the traveling public from using it at will and as a matter of right ?
“A. No, Sir.”

See Stanolind Oil & Gas Co. et al., v. State et al., 136 Tex. 5, 145 S.W.2d 569, Point 1, Page 570, and authorities there cited. See also cases collated under Vol. 16A Texas Digest, Evidence, @^553(4) p. 591.

Winser, Jr., testified to the effect that he served as a member of the Chambers County Commissioners’ Court during the years 19S3 and 1954; that during the time he was Commissioner, crews under the direction of Mr. Pinchback, and with County equipment graded or bladed the entirety of the Sykes Road and the Rice Farm Road on an average of once per month; that he never heard any protest from anyone that the County should not be maintaining the County roads at county expense; that he had been traveling both of these roads in his rice farming operations for about 15 years, and that he had observed regular county maintenance of the roads in the way of blading operations and shelling operations as a regular practice; that he was living in Chambers County in 1946, and was using those roadways ; that he recalled the 1946 bond issue, and that prior to that time Sykes Road from Highway 124 to the Farm-to-Market Road that runs into Anahuac was not a well-improved shell road; that in 1947 the entire road had greatly improved, and since that time the road had been graded and shelled; that before the 1946 bond issue the Rice Farm Road was not in top condition, but after the passage of the bond issue in 1946 it was greatly improved, and that was within a year after passage of the bond issue; that since he became familiar with the Sykes Road and the Rice Farm Road in 1942 or 1943 he has seen all sorts of vehicles travel over those roads, including trucks, passenger cars, pick-up trucks, station wagons, and little doodle-bug cars; that prior to the institution of this suit Mr. Frost had never told him, as a Commissioner or otherwise, that the public was not entitled to use those roads that run through his ranch; that he himself traveled those roads as a matter of right and thought he had a right to travel them; that while Commissioner during 1953 or 1954, Mr. Harvey Dow, who farmed the land for Mr. Frost, made complaints about the condition of the Sykes Road, and that during that time he had been farming in Chambers County and was a County Commissioner on up to January 25, 1958, and that to his knowledge there never was a gate across the Sykes or High Dump Road to stop traffic from going through from the.year 1946 on. The Court in its Charge instructed the jury: “By the term ‘adverse’ as used in this Charge is meant an actual, exclusive use and appropriation of the lands involved over which the road involved runs, for public road purposes, commenced and continued under a claim of right, inconsistent with and hostile to the claim of the defendants.” With reference to the Sykes Road one witness testified that the Sykes Road had been in existence and had been traveled and used by the public for thirty years, or more. It is without dispute that Mr. Frost acquired the land adjoining it in 1946. The jury in its verdict (Issue 10) found from a preponderance of the evidence that prior to January 28, 1958, the defendants, and those under whom they claim, intended that the portion of the roadway described and known as Sykes Road or “Fairview Road” should be used and traveled by the public generally and maintained and improved with public funds. We think the foregoing Issue presented an ultimate fact issue to the jury that is controlling with reference to the Sykes Road. So, the question before us is: Is the evidence sufficient to sustain such finding? We think the answer is “Yes”, and that the answer is sustained by the great weight and overwhelming preponderance of the evidence. We are of the view that the evidence shows that during the period of time prior to January 28, 1958, that the appellees and their predecessors in title permitted the county to improve and maintain with public funds the portions of the Sykes Road here in controversy. We are of the view that the jury by its answers to Issues 7, 8 and 10, found all of the elements of an implied dedication of the Sykes Road to the traveling public, and an implied acceptance of said dedication by the county, and we think the jury’s findings in each is supported by ample evidence. We think the great weight and preponderance of the evidence brings this case within the following applicable law: In 19 Tex.Jur. 2nd, page 201, Sec. 20, we find this statement of the Rule:

“If for a considerable period of time a landowner disregards his private interest and, without objection, permits the public to use a strip of his land as a highway, he will generally be held to have manifested an intention to dedicate the strip to the public. In this situation he may not deny the implication that is raised by his acquiescence in the public use of his land.”

At page 205, Sec. 22, we find this statement:

“The period of time of the public use is immaterial when the affirmative attitude or intention of the owner in allowing the public to use his property is clearly apparent.”

At page 207, Sec. 24, we find:

“Cogent evidence of a landowner’s intention to dedicate a way to the public is furnished when he permits the public authorities to grade, repair, or otherwise improve the way by virtue of their general control over public streets and highway.”

At pages 211-212, Sec. 29, we find substantially this statement: That a dedication is accepted by public user, or by public authorities taking possession of, or assuming control over, the land offered, as by going on it and improving or repairing it. At page 217, Sec. 34, we find this statement:

“On acceptance, a dedication becomes immediately operative. At that moment the owner becomes divested of all rights in the property inconsistent with the purposes to which the land is devoted, and the public becomes vested with all rights that are consistent with the use of the property for that purpose.”

We see nothing in this record to indicate that the appellees, or those under whom they claim, made any objection to the use of the Sykes Road by the public. In fact, Mr. Frost said, in effect, that he had never attempted to interfere with the public use of the Sykes Road, and that he had never put any gravel on it, and that he had done nothing to interfere with its use as a public road until he put a fence across it in 1958.

Our Supreme Court in Oswald v. Grenet, (1858) 22 Texas 94, made this statement of the Rule concerning dedication:

“A setting apart, or dedication to a public use, to be effectual, need not be by deed; nor need it be evidenced by the use of it having been continued for any particular time; it is enough, 'that there has been some clear, unequivocal act, or declaration of the proprietor, evidencing an intention to set it apart for a public use, and that others have acted in reference to, and upon the faith of, such manifestation of intention. If the act of dedication be unequivocal, it may take place immediately. If there be no such act, it may be evidenced by an uninterrupted use; and that need not be for any particular time. Eight, and even six years, have been held in England, time sufficient to raise the presumption of a dedication from user; but it will depend upon the particular circumstances of each case.” (emphasis added) citing cases.

Evidence was tendered to the effect that the Sykes Road had been in existence and had been traveled and used by the public for 30 years or more, and Mr. Frost testified to the effect that he had traveled the road before he purchased the adjoining tract in 1946. The evidence is certainly without dispute that after the bond program was voted that it was maintained and improved by the County at great expense to the County, and Mr. Frost made no attempt to interfere with its use and improvement until he built a fence across the road in 1958. Surely, under the foregoing undisputed testimony the jury was justified in finding that there had been a dedication of the Sykes Road. We have previously said that the question of dedication was an ultimate fact issue, and that it is a controlling one in this case. See Dunn v. Deussen, Tex.Civ.App., 268 S.W.2d 266, n. r. e. In Brown v. Kelley, Tex.Civ. App., 212 S.W.2d 834, the Fort Worth Court, in discussing dedication said:

“However, the theory of implied dedication carries with it the idea that the owner consented to the use of his land as a highway to the extent that the court will hold that he dedicated it to public use, whether by express words, overt acts, or even by such inaction on the part of the owner as would justify a conclusion that he intended to dedicate.his land to public use.”

Going back to the Grenet case, supra, our Supreme Court has not seen fit to change the statement of the rule there expressed. In Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, our Supreme Court again gave its approval to the statement of the Rule it announced in Oswald v. Grenet, supra. It likewise gave its approval to the doctrine announced in Elliott, Roads and Streets, (2d Ed.) p. 121, wherein it says:

“If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.”

It approved the statement of the Supreme Court of Vt., in Abbott v. Mills, 3 Vt. 521, wherein it said:

“the act of throwing open the property to the public use, without any other formality, is sufficient to establish the fact of a dedication to the public; and if individuals, in consequence of this act, become interested to have it continue so, * * * the owner cannot resume it.”

(Approved again by our Supreme Court in O’Connor v. Gregg, Tex., 339 S.W.2d 878, Point 6). Our Supreme Court, in this opinion, also gave its approval to the doctrine stated by the Fort Worth Court in Brown v. Kelley, heretofore cited. Our Supreme Court again, in the case of O’Connor v. Gragg, supra, held that the question of dedication was one of fact to be decided by the jury. (Citing Dunn v. Deussen, Pt. 5, supra). We think under the foregoing authorities, and under the undisputed record, that the evidence is ample to sustain the jury’s finding of dedication of the Sykes Road.

Did the Court err in failing tr> render judgment for the County establishing an easement for roadway purposes on the portions of the Sykes Road and the Rice Farm Road on the verdict of the jury wherein the jury found all the essential elements of the acquisition by the County and the public of such easement by prescription ? We think it did. In this connection the jury’s answers to Issues Numbers 1 through 5, and 7 and 8 relate to the Sykes Road, and have reference to appellees’ predecessors in title. Issues 11 through 15, 17 and 18, relate to the Rice Farm Road. Perhaps we should state again that with reference to the Sykes Road we have under consideration two separated 1-mile segments along its entire length of 17 or 18 miles, and with reference to the Rice Farm Road two separated quarter-mile segments along its entire length of 5 miles. The evidence is without dispute that the County leveled and shelled the entire Rice Farm Road in 1939 or 1940, and that the County constructed all the Sykes Road, and it was re-built, widened, improved and shelled in 1942 or 1943; that thereafter the County continuously, without interruption, used its equipment and regularly maintained, repaired, bladed and graded each of these roads after each rain; that such improvements, maintenance and repairs were paid for with public funds of Chambers County, and that this continued to the time that this suit was filed. There is evidence to the effect that these improvements and repairs were made on these roads under a claim of the right of the County to do so. (We think it is significant that Mr. Frost testified to the effect that there had never been a fence across the road to stop the traveling public from using it at will, and as a matter of right.) That since the construction of these roads by the County, and par- • ticularly since their improvements in 1946 and 1947, these roads have become main arteries of travel by the public. According to Mr. Frost’s testimony prior to January 28, 1958, there had never been a fence or gate across either of said roads at any point, and not one member of the traveling public had ever been stopped or prevented from using said roads, and that the general traveling public had been able to traverse the entire length of both of said roads without interruption since 1942 or 1943, as a matter of right. It is true that Mr. Frost claimed that he had shelled most of the portion of the Rice Farm Road in 1944, but he admitted that he had not shelled it since, and that he had never put any shell on the Sykes Road or done any maintenance work on it at any point. As before stated, we think the jury in its verdict found each and all of the essential elements of the acquisition by the county and the public of an easement by prescription for roadway purposes over the portions of the Sykes Road and the Rice Farm Road, and we think the answers of the jury with reference thereto are supported by ample evidence. We think the verdict of the jury and the evidence tendered brings this cause under the doctrine announced in Phillips et ux. v. Texas & P. Ry. Co., 296 S.W. 877, (Tex.Com.App.) where we find the following statement:

“the public may by adverse use for the prescriptive period, which is ordinarily 10 years in this state, acquire the line of highway in a road though the counties have not recognized it as such.”

In Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874, we find this statement:

“The public’s right of prescription to a highway is not dependent upon the recognition of that right by the municipal authorities of the county, but is acquired by adverse use for the time and in the manner prescribed by the rules of law * * Porter v. Johnson (Tex.Civ.App.) 151 S.W. 599, 601.

In 21 Tex.Jur. under Plighway 617, Sec. 78, we find this statement:

“ * * * the right of the public is not disproved by an official refusal to recognize the road, for the public’s right of prescription to a highway is not dependent upon recognition of that right by the municipal authorities of the county, but is acquired by adverse use for the time and in the manner prescribed by rules of law.”

Under the foregoing authorities it is clear that a refusal by the County to recognize the road, as well as the County’s recognition of ownership in the landowner, will not affect the rights of the traveling public to acquire prescriptive rights by adverse user for the requisite period. In Ladies’ Benev. Soc. of Beaumont v. Magnolia Cemetery Co., 288 S.W. 812, (Tex.Com.App.) we find this statement of the Rule as to prescription :

“In order to establish a right of way by prescription, it is necessary to show that an uninterrupted user of the way has been made by the public, under an adverse claim of right, for the statutory period of limitation. This adverse claim of right may be proved by circumstantial evidence, sufficient to sustain the conclusion, but it must, nevertheless, be proved in some way by legal evidence, else the alleged prescriptive right fails. The use of lands of another by the public as a roadway, with the acquiescence of the landowner, will not ripen into a prescriptive right, no matter what period of time such use may continue, unless the evidence shows, circumstantially or otherwise, that the use was by claim of right adverse to the landowner, of which adverse claim the latter has notice.”

The foregoing doctrine was reannounced by our Supreme Court in Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622. In Dortch v. Sherman County, Tex.Civ.App., 212 S.W.2d 1018, we find this statement of the Rule:

“In order to prove prescription it is sufficient to establish that the general public used the road under a claim of right, and not by mere permission of the owner of the land, without interruption or any substantial changes for at least ten years.” (Citing Robison v. Whaley Farm Corporation, 120 Tex. 633, 37 S.W.2d 714, 40 S.W.2d 52, opinion adopted).

In Boone v. City of Stephenville, Tex.Civ. App., 37 S.W.2d 842, (n. w. h.) this Court held:

“A right to use private property as a public thoroughfare may be acquired by prescription, but in order to do so it is necessary to show that an uninterrupted user of the way has been made by the public under an adverse claim of right for the statutory period of limitation. The use by the public must be with the actual or implied knowledge of the owner, adversely, under claim or color of right, and not merely by the owner’s permission.” (Citing cases).

In Weldon v. Quaite, Tex.Civ.App., 175 S.W.2d 969, n. w. h., this Court held:

“One of the essential qualities of prescription is that the use must be adverse; that is, that the use must have invaded some rights of the owner which he could have asserted by action, and must be of a character which negatives simply a permissive use or license.”

In 19 Tex.Jur.2d 180, Sec. 1, we find this statement:

“ * * * In the case of dedication the owner is presumed to assent to the use he has voluntarily given over to the public; whereas in the case of adverse possession he is presumed at every moment to be hostile to the exercise of the rights that are usurped by the public.”

It is our view that under the record here made, and the authorities cited, that the objections, if any there be, by the appellees to the use and travel by the public and to the improvements, repairs and maintenance by the county, could not, and did not, defeat the prescriptive rights claimed by the county, and that the acquiescence is established by proof and a jury finding that the use was continuous and uninterrupted. This record is without dispute that the County actually took over the dominion and control of the roads in question when Mr. Pinchback became County Engineer in 1945. That in so doing, it exercised complete control in the maintenance and repairs of each of these roads, and that in addition thereto the county had placed these roads in its bond program and passed a bond issue creating funds with which to maintain public roads in the County, and in so doing it expended large sums of money in the rebuilding and the maintenance of each of these roads and exercised complete control and dominion over them, and that such control was adverse to the appellees in this case who had full knowledge of what the County was doing. It is true that Mr. Frost testified that he made complaint to one of the workers on the Rice Farm Road, at one time, and that the worker told him in effect to see his boss, Mr. Pinchback, but he did nothing further about that. It is also true that there was some testimony to the effect that there were signs along the Rice Farm Road that it was a private road, but our view is that under the holdings of the Texas Courts that objections by the landowner and continued use of the roadway, as well as the maintenance and control thereof, in defiance of such protests simply have the effect of rendering the character of the user more hostile and adverse. The appel-lees contend that the County recognized appellees’ title to the lands in question as íate as June 26,-1947. We do not think that the letter • in question, or the correspondence in full of Mr. Marshall sustains this contention. Certainly he was not authorized to waive or put in jeopardy any rights of the traveling public. The first letter dated January 23, 1947 that he wrote Mr. Frost was on his own stationery, which ■stated: “A. W. Marshall, Attorney-at-Law, Anahuac Texas”. We quote the pertinent parts:

“I am assisting Chambers County in securing the right-of-way for the new roads to be opened and taken over by the County, under our recent Three Million Dollar Bond Issue. Among other roads to be taken over is the North and South road extending along the common line between Section 105 and Section 95, and on the South and North from there. This road takes part of small tracts belonging to C. M. Frost, C. W. Frost and J. M. Frost, Jr., in Section 95, and each of these tracts are taken 1.74 acres of land. I am enclosing you two deeds covering these tracts for the parties to sign if they are willing to execute them for the new roads. As I understand it, it is not so much opening a new road, but more of building up and shelling and black topping an old road that already existed there, but had not been officially taken over by the County(emphasis added).

In the last letter which does not bear a typewritten date, but bears the stamp “June 26, received”, and a pencil notation, “Received by JM Jr 6-27-47”, which said:

“Dear Mr. Frost: I have heard nothing from you in regard to the execution of the right-of-way deeds for the opening of the roads in the east part of the County. If it is money for the information that you desire on this or any such terms that you want to put in the right-of-way deed, I wish you would please advise me to that effect: or if you wish to consider with me further, I will take -a trip to Houston and take the matter up with you. In the meantime Mr. Broussard is very anxious to have this right-of-way completed so that work can begin on these roads. Yours very truly, A. W. Marshall.”

We see nothing in this correspondence of Mr. Marshall, who was acting as right-of-way agent for the County that waived any right the County had that it had acquired by prescription. The correspondence discloses that the County recognized it had no deed to the property, and that it was the purpose of the county to acquire a record title to the roads before expending bond money upon them. But if we be mistaken in this view, we' think that appellees’ contention passes out of the case, because it is certain that Mr. Marshall, as right-of-way agent for the county, could not and did not waive any right that the public had acquired in these roads. Moreover, the jury found that the recognition of title by the County was repudiated, and that notice of repudiation was given to appellees more than ten years prior to January 28, 1958. In all events, this question passes out of the case. The appellees contend that the County became the representative of the public, and acted for the public, and could claim or disclaim in the public’s behalf, and that any use by the public is subordinate to its representative, the County, and that after the County recognized appellees’ title, this precluded acquisition of an easement by prescription on the part of the traveling public by public user. We are certainly not in accord with this view. We must always bear in mind that with reference to prescriptive rights, the element of acceptance is not involved. Here we have a claim of prescriptive rights on the part of the County, based upon adverse use and exercise of dominion in making repairs and improvements of the roadways, and the control thereof. We also have a separate and independent claim of prescriptive rights on the part of the public, based upon its adverse use and travel of these same roadways. That leads us to say that the recognition, if any, of Frost’s ownership of the roadways in controversy by the County did not affect the rights of the traveling public to acquire by prescription an easement in the highways in controversy by adverse use for the requisite period of time. We think under the cases we have cited, that it is well settled that a lack of official recognition of the road by the public authorities will not destroy the claim of a public right-of-way by prescription. It is true we do not have here a situation of lack of official recognition. Here we have merely a contention by the appellees that by asking Frost for a deed of conveyance, and without consideration, the County recognized ownership in Frost, and that this destroyed the claim of prescription by both the county and the traveling public. We have previously, stated, we are not in accord with this view. It is our view that the claim of the public to prescriptive rights is independent of, and not affected by any recognition or failure to recognize, or other acts of the. County under the authorities here cited.

Certainly the jury did not have to believe Mr. Frost’s testimony, but they were at liberty to accept or reject all or any part of any of the testimony tendered. We think there is ample evidence in the record to support the jury’s finding of repudiation of the recognition of Frost’s ownership and their finding of notice or repudiation to appellees between June 26, 1947, and January 28, 1948. During that period of seven months, in defiance of Frost’s protests to Marshall against the maintenance of these roads, the County repaired, bladed and maintained them regularly after each rain, being every two or four weeks, and the County Engineer so testified. Thus the County road maintainer and County crews were seen on these roadways during that seven-month period between seven and fourteen times. Such control and dominion over these roadways exercised by the County, in defiance of Frost’s objections to Marshall, was clearly a repudiation of recognition of Frost’s ownership, if under this factual situation the county ever recognized his ownership of these roads. Testimony of the County Engineer regarding regular maintenance -and repairs was corroborated by the testimony of witnesses Otter, Hay, Work and Winser, Jr. Each of these witnesses saw the County road equipment and County work crews on these roads during that seven-month period performing repairs and maintenance regularly. The jury chose to believe the testimony of the County Engineer and other witnesses who corroborated his testimony. But appellees contend that under the authorities of Othen v. Rosier, supra, and O’Connor v. Gragg, supra, and cases there cited, that the use of the roadway during this time by appel-lees and their tenants defeats the public’s right of prescription on the theory that since the owner of the land in each instance used the roadway along with others prevented the use of the road by the public from becoming adverse, because the use was not exclusive. We think the case at bar is easily distinguished from the factual situation, in each of these cases, and the cases there cited. First of all, in each of the foregoing cases, there was a suit to establish a private easement in behalf of the plaintiff. We think another distinction lies in the nature and character of the easement itself, and the purpose for which it was being used. In the.O’Connor case, everybody used the roadway there in controversy for the same purposes as the Graggs, which was to get the paved road north of all the land involved. This was the exact or similar situation in the Othen case, and in the cases cited in the Othen case. Here the roadways in controversy consisted of separated 1-mile and quarter-mile interior segments of roads, and all portions of which, both within and outside of the Frost tract, looked exactly alike. The roadways here involved were not used by everyone for the same purpose. This is particularly true with respect to Sykes Road, which was used by the general traveling public to get to State Highway 124 on the east to the Farm-to-Market Road running south from Anahuac on the west, and also to get to and from all other roads, including the Rice Farm Road which intersects the Sykes Road. However, we think a more important distinction lies in the fact that the County here used and exercised dominion and control over the roadways in controversy by improving, repairing, and maintaining them for the use of the traveling public, whereas, in the O’Connor case no work was done on the road by the county. The use of the roads here by appellees was merely for purposes of traveling over them, and as members of the general public, appellees did not use these roadways for the same purposes as the appellant, and the overwhelming preponderance of the evidence is that from and after 1942 improvements, repairs and maintenance of these roads were made and performed exclusively by the County. Mr. Frost admitted that he had never put any shell or done any maintenance work on the Sykes Road at any point, and that since 1944 he had not shelled the Rice Farm Road. The Supreme Court in the O’Connor case pointed out that there was no evidence which even tended to show a right or claim of right of either Graggs or the public to use the roadways to the exclusion of petitioners’ right to use the roadway involved. Here there is an abundance of evidence that the County and members of the public were using these roads under a claim of right, and it is also true that the witnesses for appellees testified to the effect that appellees objected to the improvements, repairs and maintenance of the roadways by the appellant, and the facts and circumstances, as well as the testimony of the County Engineer show that these improvements and repairs were performed by the County under a claim of right to make and perform such improvements. Not only did the County claim the exclusive right to perform such work on the roads as public County roads, but the overwhelming preponderance of the evidence shows that from and after 1942 such use and exercise of dominion and control over these roadways by appellant, in making such improvements, repairs and in performing such maintenance, was exclusive. Appellees have cited no authority involving a fact situation as we have here, or similar thereto. Here the suit is brought by the County where the County claims prescriptive right in behalf of itself and the traveling public, based upon improvements, repairs and maintenance of the roads by the County and upon use and travel by the public. It is the County’s contention that use of the road by the owner, as a member of the general public, under the factual situation presented by this record will not and does not prevent the use from being exclusive, and will not defeat prescriptive rights. We are in accord with this view. As this Court stated in Weldon v. Quaite, supra:

“One of the essential qualities of prescription is that the use must be adverse; that is, that the use must have invaded some rights of the owner which he could have asserted by action, and must be of a character which negatives simply a permissive use or license.”

The jury in its verdict found that the use made of the roads was not permissive. In Ruling Case Law Vol. 9, page 781, we find this statement of the Rule:

“The prevailing rule is that where the-claimant has shown an open, visible, continuous and unmolested use of land for the period of time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right, so as to place upon the owner of the servient estate, in order to avoid the acquisition of an easement by prescription, the burden of rebutting this presumption by showing that the use was permissive.”

Mr. Frost admitted that the public used the road at will, and as a matter of right. It is true that there is some evidence in this record to the effect that the appellees objected to the use of these roads, and the jury so found. But we are of the view that the jury’s finding that there were objections to the use is merely evidentiary, and not a controlling issue in this cause, and strengthens the jury’s verdict wherein it found that the use of the roads was adverse to the appellees and under a claim of right, and that by reason thereof the findings on objection pass out of the case.

Finally, we are of the view that the Court erred in overruling the County’s Motion for Judgment on the verdict of the jury favorable to it on its theory of implied dedication with respect to the portion of the Sykes Road involved, and on the County’s theory of prescription with reference to both the Sykes and Rice Farm Roads. If we could reach appellant’s Sth, 6th, 7th, 8th, 9th, 10th and 11th Points, we would hold that the damages assessed by the jury in the trial court are without support in the evidence, and that the answers of the jury with reference to damages is so against the great weight and preponderance of the evidence as to be wrong, and such view would require a reversal and remanding of said cause.

Because of the views expressed, the judgment of the Trial Court in the title action is reversed and judgment is here rendered that the County recover from appellees an easement and right-of-way for highway purposes over each and all the tracts and parcels of land described in the judgment, and it is decreed that such easement and right-of-way is established in favor of the County and against appellees by implied dedication with respect to those portions of the roadway known as Sykes Road, and by prescription with respect to all the roadways involved in this suit, and that appel-lees, and each of them, be perpetually enjoined from interfering in any manner with the County’s use and enjoyment of such easement and right-of-way. Judgment is further rendered that the Clerk of the District Court of Chambers County is directed to issue his check payable to Chambers County in the sum of $30,000.00 deposited with the District Clerk of that County as a cash bond. It is further decreed that all costs of appeal are taxed against appellees. The costs in the Trial Court are taxed against Chambers County.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    G. D. BELL, Appellant, v. James Wesley ISENHOWER et al., Appellees.
    No. 10937.
    Court of Civil Appeals of Texas. Austin.
    Feb. 28, 1962.
    Rehearing Denied April 11, 1962.
    Second Motion for Rehearing Overruled May 2, 1962.

      Davee & Davee, Brady, for appellant.
    Runge, Marschall & Hall, San Angelo, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court, based on a jury verdict, in favor of James Wesley Isenhower and William L. Jackson, and against G. D. Bel-1 for $13,192.47, growing out of a controversy over the sale by Bell of his interest in the Bell Feed Store as related to the amount of indebtedness of the store.

'' The appeal is founded on six points of error with a number of subheads under each point and are generally to the effect that the Court erred in overruling certain exceptions directed to the pleadings; to the admission of certain evidence relative to the contracts, the amount and status of the accounts of the stock; in failing to submit certain requested charges or issues; in failing to grant an instructed verdict; in failing to grant a judgment notwithstanding the verdict of the jury, and finally in rendering judgment for an item of $991.16 and that the judgment entered is indefinite in failing to enter judgment in favor of Bell against William L. Jackson for one-third of any judgment rendered against Bell.

Appellant’s assignments of error are very general and not in strict compliance with the rules but we shall endeavor to consider them as best we can.

As has been noted, this litigation arose out of the purchase and sale of the appellant’s interest in the business known as the Bell Feed Store because of the existence of an excessive amount of debts. The appellees sued the appellant for damages (1) for breach of a written contract limiting such debts to $8,500.00, (2) for fraudulent misrepresentation as to the amount of such indebtedness, and (3) in the alternate, for rescission of such contract.

By stipulation of counsel reflected in the pretrial order signed February 22, 1961 and by uncontroverted proof, the debts of the Bell Feed Store at the time of this sale were fixed at $19,098.56.

Upon issues submitted by the trial court, the jury found that the appellant represented that the debts of the Bell Feed Store at the time of the sale did not exceed $8,500.00; that this was a misrepresentation of a fact material to the sale and purchase of appellant’s interest, that the appellees relied upon such representation, that such representation was untrue and that the parties were not operating under a mutual mistake of fact as to the amount of such indebtedness. Upon the basis of these answers, the Trial Court entered judgment.

On October 2, 1958 an agreement was made by Bell and Isenhower as follows:

“THE STATE OF TEXAS, 1 COUNTY OF McCULLOCH. J
This preliminary agreement made and entered into by and between G. D. Bell and James Wesley Isenhower, WIT-NESSETH:
“It is the intention of the parties that said Bell will sell to Isenhower all of his interest in the business known as Bell Feed Store in Brady, Texas, as of the close of business on October 4, 1958. The price to be paid is the sum of $12,000.00 payable as follows: $1,200.00 paid to Bell upon the signing hereof as escrow to show good faith; the further sum of $2,300.00 to be paid upon the signing of the sales agreement hereinafter provided; and the balance of $8,500.00 to be paid to Bell in cash on January 10, 1958. As a further consideration Isenhower will assume the accounts and notes owing by Bell in connection with said business and shall be entitled to receive all of the accounts and notes receivable.
“It is agreed that on or before October 15, 1958, the parties hereto will execute a detailed contract consummating such sale. Such contract to be agreeable to both of the parties hereto. In the event that no agreement is reached as to the details of such contract, or in the event that either of the parties hereto shall die before such date this contract shall be of no further force or effect and the escrow money paid herewith shall be returned to said Isenhower or his heirs or administrator.
“It is agreed that the debts of Bell Feed Store including open accounts and notes, will not exceed the amount of $8,500.00.
“Witness our hands at Brady, Texas, this 2nd day of October, 1958.
“s/ G. D. Bell
“s/ James W. Isenhower”

Subsequently on October 4, 1958 the following contract was entered into:

“THE STATE OF TEXAS, 1 COUNTY OF McCULLOCH. J
This contract made and entered into by and between G. D. Bell, William L. Jackson and James Wesley Isenhower this 4th day of October, 1958, WIT-NESSETH •,
“Whereas, on September 10, 1956, the said G. D. Bell and William L. Jackson formed a partnership in the business known as Bell Feed Store in B j.Jy, Texas; and
“Whereas on October 2, 1958, the said G. D. Bell and James Wesley Isenhower entered into a preliminary sales agreement for the sale of a part of said business;
“Now, Therefore in order to terminate said partnership and to consummate said sale, the parties agree as follows:
“1. The said G. D. Bell does hereby bargain, sell and convey all of his interest in the said business of Bell Feed Store, including all furniture and equipment (a list of which is attached hereto and referred to), all of the stock of merchandise, supplies, accounts receivable, money on deposit and on hand, good will including the name of said business and the judgment against FI. T. Snowden and the judgment against Graham Fitzpatrick to the said William L. Jackson and James Wesley Isenhower in such proportion that the said Jackson will now own one-half of the said business and the said Isenhower will now own one-half of said business.
“2. G. D. Bell will keep and own as his property all of the notes receivable of the said business and William L. Jackson does hereby bargain, sell, transfer and assign without recourse on him, all of his interest in and to said notes receivable.
“3. James Wesley Isenhower has heretofore paid to Bell the sum of $1,200.00 in cash and herewith pays to Bell the additional sum of $2,300.00 in cash, receipt whereof is hereby acknowledged. James Wesley Isenhower further has this day placed on deposit with the Commercial National Bank of Brady, Texas, the sum of $8,500.00 in cash in escrow subject to the withdrawal by the said Bell on January 2, 1959. It is agreed that Isenhower releases the said Bank from all liability to him in connection with such escrow and directs the Bank to pay such money to Bell on the due date. The said Bell hereby accepts such escrow deposit as full payment to him of all sums due under this contract and hereby releases Isenhower from any further liability hereunder.
“4. The said Jackson and Isen-hower assume and obligate themselves to pay notes owing by said business to the Commercial National Bank of Brady totaling $2,400.00 plus accrued interest as they are due and to pay the account owing to the Ralston-Purina Company.
“5. (Not in issue.)
“6. All prepaid insurance premiums are hereby transferred and sold to the said Jackson and Isenhower. Taxes for the year 1958 are to be paid by Jackson and Isenhower.
“7. (Not in issue.)
“8. The said G. D. Bell and William L. Jackson do hereby terminate the partnership heretofore existing between them and by the execution hereof mutually release each other from all of the terms and conditions of said partnership. They further agree that a final accounting has been made as to said partnership and that each of the parties thereof have received in full all of the property, including the profits, to which each is entitled.
“Witness our hands in triplicate the day above written.
“s/ G. D. Bell
“s/ William L. Jackson
“s/ James Wesley Isenhower.”

This agreement was acknowledged by all parties thereto.

There are changes in the two agreements. In the first, there is a statement by Bell that the debts of the store will not exceed $8,500.-00 but there is no such limitation in the last agreement.

Jackson and Isenhower are brothers-in-law, and Jackson was a partner with Bell in the store. While there is proof of the payment by Isenhower to Bell of $12,000.00 the only consideration to be paid by Jackson was the sale to Bell of Jackson’s interest in all of the notes receivable (not listed) and a statement that the partnership of Bell and Jackson was terminated and that a final accounting had been had and that each party had received in full all of the property to which each is entitled.

There is no question but that the partnership of Bell and Jackson had an outstanding indebtedness of $19,098.56, which was owed in the percentage of fárds by Bell and i/árd by Jackson.

There was extensive testimony given by the parties as well as others as to the transactions between the parties. The jury found that Bell represented that the indebtedness of the store did not exceed $8,500.00. We believe that the evidence supports the finding of the jury.

The judgment of the Court reads, in part, as follows:

“ * * * And the Court having made all such additional findings and conclusions as were authorized by law is of the opinion that, based upon such findings, the Jury’s affirmative answers to Special Issues 3, 4, 5 and 6 and upon facts proven without dispute, the plaintiffs, James Wesley Isenhower and William L. Jackson, are entitled to a judgment against the defendant, G. D. Bell, in the sum of $10,598.56 with interest at the rate of 6% per annum from October 4, 1958, and upon the same basis, the plaintiff, James Wesley Isenhower, is entitled to a judgment against the defendant, G. D. Bell, for the sum of $12,000.00 and the defendant, G. D. Bell to a recovery against James Wesley Isenhower and William L. Jackson of a two-third (⅜) interest in the property and assets of the business known as the Bell Feed Store, but that the plaintiff, James Wesley Isenhower, is not entitled to recover both such sums, and that, in addition thereto, the plaintiffs are entitled to recover from the defendant, G. D. Bell, the sum pf $991.16, together with interest at the rate of 6% per annum from January 27, 1959.
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the plaintiffs James Wesley Isenhower and William L. Jackson, do have and recover of and from the defendant, G. D. Bell, the sum of $13,192.47, together with interest at the legal rate of 6% per annum on said sum from the date of this judgment until said sum and all interest thereon are fully paid. * * ”

Plaintiffs sought judgment for all indebtedness in excess of $8,500.00 and in the alternative if there was a mutual mistake for a rescission of the contract and that all parties be restored to their status existing prior to the date of the sale.

Plaintiffs plead the existence of said indebtedness by virtue of the Bulk Sales Act, Art. 4001 et seq., Vernon’s Ann.Civ.St., creating a lien in favor of the creditors as of October 4, 1958.

No citation was issued to any of the creditors and none have asserted any claim herein.

Since Jackson was a partner in the Bell Feed Store, he knew or should have known, and in any event is presumed to have known, of the debts of the partnership and he cannot now be heard to claim any damages.

The record does not show that Isen-hower or Jackson has paid any of these debts. We are not aware of any authority which Isenhower and Jackson have to collect monies due the creditors of the store. Such creditors have an interest in the assets of the store which Bell sold since the record does not show compliance with the Bulk Sales Law. Art. 4001, V.A.C.S.

We believe that in order to protect the rights of all parties, including all creditors of the Feed Store, that this cause should be reversed and remanded to the end that such creditors, if their debts remain unpaid, be made parties and given an opportunity to protect their interests. This procedure should only be followed in the event Isen-hower, despite the fraud practised upon him, wishes to affirm the contract.

We are of the opinion that Isenhower is, as a matter of law, entitled to rescind the contract if he chooses and- such rescission can be accomplished in accordance with equitable principles.

The record is not in a condition to permit us to render an effective judgment which would protect the rights of all parties shown to have an interest in the subject matter of this suit.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

ON MOTION FOR REHEARING

By rescinding the contract in accordance with equitable principles, we mean that each party should be placed in the same position he occupied before the transactions involved herein occurred. Each party should be made whole, and as if the contracts herein had never been executed.

If, as appellant asserts, this is impossible, then appellees are relegated to their damages. The only ascertainable damages of which we are aware are the possibility that appellees will be required to pay debts of the Feed Store in excess of $8500.00. When and if such debts are paid by appellees resort may be had against appellant for the damages thus sustained.

Our statement that all creditors of the Feed Store should be made parties was suggestive only, and was made in order to prevent a multiplicity of suits.

When we speak of appellees, we do not intend to imply that appellee Jackson is relieved of any liability as a partner of appellant Bell. Jackson’s dual capacity as partner and buyer should be scrupulously observed.

The motion is overruled.

Motion overruled.


author: HUGHES, Justice.

text:
    Daniel R. SPAIGHT, Appellant, v. The AMERICAN NATIONAL BANK et al., Appellees.
    No. 10952.
    Court of Civil Appeals of Texas. Austin.
    April 11, 1962.
    Rehearing Denied May 2, 1962.
    Black & Stayton, Austin, for appellant.
    Brown, Sparks &' Erwin, Will G. Barber, Austin, Robert A. Scardino, Houston, Kyle & Walker, San Marcos, for appellees.
   HUGHES, Justice.

The American National Bank of Austin, Texas, trustee named in the will of Mrs. Mattie H. Glover, brought this suit for a declaratory judgment determining those to whom it should distribute the corpus of decedent’s estate. The question presented requires a construction of the will of testatrix.

Mrs. Mattie H. Glover, a resident of Hays County, Texas, died December 25, 1925, in New Orleans, Louisiana, leaving a will dated May 21, 1925, which will was duly probated in Hays County. She died a feme sole, leaving as survivors two daughters, Gladys and Dorothy, the only children born to her. Mrs. Glover was an only child.

Gladys was the wife of Harold W. Peterson. She died intestate and without issue, June 30, 1931 in Louisiana. Any interest which Gladys, at the time of her death, may have owned in her mother’s estate passed, under Louisiana law, to her sister, Dorothy.

Dorothy was the wife of Daniel R. Spaight, appellant, when she died March 27, 1959, without issue. She left a will, duly probated in Virginia, by the terms of which appellant was given her entire estate.

The adversary parties are appellant, Mr. Spaight, who claims the entire estate of Mrs. Glover and, in opposition, numerous collateral kindred and heirs of Mrs. Glover, each of whom claims his share as an heir under the statutes of descent and distribution of this State. Title 48, Vernon’s Ann. Civ.St.

Mrs. Glover, by her will, left her estate to the appellee Bank in trust “for the purpose of carrying out the provisions and trusts herein mentioned.” The duration of the trust was stated to be:

“The trust here created is to continue in force and effect so long as my daughters, Dorothy Jackson and Gladys Glover, or either of them, may live, and the powers here given shall be exercised by my said trustee for the purposes herein set forth, so long as either of my said daughters shall live.”

Each of the daughters, Dorothy and Gladys was to receive from the trustee, quarterly, one half of the net revenues of the estate so long as both should live.

The nature of the estate left her daughters was described in the will in this language:

“During the life time of my said two daughters, Dorothy Jackson and Gladys Glover, or during the life of either of them, it is my will that the net income and revenue from my estate be applied to their respective use and benefit as hereinabove mentioned, but they shall have only a life interest or estate in the said net revenue and income from my estate, and during the time that my said daughters, or either of them, shall live, the corpus of my estate shall remain in the hands of my trustee, named herein.”

The will also provided that unexpended revenues of the estate should be added to the corpus “in the hands of my said trustee.”

The testatrix made provision for potential grandchildren and for payment of net revenues to the surviving daughter as follows :

“Upon the death of either of my said daughters, if such deceased daughter leaves surviving her any child or children, born to said daughter, then it is my will and desire that a one-fourth part of my estate pass to and vest in the said child or children of my deceased daughter, and my trustee herein named is directed and empowered to partition and set apart to said child or children an equal one-fourth of all of my estate remaining in the hands of said trustee at said time, which one-fourth shall be delivered to said child or children if they are of legal age, or to their legal guardian if they are minors. The remaining three-fourths of my said estate shall remain in the hands of my said trustee, the income and revenue therefrom to be paid to or applied to the use and benefit of my surviving daughter, so long as she shall live, as herein directed and provided. If either of my said daughters shall die without issue, then my trustee shall pay or apply to the benefit of the survivor, the entire net income from my estate, as is herein directed, with reference to the portion that such survivor receives while, both are alive.”

The will provided that the funeral expenses for her daughters should be paid by the trustee from the “funds of my estate.”

The provision of the will which directly gives rise to this suit is the following:

“After the death of both of my daughters, then I will and direct that all of the estate remaining in the hands of my trustee, including the corpus of said estate, and all unexpended revenue, shall be, by my said trustee, distributed to my heirs and next of kin, who would take my estate under the laws of descent and distribution of the State of Texas, and my said trustee is here directed, in such event, to distribute my estate independently of the corporate court, by transferring, conveying and assigning to my said heirs at law, and each of them, their, proper proportionate share of my estate. Said distribution may be made either in property or in money, at the discretion of my trustee, said trustee being authorized to convert all of said estate into cash, if in its discretion it deems it better or more practical to distribute said estate entirely in money.”

It is the contention of appellant that the heirs of testatrix were determinable, under the will, as of the death of testatrix, and that since he has succeeded to the rights of such heirs, Gladys and Dorothy, he is entitled to recover the entire estate in the hands of the trustee Bank.

It is the contention of the adversary ap-pellees that a determination of the heirs of testatrix, under the will, was postponed until the death of the survivor of the two daughters of testatrix, and that they, then being such heirs, are entitled to the estate in the hands of the trustee Bank in accordance with their respective interest under the statutes of descent and distribution.

The Trial Court agreed with this latter contention.

We agree with appellant that the rule of construction to be applied here is correctly quoted in Richardson v. Poe, 210 S.W.2d 568, Fort Worth Civil Appeals, no writ history, from 49 A.L.R. 177, as follows :

“It is a general rule of testamentary construction, so universally recognized as to render superfluous a full citation of the cases which support it, that, in the absence of clear and unambiguous indications of a different intention to be derived from the context of the will, read in the light of the surrounding circumstances, the class described as testator’s heirs, or next of kin, or relations, or such persons as would take his estate by the rules of law if he had died intestate, to whom a remainder or executory interest is given by the will, is to be ascertained at the death of the testator.”

The only circumstances extraneous to the will noted by appellant as bearing on the construction of the will is reflected by the following excerpt from his brief:

“The already mentioned circumstance that the will was prepared by an able attorney is strong evidence that the rule should apply. Moreover, the attorney was Mrs. Glover’s first cousin and, under the construction urged by appellees, would have been eligible as a remainderman. It is doubtful that this attorney would have consciously placed himself in the position of preparing a will naming himself as one of the possible beneficiaries.”

We also quote appellant’s summary of and argument respecting paragraph XIII of the will, which paragraph has not been copied herein:

“Paragraph XIII of the will provides a penalty for ‘any beneficiary under this will’ who opposes its probate. The penalty involves a cessation of ‘any and ail payments to such beneficiary,’ thus clearly indicating that the testatrix believed all beneficiaries under the will would also be receiving payments thereunder. The only parties receiving payments under the will were Mrs. Glover’s two daughters, who were also presumptively her sole heirs at law at the time the will was executed. Accordingly, Mrs. Glover apparently regarded her daughters as the sole beneficiaries under the will.”

Appellant also relies upon other portions of the will which have been quoted herein in aid of his construction of it.

It is our opinion that the will construed solely from its contents or in the light of surrounding circumstances plainly evidences an intent by the testatrix to leave the corpus of her estate at the death of the survivor of her daughters, both dying without issue, to her heirs at law determinable as of that time.

Farrell v. Cogley, 146 S.W. 315, San Antonio Civil Appeals, writ denied (1912), is a case very closely in point. There the testator’s brother, his only heir at his, testator’s death, was left property conditionally. These conditions did not mature, and in such event the will provided:

“ ‘Item 9. In case of the death of my said brother, John W. Farrell, within five years after my decease, or at any time thereafter and before the conveyance and delivery to him of the property and assets of my estate by said executors, it is then my will and I hereby direct that my said executors shall then dispose of said property and assets as follows:’ Then follows several provisions for payment of certain sums to pastors of churches and a sum to be invested for the care of a cemetery lot, after which comes this item: ‘Hold the rest and residue of my estate subject to the order of my heirs at law according to the laws of descent and distribution of the State of Texas, and continue to manage the same until my heirs shall request delivery and conveyance to them.’ ”

The Court held:

“The conclusion to which we have come is that, considering the whole will, the testator intended that the future or residuary estate in his property, subject to the minor bequests and provisions, should be conveyed by his executors to the living persons who at the death of his brother answered the description of his, the testator’s, heirs at law, as ascertained by the statutes of descent and distribution of this state. The only theory which would justify the position that the widow of the brother should take the future or residuary estate is that such estate had vested in the brother.
“ * * * The question at issue depends, therefore, on whether or not the right to said residue was a vested estate in the brother. We think the will vested no interest in the corpus of the property in the brother. There are no words of present gift to the brother of the property, nor to the testator’s heirs at law. On the contrary, the express disposition made by the will was to withhold everything, and every interest in the property itself from the brother, who testator knew was his sole heir at law at that time, and provided expressly what interest he should have in reference to it during his life, which was merely the net income. The title to the property was vested in the executors with power to control and to dispose of it, with express direction after the death of the brother during the five years, or if they had not seen proper to convey it to the brother after five years during his lifetime, in the contingency of his reformation, to convey and deliver it after the brother’s death to testator’s heirs at law. It was plainly the intention of the testator that no interest whatever should vest in the brother during his life, except the right to the income payable monthly.”

There are no words of present gift to the daughters, Gladys and Dorothy, of the corpus of the estate, nor to the testatrix’s heirs at law. It was plainly the intention of the testatrix that no interest whatever should vest in the daughters during their lives, except the right to the income. These words are just as true here as substantially similar verbiage was in Farrell v. Cogley.

The testatrix sharply and carefully distinguished between the lifetime rights given her daughters from the disposition of her estate following their death. That such disposition was prospective in nature, not ascertainable at her death, is clearly reflected by the will.

Testatrix certainly knew when she executed the will that her only heirs then were her two daughters. She also knew that the daughters might be her only heirs when she died, but that she' had potential heirs in mind who might appear after her death is demonstrated by the provision for grandchildren.

The critical provision of the will is, of course, the one directing that “After the death of both my daughters, then I will and direct that all of the estate remaining in the hands of my trustee, including the corpus of said estate, and all unexpended revenue, shall be, by my said trustee, distributed to my heirs and next of kin, who would take my estate under the laws of descent and distribution of the State of Texas. * * *” (Italics supplied.)

This provision looks to a future event, the death of her daughters. It is phrased in the future tense.

The use of the future tense is common in wills and its use here does not conclusively settle the issue presented. It is persuasive, and highly so since it is coupled with an event, the deaths of the daughters, which the testatrix certainly contemplated would occur after her own demise.

There are other minor, but also persuasive matters which tend to sustain our conclusion that the Trial Court correctly construed this will.

The will provided that the funeral expenses of the daughters should be paid from the trust estate. If the trust estate after the death of the daughters was their estate, this was a waste of words.

The direction in the will that after the death of her daughters without issue not only the corpus of the estate but the “unexpended revenue” shall be distributed to the heirs is further indication of the intent of the testatrix that her heirs were to-be determined as of such time for the reason that such unexpended income became a part of the gift. United States Trust Co. of New York v. Nathan, 196 App.Div. 126, 187 N.Y.S. 649, aff. (without opinion) 233 N.Y. 505, 135 N.E. 894, Re Southworth’s Estate, 52 Misc. 86, 102 N.Y.S. 447. In the latter case the Court stated:

“While, as we have said, he (testator) could not legally provide for an accumulation of interest, yet his evident expectation that there might be an accumulation, and that it should pass with the principal and at the same time, in my opinion has a bearing on the question of whom he meant by his heirs, and tends to show that he meant those who should be his heirs when the interest had been earned. In order that the interest should vest, it must be in existence. This is different from a gift of principal, where interest might follow the gift. Both in this case go together, and the only gift in either case is found in the direction to pay over at a future time.”

We attach no significance whatever to the extraneous fact that Mrs. Glover’s will was prepared by an attorney who was a possible beneficiary under it. Most wills are family affairs and beget privacy. It was normal and natural, and not inappropriate, for Mrs. Glover to have her will prepared by a relative who was an able attorney even though he ultimately became a beneficiary thereunder.

We find nothing in the will or in the circumstances surrounding it to sustain an inference that Mrs. Glover intended to leave the corpus of her estate to her daughters upon the termination of the life estates expressly given them. This is an incongruity which should not be engrafted on a will by dubious construction.

The judgment of the Trial Court is affirmed.

      . The portion payable to Gladys was to be paid to her guardian so long as guardianship was necessary.


author: MURRAY, Chief Justice.

text:
    El-Roy HANSLIK, Appellant, v. Edgar DITTFURTH, Appellee.
    No. 13934.
    Court of Civil Appeals of Texas. San Antonio.
    April 4, 1962.
    Rehearing Denied May 2, 1962.
    Fly & Moeller, Victoria, for appellant.
    Don Bradshaw, Houston, for appellee.
   MURRAY, Chief Justice.

This is an appeal by El-Roy Hanslik from an order of the County Court of De-Witt County, Texas, overruling his plea to be sued in Victoria County, the alleged county of his residence.

Appellant’s first contention is that the court erred in overruling his exceptions to appellee’s controverting plea. Appellee alleged in paragraph 1* of his petition, that “The defendant, El Roy Hanslik, is a resident of Victoria County, Texas, and resides at 403 North Vine Street, Victoria, Texas, where citation may be served upon him.” In an apparent effort to show venue in De-Witt County, appellee further alleged as follows: “However, the defendant owns property at Nordheim, Texas, which is in DeWitt County, Texas, and upon which the labor and materials made the basis of this suit was performed and used. Said labor was performed and material furnished pursuant to an agreement reached in De-Witt County which called for payment by the defendant to be made to the plaintiff at the plaintiff’s home in Yorktown, DeWitt County, Texas.”

In his controverting affidavit appellee alleged in effect that appellant, for venue purposes, was also a resident of DeWitt County, the county of suit. Whereupon appellant moved to strike this controverting plea because appellee had affirmatively alleged that appellant “is a resident of Victoria County,- Texas.” This motion to strike was overruled by the court.

The trial court did not err in refusing to strike the controverting plea and overruling appellant’s exceptions. Under the law, a .party may have two residences for venue purposes, and even though ap-pellee had alleged that appellant’s residence was in Victoria County, this would not preclude him from setting up a contention that appellant also had a residence in DeWitt County for venue purposes. Pearson v. West, 97 Tex. 238, 77 S.W. 944; Gilbert v. Mecom, Tex.Civ.App., 247 S.W.2d 573; Kerr v. Davenport, Tex.Civ.App., 233 S.W.2d 197.

Appellant’s second point is that ap-pellee failed to establish by competent testimony that appellant was a resident of De-Witt County. We sustain this point. There can be no question here as to the fact that appellant, a single man, resided with his parents at 403 North Vine Street, Victoria, Texas, and that he was employed and worked five and one-half days a week for his employer in Victoria County. Ap-pellee offered evidence to the effect that appellant had purchased a piece of land in DeWitt County which he was improving, and spent much time on week-ends in De-Witt County, looking after and improving this property. There was a dwelling house on the property when it was purchased by appellant, but before this cause of action arose appellant had sold the house and it had been taken down and removed. There was a garage on the premises which appellant had greatly improved. No evidence was offered to show that appellant had ever spent as much as one night in DeWitt County. He testified that he had never spent a night in DeWitt County; that he had no place of abode in that county, and did not keep any personal effects in DeWitt County.

Under such circumstances, the evidence was insufficient to establish that appellant had a second residence for venue purposes in DeWitt County. Greer v. Newton, Tex.Civ.App., 245 S.W.2d 299; Gilbert v. Mecom, supra. In Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, Justice Wilson, speaking for the Supreme Court, sets forth the essential elements that establish a second residence in a county for venue purposes :

“A second residence away from a domicile within the meaning of the first sentence of art. 1995 must include the following elements:
“1. A fixed place of abode within the possession of the defendant
“2. occupied or intended to be occupied consistently over a substantial period of time
“3. which is permanent rather than temporary.”

The proof offered by appellee fails to establish any of these elements, and the court erred in overruling appellant’s plea of privilege.

It has been called to our attention that after appellant’s plea of privilege was overruled, the cause was heard upon its merits and judgment rendered, but we are not advised as to whether this judgment has become final for lack of an appeal. Such judgment, unless final, does not affect this appeal. Pugh v. Childress & Marshall, Tex.Civ.App., 207 S.W.2d 182; Brown County Life Ins. Co. v. Hagins, Tex.Civ. App., 110 S.W.2d 1162; Blakeney v. State, Tex.Civ.App, 251 S.W. 824.

The judgment of the trial court is reversed and appellant’s plea of privilege is here sustained, and this cause is ordered transferred to the County Court of Victoria County, Texas, in keeping with the provisions of Rule 89, Texas Rules of Civil Procedure.


author: COLLINGS, Justice.

text:
    R. B. ROSS et al., Appellants, v. J. E. WHITESIDE, Appellee.
    No. 3679.
    Court of Civil Appeals of Texas. Eastland.
    March 9, 1962.
    Callaway & Callaway, Levie Old, Brown-wood, for appellants.
    Turner & Seaberry, Eastland, Woodruff & Holloway, Brownwood, for appellee.
   COLLINGS, Justice.

J. E. Whiteside brought suit against R. B. Ross and R. H. Ross, doing business as Ross Construction Company. Plaintiff sought damages from defendants alleged to have resulted because of defendants’ failure to properly construct two warehouses in Comanche, Texas, suitable for storage of bulk peanuts, in compliance with their contract. The case was tried before a jury and based upon the verdict judgment was rendered against defendants for $17,988.-00. The defendants have appealed.

In appellants’ first point it is contended that there was no basis for any judgment except to declare a mistrial because of a fatal conflict between the answers of the jury to issues 1 through 4 and issues 18, 19 and 20. We cannot agree with this contention.

In answer to issues 1 through 4 it was found by the jury that (1) appellants contracted to build warehouses suitable for bulk peanut storage; (2) that they failed to build the warehouses in a manner suitable for storage of bulk peanuts; (3) that peanuts stored in such warehouses sustained water damage by reason of the failure of appellants to build the warehouses so as to be suitable for storage of bulk peanuts; (4) and that $2,188.80 would reasonably compensate appellee Whiteside for peanuts stored in the warehouse which were damaged by water due to the failure of appellants to construct the warehouses so as to be fit and suitable for storage of bulk peanuts. The answers of the jury to issues 18, 19 and 20 were (18) that ap-pellee Whiteside failed to properly provide for drainage around the warehouses (19) that such failure was negligence, (20) and that such negligence was a proximate cause of leakage of water through the walls.

In the case of Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, it is stated by our Supreme Court as follows:

“To require a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between the answers must be such that one answer would establish a cause of action or defense, while the other would destroy it.”

The test or rule announced in the Little Rock case was qualified by our Supreme Court in Bradford v. Arhelger, Tex., 340 S.W.2d 772, but the qualification was not such as to affect the application of the rule stated to the instant case.

Applying the above test, if we disregard the findings in answer to special issues 18, 19 and 20 and consider the answers to special issues Nos. 1, 2, 3 and 4 in connection with all the rest of the verdict, a judgment for the plaintiff was required. 'If we disregard the findings in answer to special issues Nos. 1, 2, 3 and 4 and consider only the answers to special' issues Nos. 18, 19 and 20 in connection with all the rest of the verdict, a judgment for appellants would not be required. Nor would it create a situation where a judgment could not be entered for either party. Special issues Nos. 18, 19 and 20 were defensive issues submitted in connection with appellants’ pleadings to the effect that appellee Whiteside negligently failed to fill a ditch along the entire north wall of the two buildings and that his failure to do so was the cause of water seeping into the warehouses. Appellants also alleged that as a result of appellee’s negligence there was damage to the peanuts but there was no jury finding nor was an issue submitted or requested inquiring whether or not the water which leaked through the walls by reason of appellee’s negligence was any part of the water which caused the damage found in answer to special issue No. 4. In the absence of some such finding there is no conflict in the two series of issues. In the absence of such a finding, or issue submitted or requested, it is presumed that the court found facts in support of the judgment. Rule 297, V.T.R.C.P. The, finding of the jury in connection with issues 18, 19 and 20 was only that as a proximate result of negligence by appellee there was leakage of water through the walls. This finding would not compel a different judgment from that rendered by the court. The finding is not in conflict with the finding that it would take $2,188.80 to compensate appellee for peanuts damaged by water because of appellants’ failure to properly construct the warehouses in compliance with their contract. Texas & Pacific Railway Company v. Snider, 159 Tex. 380, 321 S.W.2d 280; Bradford v. Arhelger, Tex., 340 S.W.2d 772

In appellants’ second point it is contended that the court erred in refusing to set aside the verdict and declare mistrial because of a .claimed conflict in the answers to issues Nos. 5 and 6 and the answers to issues Nos. 9 and 10. This point is also overruled.

The answers of the jury to such special issues were as follows: (5) That the repairs made by appellee in restoring the North Wall of one of the warehouses were necessitated by the failure of appellants to build the warehouse in such manner that it would be fit and suitable for the storage of bulk peanuts; (6) that the reasonable cost of the repairs to the North Wall of the East Warehouse necessitated by the failure of appellants to so properly construct the warehouse was $2,800.00; (9) that the defects in the construction of the warehouses could be remedied without impairing the buildings as a whole (10) and that the .reasonable cost of remedying the defects in the warehouses so as to render them fit and suitable for bulk storage of peanuts was $13,000.00. The jury also found in answer to special issues Nos. 11 and 12 that the difference between the cash market value of the warehouses as they were built and as they should have been built, according to the contract was $13,000.00.

Appellants contend that the findings of the jury in answer to the two groups of issues are in fatal conflict. They further contend that if the judgment based thereon is allowed to stand, the result would be to permit appellee a double recovery for the same item of damage, that is, the item of what it would cost to make such buildings conform to the contract. We cannot agree with this contention.

Two separate items of damages are here under consideration. The basis of special issues S and 6 was appellee’s pleadings which alleged and sought recovery for expenses necessarily incurred by him in the alleged amount of $2,893.56 to restore the North Wall of one of the warehouses which had cracked and collapsed because of faulty construction, not in keeping with the specifications of the contract. Appel-lee’s contention is that the replacement of the inadequate wall was appellants’ responsibility because the collapse resulted from appellants’ failure to comply with the contract; that appellants were therefore liable to him for the reasonable cost of repairing said wall and replacing it.

We agree that appellee was entitled to recover this item of damages. Appellee also alleged that when he replaced the collapsed wall restoring it to the same condition structurally as when completed by appellants, appellants still had the duty to make the buildings comply with the specifications in the contract. We agree with this contention. The basis of special issues 9 and 10 was appellee’s pleading seeking damages on the theory that the warehouses as constructed were structurally inadequate to comply with the specifications of the contract, but that said buildings were at that time capable of being made fit and suitable for bulk storage of peanuts as provided by the contract; that thereafter the North Wall of one building collapsed, but that after appellee had repaired the wall it was in the same condition as originally constructed by appellants; that appellants were .responsible for the failure of the warehouses to measure up to specifications and were liable in damages for the amount' of money required to remedy the defective condition. Under the pleadings appellee sought to recover for these separate and distinct injuries, that is, (1) the injury sustained on account of the failure of the building as completed to comply with specifications and (2) the injury incurred by the subsequent collapse of the wall because of its faulty construction. Appellee alleged that both of these injuries resulted from the failure of appellants to construct the buildings in compliance with the contract. The jury found that each of such injuries existed and found the amount of damages which would reasonably compensate appellee for each such injury. Contrary to appellants’ contention, the judgment of the court allowing recovery for these separate injuries was not a double recovery nor were the findings in answer to the two groups of issues in conflict.

The judgment of the trial court is affirmed. '