author: SMITH, Justice. WALKER, Justice

text:
    Dallas G. PERKINS et al., Petitioners, v. The STATE of Texas, Respondent.
    No. A-9284.
    Supreme Court of Texas.
    April 17, 1963.
    Rehearing Denied May 15, 1963.

      Cofer & Cofer, Austin, (Douglass D. Hearne, Austin, with above firm) and Dan Sorrells, Abilene, for petitioners.
    Clint C. Small, Austin, and Tom K. Eplen, Abilene, for respondents Eplen, Daniel, Hooper & Dickson.
    Waggoner Carr, Atty. Gen., Austin, for respondent State of Texas.
    John W. Davidson and Les Cochran, Abilene, for respondent City of Abilene.
   SMITH, Justice.

This is a quo warranto proceeding brought by the Attorney General in the name of the State of Texas to have de-dared invalid the incorporation of an area in Taylor County designated as the town of Impact, Texas. The trial court has held that Impact was validly incorporated, and the Court of Civil Appeals has reversed and rendered the cause for the State. Tex.Civ.App., 360 S.W.2d 555.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court. We hold that even if the attempted incorporation of Impact in the first instance was void, the incorporation of the town has been validated by an act of the Legislature.

The qualified voters within the area known as Impact sought to incorporate under Article 1133 of Vernon’s Annotated Civil Statutes which provides:

“When a town or village contains more than two hundred (200) and less than ten thousand (10,000) inhabitants, it may be incorporated as a town or village in the manner prescribed in Chapter 11, Title 28, of the Revised Civil Statutes of Texas, 1925, and all amendments thereto.”

The evidence establishes that the area sought to be incorporated comprises 47.43 acres bounded on the west by the meanders of a creek and by an existing fence line which abuts a farming area and on the east by an existing street.- The remaining boundaries extend to, but do not include, a right-of-way owned by the West Texas Utility Company and a settlement serviced by utilities from the City of Abilene.

In February of 1960, a count was made of all the buildings in an area known as North Park, which includes Impact. At the time of the counting there were 70 houses, 15 of which were vacant, within the boundaries of Impact. In the area outside of Impact and contiguous thereto, are located 348 more buildings of which 301 are houses, 5 are churches, 25 contain businesses and 17 are vacant. None of the area of North Park outside of Impact is incorporated nor is it within the city limits of the City of Abilene.

It is undisputed that in February of I960: there were more than 200 people living within Impact, and of this number only 31 were qualified voters. Within the North Park Area and outside of Impact reside some 85 qualified voters exclusive of exemption.

On February 1, 1960, 29 of the registered voters of Impact petitioned the County Judge of Taylor County to call an incorporation election. On that same date the County Judge found that all the requirements of Article 1133 et seq. of Vernon’s Texas Civil Statutes had been complied' with, and an election was set for February 13, 1960. The leader in the movement for the incorporation of Impact, Dallas G-Perkins, was appointed by the County-Judge as the presiding judge of the election,, notices were posted and all other statutory-requirements regarding the incorporation election were complied with. On February 11, 1960, the County Judge entered an-order revoking the order of February 1, 1960, and ordered that the election not be held. In the face of such order the incorporation election was held on February 13, 1960; twenty-seven votes were cast for incorporation and no votes were cast against. The returns of the election were presented to the County Judge, and he refused to take any of the steps necessary to put the election into effect. This court in Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926, caused a writ of mandamus to. issue directing the County Judge to accept the returns, canvass the votes and to declare the results of the election.

On August 2, 1961, Impact was declared’ incorporated; and on August 14, 1961, Impact’s officials were elected. By write-in-votes, Dallas G. Perkins was unanimously-elected mayor and his wife was elected secretary of Impact. Since the County Judge declared the results of the incorporation! election Impact has functioned as an incorporated town. Elections have been held!,. the City Council has met regularly, ordinances have been passed and complete records have been kept.

On September 1, 1961, the Attorney General, upon the relation of J. C. McKee et al. and the City of Abilene, and without the joinder of either the county attorney or the district attorney, filed this quo warranto proceeding to have declared invalid the incorporation of Impact. The case was tried before a jury and four special issues were submitted. In response thereto the following findings were made: (1) at the time the petition to incorporate the proposed town of Impact was presented to the County Judge, said proposed town was a portion of a territory comprising a larger unincorporated community or settlement; (2) that the petitioners for the election did not fix the limits and boundaries so as to arbitrarily exclude a portion of the larger unincorporated community of which the proposed town of Impact was a part; (3) the proposed town of Impact was conditioned so as to be subject to municipal government; and (4) the petitioners for the election did intend for the proposed town to be used strictly for town purposes. Based on these findings the trial court concluded that Impact was validly incorporated.

The Court of Civil Appeals, in reversing the judgment of the trial court, placed major emphasis on the jury’s answer to Special Issue No. 1 in construing Article 1133, supra, and held that only whole towns and villages are authorized to be incorporated in the absence of natural barriers. The Court then held that the evidence conclusively shows that the proponents of incorporation did not incorporate a town, but only “an arbitrary slice” of a town. Thus, the Court concluded that the incorporation of Impact was invalid. The Court also held that Articles 966h and 974d-9, infra, have not validated the incorporation of Impact. This holding was based on the conclusion that the ■validating acts do not apply to towns whose incorporation has been in violation of law, and that Impact has been so incorporated. It was further held that the validating acts apply only to incorporated towns published in the last Federal census.

Because of the disposition we make of the case it is unnecessary for us to decide the propriety of the holding of the Court of Civil Appeals that the initial incorporation of Impact was invalid. Neither is it necessary for us to decide whether the Attorney General had a legal right to file and prosecute this suit without the joinder of the district attorney or the , county attorney.

There is another matter that can have no material bearing on the question of whether or not the attempted incorporation has been validated. The record discloses that since the rendition of our judgment in Perkins v. Ingalsbe and the receipt and canvassing of the vote showing a majority in favor of incorporation of Impact, the qualified voters therein have authorized the sale of intoxicating liquors arid have thus created an “oasis” on the boundary of a “dry” city iri a “dry” county. This situation is highly displeasing and all but intolerable to a number of the .individual, respondents and, no doubt, to a large number of other citizens in the area. But whether the attempted incorporation of Impact should be validated was and is a legislative question, and whether intoxicating liquors shall be sold in Impact, if validated, was and is a political question. Through its local option provisions, Article 666, Vernon’s Texas Penal Code, permits authorization of the sale of intoxicating liquors in incorporated towns in dry counties, Myers v. Martinez, Tex.Civ.App., 320 S.W.2d 862, writ refused, n. r. e., 160 Tex. 102, 326 S.W.2d 171, and the courts have neither the duty nor the right to deny effect to a validating act because it is displeasing to those living in surrounding dry areas that the inhabitants of a town have authorized the sale of intoxicants therein.

The Validating Acts

Perkins relies upon Articles 966h and 974d-9, Vernon’s Annotated Civil Statutes, infra, to support his contention that the Legislature has properly exercised its power to validate and has validated any defects in the incorporation, boundary lines and governmental proceedings and acts of Impact. In our opinion Impact comes within the provisions of Article 966h, infra; and Article 974d-9, infra.

Article Póóh

In 1961 the 57th Legislature passed I-Iouse Bill No. 482 which is carried as Article 966h, Vernon’s Annotated Civil Statutes. The act became effective on May 29, 1961, and validated any defects in the incorporation, the areas and boundary lines, and the governmental proceedings and acts of all cities and towns in Texas with a population of four thousand five hundred or less according to the last preceding Federal census. The statute provides in part:

"Art. 966h. Cities and towns of 4,500 or less, validation of incorporation; areas and boundary lines; governmental proceedings and acts
“Section 1. All cities and towns in Texas of four thousand, five hundred (4,500) inhabitants or less, according to the last preceding Federal Census, heretofore incorporated or attempted to be incorporated under any of the terms and provisions of the General Laws of the State of Texas, * * * which are now functioning or attempting to function as incorporated cities or towns, are hereby in all respects validated as of the date of such incorporation, or attempted incorporation; and the incorporation of such cities and towns shall not be held invalid by reason of the fact that the election proceedings or other incorporation proceedings may not have been in accordance with law, or by reason of a failure to properly define the limits of such city or town.
“Sec. 2. The areas and boundary lines of all such cities and towns affected by this Act, including * * * the boundary lines covered by the original incorporation proceedings * * * are in all things validated * * * ¡>
“Sec. 5. The provisions of this Act shall not apply to any city or town now involved in litigation questioning the legality of the incorporation * * * if such litigation is ultimately determined against the legality thereof.”

On the effiective date of the Act, Impact was involved in litigation (Perkins v. Ingalsbe, supra), but not such litigation as would exclude Impact from its coverage, for the Perkins case was not attacking the legality of the incorporation of Impact. The Perkins case was a mandamus proceeding seeking to compel the County Judge to declare the results of the incorporation election. Further, the Perkins case did not have the result of excluding Impact from the coverage of Article 966h since the litigation was not ultimately determined against the legality of Impact’s incorporation.

At the outset it is necessary to dispose of the issues raised by the State’s contention that the legislative power to cure the type of deficiency said to exist in the initial incorporation of Impact is constitutionally denied or prohibited by Sec. 4, Article XI of the Texas Constitution, Vernon’s Ann.St. which provides:

“Cities and towns having a population of five thousand or less may be chartered alone by general law. * * * ”

It is argued that the Constitution empowers the Legislature to authorize only cities and towns to incorporate, and not just parts thereof; and that since the jury has found that Impact was only a portion of a larger unincorporated community, the Legislature had no power to validate any defects in the incorporation of Impact. We disagree.

The accepted rule is that the Legislature has and may exercise all legislative power not denied or prohibited to it, expressly or by necessary implication, by the Constitution. Watts v. Mann, Tex.Civ.App., (1945), 187 S.W.2d 917, writ refused; State v. Brownson, 94 Tex. 436, 61 S.W. 114. Section 4, Article XI, does not expressly deny to the Legislature the power to authorize the incorporation of less than the whole of an unincorporated settlement as a town, and neither does it do so by necessary implication. The Legislature clearly has the power to validate any defects in the incorporation of Impact, its boundaries and its governmental proceedings and acts.

In considering the applicability of a validating act, this court must acknowledge the principle that even though an act of incorporation is void from its inception because of an unwarranted exercise of power or because of an entire absence of power, the Legislature may validate such act and make it live, for what the Legislature has the power to authorize, it has the power to ratify. State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1078. Thus, the Legislature properly exercised its political power when it provided in Section 1 of Article 966h that the incorporation of towns to which the Act applies “shall not be held invalid by reason of the fact that the election proceedings or other incorporation proceedings may not have been in accordance with law, or by reason of a failure to properly define the limits of such * * town." (Emphasis added), and provided in Section 2 that “The areas and boundary lines of * * * towns affected by this Act, * * * are in all things validated * * * ’>

The State asserts that the attempted incorporation of Impact is invalid because those initiating the incorporation proceedings arbitrarily fixed the boundaries of Impact so as to carve out only a small part of a much larger unincorporated community. That type of deficiency, if it be one, is covered by both the general and specific provisions of the validating act. To say that the Legislature did not intend to validate incorporation proceedings because the area included within the proposed boundaries is less than the general settlement, or because the limits of the area incorporated are too narrowly drawn, is to ignore the very language of the Act which, being plain and clear, is the sole source from which intent may be derived. Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70; Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1038.

Article 966h imposes three conditions precedent to validation: (1) there must have been an attempt to incorporate under the general laws of this state before the effective date of the Act, (2) there must have been an attempt to function as an incorporated town before the effective date of the Act; and (3) there must have been a population of 4,500 or less according to the last preceding Federal census on the effective date of the Act. In our opinion these three conditions have been met.

There has been no dispute that there has been an attempt to incorporate Impact as a town; rather, the State contends that Article 966h is not applicable to validate any defect in the incorporation of Impact since Impact was not actually functioning as an incorporated town on the effective date of the Act. This contention is untenable. The language of the Act does not limit its application to towns that have actually functioned as incorporated towns; it also applies to towns that have been “attempting to function” as incorporated towns. Impact could not actually function as a town until the county judge performed the statutory duties required of him by our decision in Perkins v. Ingalsbe, supra. The evidence established that Impact has been attempting to function as an incorporated town since February 13, 1960, and the mandamus proceeding filed against the county judge is evidence of that attempt, for the prosecution of that suit was the first necessary step to actual functioning as a town. Thus, the second condition precedent to legislative validation under Article 966h has been established.

The third requirement of the Act is more difficult to dispose of. The State contends that Article 966h does not validate any defects in the incorporation of Impact since Perkins did not allege or prove that the population of Impact is shown in the list of all incorporated towns in the 1960 Federal census. It is argued that validating acts must apply to classes of towns.to get around the prohibition against local and special laws found in Article III, § 56 of the Texas Constitution. It is the State’s position that the phrase “according to the last preceding Federal Census” has been used in the Act so that the Legislature can know with certainty which towns are to have their in-corporations validated. Therefore, it is the State’s contention that this validating act does not apply to all towns with populations of four thousand five hundred or less, but only to those de facto corporations with the requisite populations as shown in the 1960 Federal census list of all incorporated towns in Texas.

Perkins contends that the Court of Civil Appeals has erred in holding that since Impact’s population is not shown in the list of all incorporated towns in Texas, Article 966h does not apply. It is argued that if Impact’s population must be shown to be 4,500 or less according to the last preceding Federal census, it need not be shown in the list of all incorporated towns in Texas; but rather all that need be shown is that the number of individuals living in Impact in 1960 and enumerated in the Federal census was 4,500 or less. However, Perkins contends that he need not establish that Impact’s population was 4,500 or less “according to the last preceding Federal census” since the State has not disputed that Impact’s population is only a little over 200 inhabitants. Though we disagree with Perkins’ last contention in this regard, in our opinion Impact’s population is within the confines of Article 966h, and this fact may be established “according to the last preceding Federal Census.”

The phrase “according to the last preceding Federal Census” cannot be ignored as Perkins contends, for it is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible. See: McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164, rehearing denied, 305 U.S. 676, 59 S.Ct. 356, 83 L.Ed. 437; Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93.

Webster defines “census” to mean “an official enumeration of the population of a country or of a city or other administrative district * * The phrase “according to the last preceding Federal Census” contained in Article 966h relates that Article to the United States Census immediately preceding the effective date of the act- — May 29, 1961, which would include the 1960 decennial census or any intervening special census authorized under 13 U.S.C.A. § 8. See: Article 23, § 8, Vernon’s Annotated Civil Statutes; See also: City of Bisbee v. Williams, 83 Ariz. 141, 317 P.2d 567.

The State contends that in seeking the legislative intent behind the inclusion of this phrase in Article 966h it is reasonable to suppose that it was adopted so that it could be definitely established, by reference to an official report, whether a particular town within the 4,500 or less classification had been validated, and that the list of all incorporated towns in Texas in the 1960 decennial census fulfills this purpose since it was officially taken and the results thereof were officially announced. Even though this construction may be proper in the determination of the legislative intent behind the inclusion of the phrase under the rule that validating acts are to be liberally construed, the literal wording of the statute may be complied with by any showing that “according to the last preceding Federal Census” the population of Impact was less than 4,500.

Impact is not listed in the 1960 Federal census enumeration of all incorporated towns in Texas, and there has been no intervening special census of which we may take judicial notice, likewise, no field canvass has been made by the Bureau of the Census. A showing of the exact number of inhabitants living within Impact at the time the 1960 census was taken could have been made by a field canvass; and the courts of this state could have taken judicial notice of the enumerations shown therein, for it is the rule in Texas that judicial notice may be taken of official pronouncements in regard to any Federal census. See: Ervin v. State (1931), 119 Tex.Cr.R. 204, 44 S.W.2d 380; Holcomb v. Spikes, Tex.Civ.App. (1921), 232 S.W. 891, wr. dism.; Smith v. Patterson, 111 Tex. 535, 242 S.W. 749; See also: McCormick & Ray, Texas Law of Evidence, 203; Wig-more on Evidence, §§ 1671, 2580. Though there is no official pronouncement of the Bureau of the Census of which we may take judicial notice to determine the exact population of Impact, there are official pronouncements of the Bureau of Census from which it can be determined that the population of Impact was less than 4,500 in April of 1960, when the last Federal census was taken.

Table 8 of the Bureau of Census published report entitled United States Census of Population: 1960, Number of Inhabitants, Texas, lists the population of all incorporated places in Texas and the population of all unincorporated places having a population of 1,000 or more which are outside the urbanized areas of towns in Texas which have a population of 50,000 or more. Table 10 of the above mentioned census report lists the population within the urbanized areas of Texas. Table 8 and Table 10 combined show the population of all incorporated places and all unincorporated places with a population of 1,000 or more in Texas.

The enumeration of the population of the urbanized area of Abilene is shown in Table 10, and from this table we judicially know that there is no unincorporated community outside the city limits but within the urbanized area of Abilene with a population of more than 4,500. Since the population of Impact is not shown in Table 8, we judicially know that if Impact is outside the urbanized area of Abilene it did not have a population of 1,000 or more. Thus, by taking judicial notice of Table 8 and Table 10 of the published census report of the population of Texas we judicially know that Impact had fewer than 4,500 inhabitants according to the last preceding Federal census. Once this determination is made, then the third and final condition precedent to legislative validation under Article 966h is met.

Article 974d-9

Subsequent to the passage of Article 966h, supra, Senate Bill No. 59 was passed. This act, carried as Article 974d-9, Vernon’s Annotated Civil Statutes, became effective on August 26, 1961, twenty-four days after Impact was declared incorporated, and at a date when Impact was involved in no litigation. This act had for its purpose the validation of the incorporation and boundary lines of all cities and towns containing not more than six thousand (6,000) in population according to the Federal census of 1960. The pertinent provisions of this statute provide:

“Art. 974d- — 9. Cities and towns of not more than 6,000; validation of incorporation; boundary lines; governmental proceedings; adoption of home rule charter
“Section 1. The incorporation proceedings of all cities and towns in this state heretofore incorporated or attempted to be incorporated under the General Laws of Texas, and having a population according to the Federal Census of I960 of not more than six thousand (6,-000), * * * and which have functioned as incorporated cities and towns since the date of such incorporation or attempted incorporation are hereby in all respects validated as of the date of such incorporation or attempted incorporation; and the incorporation of such cities and towns shall not be held invalid by reason of the fact that the election proceedings or other incorporation proceedings may have not been in accordance with law.
“Sec. 2. The boundary lines of all such cities and towns covered by the original incorporation proceedings are hereby in all things validated.”

Article 974d-9, like Article 966h, contains three prerequisites for legislative validation: (1) an incorporation or an attempt to incorporate; (2) a functioning as an incorporated town since the date of such incorporation or attempted incorporation; and (3) a population of not more than six thousand (6,000) according to the Federal census of 1960.

The State contends that Article 974d-9 does not apply to Impact since it validates only those towns shown in the. 1960 Federal census which have functioned as incorporated towns since the date of their attempted incorporation, and that Impact has not so functioned. We disagree with this contention. The evidence does establish that for a period of some 18 months, between February 13, 1960, and August 2, 1961, Impact lay dormant. However, Article 974d-9 does not apply only to towns that have functioned as incorporated towns since the date of their attempted incorporation, but it also applies to towns which have functioned as incorporated towns since the date of their incorporation. Impact was declared incorporated on August 2, 1961, and since that date Impact has functioned as an incorporated town. Thus, two prerequisites for legislative validation under Article 974d-9 — incorporation, and a functioning as an incorporated town since the date of incorporation — have been met.

The third requirement of Article 974d-9 necessitating a showing that on the effective date of the Act Impact had a population of not more than six thousand according to the Federal census of 1960 is disposed of by the discussion of the similar requirement in Article 966h. Therefore, Impact also falls within the coverage of Article 974d-9.

In our opinion if there were any defects in the incorporation, boundary lines, area, or governmental proceedings and acts of Impact, Texas, such defects have been validated by Article 966h and Article 974d-9.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.

CALVERT, C. J., concurs in the result.

WALKER and STEAKLEY, JJ„ dissenting.

WALKER, Justice

(dissenting).

For the sake of brevity and since the Court does not hold otherwise, I begin with the premise that the original incorporation proceedings were invalid for the reasons pointed out by the Court of Civil Appeals in its opinion. Tex.Civ.App., 360 S.W.2d 555. The only question then is whether the attempted incorporation was validated by either Article 966h or Article 974d-9, Vernon’s Ann.Tex.Civ.Stat. The Court evidently regards each of these statutes as a rather weak crutch, because it is unwilling to venture forth without the aid of both.

Article 966h, which became effective on May 29, 1961, applies only to cities and towns “which are now functioning or attempting to function as incorporated cities or towns.” On May 29, 1961, the incorporation election had been held and Dallas G. Perkins was prosecuting his action for ■mandamus to require the County Judge to accept the returns, canvass the votes and declare the results of the election. This was .an effort by an individual to complete the ■election process so that it could be determined whether Impact was incorporated to the end that it might begin functioning as a municipality. It did not constitute an attempt by the town to function as such, and there is no evidence that Impact was functioning or attempting to function as an incorporated town at the time Article 966h became effective. By the very terms of the statute, it has no application to Impact.

A comparison of Articles 966h and 974d-9 leads me to the conclusion that the Legislature intended by the latter statute only to validate technical defects in the incorporation of cities and towns where there has been an effort in good faith to comply with the general law. Article 966h declares the legislative intent to validate “all cities and towns in Texas” which satisfy the other requirements of the statute. It then states in no uncertain terms that the areas of such cities and towns are in all things validated, and that their incorporation shall not be held invalid because of the inclusion of more territory than is expressly authorized by Article 971, Tex.Rev.Civ.Stat.1925. This shows rather clearly the manner in which the Legislature expresses its intention to deal with the territorial problem we have in the present case. On the other hand, Article 974d-9 purports to validate “the incorporation proceedings” of cities and towns which meet the conditions there laid down, and states that their incorporation shall not be held invalid by reason of the fact that the election proceedings or other incorporation proceedings may not have been in accordance with law. The boundary lines covered by such proceedings are expressly validated, but no mention is made of area or of an effort to include more or less territory than is authorized by general law. It also appears from the emergency clause that the Legislature was concerned with “technical oversights in the incorporation of cities and towns affected by this Act.” In my opinion the lawmakers did not intend thereby to give legal vitality to an attempted incorporation which is invalid by reason of the arbitrary exclusion of a major part of the town or village.

There is yet another reason why neither of the validating statutes has any application in this case. The Legislature has there declared its purpose to validate “[a] 11 cities and towns in Texas of four thousand, five hundred (4,500) inhabitants or less, according to the last preceding Federal Census,” and the “incorporation proceedings of all cities and towns in this state heretofore incorporated or attempted to be incorporated under the General Laws of Texas, and having a population according to the Federal Census of 1960 of not more than six thousand (6,000).” Petitioners would have us disregard the references to the Federal Census on the ground that a validating act must be liberally construed to effectuate the purpose of its enactment. The Court properly rejects this argument, because the rule of liberal construction does not justify our giving the statutes an affect not intended by the Legislature. No attempt has been made to validate cities and towns which have a certain population in fact. The lawmakers stated clearly and explicitly that they were validating only those having the requisite population according to the applicable Federal Census.

In this context “according to” means "as attested or declared by.” Webster’s New International Dictionary, 2nd ed. 1941. The references to the Federal Census are simply another way of saying that the Legislature wished to validate only those cities and towns that are affirmatively shown by the official compilations of the Bureau of the Census to be within the established classifications. It would also be well to observe at this point that while the burden was on respondent to show the invalidity of the original incorporation proceedings, petitioners have alleged the validating acts as a defense to the action. In my opinion it was their burden to bring themselves within the terms of the statutes. If the application of the validating acts turns upon any unresolved issue of fact, petitioners have waived the defense by failing to obtain or request a jury finding. Rule 279, Texas Rules of Civil Procedure.

There is no testimony showing the number of people which the census enumerators, found to be residing in the area embraced by the purported corporate limits of Impact. The record does not contain a special compilation of the Census figures applicable to that territory although the Federal statute apparently authorizes the Secretary of Commerce to furnish such information upon request. 13 U.S.C.A. § 8. We have only the official report of the 1960 Federal Census for the State of Texas, hereinafter referred to as the census report, a copy of' which is attached to one of respondent’s, briefs.

The Court says, in effect, that the information found in Tables 8 and 10 of the-census report shows conclusively and as a-matter of law that the population of Impact according to the 1960 Federal Census was not more than 4,500. I am unable to agree, with this conclusion. Table 8 is a list im alphabetical order of all places in Texas which the census officials regarded as incorporated, and of certain unincorporated' places containing more than 1,000 inhabitants, with the population of each according to the 1960 Federal Census. The listed cities and towns range in population from Belcherville and La Isla, each with 35 inhabitants, to Houston with its population of 938,219. With reference to the unincorporated communities, the introduction to the census report discloses that “the Bureau-has delineated boundaries for densely settled population centers without corporate-limits.” Neither Impact nor North Park is mentioned in Table 8, and the census report does not purport to show the population of either according to the 1960 Federal Census.

Table 10 is a compilation of the population figures for certain urbanized areas. The Abilene Urbanized Area is included in such list, but there is nothing in the census. report to identify the boundaries of that Area except a map found on page 46. This map, which contains no metes or bounds and does not purport to show either Impact or North Park, is approximately 5 inches by - 3⅛ inches in size. The area which the census officials thought was bounded by the corporate limits of Abilene is indicated by hatched lines. North of and adjoining the hatched area is a small dotted area which •on the map is approximately ¼ inch by ¾6 inch in size. According to the legend accompanying the map, the latter was regarded by the census officials as an unincorporated area. One of the exhibits introduced in evidence is a large map of the territory generally known as North Park. The dotted area on the census map appears to have the same general contours as the area identified on the large map as North Park. While this might be sufficient to raise an-issue of fact, it certainly does not establish as a matter of law that the inhabitants of Impact or North Park were included by the census authorities in their compilation for the Abilene Urbanized Area or were not included in the figures for the City of Abilene.

The Court assumes that the people residing in Impact were not included in the population figures for Abilene. It then assumes that Impact 'must lie wholly within or wholly without the Abilene Urbanized Area. On the basis of these assumptions, the •Court reasons: (1) If Impact lies wholly within the Abilene Urbanized Area, it can be shown to fall within the statutory classifications by subtracting the population figures for Abilene from those for the Abilene Urbanized Area; and (2) If Impact lies wholly without the Abilene Urbanized Area, the community is shown to have less than 1,000 inhabitants according to the 1960 Federal Census by the fact that it is not mentioned in Table 8. What is the basis for reaching these conclusions as a matter of law? The record contains no information which shows definitely where the census authorities located the city limits of Abilene or the boundaries of the Abilene Urbanized Area on the ground. The mere ■fact that an area which someone has sought to incorporate is not mentioned in Table 8 does not conclusively establish that the census enumerators found less than 1,000 people residing there. Its absence from the list might be due to the fact that the responsible census authorities did not regard it as a “densely settled population center.” The Court apparently is saying that in view of the information found in the record with reference to the number of acres covered by Impact and North Park, one or the other would probably have been regarded by the census officials as a “densely settled population center without corporate limits” and thus would probably have been included by them in Table 8 if it contained more than 1,000 inhabitants. And yet the criteria by which such officials determined whether a given area was a “densely settled population center” are not disclosed by the census report or by the record in this case.

It might be proper for the trier of fact to resort to this process of reasoning, but petitioners have not obtained jury findings or requested issues to establish the facts on which the majority holding is based. The inferences drawn by the Court from the facts proven and the information contained in the census report appear to be reasonable, but it seems rather strange for a court of law to indulge in assumptions and inferences whose soundness has not been established as a matter of law. Entirely aside from this problem, however, the mere fact that the Court must resort to assumptions, probabilities, and inferences demonstrates rather convincingly that the 1960 Federal census figures at our disposal do not affirmatively declare and attest that the census enumerators found not more than 4,500 and not more than 6,000 people residing in Impact.

I would affirm the judgment of the Court of Civil Appeals.

STEAKLEY, J., joins in this dissent.

      . Ch. 275, p. 583, Reg.Session, 57th Leg., H.B. 482.

      . In the case of City of Fort Worth v. Bobbitt, 121 Tex. 14, 86 S.W.2d 470, affirmed on rehearing 121 Tex. 14, 41 S.W.2d 228, resort was made to the listing of towns in Texas in the 1920 Federal Census in order to determine what cities or towns were embraced within the terms of the statute in question.

      .The decennial census does not just include enumerations of figures. It also is composed of the addresses and names of the individuals who have been counted. In a field canvass, the addresses within the area the population of which is to be determined are found, and a count is made of the individuals who were living at those addresses. This count would be officially certified by the proper department of the Federal government as the 1960 population of the area.

      . 13 Ü.S.C.A. § 145(a). “The census of the population * ⅜ * and of housing * ⅜ * ghap he taken as of the 1st day of April, and each enumerator shall commence the enumeration of his district on the day following * * ⅜ each enumerator shall prepare the returns ⅝ * * required to be made and forward the same to the supervisor of his district within thirty days from the commencement of the enumeration ⅜ * ⅜.”

      . The total population of the urbanized area of Abilene is 91,566 persons. Of this number 90,368 persons reside within the city limits of Abilene. The remaining 1,198 persons reside outside the city limits of Abilene, but within the urbanized area of Abilene.

      . Ch. 40, p. 163, 57th Leg., 1st C.Sess., S.B. 59.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Clarence ISAACS et ux., Petitioners, v. PLAINS TRANSPORT COMPANY, Respondent.
    No. A-9386.
    Supreme Court of Texas.
    April 10, 1963.
    Rehearing Denied May 15, 1963.
    Key, Carr, Carr & Clark, Lubbock, Aubrey J. Fouts, Lubbock, for petitioners.
    Crenshaw, Dupree & Milam, Lubbock, Cecil C. Kuhne, Jr., Lubbock, for respondent.
   PER CURIAM.

Petitioners recovered a trial court judgment against respondent for damages growing out of a rear-end collision. The Court of Civil Appeals reversed the judgment and remanded the cause for retrial because of the failure of the trial court to include the element of new and independent cause in its definition of proximate cause, and its failure to define new and independent cause. 361 S.W.2d 919.

We have concluded that the issue of new and independent cause was not raised by the evidence adduced on the trial. The judgment of reversal and remand cannot stand on that ground. However, it is our duty to examine the other points of error before the Court of Civil Appeals for the purpose of determining whether the judgment should be sustained on any other ground. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383; Walker v. Texas Emp. Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298, 302.

We have concluded that testimony that the driver of Plains Transport’s truck, who was not a party defendant to the suit, was given a ticket for following too closely by a State Highway Patrolman and that he paid a fine for the penal offense represented thereby was erroneously admitted in ■evidence, and that the error in admitting the evidence, considered in context with ■counsel’s argument to the jury and the entire record, was reasonably calculated to cause and probably did cause the jury to return the answers it returned to the special issues and thereby probably caused the rendition of an improper judgment. Rule 503, Texas Rules of Civil Procedure. The pertinent testimony and argument of counsel are quoted in the opinions of the Justices of the Court of Civil Appeals and need not be repeated here.

This Court has held that evidence that ■one or another party to an automobile collision was given a ticket by a peace officer charging the commission of a penal offense is not admissible in a civil suit growing out of the same incident. Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277. And while proper proof of a plea of guilty to the offense may be admissible in a suit against the person so charged, as an admission, Fisher v. Leach, Tex.Civ.App., 221 S.W.2d 384, 389, writ refused, no reversible error; Johnson v. Woods, Tex.Civ.App., 315 S.W.2d 75, 77, writ refused, no reversible error; Canales v. Bank of California, Tex.Civ.App., 316 S.W.2d 314, 320, writ refused, no reversible error, we know of no sound basis for holding that it necessarily follows that it is admissible against his employer. Here, the driver of the truck was no longer an employee of Plains Transport when he paid the fine. There is no evidence that Plains Transport either authorized or ratified a plea of guilty or the payment. Inasmuch as Plains Transport is the only defendant in the case, the testimony was not admissible for any purpose.

We also hold that testimony of the plaintiffs that the driver of the truck stated that he was at fault and that if he had been three feet further back he could have missed the plaintiffs’ automobile was not admissible. These statements of the driver were pure conclusions and opinions, were not offered for impeachment, and were not admissible against the employer even though made immediately after the collision. Gulf C. & S. F. Ry. Co. v. Montgomery, 85 Tex. 64, 19 S.W. 1015; Red Arrow Freight Lines, Inc. v. Gravis, Tex.Civ.App., 84 S.W.2d 540, no writ history.

The application for writ of error is Refused, no reversible error. Rule 483.


author: STEAKLEY, Justice. NORVELL, Justice

text:
    CITY OF ABILENE, Petitioner, v. John F. DOWNS et al., Respondents.
    No. A-9258.
    Supreme Court of Texas.
    April 17, 1963.
    Rehearing Denied May 15, 1963.

      John W. Davidson and Les Cochran, Abilene, for petitioner.
    Brooks & Fergus, Abilene, Geo. D. Jones, Abilene, with above firm, for respondents.
   STEAKLEY, Justice.

A recovery for Respondents against the 'City of Abilene, Petitioner, for damages to their farms resulting from the operation of Petitioner’s newly constructed sewage disposal plant was affirmed by the Court of Civil Appeals. Tex.Civ.App., 359 S.W.2d 642. We granted the application of Petitioner for writ of error to review the decision of the Court of Civil Appeals with respect to Petitioner’s application for change of venue and Petitioner’s pleas of limitation.

APPLICATION FOR CHANGE OF VENUE

Respondents, John F. Downs, Vena Powers et al., and F. D. Shotwell et al., .filed separate suits against Petitioner in June and in October, 1960. The suits were for damages to their farms resulting from Petitioner’s sewage disposal plant which commenced operations on July 10, 1958. The cases were originally set for trial in December, 1960, but were continued on motion of Petitioner and reset for trial on March 20, 1961. Prior thereto, on February 6, 1961, the causes were consolidated upon motion of Respondents. Trial of the ■consolidated cases was continued by agreement and reset for March 27, 1961. Again, at the request of Petitioner, the consolidated cases were reset for trial on April 17, 1961, on which date a jury panel was ordered, with no other case set for trial. Respondents filed their first amended original petition on April 6, 1961. On April 17, 1961, at 8:50 a. m., Petitioner filed an application for change of venue. Petitioner and Respondents announced ready for trial, after which Petitioner urged its application for change of venue. Respondents did not file an affidavit controverting the application for change of venue as required by Rule 258, Texas Rules of Civil Procedure. The court directed the parties to proceed with the examination of the jury panel and thereafter overruled the application. On May 9, 1961, subsequent to the trial of the cases, Respondents requested findings and conclusions with respect to the order of the court overruling the application for change of venue, in response to which the court filed findings and conclusions amending its original order overruling the application and making the findings and conclusions a part of the order. Among other things, the court found that the motion was not timely filed; that it was filed at such a time as to cause delay and disruption of the court’s docket; that the special setting on April 17, 1961, was at the request of Petitioner; and that at no time did Petitioner apprise the court of its intention to seek a change of venue.

Rule 258, T.R.C.P., provides as follows:

“Where such application for a change of venue is duly made, it shall be granted, unless the credibility of those making such application, or their means of knowledge or the truth of the facts set out in the said application are attacked by the affidavit of a credible person; when thus attacked, the issue thus formed shall be tried by the judge, and the application either granted or refused.”

Rule 258 by its terms is mandatorily operative. It provides the only means by which issue can be joined. The affidavit of a credible person attacking the application for a change of venue in the respects specified in Rule 258 is prerequisite to the invocation of the discretionary powers of a trial judge to determine if the applicant can obtain a fair and impartial trial; if the affidavit is not filed, the trial judge is required to remove the cause pursuant to Rule 258 or, if applicable, Rule 260. Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, wr. ref. w. o. m.; Taylor v. Batte, Tex.Civ.App., 145 S.W.2d 1116, no writ hist. The fundamental principle involved was stated in Freeman v. Ortiz, Tex.Civ.App., 136 S.W. 113, affirmed 106 Tex. 1, 153 S.W. 304:

“The purpose of a change of venue is that the parties to a suit may obtain a fair and impartial trial, for a judgment obtained without such a trial is a travesty upon justice and, if upheld, a disgrace to the law.”

Rule 258 presupposes, and we think properly, that a change of venue is necessary in the interests of justice if the application therefor stands unchallenged in the manner prescribed.

The trial judge was therefore under the duty of removing the cases pursuant to Petitioner’s application for change of venue and this cause must be reversed and remanded for this purpose, and for other reasons now to be discussed.

We preface our discussion of Petitioner’s pleas of limitation with the following explanatory comments. In resolving Petitioner’s point of error urging that Respondents’ suits were barred by the two-year statute of limitations, we are required to review the holding of the Court of Civil Appeals in City of Abilene v. Bailey, 345 S.W.2d 540, in which we refused the application for writ of error with the notation “no reversible error.” This is notwithstanding that here, as in Bailey, under the factual situations involved, the basic question of the essential elements of a cause of action to support a recovery for a taking or damaging of private property for a public use under Article I, Section 17 of the Constitution, Vernon’s Ann.St., was not properly preserved for review by this Court. This is recognized by Petitioner in its supplemental brief filed herein, in which it is stated that Petitioner’s point of error presenting this problem was not carried forward in its motion for rehearing in the Court of Civil Appeals in Bailey, and was dropped in the instant case because of our refusal of the application for writ of error in Bailey. Also, as will be later developed, our holdings with respect to Petitioner’s plea of limitation require, in turn, consideration of Petitioner’s point of error attacking the form of the issues submitted by the court to determine the question of damages.

PETITIONER’S PLEAS OF LIMITATION

The original petition of Respondent Downs was filed on June 17, 1960, and the petitions of Respondents Powers and. Shotwell were filed October 20, 1960. Citations were issued in the cases on October 25, 1960.

Respondents alleged in their first amended petition that the sewage disposal plant of Petitioner began operation on or about June 30, 1958, and that on or about November 6, 1959, the operations reached full capacity; that at this time, and after-wards, “the obnoxious fumes and obnoxious odors which spread across and invaded the property and buildings became so offensive as to make their premises unfit for continuous habitation; that such odors from and after the date hereinabove set out being generated on and originating from' the sewage disposal plant of the defendant have become so offensive and collect on the property of these plaintiffs that their property has been diminished in value and damaged as hereinafter set out in violation of Section 17, Article One of the Constitution of Texas.” Respondents also alleged that “the incidence of mosquitoes and flies has multiplied so that the land and premises of these plaintiffs is no longer a desirable place to live or economically sound for use as a stock farm and that these plaintiffs’ property has been diminished in value.” It is thus seen that the purport of the allegations of Respondents was that the operations of the plant constituted a nuisance on or about November 6, 1959, when the operations of the plant reached full capacity, entitling Respondents to damages under Section 17 of Article I of our Constitution which provides that “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * *

Petitioner in its answer alleged by way of affirmative defense that Respondents’ causes of action were barred by the two-year statute of limitation “in that the permanent damage claimed to plaintiffs’ land, if any, occurred when the defendant constructed and placed its sewage disposal plant in operation on or about July, 1958 * * * and further * * * the permanent damage claimed by Plaintiff to his land occurred when such damage became apparent because of the construction and operation of defendant’s said plant.” The purport of Petitioner’s defensive plea of limitation was that the conditions creating the nuisance and the right to damages, if such existed, arose when the plant was first placed in operation in July, 1958, rather than, as alleged by Respondents, when the plant reached full operations on or about November 6, 1959.

The Water and Sewer Superintendent for Petitioner testified that the sewage disposal plant processed 3,554,000 gallons upon commencement of operations on July 10, 1958; that the flow on July 17, 1959, was 5,698,000 gallons; that the average daily flow in 1960 was 6,500,000 gallons, and that on or about November 6, 1959, the last flow to the old sewer farm was taken off and transferred to the new sewage disposal plant.

The trial court submitted the liability issue in terms of the plant causing objectionable matter, such as noxious fumes, odors or insects to come upon the farms of Respondents; the damage issue in terms of whether the objectionable matter caused depreciation in the market value of Respondents’ farms and whether such damage was permanent; the issues to determine the amount of damages in terms of the reasonable cash market value of the farms immediately prior 'and immediately after the beginning and completion of the depreciation in value; and the limitation issue in terms of when Respondents had knowledge that their lands were damaged.

The Court of Civil Appeals upheld the manner of submission of the liability issue and stated that the City is liable under the Constitution for diminution in market value of land resulting from noxious odors and insects cast thereon regardless of the question of negligence or of nuisance. The Court further stated upon authority of City of Abilene v. Bailey, Tex.Civ.App., 345 S.W.2d 540, wr. ref. n. r. e., that the finding that the operation of Petitioner’s sewage disposal plant caused noxious fumes, odors and insects to come upon the lands of Respondents amounted to a finding that the operation of the sewage disposal plant created a nuisance.

Arguing from an understandable misinterpretation of the basis of our refusal of the application for writ of error in the Bailey case, Petitioner contends that Respondents suffered a legal injury, and hence their causes of action arose “the moment the odors and insects invaded their premises,” which, under the evidence, continues Petitioner, was immediately after the sewer farm was placed in operation on July 10, 1958. Further reasoning therefrom, Petitioner contends that the rule applied by this Court in Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336, and similar cases, is controlling here, i. e., that where the facility is of a permanent character and the invasion is continuous and recurring, the statute of limitations begins to run at the time of the first invasion.

The Court of Civil Appeals held that “[ujntil the condition did become readily discernible or apparent there was actually no injury” to the lands of Respondents and that the “evidence does not conclusively show that the invasion of appellees’ lands from odors and insects commenced in July of 1958 and certainly does not conclusively show that such invasion commenced within their knowledge at that time.” Upon this reasoning the Court of Civil Appeals upheld the submission of the limitation issue by the trial court in terms of when Respondents “had knowledge that their land was damaged * * * as the result of obnoxious odors”; the jury answered July, 1959, which was within the limitation period.

The resolution of the foregoing rests in the fact that the invading agents resulting from the operations of the sewage disposal plant do not affect the physical condition or cause damage to the land itself — as was the case of flowing water in Fromme — but are the cause of, and result in, personal discomfort and annoyance to those who reside on the land. The damages consequent therefrom are recoverable as a taking or damaging of private property for a public use under Article I, Section 17, of the Constitution only if, and after, the operations of the sewer farm constitute a nuisance.

The basic rule was early stated by this Court in Baugh v. Texas & N. O. R. Co., 80 Tex. 56, 15 S.W. 587:

“When a nuisance is created by the construction of works in their nature permanent, and which, as sometimes occurs in case of works for a public use, are not subject to be abated, the rule is that all damages resulting therefrom to property may be recovered in one action, and the proper measure of damages is the depreciation in the value of the property. Rosenthal v. [Taylor, B. & H.] Railway Co., (Tex.) ante, [79 Tex. 325, 15 S.W.] 268, (decided at the present term;) [Gainesville, H. & W.] Railway Co. v. Hall, 78 Tex. 169, 14 S.W.Rep. 259 [9 L.R.A. 298].”

It was further held by this Court in Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119, 27 L.R.A.,N.S., 237:

“To justify a recovery of damages for personal inconvenience or reduction in the value of their property, the plaintiffs must prove such annoyance, discomfort, or other interruption of the use of their home as would constitute a nuisance. The standard by which the issue of nuisance must be determined by the jury is that the conditions caused by the operation of the plant were such
as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits. In other words, the acts complained of must constitute a nuisance. W. P. O. Co. v. Cook, 6 Tex.Civ.App. 573, 26 S.W. 96; League v. Journeay, 25 Tex. 172, Dittman v. Repp., 50 Md. 513, 33 Am.Rep. 325; 21 Am. & Eng. Ency. 687.
“If there be no nuisance, there can be no recovery of damages for such annoyance as may exist, nor for diminution in the value of the property.”

The rule in Belden was reaffirmed by this Court in Brewster v. City of Forney (Tex.Comm.App.), 223 S.W. 175. The case involved a suit for damages against a municipality resulting from the operation of a sewage disposal system. The jury found that the operations caused offensive odors to such an extent as to make the property of the plaintiff undesirable as a home, and resulted in a diminution in the fair market value of the property of $10.00 per acre. The trial court also submitted the question of whether the plant as operated was a nuisance, to which the jury answered in the negative. In connection with the latter issue the court defined a nuisance as “the use of one’s own property for the conducting of one’s own business in such an unreasonable manner as will, under all the circumstances, unfairly cause real or material damages to another.” The trial court entered judgment for the municipality upon the basis of the jury finding that the operation of the system did not constitute a nuisance, and this was affirmed by the Court of Civil Appeals. Brewster v. City of Forney, Tex.Civ.App., 196 S.W. 636. The Court of Civil Appeals reasoned that the jury finding negativing a nuisance rendered the case one of damages without the existence of a nuisance, “which was damnum absque injuria.”

The Commission of Appeals was of the opinion “that the facts found by the jury showed beyond doubt or question that the construction and operation of the plant complained of was, as related to plaintiff, [constituted] a ‘nuisance/ ” and that these findings rendered the additional finding of the jury negativing nuisance “wholly immaterial.” The Commission of Appeals did not regard as controlling the holding in Belden that the issue of nuisance must be determined by the standard of whether or not the operations of the sewage disposal system were such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits. It is also clear that this Court disagreed with the Commission of Appeals upon the crucial question of what is essential to the establishment of a nuisance to support a recovery founded on a taking or damaging of private property for a public use under Section 17 of Article I of the Constitution. This is apparent from the view of this Court quoted by the Commission of Appeals in its opinion, and by the order of this Court remanding the case “for further trial in accordance with the rules announced in Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119, 27 L.R.A. (N.S.) 237”; Brewster v. City of Forney (Tex.Comm.App.), 223 S.W. 175.

The rationale of the decisions is that a municipality is not guilty of an actionable tort in the fact that its act of constructing and operating a sewage disposal plant results in what would be a private nuisance if operated as a private enterprise; but if the construction and operation of the plant results in a nuisance, such acts of the municipality constitute a damaging or taking of property under Section 17 of Article 1 of the Texas Constitution. Without the requirement that the facts supporting a recovery under the Constitution as a taking or damaging of private property for public use must be such as would support a recovery for a nuisance, the municipality would be held to a higher liability than a private person engaging in the same acts.

This is not to say, of course, that the facts must necessarily be characterized in pleadings or findings as a nuisance, but it does mean that the conditions and circumstances shown by the evidence, and the findings, must establish a nuisance. This is our construction of the opinion in City of Temple v. Mitchell, Tex.Civ.App., 180 S.W.2d 959, no wr. hist., cited by the Court of Civil Appeals in City of Abilene v. Bailey, supra. The statement in Houston & T. C. R. Co. v. Davis, 45 Tex.Civ.App. 212, 100 S.W. 1013, er. ref., also cited by the Court in Bailey, to the effect that there may be a recovery “for property taken and damaged for a public purpose regardless of any question of negligence or nuisance” is not in harmony with the decisions if considered as a holding that there can be a taking or damaging of property regardless of whether or not the nature of the public use would constitute a nuisance. The decision of this Court in Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298, which was cited in the Davis case as authority for the foregoing statement, approached the problem by saying that the Legislature certainly did not intend to authorize “a corporation to do an act for a public use which, if done by an individual without legislative sanction, would be actionable, and at the same time exempt it from liability to respondent in damages to the owner whose property has been injured.” From this the Court proceeded to hold that the noise, smoke and vibration of the trains which depreciated the lands involved in the case would have been a nuisance at common law if the business of operating the trains had been carried on by a private person, and upon this basis the court held that the affected lands had been taken and damaged in the constitutional sense.

Article 5526, Vernon’s Ann.Tex.Stats., imposes a limitation period of within two years after the cause of action shall have accrued regarding actions in trespass for injury done to the estate or property of another. It was said by this Court in Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926, that “Before it can be said that a cause of action exists in a legal sense, there must be such a mature right as may be declared upon and maintained”; the Court further quoted with approval the statement that “The statute of limitation begins to run from the time when a complete cause of action accrued— that is, when a suit may be maintained— and not until that time.” It was held in Stanley v. Schwalby, 85 Tex. 348, 19 S.W. 264, that “Limitation runs upon the right or cause of action accruing, and not before; and this does not exist unless facts exist which authorize the person asserting claim to ask relief from some court of justice against the person who ought to make reparation.”

Respondents did not have a cause of action against Petitioner until there was a legal injury for which Petitioner was liable. See City of Ottumwa v. Nicholson, 161 Iowa 473, 143 N.W. 439, L.R.A.1916E, 983. Liability arose against Petitioner when, and not until, the operations of its sewage disposal system were such as to constitute a nuisance and this is determinable by the standard of when the facts and circumstances were “such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits.” Sherman Gas & Electric Co. v. Belden, supra. See also City of Temple v. Mitchell, supra, holding that the invasion of property rights must be substantial to constitute a nuisance, the standard for determining substantiality being that of normal persons in the particular locality.

The burden was upon Petitioner to establish its defensive plea of limitation. City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652. Essential to its defense was a finding establishing the time when the cause of action accrued to Respondents, i. e., when operations of the sewage facilities were such as to constitute a nuisance under the standard to be applied. An issue for such purpose was not requested by Petitioner nor did Petitioner object to the limitation issue submitted by the trial court for the reason that it did not embrace the proper standard. Petitioner excepted to the form of the liability issues submitted by the trial court which inquired if “the sewage disposal operation in question has caused objectionable matter, if any, such as noxious fumes, odors or insects, if any, to come upon” Plaintiffs’ farms, upon the ground that “the Plaintiffs have failed in this case to show that the Defendant did any act which was performed in a negligent manner or such as to constitute a nuisance which was a proximate cause of Plaintiffs’ alleged injuries”; also, Petitioner’s fifth point of error to the Court of Civil Appeals asserted that “the trial court erred in failing to submit an issue to the jury inquiring as to whether the acts of Appellant were such as to constitute a continuing and permanent nuisance for the reason that such a finding is an essential element of Appellees’ cause of action.” However, Petitioner did not preserve the foregoing point of error in its motion for rehearing in the Court of Civil Appeals and did not bring such a point of error to this Court in its application for writ of error.

THE DAMAGE ISSUES

The principles controlling our conclusions concerning the liability and limitation issues bear a close relationship to the damage issues. As before mentioned, the damage issues were phrased in terms of whether the fumes, odors or insects “have caused depreciation in the market value of” Respondents’ farms and, if so, what were the reasonable cash market values of Respondents’ farms “immediately prior to the beginning of such depreciation in the value” and “immediately after the completion of the depreciation in value.” Petitioner properly objected to these issues, and has preserved its objections by points of error before the Court of Civil Appeals and here, upon the grounds that there is neither a time specified fixing the time of injury or depreciation, nor any standard to be applied, all of which permitted the jury to fix the amount of depreciation at any time after the injury occurred up to the time of trial.

Depreciation in the value of the property is the proper measure of damages in cases where a permanent nuisance has been created by the construction of works for a public use. Baugh v. Texas & N. O. R. Co., supra. Under the general rule this is determined by the difference in the reasonable market value of the property immediately before and immediately after the injury. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; Trinity & S. Ry. Co. v. Schofield, 72 Tex. 499, 10 S.W. 575; Town of Merkel v. Patterson, Tex.Civ.App., 56 S.W.2d 941, er. ref. We have held earlier that in this case the injury to Respondents occurred, and the right of action for the damages accrued, when the operations of Petitioner’s sewage disposal plant reached the proportions of a nuisance. It is evident, however, that under the facts here, the operations of the sewage disposal plant could have caused depreciation in the reasonable market value of Respondents’ farms before Respondents suffered a legal injury, i. e., before the operations were such as to constitute a nuisance, dependent, of course, upon the evidence and the jury findings. As a result, the measurement of the consequential damages to Respondents by the test of the reasonable market value of their farms immediately before the operations constituted a- nuisance would not permit an allowance for the depreciation which might have occurred by reason of the construction of the plant and its operations prior to the time their effect was such as to constitute a nuisance under the test of offensiveness to a person of ordinary sensibilities.

The question, then, is whether Respondents are entitled to consideration by the jury of depreciation in the reasonable market value of their farms resulting from the operations of the plant before their causes of action arose, and the period of limitation commenced, if it is shown by the evidence, and found by the jury, that a nuisance arose subsequent to the commencement of operations. If such is the case, the jury might well further conclude that the operations of the plant before it became a nuisance caused insects and odors to come upon Respondents’ farms to such an extent as to diminish their market value, although the invasions during this period of time were not of such proportions as to constitute a nuisance. In turn, Respondents would be denied recovery in this respect if the damage issues are limited to consideration of the reasonable cash market value of the farms at the time the operations of the plant became such as to constitute a nuisance.

It is our view that the entire depreciation caused by the operations of the sewage disposal plant, if held to constitute a nuisance at a later date, is to be included in properly measuring the damages to which Respondents are entitled. This is, in fact, the depreciation in the reasonable cash market value of the property resulting from that which became a nuisance. We therefore hold that upon the further trial of this case, and in event of findings that the nuisance arose at a later date, the jury should be required to determine the reasonable cash market value of Respondents’ farms immediately after the nuisance arose, and what the reasonable cash market value of Respondents’ farms would have been at that time if the farms had not been invaded by odors and insects caused by the operation of the sewage disposal plant.

The judgments of the courts below are reversed and the cause is remanded to the district court with instructions to remove the cause pursuant to Petitioner’s application for a change of venue, and in accordance with Rule 259, Texas Rules of Civil Procedure.

NORVELL, J., dissenting.

NORVELL, Justice

(dissenting).

I am in thorough agreement with the holdings of the Court upon the matters discussed in its opinion with the single exception of that relating to the change of venue ordered by the Court. On this one point, I am in agreement with the Court of Civil Appeals.


author: GREENHILL, Justice. CALVERT, Chief Justice GRIFFIN, Justice.

text:
    SOUTHWESTERN FIRE & CASUALTY COMPANY, Petitioner, v. Guy LARUE, Respondent.
    No. A-9114.
    Supreme Court of Texas.
    April 17, 1963.
    Rehearing Denied May 15, 1963.
    Warren Whitham, Dallas, for petitioner.
    William Andress, Jr., Dallas, for respondent.
   GREENHILL, Justice.

Guy Larue executed a promissory note for $4,871.93 which was duly endorsed to the petitioner Insurance Company. The company brought suit on the note and for attorneys’ fees, alleging that the balance owed on the note was $2,747.97. Copies of the note and its reverse side were attached to the company’s petition. The back of the note showed the endorsement to the order of the company, but it showed no credits.

Larue’s unsworn answer had two points: (1) a special exception that the company’s petition failed to show when and how credits for payments had been applied or when demand was made [for payment] on the note; and (2) a general denial.

The company thereupon moved for summary judgment. No answer was made to that motion. Both sides appeared in the trial court, which entered judgment against Larue for $2,747.97 plus attorneys’ fees. The Court of Civil Appeals at Dallas reversed the judgment and remanded the cause to the trial court for a new trial. Its opinion is based on the failure of the trial court to sustain Larue’s special exception and because of the Court of Civil Appeals’ holding that there was an issue of fact: that the company’s petition itself created an ambiguity in the amount which was owed by Larue. Tex.Civ.App., 357 S.W.2d 821.

Larue does not deny the execution of the note. This he concedes in his brief. He does not question its endorsement to the company who sued upon it, or that it was based upon adequate consideration. Indeed all of these defenses must have been raised by sworn pleadings under Rule 93 of the Texas Rules of Civil Procedure. No point or argument is made by Larue on the question of demand for payment.

Similarly, Rule 94 provides that other affirmative defenses including that of payment, fraud, release, and the statute of limitations must be affirmatively pleaded. Under Rule 94 and Rule 95, payment is thus an affirmative defense on which the defendant has the burden of proof, which must be specially pleaded, and may not be shown under a general denial. Southwestern Investment Company v. Allen, 160 Tex. 258, 328 S.W.2d 866 (1959); Commercial Inv. Trust v. Smart, 123 Tex. 180, 67 S.W.2d 858, 69 S.W.2d 35 (1934).

Since the execution of the note and its endorsement were not in issue, and since the burden was upon Larue to establish payments on the note, the trial court did not err in overruling Larue’s special exception which would have required the company to show what payments had been made and when.

Nor do the allegations of the company’s petition create an ambiguity or an issue of fact. It alleged the face amount of the note and the amount which was due on the note. The company could recover no more than the amount sued for, and the burden was upon Larue to prove payment or release of any further sums.

There is one feature of the case which disturbs us, but it is not raised by point of error in this Court or in the Court of Civil Appeals. As the record reaches us, the original of the note was not attached to the pleadings or to an affidavit presented in support of the motion for summary judgment, or by deposition. But no point was made of this failure in the Court of Civil Appeals. Indeed, in Larue’s brief in the Court of Civil Appeals, it is stated under his point one as a fact that “The note is attached as an exhibit, rather informal in nature, for $4,871.93. * * *” This statement apparently was relied upon by the .Court of Civil Appeals. The second line of its opinion states that “The note itself was attached to plaintiff’s petition and made a part thereof for all purposes.” 357 S.W.2d at 822. The parties themselves were not disturbed by the failure of the company to attach the original of the note to its pleadings or to get it before the court by affidavit or deposition. Since no error was assigned thereon, we could not reverse for this failure. Assuming it to have been error, it was not of such character as to constitute fundamental error.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

CALVERT, C. J., and GRIFFIN, WALKER and HAMILTON, JJ., dissenting.

CALVERT, Chief Justice

(dissenting).

I dissent.

I disagree with the holding that it was not error to overrule Larue’s special exception. However, my disagreement with that holding would not necessarily lead me to dissent. My dissent is prompted by what seems to me a far more fundamental error being committed by the Court. That error lies in an apparent misconception of the limited office of a motion for summary judgment on pleadings.

Although the Court does not so state in its opinion, the record discloses that Southwestern sought a summary judgment on the pleadings. The motion is brief and un-sworn and therefore cannot itself be treated as an affidavit. No affidavits, admissions, depositions, sworn copy of the note or other summary judgment proofs were attached to or filed with the motion. It asserted a right to a summary judgment “on the grounds that Defendant failed to submit any affirmative defenses, and that the defense set forth in the Defendant’s Answer [a general denial] is insufficient as a matter of law, and that there is, therefore, no genuine issue as to any material fact, and the plaintiff is entitled to Judgment as a matter of law.” (Emphasis added). No answer to the motion was filed.

The trial court’s judgment reflects that it was entered on the pleadings. Following the usual formal recitations and a recitation that Larue’s special exception should be overruled, the judgment continues: “and the court having heard and considered the pleadings on file and the statements of counsel, is of the opinion and so finds that they show an absence of genuine issue of any material fact and that plaintiff is entitled to summary judgment as a matter of law for the principal sum of $2,747.97 plus attorney’s fees in the amount of $274.-80.” Judgment was then entered accordingly.

It is perhaps well at this point to consider the office of a motion for summary judgment on pleadings. In an article in 22 Texas Law Review 433, 439-440, Suggs and Stumberg liken such a motion to the old general demurrer. McDonald, writing at some length in 30 Texas Law Review 285, 297, undertakes a statement of sound rules of summary judgment practice. As one rule he states:

“a. Where a motion is directed solely to the pleadings, and is not supported by affidavits, depositions, admissions, or other extrinsic evidence, the motion is closely analogous to a special exception challenging the sufficiency of the opponent’s pleadings as a matter of law. No counter affidavits are then necessary. The pleadings will be tested on their contents, and if they are sufficient in law, the motion will be overruled.” (Emphasis the author’s)

There is no requirement that a motion for summary judgment be a sworn motion, Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508, and Rule 166-A expressly provides that one may be made “with or without supporting affidavits.” Moreover, a motion need not indicate on its face whether it is directed at the pleadings alone or whether it is intended to pierce the pleadings with evidence, although it is certainly better practice to make this disclosure in the motion itself. If the motion is directed solely at the legal insufficiency of the pleadings to raise a fact issue, there is, of course, no place in the proceeding for affidavits, admissions, depositions or other summary judgment proofs. The only question before the court in this type of proceeding on a defendant’s motion is whether the facts alleged by the plaintiff, if proved, would support a recovery in law. An example of when a defendant’s motion on the pleadings properly may be granted is found in Schroeder v. Texas & Pacific Ry. Co., Tex.Civ.App., 243 S.W.2d 261, no writ history. It is doubtful that a summary judgment may ever be entered on the pleadings in favor of a plaintiff when an answer has been filed. Unlike some other jurisdictions, and perhaps unfortunately, our Rules of Procedure authorize the defensive plea of general denial; and by the express terms of Rule 92, the plea puts in issue all matters pleaded by the adverse party which are not required to be denied under oath. Thus the defensive plea of general denial is sufficient in law to raise issues of fact with respect to every matter essential to the plaintiff’s right of recovery save only those matters required to be denied under oath, and puts the burden on the plaintiff of proving all such matters. Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656; Altgelt v. Emilienburg, 64 Tex. 150. Once this fact is recognized, it follows necessarily that a summary judgment on the pleadings may never properly be entered for a plaintiff when the defendant has a general denial on file — not even in a suit on a promissory note.

I have said that it seems to me that the Court misconceives the office of a motion for summary judgment on pleadings. Its opinion does not recognize that the motion was made and granted on the pleadings. Further, it speaks of the burden being upon Larue “to establish payments on the note,” thus treating the proceeding as though it were one contemplating the introduction of evidence. Perhaps the strongest indication of a misconception of the office of the motion lies in the Court’s statement that it is disturbed by Southwestern’s failure to produce the original note and get it before the trial court by affidavit or deposition. Why so? If the motion on the pleadings was good, production of evidence of any character was unnecessary.

Getting to the merits of the problem before us, the first question to be faced is whether Southwestern’s motion for summary judgment on the pleadings was properly granted. The Court seems to hold that it was.

The opinion of the Court refers to the fact that Larue’s answer contained no sworn pleas denying execution of the note, asserting failure of consideration, or questioning the genuineness of the endorsement and assignment to Southwestern. It refers also to the fact that neither a plea of payment nor any other plea required by Rule 94 to be asserted affirmatively was filed. All this is granted; but it does not meet the fact that the summary judgment was erroneously entered if issues of fact were raised by Larue’s general denial. I suggest that the general denial raised issues of fact and that the judgment was, therefore, erroneously entered.

In Bond v. Mallow, 17 Tex. 636, 637, this Court stated that a general denial in a suit on a note is “as nearly equivalent to no answer as it can be and yet have the name of a plea.” Nevertheless, we recognized in Robinson v. Brinson, 20 Tex. 438, 440, that “the general denial is not a plea, that the court can disregard in an action on a note; and that for some purposes it is a good plea, although it be not sworn to;” and we stated that “it imposes on the plaintiff the duty of producing and offering in evidence the note sued on.”

As in all other types of suits, a general denial in a suit on a note puts in issue all matters pleaded by the plaintiff which are not required to be denied under oath. 9 Tex.Jur.2d 292. A general denial thus undoubtedly puts in issue allegations that the plaintiff is the owner or holder of the note, that the note is due, and that the note provides for attorney fees. Proof of these matters are essential to the plaintiff’s right of recovery. Neither the Negotiable Instruments Act nor the Rules of Civil Procedure require that any of them be denied under oath before they can be disproved. Traverse of them is not an affirmative defense to be specially pleaded under Rule 94. Thus under his general denial Larue could not question the genuineness of the endorsement and assignment of the note by the original payee to Southwestern, but the general denial did put the burden upon Southwestern to prove that it was the owner or holder of the note at the time of suit, and thus that it had not assigned and delivered it to another.

In an ordinary trial on the merits this burden would be discharged by producing and introducing the note in evidence. If the note showed, as the copy attached to the petition indicates, that it had been assigned to Southwestern by endorsement by the payee, no further proof by Southwestern would have been required inasmuch as proof that it was the holder of the note would entitle it to a judgment which would inure to the benefit of any assignee. Art. 5935, Sec. 51 and Art. 5948, Sec. 191; Anderson v. Shaw, 2 Tex. 285, 286; Thompson v. Cartwright, 1 Tex. 87. But in the absence of production and introduction of the note, a judgment in favor of Southwestern would have been improper. Davis v. Marshall, 25 Tex. 372; Webb v. Reynolds, Tex.Com.App., 207 S.W. 914, 917; Hayward v. Duiker, Tex.Civ.App. 276 S.W.2d 320, no writ history; Able v. Chandler, 12 Tex. 88, 93. Moreover, if Southwestern failed to produce and introduce the note, Larue, under his general denial, could prove that Southwestern was no longer its owner and could thus defeat a recovery. Jackson v. Means, Tex.Com.App., 12 S.W.2d 167, 168; Texas City Tire Shop, Inc. v. Alexander, Tex.Civ.App., 333 S.W.2d 690, 693.

The only difference between an ordinary trial on the merits, and a summary judgment proceeding, with the general denial on file, lies in the type of evidence required. In the summary judgment proceeding Southwestern could have discharged its burden without producing and introducing the original note, under Rule 166-A(e), by attaching a sworn or certified copy of the note to a proper affidavit or by serving such a copy with the affidavit. Gardner v. Martin, 162 Tex. 117, 345 S.W.2d 277.

In either event — whether in a trial on the merits or in a summary judgment proceeding — a general denial raises an issue of ownership of a note. As stated, the general denial also put in issue, and put the burden upon Southwestern to prove that, the note was due and provided for attorney fees. This is too elementary to require elaboration or discussion. There is another matter which, in my opinion, was put in issue by the general denial which I shall discuss later.

With these matters essential to Southwestern’s right of recovery put in issue by Larue’s general denial, the granting of Southwestern’s motion for summary judgment on the pleadings was clearly erroneous. A holding that it was proper does not support, but subverts, the purpose of the Rule 166-A; for while it is the purpose of the Rule to provide a summary method of obtaining judgment on the pleadings when no legal right of recovery is pleaded by the plaintiff and of piercing sham pleadings by evidence, it is not the purpose of the Rule to provide a short-cut to a judgment, requiring evidence, through an assumption that pleadings legally sufficient to raise issues, are in fact sham. Squarely in point, and in my opinion correctly decided, is Stanford v. Franklin, Tex.Civ.App., 312 S.W.2d 703, no writ history. In that case a summary judgment on the pleadings entered in favor of a plaintiff in a suit on checks was reversed on the ground that a general denial filed by the defendant raised fact issues which could only be resolved by evidence. And if McDonald’s statement, quoted above, that a motion on pleadings is “closely analogous to a special exception challenging the sufficiency of the opponent's pleadings as a matter of law” be correct, this Court’s decision in Kinnard v. Herlock, 20 Tex. 48, forecloses the question. We held that the sustaining of a special exception to a general denial in a suit on a note was reversible error.

The opinion of the Court lays some emphasis on the fact that “no point of error was made” and “no error was assigned” in the Court of Civil Appeals to the failure of Southwestern to produce and put the original note in evidence. These failures may have some bearing on the right of the Court of Civil Appeals to reverse the trial court’s judgment, but they have none whatever in determining whether the action of the trial court in entering summary judgment was erroneous. This brings me to the question of whether the judgment of the Court of Civil Appeals should be reversed, and to the other matter which, in my opinion, was put in issue by the general denial.

The trial court rendered judgment for the sum of $2,747.97 plus attorney’s fees in the amount of $274.80. Since the judgment was entered on the pleadings, the Court must have accepted the amount alleged to be due as correct, without evidence, and accepted as true, without evidence, that the note provided for ten percent attorney’s fees. Larue’s general denial put both matters in issue. To hold otherwise would lead to an anomaly in the law.

If Larue had defaulted and filed no pleading, Southwestern could not properly have obtained a judgment without production and introduction of the note in evidence. Rule 241 provides: “Where a judgment by default is rendered against the defendant, * * * if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and judgment final shall be rendered therefor * * By the provisions of the Rule it is the duty of the Court to determine that the claim is liquidated and proved by an instrument in writing and to assess the damages or to have them assessed under its direction. While all other elements of the plaintiff’s claim are taken as confessed as alleged, the amount of the plaintiff’s damages is not taken as confessed as alleged. That being true, it is totally illogical to say that the filing of a general denial by way of answer to the petition relieves the plaintiff of the burden of producing evidence and authorizes a summary judgment on the pleadings. Thus if Larue had defaulted in this case, the trial court could not have rendered the judgment it did render absent production in evidence of the note and testimony showing payments and credits supporting the judgment. With the note and testimony of payments before it, the Court could properly and correctly determine the amount due and payable; without that evidence, it could not. One may ask, how did the filing of the general denial, which put in issue the correctness of Southwestern’s computation, authorize the trial court to accept Southwestern’s computation as correct ? And how did the filing of the general denial authorize the Court to find, without evidence, that the note provided for attorney’s fees and that the correct amount thereof was $274.80?

Larue had before the Court of Civil Appeals a point of error and an argument thereunder which went to the heart of this matter. The point of error is as follows: “A pleading of a note for $4,871.93 with the note in such amount attached as an exhibit, showing no credits, will not sustain a summary judgment over general denial for $2,747.97 plus claimed attorney’s fees, without supporting affidavits to explain the discrepancy, there being an obvious dispute of fact.” What the point of error says in effect, when stripped of sur-plusage, is that with a general denial on file the summary judgment rendered for $2,747.97 and $274.80 attorney’s fees could not be granted on the pleading, but evidence was required. That is also the effect of the statement and argument under the. point.

In his statement under the point Larue points out that while he did not deny execution of the note, he did “by his general denial, deny the amount owing under the note.” He argues that the amount owing on the note is not self-proving and does not have to be denied under oath; that the “general denial reaches it, and raises the question of fact;” that “the claimed balance of $2,747.97 is material to the plaintiff’s recovery,” and that “It has not been established in any manner.” Thus the basis of Larue’s complaint was not that Southwestern had failed properly to present the note as a basis for the summary judgment, but was that summary judgment had been rendered on the pleadings rather than requiring proof when an issue of the correctness of the amount sued for had been put in issue by his general denial.

In 13 Texas Bar Journal 93-94, Stayton refers to the delay of judgment in a simple suit on a note that had been caused by filing a general denial and demanding a jury before adoption of Rule 166-A, and continues: “Now, however, such a case should be simple and a judgment promptly rendered. The plaintiff need only show under oath that he is the legal holder— indeed producing the note — and that will be all there is to it.” So, here, if Southwestern had sought summary judgment on proofs rather than on pleadings, a simple affidavit that it was the owner and holder of the note and that certain payments had been made with credits properly allowed, with a sworn copy of the note attached, would have made it a simple matter for the Court to render judgment for the amount actually due. Without such proofs the judgment was clearly erroneous, and in my opinion the error was properly preserved and presented in the Court of Civil Appeals. The judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause is correct.

I would affirm the judgment of the Court of Civil Appeals.

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

GRIFFIN, Justice.

I join in the dissent on the ground that the note, or a copy admissible in evidence in accordance with legal rules, was not attached to an affidavit supporting the motion for summary judgment.

      . All references to Rules are to Texas Rules of Civil Procedure.