author: GRIFFIN, Justice. STEAKLEY, Justice.

text:
    CITY OF BIG SPRING, Petitioner, v. BOARD OF CONTROL of the State of Texas et al., Respondents.
    No. A-10819.
    Supreme Court of Texas.
    June 15, 1966.
    Rehearing Denied July 27, 1966.

      John A. Burgess, City Atty., Big Spring, J. C. Hinsley, Austin, for petitioner.
    Waggoner Carr, Atty. Gen., Austin, John Reeves and Pat Bailey, Asst. Attys. Gen., for respondents.
   GRIFFIN, Justice.

This is a suit brought by the City of Big Spring, Texas, for a declaratory judgment and under authority of a concurrent resolution of the 57th Legislature against the State of Texas, The Board of Control of the State of Texas, The Board for Texas State Hospitals and Special Schools, and the Attorney General of the State of Texas. The object of the suit was to have determined the rights of the parties under a certain contract whereby the City of Big Spring agreed to furnish water to the Big Spring State Hospital at 10 cents per 1000 gallons in a quantity not to exceed 300,000 gallons per day as long as the State of Texas shall in good faith maintain and operate said hospital on said site. The City sought to have the contract declared invalid and at an end; to renegotiate the contract so as to require the state to pay the City the actual present cost of the water; and for general relief. The case was tried before the trial judge without a jury and the court rendered judgment that the contract was a valid and binding contract, and denied all relief sought by the City. The City appealed and the Court of Civil Appeals affirmed the trial court’s judgment. 389 S.W.2d 523.

Petitioner has twelve points of error in its application for writ of error filed in this Court. These are argued under two general heads, viz.: (1) That the City of Big Spring had no authority to make the contract herein involved and (2) that the State Board of Control had no authority to make the contract. There are some collateral points, but their disposition depends to some extent on our action on the above two points.

Under the first point it is argued that by the contract the City of Big Spring surrendered its right to determine the rates to be charged water users for water; that this is a legislative or governmental function, and a contract which is a surrender by the City of such rights is therefore void. Cases discussing governmental functions of a city and its inability to delegate or surrender these functions are cited to sustain this point. We have no quarrel with these cases. In the case we have before us the City is exercising a proprietary or business function only. In such capacity a city can make a contract, under authority of legislative enactment, in all things as an individual or private corporation. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622 (1952) ; City of Crosbyton v. Texas-New Mexico Utilities Co., 157 S.W.2d 418, 420 (Tex.Civ.App., 1942, error refused, want of merit) ; 39 Tex.Jur.2d 638, § 308.

Art. 1108, § 3, Vernon’s Texas Civil Statutes expressly confers the power upon a city such as Big Spring to enter into the contract we have here. The legislative and judicial history of this Act can leave no doubt as to the intent of the Legislature in the passage of this Act. As we said in City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622, 627 (1952):

“ * * * The statute was passed expressly conferring upon the cities this authority, (to supply water to nonresidents of the city) and, being directed as it was to the benefit of nonresidents it is but natural that they should be so designated.”

Under Article 1108 it is provided in part that :

“Any town or city in this State * * * which owns or operates waterworks * * shall have the power and right:
“3. * * * to sell water * * * to any person or corporation outside of the limits of such towns or cities, or permit them to connect therewith [the city’s water lines and mains] under contract with such town or city under such terms and conditions as may appear to be for the best interest of such town or city *

This Court in the case of Rhoads Drilling Co. v. Allred, 123 Tex. 229, 70 S.W.2d 576, p. 581 (1934), in discussing the meaning of the words “such terms as the Board of Mineral Development may deem fair and advantageous to this state,” said:

“This language, subject only to the exceptions or provisos thereafter set out in the act, leaves it to the board to determine, in accordance with its judgment as to what is fair and advantageous to the state, the terms, conditions, covenants, and stipulations which shall be contained in the instrument constituting the agreement of modification.
“The word ‘terms’ is sometimes interpreted, on account of the particular method of its use, to have reference to the amount and the manner of making payment of purchase money, but generally when used with respect to the contents of contracts, it is construed as embracing the conditions, covenants, limitations, and propositions comprising the things which the parties to the contract have agreed to do or not to do." (Citing authorities.)

All emphasis herein is supplied by this Court.

In answering the contention that the language used only gave the Board of Mineral Development limited powers, we said:

“ * * * The language used in the act is not susceptible of such interpretation, for it broadly invests the board with authority to enter into supplemental contracts on such terms as it may deem fair and advantageous to the state, in no way limiting or even directing the discretion thus given to the matter of reducing or revising the royalty."

Art. 1108, Vernon’s Tex.Civ.Statutes is equally as broad in giving to the city authorities the right to contract under such terms and conditions as may appear to be for the best interest of such city or town “with regard to furnishing water outside the city limits.” In making this determination the City could take into consideration the advantages which would accrue to the inhabitants of the City by virtue of the location of the hospital adjoining their City. The City Council doubtless considered the fact that such hospital would have many employees who would live in the city limits and spend a large part of their wages with the merchants and other business and professional men in Big Spring; and that additional ad valorem tax revenues would become available to the City through the ownership of property inside the city limits by the families moving to Big Spring and employed by the hospital.

The judgment of the City Council has been borne out by the fact that the hospital did provide a new payroll to Big Spring, and at the time of the trial it was stipulated between the parties that such payroll amounted to $91,000.00 per month. The same is true with regard to ad valorem taxes that would be available to Big Spring. At the time of trial it was stipulated by the parties that hospital employees residing in the city limits were paying $3,000.00 per year in ad valorem taxes to the City. It was also stipulated that in addition to the approximately $875,000.00 original appropriation for construction of the hospital plant, the State has spent in excess of $18,-000,000.00 in establishing the hospital facilities.

The City further contends that it has lost large sums of money by virtue of this contract to furn’sh water to the State at the rate of 10 cents per 1000 gallons; that this results in the City granting a subsidy to the State, and has resulted in a progressively heavier drain on the revenues of the City and has necessarily required the prescription of higher water rates for city residents, and to this extent the City is restricted in the exercise of its legislative power of prescribing rates for its own inhabitants.

There is no evidence in the record as to higher water rates charged inhabitants of the City to support this contention, and in fact the only evidence on the matter indicates the contrary. There is no testimony in this record showing the water rate the residents in the City of Big Spring were paying for water in 1937 when the contract was made, nor the rate such residents were paying at any year or years since the making of the contract, up to and including the year the case was tried. There is no evidence that the water rate for resident citizens of Big Spring has ever been raised since the hospital was located there.

The only testimony the City saw fit to offer as to the earnings of the Water Department is found on the last page of its Exhibit No. 5. This instrument shows that for the year 1962-63 the total revenues for the water system were $899,644.65, and that total water system expenditures were $773,-038.42. The profit shown is therefore $126,606.23 for that year. This exhibit also shows that from the revenue of the water system for that year $209,400.00 was transferred to the City’s General Revenue Fund. This $209,400.00 thus transferred relieved the residents of Big Spring from having to provide that sum through taxation In order to run the City.

The City of Big Spring had the authority to make the contract with the Board of Control, acting for the State, to furnish water to the Big Spring Hospital at the price and for the term as set out in the contract and resolution adopted by the City Council authorizing the Mayor to sign such contract on behalf of the City.

The City urges as its second series of points that the Board of Control had no legal authority to make this contract because it calls for expenditure of funds for a longer period than the then current Legislature appropriation and because the Legislature had made no appropriation to pay for the water at the time the contract was entered into.

The Legislature in providing for the establishment of this hospital at a site to be selected by the Board of Control gave the power to the Board of Control to enter into a contract with the successful city, which would assure an adequate water supply for the operation of the hospital. The bill provided, among other things, “The Board of Control of Texas shall select a site for said hospital and the Board, in selecting such site, shall make such selection with a view to * * * the supply of water.” This supply of water of necessity must exist so long as the state maintains the hospital. The Legislature did not say “a temporary supply of water” or “a supply of water for a reasonable time, as determined by the Board,” but it said, “with a view to the supply of water” for the hospital. The Act could only mean a permanent supply of water. Although the Act does not in so many words provide that the Board of Control shall contract for this supply of water, the Board must select a site with a permanent supply of water, and the implied power to contract for this supply of water is inherent in the language of the Act. Terrell v. Sparks, 104 Tex. 191, 135 S.W. 519, 521 (1919); Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333, 335 (1961).

In regard to the contention that the Board could not validly contract for a water supply and agree to pay for the same in the absence of an appropriation previously made by the Legislature, the Act provides, “The support and general maintenance of said hospital shall be the same in every respect as is provided for insane hospitals as now provided by law.” At the time of the signing of the contract for a water supply to be furnished by the City of Big Spring, Art. 3174, Revised Civil Statutes of the State of Texas, provided:

“Each eleemosynary institution established by law shall be managed and controlled in accordance with'the provisions of this title. The general control, management and direction of the affairs, property and business of such institutions is vested in the State Board of Control.”

Art. 634, Revised Statutes, provided that the Board of Control should purchase all supplies for each eleemosynary institution. Art. 642, Revised Statutes, provided that the Board of Control should contract for all supplies needed for the maintenance and operation of such institutions. These statutes gave power to the Board of Control to enter into the contract involved in this litigation with the City of Big Spring.

While Articles 634 and 642 were repealed by the State Purchasing Act of 1957 (now Art. 664 — 3, Vernon’s Civil Statutes), Section 16 of such Act provides that all prior obligations under the authority of prior law shall not be impaired or affected.

The powers of the Board of Control over hospitals such as the one at Big Spring by the provisions of Chapter 316, Acts of the 51st Legislature, Regular Session 1949, were transferred to the Board for Texas State Hospitals and Special Schools.

The contention that the purchase contract was invalid because there then existed no legislative appropriation to pay for the water to be furnished in the future is answered by this Court’s opinion in Charles Scribner’s Sons v. Marrs, 114 Tex. 11, 262 S.W. 722 (1924). In that case an attack was made on an order of the State Textbook Commission purchasing certain textbooks for the public schools of Texas from Scribner’s Sons. Among other objections it was urged that the contract to buy textbooks for a five-year period was invalid because it was for longer than the two-year period of legislative appropriations and created a debt which could not be paid for out of the reserves for the biennium in which created. This Court said:

“This contract obligates the state to introduce into and use relator’s books in the public free schools for a period of five years. It obligates relator to furnish, offer, and sell these books to the state each year for five years, upon the requisition of the school authorities each year for such books as may be needed. Payment for them is to be made out of the current fund each year as they are purchased. The obligation of the contract is not to buy a fixed number or amount of books, but only so many as are needed by the schools of the state. Liability is fixed only for such amounts as are requisitioned by the trustees of the schools. The number of books purchased for any year and the amount of money applied thereto is wholly within the control of the school authorities.
“The contract is for uniform text-books for a period of five years. No quantity is stipulated and no promise to pay, only an agreement to use the books in the schools. The statute and the contract provide that no debt is created. The obligation to pay arises only upon the purchase and delivery of books for the year when needed, and according to the purchase. The books so furnished and so' purchased during any year do not make a charge on the future resources of the state, but are paid for each year as the purchases are made.”

This Court quoted from the case of City of Tyler v. L. L. Jester & Co., 97 Tex. 344, 78 S.W. 1058 (1904), in which a long-term water purchase contract was attacked: “The making of a contract for water for a number of years, to be delivered in the future did not create a debt against the city, but the liability of the city arose upon the use by it of the water during each year.”

The City has a point of error asserting that the contract is indefinite as to length of its term and that the state could cease taking water under the contract at any time it saw fit, therefore the City of Big Spring could terminate the contract at will.

Our contract is not an indefinite contract, but has a certain and definite term. Paragraph IV of the contract of October 22, 1937, provides:

“It is understood and agreed that this agreement is made in accordance with and pursuant to an agreement heretofore made by and between the City of Big Spring and the Board of Control of the State of Texas with reference to the location of said hospital site near the City of Big Spring, and this contract with reference to furnishing of water to said hospital is and constitutes a material consideration influencing the Board of Control to locate said hospital at said site, and this agreement with reference to the furnishing of water by the City to said hospital shall continue in full force- and effect and is not subject to being revoked as long as the State of Texas shall in good faith maintain and operate said hospital on said site."

“Words which fix an ascertainable fact or event, by which the terms of a contract’s duration can be determined, make the contract definite and certain in that particular.” 17 Am.Jur.2d, p. 420, Sec. 80 and authorities cited therein; 17 Am.Jur.2d, p. 955, Sec. 486; 17A C.J.S. Contracts § 385, p. 454 and authorities cited therein; Foster v. Wright (Tex.Civ.App., 1919) 217 S.W. 1090, 1092 (7-8), no writ history.

Our contract specifically states that the City is to furnish and the state to pay for water “as long as the State of Texas shall in good faith maintain and operate said hospital on said site.”

The State has paid a valuable consideration for its contract right to purchase water from the City, to-wit, the establishment and maintenance of the hospital since the late 1930’s. Its acceptance of the benefits under the contract makes the City’s obligation to furnish water needed by the State a subsisting and binding obligation. Guadalupe-Blanco River Authority v. City of San Antonio, 145 Tex. 611, 200 S.W.2d 989 (1947). See also Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1956); Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W.2d 823 (1952); Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555 (1943).

In connection with its claim that the contract may be terminated at the will of the City, the City also contends that the contract ha§ run for a reasonable time and therefore it may be ended. The answer to this contention is that it is only when a contract has no definite and determinable term that it may be terminated at the end of a reasonable time in order to carry out the intention of the parties. Corbin: On Contracts, Sections 19, 96 and 254, and authorities therein cited.

We have heretofore held the language of this contract makes a fixed and determinable term, therefore, the rule of law that a contract may be terminated at the end of a reasonable time does not apply to this case. The contract herein may be terminated or renegotiated by mutual consent of the parties, acting under legislative authority, provided there is a valuable consideration moving to the State for its termination or renegotiation. Rhoads Drilling Co. v. Allred, 123 Tex. 229, 70 S.W.2d 576 (1934).

As far as this record shows, this last point of error was not raised in the trial court, but the case was tried on the theory that the contract was an invalid contract because neither the City nor the State, acting through its Board of Control, had authority to make and enter into such a contract. The trial court found the contract to be a valid and binding contract.

The contract of the Board of Control with the City of Big Spring is a valid contract and is not subject to the attack made on it.

The petitioner relies on the following eases to sustain his attack on the contract:

Stevenson v. City of Abilene (Tex.Civ.App., 1934), 67 S.W.2d 645, writ refused. The court held that the City was exercising a governmental function. The first ground for the Court of Civil Appeals holding was: “In short, the petition fails to allege the breach of any covenant made by the sewerage company with Fred Cockrell” (Stevenson’s predecessor in title). This being true, it made no difference if the City was engaged in a governmental or proprietary function because no contract of the City had been breached.

In City of Ft. Worth v. First Baptist Church (Tex.Civ.App., 1924), 268 S.W. 1016, no writ history, the holding of the Court of Civil Appeals was that the trial court improperly granted the temporary injunction without notice, because the Church had no allegations which showed it had a. contract with the City to furnish it water. The Church was within the city limits.

In Sturgeon v. City of Paris (1909), 58 Tex.Civ.App. 102, 122 S.W. 967, writ denied, the Court of Civil Appeals held that the City was not empowered under its then existing charter and the state statutes to furnish water to Sturgeon, who resided outside the city limits.

In Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 138 A.2d 402 (1957), the court held the contract covered an essential governmental function. It further held that since the contract “did not expressly delimit the time of its duration,” the term of service may well be fixed by implication at “a reasonable time.” The case recognizes that this rule has no application to contracts “sufficiently definite in its terms that the performance to be rendered by each party can be ascertained with reasonable certainty.”

Hoskins v. City of Orlando, Florida (5th Cir.), 51 F.2d 901 (1931), held the City had no statutory authority to make the contract Hoskins sued on, therefore, the City’s general demurrer was properly sustained.

Eastern Ill. State Normal School v. City of Charleston, 271 Ill. 602, 111 N.E. 573, L.R.A.1916D, 991, held that the City’s general demurrer was properly sustained in the school’s suit upon a contract which the City had no statutory authority to make, and it was therefore ultra vires and void.

Plant Food Co. v. City of Charlotte, 214 N.C. 518, 199 S.E. 712 (1938). The court reversed the action of the trial court in sustaining the general demurrer to the Food Company’s petition. The trial court reasoned that the contract sued on was in the exercise of governmental function, and could not bind subsequent city administrations. In reversing the appellate court said: “We cannot see that any governmental discretionary power of the city was compromised in the making of this contract, and we are of the opinion that it cannot be arbitrarily or capriciously abandoned.”

In Hargett v. Kentucky State Fair Board, 309 Ky. 132, 216 S.W.2d 912 (1949), the appellate court held the contract void as not in accord with the Kentucky statutes. The court said:

“(5) As a general proposition, in the absence of specific authority, a board of public officers in the exercise of its governmental powers may not make a contract extending beyond its term of office. But such a board, in the exercise of its business or proprietary powers, may contract as does a private corporation or as do individuals unless it is otherwise restrained by law.”

City of North Newton v. Reiger, Mayor et al., 152 Kan. 434, 103 P.2d 873 (1940), supports our holding herein. The court there said:

“Some contention is also made that the cities have no power to contract beyond the terms of their offices. This contract is made by the two governing bodies in the exercise of their administrative powers and duties. Under such circumstances, it may make a contract for a term of years. * * * A contract of the kind under consideration must have a term sufficient to warrant the expense involved. Much must be left to the judgment and discretion of the officials in performing their public duties. A court may not interfere unless it clearly appears that the term fixed is unreasonably long or that the officials abused their discretion. We can arrive at no such conclusion here.” (Emphasis added.)

In City Council of Augusta v. Richmond County, 178 Ga. 400, 173 S.E. 140 (1934), the court held the contract sued on by Richmond County was ultra vires and void, as no power was given to the City to make the contract.

In Reed v. City of Anoka, 85 Minn. 294, 88 N.W. 981 (1902), attack was made by Reed upon a contract the City had made with individuals to furnish the City water for 31 years on the ground the City had relinquished its rate-making power, thus illegally bartering and contracting away the legislative functions of the City, and therefore the contract was void. The trial court sustained the City’s demurrer to Reed’s petition. The appellate court affirmed, holding the contract was not in the exercise of the City’s legislative function but only in the City’s proprietary or business powers and the contract was legal and binding. In the course of the opinion the court uses language particularly applicable to our case:

“The question as to the necessities of the city of Anoka in respect to procuring a supply of water and lighting the city by electricity was one of fact for the officers to determine in the exercise of their sound judgment * * (Citing authorities.)

The power given municipalities to make contracts of this kind confers upon the local authorities large discretionary powers in respect thereto, with the exercise of which the courts will not interfere unless clearly abused — unless the contracts made by them are unreasonable, inequitable and unfair or tainted with fraud or illegality.

We see that the cases relied on by petitioner are either not in point in our case or sustain our opinion herein.

We affirm the judgments of both courts below.

DISSENTING OPINION

STEAKLEY, Justice.

I am unable to agree with the philosophy of the majority opinion or with its limita-tive approach. I would resolve the matter by application of the important and recognized principle that succeeding governing boards of municipal corporations should not be permanently disabled from exercising discretion for the public good in contracts of this nature; and that such contractual obligations to which the municipality was bound by prior governing boards should not be enforceable beyond a period of reasonable performance. As I see it, public policy requires that relief be available in the situation here presented; otherwise the City is bound indefinitely — so long as there is a State of Texas and a City of Big Spring— to subsidize state — not city — services, regardless of the extent and seriousness of its financial loss in so doing. The matter is of such moment to me that I shall write at some length.

The City of Big Spring, Texas, a Home Rule city, by a contract executed in 1937 with the Board of Control of the State of Texas, agreed to furnish water to a newly-established and soon to be constructed State hospital at a rate of ten cents per 1,000 gallons not to exceed 300,000 gallons per day. The contract recited: “This agreement with reference to the furnishing of water by the City to said hospital shall continue in full force and effect and is not subject to being revoked as long as the State of Texas shall in good faith maintain and operate said hospital on said site.”

The Legislature in 1961 adopted a resolution authorizing the Board for Texas State Hospitals and Specials Schools to renegotiate the contract, but the Attorney General ruled that renegotiation could be had only upon the basis of a new and adequate consideration moving to the State. In 1962 the Legislature authorized the City of Big Spring to institute a declaratory judgment suit against the State Board of Control, the Board of Texas State Hospitals and Special Schools and the Attorney General of Texas. Pursuant thereto this suit was filed by the City of Big Spring in 1964 seeking judgment declaring that the 1937 contract is subject to renegotiation as to the rates to be charged for water furnished by the City to the State hospital and that the City is no longer under legal obligation to supply water to the hospital at the rate of ten cents per thousand gallons, or at any rate less than the actual cost of the water to the City of Big Spring.

The material facts are undisputed. The hospital was duly constructed and has been continuously maintained and operated by the State. Its monthly pay roll is $91,-000.00. The City has furnished water to the hospital at all times in accordance with the contract, with the State paying ten cents per 1,000 gallons therefor. The evidence establishes that the average cost of the water to the City for the years 1953-64 was 16.5 cents per 1,000 gallons; that during the years 1960-64 the average cost of the treatment and distribution of water by the City was 17.25 cents per 1,000 gallons; and that during the years 1960-64 the cost to the City for water purchased, treated and delivered to the hospital was 33.75 cents per 1,000 gallons. The water furnished the hospital and the loss therefrom to the City for the immediate past four years was shown to be as follows: 53,260,000 gallons in 1960, with a loss of $12,625.25; 49,807,-000 gallons in 1961, with a loss of $11,829.-16; 50,652,100 gallons in 1962, with a loss of $12,029.87; and 49,373,000 gallons for the year 1963, with a loss of $11,726.09. The total financial loss to the City for these four years was $48,210.37 and it is a reasonable conclusion from the evidence that such will continue at least to the extent of the pattern shown for the past years.

In Stevenson v. City of Abilene, 67 S.W.2d 645 (Tex.Civ.App.1934, writ ref.), the court considered a contract in which it was assumed that the City had agreed to perpetually furnish irrigation water. The Court, speaking through Chief Justice Hickman, later Chief Justice of this Court, said:

“In operating the sewerage system, the city is exercising a governmental power. In doing so it must be left free to use its discretion in determining how best to serve its inhabitants. A contract which would have the effect of disabling it from fully exercising that power, and which would have the effect of preventing it from controlling its affairs in the future in the way it might deem best, would be void. A city has not the power to enter into a contract binding it perpetually to maintain an existing septic tank for the purpose of furnishing waste water to an individual for irrigation purposes. It must be left free to make such changes in its system as it, in its discretion, deems to be for the public good. City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143; City of Paris v. Sturgeon, 50 Tex.Civ.App. 519, 110 S.W. 459; City of Uvalde v. Uvalde Electric & Ice Co. (Tex.Com.App.), 250 S.W. 140; Ennis Water Works v. City of Ennis, 105 Tex. 63, 144 S.W. 930; City of Sweetwater v. Hamner (Tex.Civ.App.), 259 S.W. 191; City of Fort Worth v. First Baptist Church (Tex.Civ.App.), 268 S.W. 1016.”

On motion for rehearing the Court took notice of an assignment that it erred in the statement: “In operating the sewerage system, the city is exercising a governmental power.” With reference thereto the Court said that the language was unnecessary “because the same conclusion would have been reached had we regarded this power as municipal or proprietary, rather than governmental.”

In City of Fort Worth v. First Baptist Church, 268 S.W. 1016 (Tex.Civ.App.1924), the court terminated the further obligations of the City under a contract in which the City agreed to furnish water to the church at no cost and without limitation in point of time, the water to be used in a swimming pool owned by the church which the citizens of Fort Worth could use without charge. In the course of its opinion the court remarked that “If the contract has been observed for a reasonable time, the city then may thereafter certainly at its will declare the contract at an end.” See Sturgeon v. City of Paris, 58 Tex.Civ.App. 102,122 S.W. 967 (1909, writ ref.), holding that the city had the legal right to rescind an agreement to furnish water for a term which was indefinite and dependent upon the will of the consumer.

Other jurisdictions recognize the rule that municipal corporations are not legally bound to their proprietary contracts beyond a reasonable term of years in the absence of express statutory authority. See Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9,138 A.2d 402 (1957): “The corollary theorem is that a municipality cannot bind itself by a perpetual contract, or a contract of unreasonable duration, unless by legislative sanction”; Hoskins v. City of Orlando, 51 F.2d 901 (5th Cir. 1951): “In the absence of express statutory permission, municipalities, even in their proprietary functions, may contract only for a reasonable time”; Eastern Illinois State Normal School v. City of Charleston, 271 Ill. 602, 111 N.E. 573, L.R.A.1916D, 991 (1916) : “ * * * it cannot be said that the city of Charleston, without legislative authority, could agree to furnish water to the complainant or any body else for 50 years for $5 whether the exercise of the power was in its nature private or governmental”; Plant Food Co. v. City of Charlotte, 214 N.C. 518, 199 S.E. 712 (1938):

“In the administration of its proprietary affairs the commissioners or councilmen of the town may make reasonable contracts binding upon their successors running through a term of years.
“The line between powers classified as governmental and those classified as proprietary is none too sharply drawn, and is subject to a change of front as society advances and conceptions of the functions of a government are modified under its insistent demands. * * *
“The true test is whether the contract itself deprives a governing body, or its successors, of a discretion which public policy demands should be left unimpaired.”

See also Hargett v. Kentucky State Fair Board, 309 Ky. 132, 216 S.W.2d 912 (1949); City of North Newton v. Reiger, 152 Kan. 434, 103 P.2d 873 (1940); City of Augusta v. Richmond County, 178 Ga. 400, 173 S.E. 140 (1934). And compare Reed v. City of Anoka, 85 Minn. 294, 88 N.W. 981 (1902), where the court speaks of a thirty-one year contract as not prima facie void but subject to a showing of unreasonableness or unfairness; and Borough of Caldwell v. Borough of West Caldwell, 26 N.J. 9, 138 A.2d 402 (1957), where it was held:

“The bilateral contract of service that thereby came into being did not expressly delimit the time of its duration. But on well settled principles the agreement is not for that reason illusory, as too uncertain and indefinite for enforcement. The term of service may well be fixed by implication. Here, West Caldwell had rendered an executed consideration for the option, and to hold that the agreement is terminable at will would plainly subvert the evident reason and spirit of the contractual arrangement. The much more probable hypothesis is that the parties had in view continued performance for a reasonable time; and implications from the special circumstances and the relations of the parties are frequently read into the integration to serve the reasonably apparent design and to avoid injustice so obvious as to exclude it as an element of conscious intention.”

The philosophy of these decisions rests in considerations of public policy which require that governing boards of municipal corporations not be encumbered indefinitely or for an unreasonable period of time in the exercise of discretion in public matters and in the administration of governmental affairs. Such contracts should not be binding beyond a period of reasonable performance, particularly where, as here, the contract in effect subsidizes state — not municipal — services for an indeterminative time at the option of the State no matter how great the financial loss to the City in the past years and in the years to come.

The specific prayer of the City in its suit for declaratory judgment is for a judicial declaration that the contract between it and the State of Texas is now subject to renegotiation to the limited extent of the rates to be charged for the water and that the City is under no further obligation to supply water to the hospital at the contract rate of 10 cents per 1,000 gallons or at any rate less than the actual cost of the water. The City did not seek a declaration either that the contract was void at inception or that it was at all times terminable at the will of the City. The City would be entitled to relief if the contract were void or terminable at will, and quite understandably the City- argues such propositions in support of its case. But all that is necessary to the actual relief sought is a declaration that the contract in the respects put before the court is subject to renegotiation. It is my view that the contract in question is not binding beyond a period of reasonable performance, and that performance by the City of Big Spring for twenty-nine years meets this requirement.

I would reverse the judgments below and grant relief to the City of Big Spring consistent with the views expressed above.

NORVELL and HAMILTON, JJ., join in this dissent.

      . Acts 1961, 57th Leg., R.S., p. 1249.

      . Acts 1962, 57th Leg., 3rd C.S., p. 233.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank G. TOUDOUZE et ux., Appellants, v. URBAN RENEWAL AGENCY OF the CITY OF SAN ANTONIO, Appellee.
    No. 14507.
    Court of Civil Appeals of Texas. San Antonio.
    May 25, 1966.
    Rehearing Overruled July 6, 1966.
    Peter Torres, Jr., San Antonio, for appellants.
    Arthur Troilo, Jr., John W. Davidson, Sawtelle, Goode, Troilo & Leighton, San Antonio, for appellee.
   On Appellee’s Motion to Dismiss Cause.

PER CURIAM.

This is an appeal by Frank G. Toudouze and wife, Mary Toudouze, from an order of the Civil Court at Law of Bexar County, Texas, overruling their motion to stay writ of possession and application for injunction.

The writ of possession which appellants sought to have stayed was one issued by the Judge of the Civil Court at Law of Bexar County, commanding the sheriff to place Urban Renewal Agency of the City of San Antonio, as condemnor, in possession of appellants’ residence and homestead at 123 Wyoming Street in the City of San Antonio.

The trial judge refused to stay the writ of possession and to issue the injunction. The writ of possession was issued and executed by the Sheriff of Bexar County, and the Urban Renewal Agency has taken possession of the property and has demolished all buildings on the property.

It is now apparent that the relief sought by appellants cannot be granted them, because it appears that the thing they were trying to prevent from happening has already happened. This appeal is now moot. Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725 (1958); Brown v. Fleming, Tex.Com.App., 212 S.W. 483; Bolton v. City of San Antonio, 4 Tex.Civ. App. 174, 23 S.W. 279.

Furthermore, this is in reality an attempted appeal by the Toudouzes from an order of the trial court refusing to stay the execution of a writ of possession. No appeal lies to this Court from such an order. Castleberry v. Chapel Hill Independent School District, Tex.Civ.App., 336 S.W.2d 242, wr. ref. n. r. e.

The motion to dismiss will be granted to the extent that this appeal will be dismissed, without prejudice to such further action as the parties may wish to take with reference to the case on the merits.


author: MASSEY, Chief Justice.

text:
    James ANDERSON, Appellant, v. Delbert CAMPBELL, Appellee.
    No. 16737.
    Court of Civil Appeals of Texas. Fort Worth.
    May 27, 1966.
    Rehearing Denied July 1, 1966.
    John W. Herrick and Norman W. Darwin, Fort Worth, for appellant.
    Touchstone, Bernays & Johnston and Webber W. Beall, Jr., Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

Mrs. Mary Anderson, wife of plaintiff James Anderson, was driving an automobile during a rainstorm on a curve in a rural area and collided with the truck driven by defendant Delbert Campbell which was approaching from the opposite direction. James Anderson brought suit for personal injuries to his wife. Upon a jury trial the answers to special issues convicted Mrs. Anderson of contributory negligence in that it found that she failed to keep a proper lookout, such being a proximate cause of the collision. Judgment was rendered for the defendant and plaintiff appealed.

Affirmed.

For convenience we will hereinafter term Mrs. Mary Anderson as the plaintiff. Delbert Campbell will be referred to as the defendant.

Under the evidence the jury was entitled to believe that the defendant’s vehicle had not entered the curve and had not started to turn in order to negotiate the curve at the time the vehicles collided; to further believe that the defendant’s vehicle — though approaching the point of the collision with the left-hand side thereof to the defendant’s left of the center of the road — would have come further to its right on the roadway so that it would have been completely over onto defendant’s right-hand side of the center had it completely entered the curve; and that if the plaintiff had slowed the speed of her automobile so that that of the defendant could have entered onto the curve she would have had her one-half of the main traveled portion of the roadway free and unencumbered. Therefore, the jury was entitled to draw the inference that such evasive action by the plaintiff did not occur because she failed to keep a proper lookout, thus constituting a proximate cause of the collision, the theory being that if she had kept a proper lookout she would have timely discovered that the other vehicle was approaching the curve in such manner that it partially obstructed her side of the road, and hence would in all probability have slowed or even stopped her vehicle so that the defendant’s vehicle would have been driven off the wrong side and onto its proper side before the defendant made a turn in the negotiation of the curve. Findings were returned according to such theory.

The jury failed and refused to find, by a preponderance of the evidence, that plaintiff was negligent in failing to turn to the right. Under the evidence this was reasonable in view of the physical condition to her right at that point. However, there was no finding whatever concerning plaintiff’s failure to take any other evasive action (under the theory that she would have taken evasive action if fully informed and aware, as in the case of one who has kept a proper lookout). Other than as applied to proper lookout the defendant had plead contributory negligence only in respect to plaintiff’s failure to turn to the right. Therefore, there was no occasion to submit other issues relating to evasive action. But in our opinion such failure would not inhibit consideration by the jury of reasonable and proper evasive action which could and should have been taken by the plaintiff if possessed of that full knowledge she should have had if she had exercised ordinary care to keep a proper lookout.

We recognize that the law inhibits an inference not supported by and warranted by the evidence that plaintiff’s failure to keep a proper lookout was a proximate cause of the collision. Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049 (1905); Taylor v. Brooks, 392 S.W.2d 878 (Waco Civ.App., 1965, Ref., n. r. e.). But in the usual and ordinary case the question of proximate cause is for the jury. The question is for the jury where causation may be established by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). The jury is not only the judge of the facts and circumstances proved but may also draw reasonable inferences and deductions from the evidence. Its findings may not be disregarded under the provisions of Rule 301 (Texas Rules of Civil Procedure, rule 301, “Judgments”) if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same. Lynch v. Ricketts, supra.

In summation we repeat that we are of the opinion and hold that the evidence was such as entitled the jury to draw the inference that if the plaintiff had slowed her automobile the forward movement of the defendant’s vehicle would have placed it on its proper side of the highway and thus not constituted an obstruction on plaintiff’s one-half thereof; that if plaintiff had kept a proper lookout she would have known that avoidance of a collision would be possible if she took evasive action by slowing the speed of her automobile, but that since she failed to exercise care in that respect and thus was unaware that she should take such evasive action her failure to keep a proper lookout was a proximate cause of the collision.

In so holding we are confident that we are not basing an inference upon a presumption of another fact, something which is concededly improper, there being direct evidence of probative force and effect that the defendant vehicle had not .been turned to the left to negotiate the curve — because there was evidence that the defendant, not having entered the curve as of the time of the collision, had not yet begun to turn to the left. Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 (1955).

We disagree with the contention of plaintiff that it was conclusively proved that she received an injury as the result of the collision and that the jury finding that she did not receive such was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. Plaintiff stated at the time of and shortly after the collision that she had not been injured. Her trouble began thereafter, and the jury was free to find or not that it was attributable to the collision. This is especially so since the plaintiff was an interested party and her credibility was for the jury. There was a conflict in the jury findings relative to injury and damages resulting from injuries received as the result of the collision. It is not certain that a point of error rests thereupon. In any event the jury findings on damages would be immaterial in view of our holding that plaintiff is not entitled to recover in any event because of its findings that she failed to keep a proper lookout and that such constituted a proximate cause of the collision.

Judgment is affirmed.


author: WALTER, Justice.

text:
    Neal HILLIARD et al., Appellants, v. Rosario MESSINA, Appellee.
    No. 4073.
    Court of Civil Appeals of Texas. Eastland.
    June 10, 1966.
    Rehearing Denied June 24, 1966.

      C. C. Divine, Houston, for appellants.
    Louis A. Pontello, Jr., Houston, for ap-pellee.
   WALTER, Justice.

Neal Hilliard and C. C. Divine filed a trespass to try title suit against Rosario Messina in Cause Number 666,269 in the 157th District Court of Harris County. In a nonjury trial, on June 1, 1965, the court rendered a take nothing judgment against the plaintiffs. No appeal was perfected from that judgment. Thereafter, Hilliard and' Divine filed another trespass to try title suit involving the same property against the same defendant in Cause Number 676,329 in the 129th District Court of Harris County. On September 24, 1965, the court found that the take nothing judgment rendered in the first case was res judicata as to all issues involved and dismissed plaintiffs’ case. It is from this order that the plaintiffs appeal. Plaintiffs filed a motion for a new trial in which they asserted:

“The verdict is contrary to the evidence in that the undisputed evidence showed that this Defendant did not own or have anything to do with or any right in the premises of the plaintiff.”

Appellants’ point of error is as follows:

POINT OF ERROR
First Point
“The judgment of dismissal of plaintiff’s cause of action in Cause No. 676,329 on the grounds of res judicata is error of the trial court for the following:
a. Pleadings of the defendant fail to specially set up an affirmative defense of res judicata.
b. Plaintiff’s pleading alleged other, different and additional facts and points of law.
c. Plaintiff’s refusal to proceed in the prior suit numbered 666,269 and its dismissal was no more than a non-suit by plaintiff.
d. The trial court upon granting plaintiff a non-suit and dismissing his cause of action in cause 666,269, is not authorized to grant judgment to the defendant thereafter in the same cause of action except upon a cross-action or counter claim.
e. The granting of a non-suit to plaintiff does not preclude a subsequent filing of the cause of action.”

No statement of facts has been filed by appellants. In the absence of a statement of facts, we must presume that sufficient evidence was introduced to support the findings of the court. Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683, (1951). No findings of fact or conclusions of law were requested by appellants. Where no findings of fact or conclusions of law have been filed, we must assume that the trial court’s findings were all in support of its judgment. City of Abilene v. Meek, 311 S.W.2d 654, (writ ref.). Our Supreme Court in Permian Oil Company v. Smith, 73 S.W.2d 490, at page 496, said:

“The doctrine has been thoroughly settled by repeated decisions of the courts of this state, that a judgment in an action of trespass to try title that plaintiff take nothing by his suit is an adjudication that the title to the land involved is in the defendant, and such a judgment is equally as effective for that purpose as one expressly vesting title in the defendant.”

We find no merit in appellants’ point of error. It is overruled. Appellee pleaded res judicata and asserted that the judgment in the first suit was a bar to the present suit. In so far as these parties are concerned, the judgment in cause number 666,269 vested title to the property in appellee.

The judgment is affirmed.


author: GREEN, Chief Justice.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. Rudolf POLASEK, Jr., Appellee.
    No. 186.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 16, 1966.
    Rehearing Denied July 11, 1966.

      I. M. Singer, City Atty., Robert E. Young, Asst. City Atty., Corpus Christi, for appellant.
    C. Edwin Prichard, Jr., Corpus Christi, for appellee.
   OPINION

GREEN, Chief Justice.

This is a condemnation suit wherein appellant City of Corpus Christi is taking in fee a portion of appellee’s tract of land in Nueces County, Texas, for construction of a drainage facility to drain lands in and near the city near that area. The tract condemned consisted of 2.884 acres, and bisects appellee’s farm. The trial in the county court was before the court and jury. Appel-lee stipulated that appellant had the right to condemn, that all legal prerequisites had been complied with, and that the only issues to be tried were the value of the land taken, and the damages, if any, to the remainder of the tract. The jury, answering special issues, found the value of the 2.884 acres taken to be $4,326.00, and that the value of the remainder before the taking was $115,674.00, and after the taking was $96,395.00, a difference of $19,279.00. These answers total $23,605.00. The appellant having deposited $4,800.00, the amount of the commissioners’ award, into court, judgment was rendered for appellee in the sum of $18,805.00. This appeal is from said judgment, and the order of the court overruling appellant’s amended motion for a new trial.

Appellee at the time of these proceedings was the owner of an 80 acre tract of land lying to the south and west of the city of Corpus Christi, and a short distance outside of the city limits. This property lay in a path of a ditch which appellant was constructing in following out its Arroyo Sara-toga Drainage Improvement Project, which was to serve the purpose of aiding in the drainage of a large portion of areas south and west of the city. The date of the taking of the property by appellant was May 14, 1964, the day appellant deposited in court the amount of the award of the Special Commissioners. At the time of the trial, in March, 1965, the ditch as it ran through appellee’s property, was under construction, and was of a width of approximately 20 feet at the bottom and from 52 to 60 feet at the top. When completed, the plans called for it to be 60 feet wide at the bottom and 90 feet at surface level. The right-of-way sought to be condemned in fee simple title, was 160 feet wide, and approximately 660 feet long from where it entered appellee’s property to where it left. The amount-of land thus taken by appellant was 2.884 acres, leaving appellee’s land divided into two tracts, one approximately 42 acres, with the other containing a fraction over 35 acres. The evidence shows practically without conflict that the highest and best use of this property was to hold for future development as subdivision residence property, and during holding period to farm it in cotton and grain.

Appellant’s first four points deal with alleged error of the court in rulings • on evidence while appellee’s witness Lewis, who qualified as a realtor and an expert in land appraisal, was testifying. Said witness on direct examination, after answering without objection that he had on several occasions made appraisals either for a landowner or condemning authority without thereafter being called as a witness in the suit, was asked if he knew why he had not been called in such cases. To this appellant objected as having no bearing on the case. The objection was overruled, and the witness answered that he assumed that where a condemning party secures more than one appraisal, it usually uses the lower one, and that when he makes an appraisal of market value, if his employer doesn’t like it he can get another appraiser. There was no motion to strike this answer. A trial court has much discretion in admitting testimony to show either bias or lack of bias of the witness toward either party. If error were present in the admission of such testimony, it was not sufficiently harmful to warrant reversal of this judgment. Rule 434, Texas Rules of Civil Procedure. Point One, raising this question, is overruled.

The trial court did not err in permitting the witness Lewis to give his opinion as to the effects of possible erosion of the sides of the ditch, and to the fact that the remainder of appellee’s land would not be benefited drainage-wise by this ditch, as contended by appellant in its second and third points. Appellant in its brief says that the evidence fails to show that Lewis was qualified as an engineer to give such opinion. This objection was not made or ruled on in the trial court. We feel that Lewis with his background of engineering and appraising experience was qualified to state what he considered to be items of damage to substantiate his ultimate conclusions as to a diminution in value of the remainder of the property. It is well settled that while damages and benefits general to the public at large can not be shown, the landowner is entitled to show damage peculiar to his remainder and the condemnor to show peculiar benefits to offset the peculiar damage. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. Points 2 and 3 are overruled.

By its 4th point, appellant claims reversible error in the trial court permitting the witness Lewis to state the date that the public was informed that the Corpus Christi Country Club was going to establish its new club house and golf course in the general area of the subject property, which date was April 13, 1963, eleven months before the taking by appellant of this property. Appellant’s objection was that the questioning should be restricted to what effect it may have on the market value in this case. Thereupon, in answer to appellee’s question whether the announcement of the Country Club facilities going in that area would, in witness’ opinion, cause any increased interest in speculation and development in that area, the witness answered In the affirmative. This testimony was relevant to the issue of market value of the subject property eleven months later, for increased real estate speculation and activity in the real estate market certainly affects market value, as testified to by the witness. Rayburn, Texas Law of Condemnation, § 93, p. 329. Point No. 4 is overruled.

Points 5, 6, and 7 assign error of the trial court in overruling appellant’s objections to testimony of appellant’s expert witness Roberts while on cross-examination.

Appellant’s witness W. A. Roberts was employed in the Right-of-Way section of the city, and qualified as an experienced and expert real estate appraiser. On direct examination, he testified that in his opinion the market value of the 2.884 acre strip before the taking on May 14, 1964, excluding crops, was $1,000.00 per acre, or $2,884.00 to which he added $500.00 for the crops growing on said strip. He testified that in his opinion the value of the remaining 77.116 acres, both before and after the taking, was $1,000.00 per acre, or $77,116.00, giving as his opinion that the value of the remainder of land was not decreased by the condemnation for drainage ditch purposes of the fee to the 2.884 acre strip.

This testimony was in contrast to that of appellee’s appraiser Lewis, who testified that in his opinion, the property before the taking had a market value of $1,500.00 per acre; that the market value of the 2.884 acre strip at the time of the taking was rounded out to an even figure, $4,300.00; that the market value of the 77.116 acres remaining, before the taking, was $1,500.00 per acre, and that such value after the taking was $1,050.00 per acre.

On cross-examination, appellee, in testing the witness Roberts’ qualifications for and methods of appraising land for the city, asked whether it was his job to negotiate with landowners and try to obtain the land for the least figure he could. The witness answered in the negative. Notwithstanding that the witness had answered thus, appellant objected on the ground that what his job might be in relation to negotiations has no bearing on this case as to market value. The objection was overruled. We see no error in this, especially in view of the witness’ answer, and overrule point 5 raising the contention.

Immediately thereafter, the question was asked witness Roberts whether, once he or some one in his office decides the value of certain property, “you are not going to try to pay more than that, are you.” This was objected to, as calling for the policy of the city, in so far as appraisal work (unfinished). The objection being overruled, the witness answered:

“The valuations are set on an individual property based on the studies that are printed to the staff, and in most cases are approved by the City Council before the offer is made to the individual.”

The witness testified further, in answer to questions by appellant, that once the figure is approved, they try to acquire the property for the approved amount, and do not try to pay more or less, and that market value is established by the approved value. We find no error in admitting this evidence on cross-examination over the objection made by appellant, and overrule appellant’s 6th and 7th points.

In points 8 and 9, appellant contends that the court erred in overruling its objections to testimony of appellant’s witness Roberts on cross-examination concerning the value of any lot when subdivided, and concerning lot sales. We recognize the rule that opinion evidence of the market value of non-existent lots in hypothi-cated plats of non-existent subdivisions is too speculative to be admissible in evidence, since such evidence tends to cause the jury to value the land in terms of lots, rather than in its present state. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Lower Nueces River Water Supply District v. Collins, Tex.Civ.App., 357 S.W.2d 449, writ ref. n. r. e. We do not believe this rule to have been violated in the present case. There was no real dispute between the parties that the highest and best use of this property was to hold same for development purposes. Many instances of recent comparable sales of undeveloped acreage in this area for a price approximating the market value placed upon this acreage by appellee’s witness Lewis were in evidence. Both parties had prepared and introduced in evidence plats showing their respective views as to how this land could properly be subdivided.

While the appellant’s witness Roberts was under cross-examination, appellee sought to test him as to whether he arrived at a market value as of the time of the taking in 1964, or in the future after the land had been subdivided. The witness would not agree with appellee as to present value, but answered in terms of value after subdivision in the future. Finally, appellee asked him to state what he thought he could sell one of these lots for after it was subdivided. Appellant objected to any value of any lot when it might be subdivided. Although this objection was overruled, the trial court holding the testimony admissible on cross-examination in view of the prior answers of the witness, the question was not answered. In answer to a subsequent question, the witness stated that he could tell what an individual lot could be sold for today if it was in an area completely developed, and that such amount was $1800.00. After this answer, appellant again objected to reference to lot sales, and the court sustained the objection.

We agree that the evidence of the $1800.00 lot figure was improper, but since the trial court sustained the objection to reference to lot sales made after the evidence was in, and since there was no motion to strike the evidence and no further attempt on the part of appellee to inquire as to the value of any lots we find no cause to reverse the judgment for such testimony. Rule 434 T.R.C.P. State of Texas v. Sunland Supply Company Inc., Tex.Sup.Ct.1966, 404 S.W.2d 316. Appellant’s 8th and 9th points are overruled.

By point ten appellant asserts that the trial court erred in overruling its objections to the instruction given in connection with special issue 3, relating to the market value of the remainder after taking of the strip for a drainage ditch. The instruction reads as follows:

“In connection with Special Issue No. 3, your are instructed that in considering the uses to which the condemned strip is to be subjected, you are to assume that the -condemning authority will exercise its right and use and enjoy the property taken to the fullest extent allowed by law, and that the defendant herein will no longer have any property rights in the surface of said 2.884 acre strip of land.”

Appellant’s six objections to the instruction assert, in substance, that it was erroneous in assuming that the former owner would be excluded from using the ditch since he would retain the right to drain his property into the public facility, and that the instruction was a general charge constituting a comment on the weight of the evidence. Appellant’s brief says “we feel the effect of the Court’s instruction was to build an invisible and certainly nonexistent wall between Condemnee and Con-demnor’s properties and instruct the jury to compensate the owner for the existence of such walk” We do not agree.

It is clear that appellant, in taking the fee simple title to the 2.884 strip of land herein, has condemned every right which appellee owned in the same, excluding certain mineral rights which are not material to disposition of this case. Ap-pellee was required to recover all of his damages upon the trial of this case and not later on. City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243. The presumption is that the condemnor will exercise its rights and use the property taken to the full extent of the rights acquired; and this includes the corresponding right of excluding others from its use. Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App., 1941, wr. dism.). The cases have held that a condemning authority cannot condemn property and pay less than the full value of it under the guise that its rights will not be exercised to the. fullest extent and that the former owner will be permitted to make some use of it. Creighton v. State, 366 S.W.2d 840 (Tex.Civ.App., 1963, wr. ref. n. r. e.); Hill v. State, 289 S.W.2d 801 (Tex.Civ.App., 1956, n. w. h.). In this case there is no showing of anything to prevent appellant from denying ap-pellee the privilege of draining into the ditch. At most, a temporary permissive use is shown, and that is subject to appellant’s legal right to change it in the future. The instruction did not actually tell the jury that appellee could not drain his property into the ditch with permission of appellant, but it did correctly state that he had no further legal property rights in the strip. This is not a case in which an owner’s former right of access to a public facility, appurtenant to his remainder, is being retained in his favor. Cf. State v. Meyer, 391 S.W.2d 471 (Tex.Civ.App., 1965), affirmed 403 S.W.2d 366 (Tex.1966). Appellant’s point ten is overruled.

Appellant’s points Nos. 11 to 22 inclusive relate to alleged errors in appellee’s “argument to the jury. Each of these points except No. 13 refer to argument to which there was no objection made, and it is appellant’s contention that in such instances the court should have of its own volition stopped such alleged improper argument.

The argument appears in the record on appeal in the Statement of Facts, pages 346 to 423 inclusive. No bills of exceptions were prepared by appellant as to any portion of such arguments and submitted to the trial judge for his approval or qualification. The statement of facts was not signed by the judge.

The following agreement as to the Statement of Facts, appearing on page 425 thereof, was signed by attorneys for the parties:

“THE STATE OF TEXAS:
COUNTY OF NUECES:
The above and foregoing record having been prepared by the Official Shorthand Reporter of the County Court of Nueces County, Texas, and the same having been filed with the Clerk of said Court, and same having been on file in the papers of this cause for sufficient time for all to have an opportunity to examine same, we, Counsel for both parties hereto, agree that the above and foregoing record contains a full, true and correct transcript in question and answer form of all testimony adduced upon the trial of said cause, together with a verbatim transcript of all objections, replies, remarks, rulings, and exceptions in connection therewith; and we further agree that this record may be refiled as the Statement of Facts in this cause, and that the objections, replies, remarks, rulings, and exceptions as contained herein may be considered as and for Bills of Exception.
s/ Thomas D. McDowell Counsel for Plaintiff
s/ C. Edwin Prichard, Jr. Counsel for Defendant”

Appellee has filed a motion to strike the entire record of the jury argument since such transcript of the argument was not embodied in a proper bill of exceptions and 'presented to the trial court for approval or qualification. In Sarah Coventry, Inc. v. Blanch-Ette, Inc., Tex.Civ.App., 381 S.W.2d 636, writ ref. n. r. e., this court, citing among other authorities Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46, sustained a motion to strike where the argument certified as correct by the court reporter appeared in the record on appeal only as an exhibit to the amended motion for new trial, and no bills of exception had been presented to the trial court, and attorney for appellee had not agreed that such argument could be brought forward by any other method. The certificate signed by the attorneys in the present case, copied above, is not, in our opinion, “tantamount to an agreement on the part of opposing counsel to bring forward for review the objections to the argument by any other method. Only when the complaining party has presented the matter in a bill of exceptions is the opportunity afforded to his adversary and to the court for the addition of any appropriate qualification that might render harmless argument that otherwise would be improper or prejudicial.” Pritchett v. Highway Insurance Underwriters, supra. To the same effect, Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139, and other authorities cited in Sarah Coventry, Inc. v. Blanch-Ette, Inc., supra. Especially is this true as to appellant’s points which raise for the first time on appeal alleged error to parts of the jury argument, to which no objection was made in the trial court.

We hold that the complaint as to argument of counsel for appellee was not preserved in the proper way, i. e., by bills of exception, and that there was no agreement by appellee’s counsel of any other method of presentation, and that points 11 to 22 inclusive are not proper before this court.

We have read the arguments complained of, however, and the statements and authorities cited in the briefs of both parties, and are of the opinion that even if the matter were properly presented reversible error would not be shown. We are of the opinion, and so hold, that none of the arguments complained of, including that objected to as shown by point 13, were of such a nature as to be reasonably calculated to cause or to cause the rendition of an improper judgment, nor such that it was beyond correction by means of a proper instruction by the trial court had objection been timely -made. Rule 434, T.R.C.P.; Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856; Younger Brothers. Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546; Prasek v. Dudley, Tex.Civ.App., 395 S.W.2d 876 writ ref. n. r. e.; Insurance Company of North America v. Myers, Tex.Civ.App., 399 S.W.2d 932.

Appellant’s points 11-22 inclusive are overruled.

Appellant’s points Nos. 23, 24, 25, and 26 are to the effect that the verdict of the jury was excessive, and that there was no evidence to support the jury answers to Special Issues 1, 2, and 3. These points are presented together in appellant’s brief.

Special Issue No. 1 inquired of the market value of the 2.884 acre strip condemned by appellant at the time it was condemned, to which the jury answered $4,326.-00. No. 2 asked for the market value of the remainder of the tract immediately prior to the taking, the answer being $115,-674.00. No. 3 made the same inquiry as to the remainder immediately after the taking, the jury answering $96,395.00.

In its statement and argument under these points, appellant does not question the sufficiency of the evidence to support the jury’s answer to issues No. 1, as to the market value of the 2.884 acres taken, or to No. 2, as to the value of the remainder before the taking. Its sole complaint is “that the Appellee was unable to substantiate damage to the remainder in that he had no market value sales to substantiate this damage.”

We have already discussed, to a limited extent, this ditch, its size and appearance, and some of the effects it would have, as shown by evidence, on appellee’s property. Lewis, appellee’s expert appraiser and realtor, testified that he considered between 70 and 80 sales in the area in arriving at his opinion of market value. He then told in detail of items and considerations which would result from the construction of this large, open, drainage ditch splitting the larger tract into two tracts which would cause a large decrease in value of the property and placed the market value after the taking at $1050 per acre, which was $450.00 less than the value before the taking. Photographs of the ditch were introduced and Lewis testified at length why the property lost much of its value for development purposes as a result of its construction. There was evidence upon which to submit these issues, and appellant’s no evidence points are overruled.

There was a difference of opinion between appellant’s expert witnesses and appellee’s witness Lewis as to the damages caused the remainder of the property by this condemnation. The issue of depreciated value is largely a matter of opinion evidence, and the ultimate decision is a matter for the jury. South Texas Electric Cooperative Inc. v. Ermis, Tex.Civ.App., 396 S.W.2d 955; Natural Gas Pipeline Company of America v. Towler, Tex.Civ.App., 396 S.W.2d 917. We feel that the findings of the jury of the difference in value of the property eaused by the condemnation of this property were not shown to be excessive, and were supported by evidence, and by sufficient evidence. Points 23-26 inclusive are overruled.

Judgment affirmed.


text:
    CITY OF CORPUS CHRISTI, Appellant, v. Anastazie S. NEMEC, Appellee.
    No. 197.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 16, 1966.
    Rehearing Denied July 11, 1966.

      I. M. Singer, City Atty., Robert E. Young, Asst. City Atty., Corpus Christi, for appellant.
    C. Edwin Prichard, Jr., Corpus Christi, for appellee.
   OPINION

GREEN, Chief Justice.

This is a condemnation suit, wherein the appellant City of Corpus Christi is taking in fee a 5.708 acre strip of land out of a 160 acre tract owned by appellee for construction of a drainage facility to drain lands in and near the southwest area of the city. In the trial in the county court, ap-pellee stipulated that appellant had the right to condemn, that all legal prerequisites had been complied with, and that the only issues to be tried were the value of the land taken and the damages to the remainder of the tract. The jury, answering special issues, found (1) that the market value of the strip taken at the time of the taking was $8,600.00; (2) that the market value of the property before the taking, excluding the 5.708 acres, was $231,400.00; (3) that the market value of such remainder after the taking was $202,894.00. The difference in the before and after taking being $28,506.00, this plus $8,600.00 value of the property taken, a total of $37,106.00, was the amount of appellee’s recovery. Since appellant had deposited in court the amount of the special commissioners award, $8,-400.00, which appellees withdrew, judgment was rendered against appellant for $28,626.00, plus an item of $21.20 interest.

The property of appellee adjoined the land involved in the case of City of Corpus Christi v. Polasek, Jr., this day decided by this court, 404 S.W.2d 826, the Polasek land lying to the northeast of the Nemec property, and the drainage facility in both instances is the same. As the ditch leaves Nemec, it enters the strip condemned of Polasek, and the evidence in both cases involving the effects of this facility on the market value of the property after the taking is very similar.

In the trial, E. Charles Lewis was placed on the stand by appellee, and W. A. Roberts and Charles DeLomel by the appellant, as witnesses of market value of the property taken and of the remainder before and after the taking. Each of these witnesses were realtors and licensed real estate brokers of much experience in and about Corpus Christi, and each qualified as experts in the appraisal of land values in the area of appellee’s -land, and in the matter of subdivision development. Each -agreed that the highest and best use of the property involved was to hold it for future subdivision development, and in the meanwhile farm it, and that while the income from farming would not justify the present market value of the property, it would help an investor to defray expenses while holding it until it could be devoted to its highest and best use.

By its first and twenty-second points, appellant alleges error in the trial court’s action in overruling its objections to the special instructions accompanying Special Issue No. 3, inquiring of the value of the remainder after the taking. The point involves the same objection to the same instructions to the same special issue as was raised in City of Corpus Christi v. Polasek, supra, in appellant’s tenth point. For the reasons there discussed, appellant’s first point is overruled.

In points 2, 3, 4, and 5, appellant contends error (2) in the court granting ap-pellee’s motion in limine having reference to permissive use of crossings of the drainage right-of-way, and (3, 4, 5) withdrawing testimony by the witness Lewis ori cross-examination concerning what the city might permit the landowner or purchaser of this property to do in the area of the condemned strip.

It is not reversible error for a trial court to sustain a motion in limine which requires a party to notify the court and adverse counsel out of the presence of the jury of his intention to offer certain evidence, so as to permit counsel to make his objection if he wishes in the jury’s absence, such as the motion in question provided. Before a party can correctly claim error, he must offer his evidence, and secure an adverse ruling from the court. Hartford Accident and Indemnity Co. v. McCardell, Tex.Sup.Ct., 369 S.W.2d 331, 335; State v. Wheeler, Tex.Civ.App., 390 S.W.2d 339, writ ref. n. r. e.

Testimony of a special privilege which might be granted, refused, or if granted, revoked at the will of the con-demnor, is not admissible as evidence to lessen the amount of the landowner’s damages caused by the taking of a portion of his property. Creighton v. State, Tex.Civ.App., 366 S.W.2d 840, writ ref. n. r. e.; Hill v. State, Tex.Civ.App., 289 S.W.2d 801; Perkins v. State, Tex.Civ.App., 150 S.W.2d 157, writ dism. The court did not err in withdrawing Lewis’ testimony from the jury. Additionally, the statement of facts does not show any objection being made by appellant to the court telling the jury to disregard that portion of Lewis’ evidence. (See court’s instruction under Points 8 and 9 infra)

Points 2, 3, 4, and 5 are overruled.

By its points 10 to 17 inclusive, briefed together, appellant contends that the court erred in refusing to permit appellant to introduce evidence concerning special benefits to the remainder of appel-lee’s property as the result of the construction of the drainage. As shown by the points and the statement thereunder, appellant’s complaint as briefed was to the action of the court in sustaining objections of appellee to plaintiff’s exhibits identified as exhibits 4, 5, 8, and 9, and denying appellant the right to have its expert witness Graham testify concerning such exhibits to show special benefits offsetting damage to the remainder.

Voir dire examination of the witness by appellee showed that exhibit 4 was a plat by Graham showing a proposed way in which the remainder could be laid out after the taking, reflecting future use of the ditch and right-of-way for crossing of sewer lines, water lines, and other purposes. It appears that when this was first presented, the court overruled appellee’s objection that since the city was not obligated to permit such use by a developer of this right-of-way, such evidence of a possible permissive crossing of an area to which a landowner had no matter of legal right was not admissible to show special benefits. Thereafter, the court granted appellee’s motion in limine that before any testimony should be offered to show possible permissive use of the property condemned where such use was not a matter of right of the landowner, permission of the court, out of the hearing of the jury must be obtained. No further offer of exhibit 4 was made by appellant, and no further testimony from Graham as to such exhibit was attempted to be elicited.

Exhibit 5 was identified as an erosion control plan prepared by Graham in April 1965, months after the taking by appellant of the strip. Appellee’s objection, sustained by the court, was to the effect that such a plan could not have affected the market value of the property on May 14, 1964, the day of the taking. Although the record shows that this exhibit was offered in evidence and excluded, the exhibit does not appear in the statement of facts or in any bill of exception. There is no bill explaining what appellant expected Graham to testify concerning this exhibit.

Exhibits 8 and 9, marked for identification, were both subject to the same objection that Exhibit 4, i. e., in order for one to do what was depicted on them, permission would have had to be secured from the city, which permission the city could have either granted or refused. After the court excluded the exhibits no bill of exceptions was taken as to what the witness would have testified, nor was such exhibit incorporated in a bill of exception and same does not appear in the statement of facts.

We find that the record does not reflect that the court erred in excluding the exhibits from evidence. Creighton v. State, supra; Hill v. State, supra; Perkins v. State, supra.

Furthermore, as stated in 3 Tex.Jur.2d, Appeal and Error, § 418, * * * exclusion of expert or opinion testimony: “The record must show the nature of the evidence admitted over objection, or, in the case of exclusion, the record must show the evidence sought to be introduced, and it must also negative the existence of other evidence on the subject.” See, also Bell v. Bradshaw, Tex.Civ.App., 342 S.W.2d 185, 190; South Texas Electric Cooperative, Inc. v. Beutnagel, Tex.Civ.App., 388 S.W.2d 447, 452.

Points 10-17 inclusive are overruled.

We see no harmful error in the court overruling appellant’s objection, which was that the testimony had no bearing on the issue of value, to Mrs. Nemec’s answer, in response to her attorney’s question whether any one prior to the condemnation had asked her about selling the property, that she had several calls, but always stated that it was not for sale. Rule 434, Texas Rules of Civil Procedure. Point No. 6 is overruled.

By points 7 and 21, appellant says that the court should have given in the charge its requested instruction that ap-pellee Mrs. Nemec was a willing seller. These points are overruled. The court properly instructed the jury as to the meaning of market value in terms of a willing buyer and willing seller. It was not required to go further in that respect.

Point 8 concerns alleged error in the court overruling appellant’s motion to strike testimony of witness Lewis concerning necessity of a bridge to be built over the drainage ditch, in that this would require permission or license by the city, and the court had ruled out all testimony of future permissive use. Point 9 alleges error in permitting testimony by Lewis concerning the cost and necessity of such bridge.

Witness Lewis testified that in developing the property for subdivision purposes, it would be necessary for the developer to get permission from the city to build a bridge across this ditch, and a subdivider would take this fact, and also the cost of such bridge, into consideration in buying this property after condemnation. Appellant’s objection to the question “Do you have any idea what a bridge would cost a subdivider to put it across there” was as follows:

“* * * We object to further reference to the bridge crossing the ditch in that it hasn’t been shown that there is a necessity for the bridge to cross the ditch. Further there is a bridge on both sides of the property, with a county road.”

This objection, the only one made to this line of questioning, was overruled, and the witness testified that the cost of a bridge would be $32,000.00.

Since the admitted highest and best use of this property was to hold for future development purposes, any matter affecting such use was material. The trial court did not err in overruling the objection which was made.

Subsequently, while the appellant’s witness Graham was on the stand, the question of the admissibility in evidence of any testimony of use which depended on future permission being granted by the city was argued before the court, and in ruling that any such evidence was not admissible, (Creighton v. State, supra), the court instructed the jury as follows :

“ * * * You are instructed to disregard any testimony Mr. Lewis might have given concerning what the city might permit anybody to do, either this Defendant or a purchaser of this Defendant’s property in the area of the strip which is being condemned for the drainage ditch. * * * ”

Points 8 and 9 are overruled.

Points 18, 19, and 20 are (18) that there is no evidence to support the jury’s answer to the third special issue, (19) that the verdict of the jury is against the great weight and preponderance of the evidence, and (20) that the verdict is excessive. Points 19 and 20 are indefinite, since there were three special issues submitted, and it is not stated which answer is attacked as being either against the great weight and preponderance of the evidence, or excessive. Sumners Road Boring, Inc. v. Thompson, Tex.Civ.App., 393 S.W.2d 690, 698, writ ref. n. r. e.

No criticism is made by appellant anywhere in its brief of the answer of the jury to special issue No. 1, finding the value of the 5.708 acres taken to be $8,600.00. In fact, this was the exact value placed on this portion by appellant’s witness DeLo-mel. We find that the answers of the jury to the remaining two issues are supported by evidence, and by sufficient evidence, and are not against the great weight and preponderance of the evidence.

In our opinion in City of Corpus Christi v. Polasek, supra, this day handed down, we set out testimony concerning this ditch and its effects on the value of the property it bisects for its highest and best use. Similar evidence was present in the present case. Appellee’s witness Lewis testified that he was president of a real estate firm in Corpus Christi that employed eleven salesmen, had been in the real estate business eighteen years, and had held practically every known real estate appraiser designation. He described the property in detail; identified pictures and diagrams of it; described the farming operations before and after the taking; described the surrounding area; gave details of many comparable sales in the area; discussed many problems created in the property by the taking and use of the part taken; and concluded with an opinion as to value of the part taken of $8,562.00; or $1,500.00 per acre; of the value of the remainder before taking of $231,480.00, or $1,500.00 per acre; and of the remainder after taking of $185,200.00, or $1,200.00 per acre.

Appellant's witness DeLomel, also well qualified as a real estate appraiser in Corpus Christi, testified that in his opinion the remainder of the property before the taking had a market value of $222,800.00. In his opinion the value was not greatly reduced by reason of the condemnation, he fixing such damages at $4,050.00. Graham, an official of the city, and an equally qualified realtor and land appraiser, reached the conclusion that the value of the remainder before the taking was $154,290.00, or $1,000.00 per acre, and that its value was not decreased by reason of the taking of the strip for drainage purposes.

The market value of the property was an issue of fact, to be determined by the jury from the opinions of the expert witnesses, and from the other facts appearing in the evidence. The amounts found by the jury were well within the range of the testimony. We find no reason to disturb the jury’s findings. South Texas Electric Cooperative Inc. v. Ermis, Tex.Civ.App., 396 S.W.2d 955; State v. Meyer, Tex.Civ.App., 391 S.W.2d 471, aff’d by Tex.Sup.Ct., 403 S.W.2d 366; Housing Authority of City of Dallas v. Shambry, Tex.Civ.App., 252 S.W.2d 963, writ ref. n. r. e.; Reynolds v. State, Tex.Civ.App., 390 S.W.2d 493. Points 18, 19, and 20 are overruled.

We find no reversible error in the record.

Judgment affirmed.

      . Referred to in appellant’s Points of Error 3 and 4.


author: BATEMAN, Justice.

text:
    G. P. SMITH et ux., Appellants, v. The CITY OF DALLAS, Appellee.
    No. 16736.
    Court of Civil Appeals of Texas. Dallas.
    June 10, 1966.
    Rehearing Denied July 8, 1966.

      Harris, Anderson, Henley, Shields & Rhodes and C. A. Searcy Miller, Dallas, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, W. M. Taylor, Jr., and Robert Keith Drummond, Dallas, for appellee.
   BATEMAN, Justice.

The appellants G. P. Smith and wife sued for damages on account of injuries sustained by Mrs. Smith on April 6, 1964, while a passenger in a bus owned and operated by the City of Dallas. Appellee filed a “Plea in Bar and Abatement” praying that the suit be abated, barred and dismissed because of appellants’ failure to give the written notice required by Section 307 of the City’s charter. The trial court held a preliminary hearing of this plea, at which he heard no testimony but considered only the written pleadings and briefs, and at the conclusion of which he sustained the “Plea in Bar and Abatement” and dismissed the action. Appellants appeal on six points of error.

By their first point of error appellants complain of the overruling of their motion to strike appellee’s answers to appellants’ Request for Admissions of Fact filed under Rule 169, Vernon’s Texas Rules of Civil Procedure, because the answers were filed one day after the expiration of the time specifed in the request.

This matter was within the trial court’s discretion, and there is nothing in the. record to indicate the abuse of such discretion. We find no authorities to support appellants’ first point of error, and it is overruled on the strength of Gordon v. Williams, Tex.Civ.App., 164 S.W.2d 867, no wr. hist.; Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124; Masten v. Gower, Tex.Civ.App., 165 S.W.2d 901, no wr. hist.; English Freight Co. v. Preston, Tex.Civ.App., 203 S.W.2d 657, wr. ref. n. r. e.

By their points of error two through six appellants contend that the court erred in sustaining appellee’s “Plea in Bar and Abatement,” thus holding as a matter of law, without hearing any evidence, that ap-pellee had not waived the notice requirement contained in its charter and was not estopped to raise the provision as a defense, and in holding that no fact issue was raised in connection with the matter of waiver or the matter of estoppel.

Section 307 of appellee’s charter provided that the City of Dallas shall never be liable for any personal injury unless notice in writing on behalf of the injured person is filed with the City Manager or City Secretary within thirty days, giving the details of the injury and the amount of damages claimed. Compliance with this and similar charter provisions has been held to be a condition precedent to a right of action for personal injuries. City of Dallas v. Shows, Tex.Com.App., 212 S.W. 633; City of Beaumont v. Baker, Tex.Civ.App., 95 S.W.2d 1365, wr. dism., and Kelley v. City of Austin, Tex.Civ.App., 268 S.W.2d 773, no wr. hist.; City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692; Phillips v. City of Abilene, Tex.Civ.App., 195 S.W.2d 147, wr. ref.; Wones v. City of Houston, Tex.Civ.App., 281 S.W.2d 133, no wr. hist.

It is well settled, however, that a municipal corporation may waive its rights under such a charter provision, and that it may also be estopped from relying thereon. Cawthorn v. City of Houston, Tex.Com.App., 231 S.W. 701; City of Waco v. Thralls, Tex.Civ.App., 172 S.W.2d 142, wr. ref. n. r. e.; City of El Paso v. Pan American Supply Co., Tex.Civ.App., 251 S.W.2d 742, wr. ref. n. r. e.; City of Beaumont v. Silas, Tex.Civ.App., 200 S.W.2d 690, 696, wr. ref. n. r. e.; Mouille v. City of Port Arthur, Tex.Civ.App., 164 S.W.2d 219, no wr. hist.; Cruise v. San Francisco, 101 Cal.App.2d 558, 225 P.2d 988.

Appellants filed an amended petition and a special answer to the plea in abatement, in both of which they admitted that the provision of the charter had not been complied with but alleged, as an excuse for such noncompliance, that one Walsh, an agent, servant or employee of the City and acting in the course and scope of such employment, within thirty days after the accident, investigated the appellants’ claim, took a written statement from Mrs. Smith, received copies of all medical reports concerning her injuries, told appellants that it was his desire to settle their claim in a “Christianlike manner,” did not apprise appellants of the notice requirement of the charter, and thus lulled them into a feeling of security; that such conduct of Walsh constituted a waiver by the City of the charter provision and, since appellants were prevented thereby from complying with the charter, that the City is estopped to raise their noncompliance as a defense.

By a sworn supplemental plea in bar ap-pellee denied that Walsh was the City Manager, or City Secretary, or even an employee or agent of the City of Dallas or its “Dallas Public Transit Department,” during the thirty days following the accident, but was an agent and employee of Transit Casualty Company (which was the City’s liability insurance carrier), and was never authorized by the City or its Manager or Secretary to receive notice under Section 307 of the charter or to waive the requirements thereof.

Issues of fact were thus joined on the pleas of waiver and estoppel. An affidavit of Mrs. Smith was filed, together with certified copies of certain ordinances of the City of Dallas, but no testimony was heard. The court evidently disposed of the matter in the same manner as if it were a summary judgment proceeding under Rule 166-A, T.R.C.P. In this we think he committed error.

Regardless of the label placed thereon by the pleader, the plea was actually one in bar rather than in abatement. It sought a ruling that appellants, not having alleged compliance with the charter provision, and being unable ever to prove compliance, could never recover. 1 Tex.Jur.2d, ABATEMENT AND REVIVAL, § 4, p. 20; Couger v. Allen, Tex.Civ.App., 25 S.W.2d 666, no wr. hist.; Pucek v. Koppa, Tex.Civ.App., 32 S.W.2d 248, no wr. hist. As such, it should not have been disposed of on the pleadings, affidavits, certified copies of ordinances and arguments of counsel unless this manner of disposition had been previously agreed to by the parties. As said by Mr. Justice Garwood, speaking for the Supreme Court in Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208, 214:

“ * * * defenses ‘in bar’ are not the proper subject matter of disposition on mere preliminary hearing before the court like pleas in abatement, although a speedy and final judgment may be obtained on the basis of matters in bar and without the formality of a trial on the merits, if the parties so agree or if recourse is had to the process of summary judgment where contested fact issues are not present. The practice of misnaming a plea in bar in order to procure a preliminary trial as if the plea were one in abatement is confusing and not to be encouraged.”

In City of Denton v. White, Tex.Civ.App., 179 S.W.2d 834, wr. ref. w. m., the Fort Worth Court of Civil Appeals had before it a quite similar situation to that shown here. The City of Denton filed what it called a “plea in abatement,” setting up the failure to give the required notice. As in the case at bar, the claimant White had alleged certain facts to relieve him from the consequences of his failure to give notice. The trial court overruled the “plea in abatement,” then went fully into the matter upon the jury trial, and issues touching the matter were submitted to the jury and answered favorably to White. The Court of Civil Appeals said: “It seems to us that the matter set up in the plea in abatement was not a matter in abatement, but was rather a matter in bar, which properly was determined upon the trial on the merits.”

We have examined the record carefully and conclude therefrom that appellee’s “Plea in Bar and Abatement” cannot be interpreted or considered as a motion for summary judgment. Neither it nor the papers filed in response to it meet the requirements of Rule 166-A, T.R.C.P. No agreement to do so having been shown, there was no warrant for this summary disposition of a plea in bar.

For the reasons hereinabove given, we sustain appellants’ points of error two through six. The judgment appealed from will be reversed and remanded.

Reversed and remanded.