author: SHARPE, Justice. NYE, Justice

text:
    LIVE OAK COUNTY, Texas, Appellant, v. LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellee.
    No. 78.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 23, 1965.
    Rehearing Denied with Concurring Opinion Dec. 8, 1965.

      James C. Watson, of Keys, Russell, Watson & Seaman, Corpus Christi, Dan Moody, Jr., Austin, Harry J. Schulz, Three Rivers, W. L. Hardwick, George West, for appellant.
    Allen Wood, of Fischer, Wood, Burney & Nesbitt, Ralph Wood, of Wood & Boykin, Corpus Christi, for appellee.
   SHARPE, Justice.

This appeal is from a summary judgment in favor of appellee, Lower Nueces River Water Supply District, sometimes hereafter called “District”, that appellant, Live Oak County, Texas, sometimes hereafter called “County”, take nothing.

County’s cause of action originally was to recover payment from District for a proposed road and bridge across Lake Corpus Christi due to the inundation by the lake of an existing County (Lagarto) road and a bridge when the Wesley Seale Dam was completed and its gates closed; and by amended pleadings, alternatively, for declaratory judgment that District is liable to pay for the new road and bridge when completed.

Preliminary proceedings in this case have twice been before the Fourth Court of Civil Appeals at San Antonio. See 312 S.W.2d 696 (Tex.Civ.App.1958, wr. ref. n. r. e.), involving dissolution of a temporary injunction against District, and 352 S.W.2d 139 (Tex.Civ.App.1961, wr. dism.) on plea of privilege. District prevailed on both of those appeals.

On this appeal, County contends by five points of error that the summary judgment herein was improperly granted for reasons, in substance, as follows: (1) the word “change” in Article 7585, Vernon’s Ann. C.S., does not preclude County from elevating the inundated roadway at the same, or approximately the same, location, (2) the order of the County Commissioners Court determining that the inundated road should be changed by elevating it along the present route is not arbitrary, capricious nor void, and absent a direct attack may not be ignored or reviewed in this proceeding, (3) to the extent that County’s rights and District’s obligations depend on whether elevation of the Lagarto Road is practical, feasible or necessary, genuine issues of material facts are presented, (4) insofar as such rights and obligations depend on a determination in this suit upon whether the Commissioners Court of County has properly exercised discretionary authority, genuine issues of material fact are presented, and (5) the take-nothing summary judgment denies County a determination by declaratory judgment as to the extent and conditions of District’s obligation to pay the expense of elevating the Lagarto Road.

District answers County’s points with basic contentions that (1) the word “change” as used in Art. 7585, V.A.C.S., means change of course, route, location, or to vacate or abandon, rather than change in elevation or raising of the affected road, (2) the order of the Commissioners Court of County concerning elevation of the Lagarto Road is not binding and enforceable against District, and by Reply Brief, that (3) affirmance of the summary judgment will not be res judicata as to any relief to which County might he entitled except as to its claim of right to compel District to construct or pay for construction of a high level bridge or causeway over Lake Corpus Christi at or near the old Lagarto Road.

Upon the record now presented the summary judgment in favor of District must necessarily rest either upon the premise that the word “change” as used in Art. 7585, V.A.C.S., does not permit elevation of the old Lagarto Road or that the order of the Commissioners Court of County is void; which last premise would necessarily include a finding that there is no genuine issue of material fact concerning whether the Commissioners Court acted arbitrarily or capriciously.

We have concluded that under applicable rules the take-nothing summary judgment was improperly granted and that the cause should be reversed and remanded for the reasons hereinafter stated.

In connection with the former appeal sustaining District’s plea of privilege in this case the Court of Civil Appeals at San Antonio has held as follows :

“When the suit is finally tried upon its merits it will involve the question of the duties and liabilities between the County and the Water District under the provisions of Article 7585, supra. Whatever rights the County has in this matter and whatever duties the Water District owes, are all fixed and provided for in Article 7585. The damages done to the old Lagarto Road and bridge will be immaterial. This suit is now a suit under the provisions of Article 7585, and is in no sense a suit for land or damages thereto.” 352 S.W.2d 139, 141.

In connection with the earlier appeal in this case involving dissolution of a temporary injunction, the Court of Civil Appeals at San Antonio has held that Article 7585, V.A.C.S., enacted in 1917 (relating to rights and liabilities of water districts and others such as appellee along or across public highways), was intended as a limitation upon and a restriction of the provisions of Article 6703, V.A.C.S., (relating to changes and alterations of roads generally and to the authority of the Commissioners Court in connection therewith) and that Art. 7585, controls such provisions as are in conflict therewith. 312 S.W.2d 700. The Fourth Court of Civil Appeals found it unnecessary to consider the matter of location of the changed route because it was then concerned only with the respective rights, duties and authority of the parties in the injunction proceeding. The Court also held that County did not have the right to demand payment by District in advance as a condition precedent to District’s right to construct the dam, lake and reservoir and thereby submerge said road. In discussing the balancing of equities requiring the injunction to be dissolved the Court said:

“If the gates be closed and Lagarto bridge inundated by the water of the new reservoir, a high level bridge, if ordered, may still be constructed after such inundation, at a comparatively slight additional cost, and, in the interim, only .a comparatively few people will be inconvenienced by being required to travel a few more miles to reach points east of the reservoir.” 312 S.W.2d 696, 701.

Article 7585, V.A.C.S., reads as follows:

“All persons, associations of persons, corporations, and water improvement or irrigation districts shall have the right to run along or across all roads and highways necessary in the construction of their work, and shall at all such crossings construct and maintain necessary bridges, culverts, or siphons, and shall not impair the uses of such road or highways; provided, that if any public road or highway or public bridge shall be upon the ground necessary for the dam site, reservoir, or lake, it shall be the duty of the commissioners’ court to change said road and to remove such bridge that the same may not interfere with the construction of the proposed dam, reservoir, or lake; provided, further, that the expense of making such change shall be paid by the person, association of persons, corporation, water improvement or irrigation district desiring to construct such dam, lake or reservoir.”

When Art. 7585, V.A.C.S., was enacted in 1917, the Legislature was presumably aware of the powers and duties of county commissioners courts concerning roads and bridges and that actions of water districts could and probably would interfere with and require changes in existing roads and bridges. The Legislature obviously intended to set out the respective rights and duties of water districts and counties in such circumstances. The Statute recognizes that there would be instances where a roadway or bridge might be inundated by a reservoir or lake constructed and provided for use of water districts, and provided for such situation. In such event the county commissioners court is charged by the Statute with the duty of making the change in the road or bridge. The district has the authority to decide that the road will be inundated but does not have the authority to decide what change is to be made in it. The county cannot defeat the district’s right to inundate the road or bridge or to construct its dam, reservoir or lake, but can and must determine the change to be made in the road or bridge on account of its inundation, and the district must pay for such changes which are legally made.

On the one hand, County contends that under Art. 7585, V.A.C.S., the change in the inundated roadway can be made vertically or horizontally, and, on the other hand, District says that it can be made only horizontally and that a change by elevating the road is not permissible.

Various definitions of the word “change” from dictionaries and cases are cited to us by the parties in support of their respective positions. County places reliance upon a definition of the word “change” in Webster’s International Dictionary, Second Edition (1934), as follows: “1. To alter by substituting something else for, or by giving itp for something else; * * * ” In discussing the difference between “change” and “alter”, the same dictionary says: “to change (the more general and the stronger term) is to render something essentially different from what it was, even to loss of identity, or the substitution of one thing for another; * * * to alter is to make different in some particular respect as in form or detail, without implying loss of identity; * * * ”

District’s dictionary definitions of the word “change” are not substantially different from County’s. However, some of the cases from other jurisdictions relied upon by District appear to hold in the legal and factual contexts there presented that the word “change” as applied to a roadway may mean a change in location, route or course and not a change in grade or elevation. We do not consider any of the cases cited by District as controlling here. We believe that when the conditions to be remedied and the purposes of Art. 7585, V.A.C.S., are considered, that the word “change” was used in a broad sense rather than in a narrow one. The Statute does not spell out the type of change to be made, neither does it limit the county commissioners court to a “change in location” or a “change in route” or a “change in course”, nor does it otherwise place restrictions on the kind of change to be made. The Texas case which appears to be most closely in point is Fry v. Jackson, 264 S.W. 612 (Tex.Civ.App. 1924, n.w.h.). That case involved a suit by landowners to enjoin the Commissioners Court of Den-ton County, the State Highway Commission and the City of Dallas from constructing a dam on a river that would cause the flooding of a portion of a state highway. The court held that the matter of changing the route of a public road was within the power and discretion of the commissioners court alone, and at page 616 of the opinion said:

“While the district court is given general power to review the proceedings of the commissioners’ court, yet in the matter of changing the route of a public road full power and discretion seems to be lodged in the commissioners’ court alone, and neither the district court nor this court would have the power to substitute its judgment for that of the commissioners’ court or otherwise set aside that court’s final conclusion, except upon a finding that it was corruptly or arbitrarily done. See Stuckey v. Jones (Tex.Civ.App.) 240 S.W. 565; Culp v. Commissioners’ Court of Coryell County (Tex.Civ.App.) 214 S.W. 944; Tippett v. Gates (Tex.Civ.App.) 223 S.W. 702.”

Only the commissioners court can make the change in the roadway, not the governmental agency building the dam (which in Fry v. Jackson was the City of Dallas and in this case the appellee District), nor can the district court or appellate court substitute its judgment or discretion for that of the commissioners court.

Fry v. Jackson, supra, supports County’s position that the question of whether the road should be rerouted or changed by elevation is matter within the discretion of the county commissioners court, as shown by the following quotations 264 S.W. at pages 618-619 of the opinion:

“For by the latter legislation (Art. 7585), which must control, it is expressly made the ‘duty’ of the commissioners’ court to change a road if upon ground necessary for a dam site.”
******
“Appellants present a prayer that, in the event the power of appellees to submerge the proposed section of Highway No. 39 is upheld, then they be required to erect a sufficient causeway over the submerged part so as not to impair the privileges of appellants as heretofore exercised. It is further insisted that no necessity for the establishment of the reservoir at the place indicated has been shown. It would seem that these are details that fall within the discretionary powers of the appellee authorities. See 15 Cyc. 634— 638. But, however, this may be, we have concluded that the pleadings do not furnish sufficient information to enable us at this time to determine whether in the exercise of a fair discretion it is practical to locate the reservoir at another or different place, or whether the suggested causeway should be constructed rather than the routing of the road changed.”

The summary judgment evidence herein indicates that a change in horizontal location of the Lagarto Road would probably be less costly than elevation of the roadway at or near the old location. However, the cost to District, although an important and proper factor, is not the ultimate test of what change shall be made in the roadway. Without minimizing the consideration of cost to District, County has obligations to its inhabitants, taxpayers and to the travelling public concerning the affected roadway. In making a change in the road which has been inundated by District, the County Commissioners Court may properly consider what is reasonably necessary to be done in order to substantially serve the same purpose as that achieved by the former road. There may be a number of factors which the Commissioners Court could properly consider, such as the time, trouble and expense caused to persons formerly using the old roadway in being required to travel a longer and different route. In this case, a portion of the summary judgment evidence as summarized in County’s brief, at pages 46-52, reflects the following:

The affidavit of Marshal R. Sanguinet, registered professional engineer and chief engineer of Wyatt C. Hedrick Engineering Corporation of Houston, sets out his qualifications and knowledge of the area, he being a graduate of Rice University with a degree of Bachelor of Science in Civil Engineering, a Fellow in the American Society of Civil Engineers and a member of the United States Committee on Large Dams. He started his engineering career in 1930 in Fort Worth as a structural engineer and later had experience in the construction of major highway and railroad bridges. In 1940 he joined the Hedrick firm as chief engineer and project manager on Army and Navy installations including roads, bridges, airfields and military bases in the United States. In 1951, as a member of such firm he was project manager on the $300,000,-000.00 air base construction at Keflavik, Iceland, which consisted of runways, roads, etc. and buildings. In 1954, he joined the firm of Tippetts-Abbotts-McCarthy-Strat-ton of New York City as resident engineer on two hydro-electric dams in Central Burma after which he was made chief engineer of the same firm for four hydroelectric dams in Turkey, each of such six dam projects costing from $75,000,000.00 to $100,000,000.00 each, the work consisting not only of the dam constructions, but also the building of roads, bridges, water ways and power plants. Since 1935 he has been completely familiar with the Lagarto Road and bridge and surrounding areas on both sides of old Lake Corpus Christi and since the building of the new dam, he is also familiar with the areas on both sides including the development that has occurred on both sides since the new dam was built, and has made a study of the need and feasibility of raising the Lagarto Road above the level of the new lake, including the necessary trestle and river crossing. Based on his experience and study, he stated such building and raising of such new road across said lake at such point is urgently needed, feasible and practical, both from an engineering and an economic standpoint. He stated that based on traffic counts detailed on the traffic map of Live Oak County certified by D. C. Greer, State Highway Engineer, and attached to appel-lee’s papers in support of its motion, it is obvious that a crossing across the lake in the area of the old Lagarto Road would pay for itself in less than seven years, this being based on a traffic count made in 1957 of 185 cars per day using the Lagarto Road prior to its flooding contained in the affidavit of F. A. (Frank) McCaughan, Engineer for the appellee Water District, McCaughan’s affidavit being filed in connection with Defendant’s Motion for Summary Judgment, and the cost of such road and crossing of $762,902.35 as estimated by said McCaug-han in his affidavit. Based on his experience and knowledge of the area and the direction and flow of the traffic across said crossing, the origin and destination of said traffic, Sanguinet is of the opinion that the flooding of the road caused said cars on an average to travel an additional 18 miles each that they would not have to travel if said road and crossing were not inundated, this taking into consideration all of the facts of which he is familiar. Based on an average cost of 10$ per mile this requires an additional cost per car of $1.80, which multiplied by 185 cars amounts to $333.00 per day, which amounts to a total cost to the traveling public of $121,545.00 per year and said annual figure in seven years amounts to $850,815.00, which is more than the cost of the crossing as estimated by McCaughan, and this annual cost to the traveling public of $121,545.00 does not take into consideration the normal increase in traffic as experienced in all areas of the United States and which this area would naturally also experience. He stated the crossing and bridge of the type as figured by McCaughan has a life span of 50 years with normal maintenance and during such 50-year life such bridge and crossing would save the public the sum of $6,077,250.00; that it is good engineering practice in determining the economic feasibility of any road, bridge or highway project to take into consideration the cost of the structure and the saving to the public of the structure and in this instance the ratio of cost to saving is $762,000.00 to over $6,000,000.00, a ratio of saving to the public of over 8 to 1; that normally if any project shows any saving to the public over its useful life, that is, if the saving to the traveling public is equal to the cost and maintenance of the facility, that is, a ratio of 1 to 1, then its building is feasible and economically sound; that in good engineering practices, maintenance and repair is estimated at 1% of the cost of the facility per year, or approximately $380, 000.00 over its useful life of 50 years, which when added to the cost totals approximately $1,142,000.00, thus still allowing a saving to cost ratio of over 5 to 1; that the national usage of roads and bridges over the United States has increased an average of 4% per year and that if this increase were applied here, the saving would be even greater; that by applying this 4% per year to the 50 year useful life, this would amount to an increase of over 200%; that the increase in the Lagarto area would be greater than this national average; and that by applying the national average of 200% to the area, you could safely add to the saving to the public of $6,077,250.00 the additional sum of 200% or $12,154,500.00, for a total of $18,231,750.00, and thus the ratio of saving to the public would correspondingly increase. Based on his experience and study of the area, Sanguinet stated that FM 2287 does not provide an alternate route to the loss of the Lagarto crossing and bridge which was inundated and does not in any manner adequately serve the needs of the area and that the only way to adequately serve the needs of the area is to build the new Lagarto crossing at the location of the old crossing that was inundated. He stated that he is of the opinion that the building and maintenance of the new Lagarto crossing would not interfere with the operation of the Wesley E. Seale dam nor endanger it in any way. He further states that he has made soundings across the new lake at the approximate location of the old road and bridge and that the new crossing would require a crossing structure having an elevation to the 97 foot mark, 3 feet above the 94 foot level, of only approximately 5450 feet in length. Additional minor filling of 8300 feet would be required to keep the approaches also to the 97 foot mark, but that this additional filling of 8300 feet would cost only approximately $37,000.00. He further states in his affidavit that he has personal knowledge of the facts stated therein and that such statements are true and correct and that such statements of his contained in the affidavit which contain any element of opinion are based on facts that he has investigated and knows to be true and as an engineer he is qualified from experience to state and express. (End of summary).

■The members of a county commissioners court might properly consider that to the extent practicable the route of the old highway should be retained so that the inhabitants, taxpayers and the travelling public would be inconvenienced as little as possible, and that the expense to residents of the area caused by travelling a longer route to reach the opposite side of the reservoir should be minimized.

It cannot be successfully argued that a water supply district can secure the benefits of its authorized legal action in inundating a county roadway without hearing the corresponding burdens which go along with such action. However, it is apparent that a county commissioners court is charged with notice that the taxpayers, water users and customers of the water district must ultimately pay for the change in the roadway. The Statute does not contemplate the giving of unbridled authority to the county, and its commissioners court should act reasonably and prudently in determining the change to be made and the cost of same, without abusing the discretion placed in it.

It can be easily seen that in many instances where a roadway is inundated, the elevation of the old roadway or construction of a bridge would be less expensive and more feasible than relocating the road horizontally. In that situation a district such as appellee would hardly be expected to contend that the change could only be made horizontally.

We are unwilling to hold that Art. 7585, V.A.C.S., limits a county commissioners court to a horizontal change of location where a roadway is inundated by a water district. When the purposes of the Statute are considered, we believe, and so hold, that elevation of a roadway is a permissible means of making the required change. There conceivably may be instances in which a county commissioners court can enter a void order changing a road, vertically or horizontally. However, where such body has not acted arbitrarily or capriciously, nor abused its discretion, its order is presumably valid and binding. See Fry v. Jackson, 264 S.W. 612 (Tex.Civ.App.1924, n, w. h.); Hidalgo County Water Control and Improvement District No. I v. Hidalgo County, 134 S.W.2d 464 (Tex.Civ.App. 1939, n. w. h.); Lasater v. Lopez, Tex.Civ.App., 202 S.W. 1039, 1045, affirmed 110 Tex. 179, 217 S.W. 373 (1919); 15 Tex. Jur.2d, Counties, Secs. 44-47, pages 272-277.

In 1957, District advised County that the proposed lake would inundate the Lagarto road and the Commissioners Court of County proceeded to consider what changes should be made in it. After investigation and hearing the Court entered an order providing that the public interest would be better served by elevating the road and building new and higher bridges along the old route rather than re-routing it, and that such action was feasible and necessary. The order further recited that the State Highway Department (by minute order of the commission No. 42357, passed July 26, 1957) had provided, in substance, that pursuant to the request of County, Farm Road 888 would be extended a distance of 4 miles (2 miles of which would be within the lake area created by the Wesley Seale Dam of district) from its then terminus southwest of Highway 9 to the town of Lagarto, so as to there connect with Farm-to-Market Road 2287, and that the extension would be surfaced by the Highway Department and the entire construction thereafter maintained by it, if County or other agencies would provide an acceptable road across the inundated area. The order of the Commissioners Court also provided that District should pay or tender payment of sufficient monies to defray the cost of making such change and that the actual construction of the elevated road or causeway and higher bridges be not begun nor then existing bridges and approaches be removed until District has paid to the Commissioners Court sufficient money to defray the cost of such removal and change.

In this case, where the order of the County Commissioners Court is questioned collaterally, only a contention that it is void can be considered. See 15 Tex.Jur.2d, Counties, Sec. 44, pages 272-273, wherein, the rule is stated as follows:

“Although commissioners’ courts are courts of limited jurisdiction in the sense that their authority is confined to matters pertaining to the general welfare of their respective counties, and in that their powers are limited to those expressly or impliedly conferred on them by the constitution and statutes, when acting within the sphere of the powers specifically conferred, or in discharging the duties imposed on them, they are courts of general jurisdiction, and their judgments are entitled to the same consideration as those of other constitutional courts and may not be collaterally attacked. An order of a commissioners’ court in a proceeding in which it has jurisdiction is in effect a judgment, having all the incidents and properties attached to a similar judgment pronounced by any regularly created court acting within the bounds of its authority; it is reviewable only on appeal or in a direct action for that purpose. But where the commissioners’ court exceeds its jurisdiction and makes an order without authority, such order, being void, is subject to collateral attack, as where lack of jurisdiction over the subject matter affirmatively appears on the face of the record.”

Although County did not have the right to demand payment in advance from District as a condition precedent to construction of the dam, lake, or reservoir, or removal of the old bridge structures, the summary judgment evidence fails to establish as a matter of law that the action of the Commissioners Court was arbitrary, capricious or void insofar as the elevation of the road is concerned. The trial court was not entitled to ignore the order of the County Commissioners Court in such respect. The effect of the take-nothing judgment is to deny to the County the right to change the roadway by elevating it. The authority is conferred by law on the Commissioners Court to make a change in such manner if it is practicable, feasible and necessary. Neither the District Court nor this Court is authorized to substitute its judgment for that of the County Commissioners Court properly exercised on the subject. District was not entitled to a summary judgment that the Lagarto Road could not be changed by elevating it.

Appellant’s points one, two, three and four are sustained.

Paragraphs XI and XII of County’s Second Amended Original Petition, filed on September 7, 1962, read as follows:

“XI.
“Plaintiff asserts that it is not required to construct and elevate such road first, and then rely on being able to recover the expense from Defendant thereafter. Plaintiff asserts that it is the duty of Defendant, the party whose actions make the change in the roadway necessary and who is required by law to pay for such change, to make suitable arrangements in advance with the Commissioners Court for the payment of the expenses of the changes which the Commissioners Court has found will be required. Nevertheless, without waiving its claim that it is entitled to payment, or suitable arrangements for payment, in advance, Plaintiff says in the alternative, that, if it be determined contrary to Plaintiff’s contentions that the making of the change in the roadway is a prerequisite to a cause of action for payment by Defendant of the expense thereof, it is entitled to a Declaratory Judgment of this Court declaring that Defendant is obligated to pay for the expense of elevating the Lagarto Road, or, in the alternative, will be so obligated after such elevation is completed; and Plaintiff here now prays for such Declaratory Judgment. In this connection, Plaintiff says that all of the circumstances required for a Declaratory Judgment by the terms and provisions of the Texas Uniform Declaratory Judgment Act (Art. 2524-1, Vernon’s Texas Civil Statutes) are present in this case, and, further, that Plaintiff has no other adequate remedy if elevation before payment is required, in that Plaintiff is not in a position to provide the funds or arrange for the elevation of said road in the face of Defendant’s denial of liability without a determination that Defendant will be responsible for the expense thereof.
“XII.
“Pleading further in the alternative, Defendant asserts that it stands ready, willing, and able, once the liability of Defendant for the expense thereof is determined, to construct an elevated road across the lake in question at the location of the old Lagarto Road, or, if it be determined that such is not the best location, to construct an elevated road across the lake at such nearby location as may be determined better suited for such road; and the Commissioners Court of Live Oak County stands ready, willing, and able to take such action and make such findings and determinations as may be reasonably necessary in the premises.”

The prayer of the County’s said pleading reads in part as follows:

“ * * * in the alternative Plaintiff prays for a Declaratory Judgment establishing that Defendant is obligated to pay to Plaintiff the expense of elevating the Lagarto Road * * * ”

The take-nothing summary judgment herein denies to County the Declaratory Judgment sought by it for the purpose of determining its rights and District’s liabilities. In its reply brief District contends that affirmance of the summary judgment will not be res judicata as to any relief to which County might be entitled except as to its claim of right to compel District to construct or pay for construction of a high level bridge or causeway over Lake Corpus Christi at or near the old Lagarto Road. On oral argument of this case counsel for District argued in substance that affirmance of the judgment would not preclude County from recovery except to a limited extent and that all other matters would remain for future litigation. This was to a large extent a reiteration of District’s statement in its original Brief that it had not and could not deny liability for (1) the reasonable cost of removal of the old bridge, approaches and structures over the arms of Old Lake Corpus Christi or (2) the reasonable cost incurred and paid by County in connection with such alternate additional road or roads as may be necessary, feasible and practicable. However, the record herein does not establish an unqualified or specific admission by District to do anything except pay for the removal of the old bridge and approach structures. District has sought and recovered a summary judgment that County take nothing herein. On the record now presented District was not entitled to such declaration or judgment. The effect of an affirmance of the present summary judgment would be to adjudicate adversely to County its claim of right to elevate the old Lagarto Road.

It appears herein, in any event, that upon a collateral attack of the order of the County Commissioners Court providing for elevation of the Lagarto Roadway, there would, at least, be presented genuine issues of material fact as to whether that Court acted arbitrarily or capriciously in ordering the road elevated instead of relocating it horizontally. Such issues are not conclusively established against County on the present record. There was and is liability as a matter of law on the part of District for the expenses of a proper and legal change in the Lagarto Road. Under applicable summary judgment rules the record herein does not authorize the judgment rendered by the lower court. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

Appellant’s point five is sustained.

In reversing the judgment and remanding the case for new trial, we desire to make it clear that the material issues of fact herein are yet to be decided in the usual way. In particular, nothing said herein shall be taken as a finding as to what is reasonably necessary to be done in order to actually change the Lagarto Road or concerning the cost of same. However, the lower court must accept the essential holdings of the San Antonio Court of Civil Appeals in the two prior appeals herein-before mentioned and of this Court in the instant appeal as the law of the case. See Payton v. Travis County, 129 S.W.2d 361 (Tex.Civ.App. 1939, wr. dism. judgm.corr.); 4 Tex.Jur.2d, Appeal and Error, “the law of the case”, Secs. 1007-1008, pages 696-699. Subject to what has just been said, the parties hereto may on the new trial pursue every right and remedy which each of them have in connection with this longstanding controversy.

Reversed and remanded.

Motion for Rehearing Overruled.

NYE, Justice

(concurring).

I agree with the statement made by the appellant in the County’s brief that: “Any determination of whether the elevation of Lagarto Road along its present route is practical, feasible or necessary will inevitably involve determinations as to various facts which are genuinely in dispute, as will any determination as to whether the action of the Commissioners’ Court was a proper exercise of its discretionary authority.”

The statute in question (Art. 7585 V.A. C.S.) is clear. The water district may construct a reservoir over the ground where a public road exists. It is likewise clear that “ * * * it shall be the duty of the commissioners’ court to change said road and to remove such bridge * * * ”, provided further, that the expense of making such change shall be paid by the District. This statute contemplates placing the responsibility of removing the bridge upon the County, determining where the feasible and practical change of the road shall be made, and requiring the District to pay for the change. The County’s determination of where “the change” in the road is to be made, should not of course be such a change as would interfere with the operations of the District’s reservoir or dam.

The County, through the Commissioners Court, entered an order or resolution directing a specific change in the road. Before the change had been actually made, the County sought a declaratory judgment to determine the validity of their action and the liability for such action on the District. If the trial court has jurisdiction of this case at all, the burden of proof should be on the County. 1 McDonald Texas Civil Practice, § 207, p. 145. For “it is plain that where the burden of proof lies may be decisive of the outcome.” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. The present action should test whether or not the County acted arbitrarily or capriciously and whether it abused its discretion in determining the location of the future road.

If the trial court has jurisdiction of this case, then upon proof and a favorable finding by the trial court of the validity of County’s order or resolution, the County may then be entitled to a declaratory judgment against the District for the expense of the proposed change. Had the County already made “such change” as contemplated by the statute (7585 V.A.C.S.) and was thereafter seeking reimbursement from the District for the expense of making such change, then, the District, if dissatisfied, would be relegated to a collateral attack on the order or resolution of the County.

The County is not limited under this statute to a change of the road either horizontally or vertically so long as it meets the test set forth by our courts: that its decision, if lawfully made, was not tainted with fraud or collusion; and/or that the Commissioners Court’s decision was not so grossly unreasonable or capricious or arbitrary as to amount to fraud as a matter of law. The law vests in the Commissioners Court a duty to act with discretion in this case; its action is not ministerial in nature. 157 Tex.Jur.2d § 47, p. 275-276.

It has been said by appellant County that the County cannot dictate to the District where to locate the dam or what land is to be inundated. Therefore, the District cannot dictate to the County where to change or locate the road. It must be observed, however, that the District pays for the dam and the road. Where the County has the discretion in locating the road, and at the same time is not required to pay for it, its action must be scrutinized. It is therefore, clear that the County has an obligation to act with reason and discretion, considering not only its obligation and duty to the inhabitants that it governs, but also to consider with such action the people, taxpayers and users within the jurisdiction of the district who are required to pay the cost. The District is a separate political subdivision of our state, created by the sovereign will of the state, and standing upon the same footing as the County. Willacy County Water Control and Improvement District No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (Sup.Ct.1944). The statute (Art. 7585 V.A.C.S.) does not contemplate the giving of a “blank check” to the County.

The trial court erred in granting the summary judgment because of the fact issues needed to be determined. Based on the above views, I agree that the motion for rehearing should be overruled.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    George BEGGS, III, et al., Appellants, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.
    No. 16677.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 5, 1965.
    Rehearing Denied Dec. 10, 1965.
    Lattimore & Lattimore, and Hal M. Latti-more, Fort Worth, for appellants.

      Cantey, Hanger, Gooch, Cravens & Scarborough, and H. Carter Burdette, Fort Worth, for appellee.
   LANGDON, Justice.

Suit was instituted by the appellants as trustees for the fee owners of a 3,323 acre ranch and by the Lessee, to obtain additional compensation for an easement across said ranch which was taken under threat of condemnation by the appellee. Trial was to a jury.

Briefly stated the pleadings of the appellants are to the effect that an agent of the appellee represented to them that if they would accept payment by it of $1,100.00 and execute an easement under which appellee could enter upon the ranch and construct eleven (11) towers and lines that the ap-pellee, after construction was completed, would return and pay to appellants additional damages. That this arrangement was requested because appellee did not want other owners of land which it must cross to know it was paying more than $100.00 per tower for easements. The appellants agreed to the arrangement, signed the easement and were paid the $1,100.00 by appellee. That after the construction of the towers and lines were completed the appellee’s agent denied that he agreed to the arrangements above set out and refused payment of the additional damages to the ranch which amounted to $13,000i00. At this point, the appellants for the first time, according to their pleadings, learned that the original representations — (of appellee through its agent) — “were in fact false, to-wit: The original representations of (agent) to the effect that full compensations and damages would be paid after the lines and towers were erected were material. The trustees believed these material representations to be true and would not have delivered the easement instrument and accepted the advance payment but for such representations and their belief in the truth thereof.”

That because of the fraudulent misconduct the value of the ranch has been diminished.

The jury found that the agent of appellee made the representations complained of; that the representations were believed, were material in inducing execution of thé easement and that same were false at the time made (Special Issue No. 10); that appellants did not know until after the towers were erected that appellee did not intend to pay them any additional money; that the sums of money paid appellants were grossly inadequate (Special Issue No. 14) and that the checks delivered to appellants and the receipts or releases executed by appellants did not constitute the full agreement and did not provide the total consideration to be received by appellants. Answers of the jury to other issues as to the value of the land contained in the easement before and after the taking would have entitled appellants to judgment in the sum of $1,900.00.

Motions for judgment were filed by appellants and appellee. The court disregarded the answers of the jury to Special Issues Nos. 2, 10 and 14 and entered a take nothing judgment against appellants.

In disregarding such answers of the jury and entering the judgment it did, the court apparently relied upon the contention that the fraud issues were not properly plead, had no evidence to support them and that the parole evidence rule was applicable. We disagree with this conclusion. Taken as a whole and considering the language above quoted the pleadings contain the basic elements of fraud and support the issues based thereon. The issues and the jury’s answers thereto are supported by the evidence. Under the authority of Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957), the parole evidence rule has no application to the facts of this case.

“(‘Fraud is always a matter of false representations; and how is it that extrinsic representations are as warranties to be ignored but as fraud to be admitted? The explanation seems to be that the vital additional element in fraud is the party’s state of mind, which neither can be nor is intended to be embodied in the written document, and that hence the rule does not forbid considering it wherever it is the vital element of the claim.’); Elliott on Contracts, Vol. 1, sec. 70 (‘If one is induced to go through the form of making a contract because of some fraud or misrepresentation made by the other party or his agent, relative to a material element of the agreement, such that if he had know the truth he would not have given his assent, the contract may be avoided by him. There can be no real assent when it is induced by fraud.’); Vol. 2, sec. 1650; McCormick and Ray, Texas Law of Evidence, Second Ed., Vol. 2, sec. 1644 (‘ * * * it is only when the oral expressions are relied on as warranties, that is, as parts of the contract, as being obligations intentionally assumed, that the Parol Evidence Rule applies. If they are relied on as misrepresentations and the theory of recovery or defense is fraud, then the Parol Evidence Rule is clearly without application. On the latter proposition there has been some apparent wavering in Texas cases where the writing contained a disclaimer of warranties, or “merger clause”. Yet even here the sounder authority seems to admit extrinsic agreements for the purpose of avoiding the instrument for fraud.’) ; Black on Rescission and Cancellation, Vol. 2, sec. 408. For interesting comments on Texas cases, see 21 T.L.R. 811, 27 T.L.R. 361, 366, and 31 T.L.R. 906.” Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233, (1957); Barr v. Southwest Wholesale Furniture and Appliance Co., 331 S.W.2d 343 (Fort Worth Civ.App., 1960, no writ hist.).

To state a cause of action for fraud based on false representation the plaintiff is required to show that the defendant made the representation, that such was as to a material fact, that it was false when made, that the representation was made with intent to induce the plaintiff to do or refrain from doing some act; that the plaintiff relied upon the representation — that is he believed it to be true and was induced thereby to act as he did and thereby sustained injury. 25 Tex.Jur.2d 625, p. 626, § 13 (Fraud and Deceit.)

Under the pleadings and the evidence it is undisputed that the agent of the appellee was assigned the duty of acquiring right of way and that whatever he did or said was for the purpose or with the intent of inducing the appellants and others to execute easements.

The judgment is accordingly reversed and judgment here rendered for the appellants in the sum of $1,900.00 with interest at six per cent from March 18, 1965, date of the trial court’s judgment.

Reversed and rendered.


author: BELL, Chief Justice.

text:
    H. W. BLACKSTOCK et al., Appellants, v. Lester L. TATUM et al., Appellees.
    No. 14670.
    Court of Civil Appeals of Texas. Houston.
    Nov. 18, 1965.
    Rehearing Denied Dec. 9, 1965.

      Nowlin Randolph, Houston, for appellants.
    Mills, Shirley & McMicken, Preston Shirley, Galveston, for appellees.
   BELL, Chief Justice.

This is an appeal from a judgment of the trial court dismissing appellants’ suit when they refused to amend after the court sustained appellees’ special exceptions to appellants’ petition purporting to allege a cause of action for abuse of legal process.

As shown by our decision in the case of Wallace Investments, Inc. v. Blackstock et al., 384 S.W.2d 910, when that case was before us on complaint that the trial court incorrectly overruled Wallace Investments, Inc.’s plea of privilege, appellants brought a suit against appellees seeking to determine their riparian rights, to remove cloud from title to their appurtenant lands and to enjoin the filling in of Taylor Lake and other acts that would damage their riparian rights. We held the trial court properly overruled the plea of privilege because the dominant purpose of the suit was to remove cloud from title to appellant’s land and suit for injunctive relief was incidental to that purpose. We noted that there was another cause of action for damages asserted which appellants denominated “abuse of civil process” and it could be maintained (assuming a cause was sufficiently stated) here in order to avoid a multiplicity of suits. We recite this to show that appellants’ original suit, which was No. 595,229, was first filed against appellees, and that it is such suit that appellants contend appellees seek to force them to dismiss or abandon through the abuse of civil process in other suits filed against them by appellees.

After our disposition of the plea of privilege appeal, appellants’ suit No. 595,229 and all suits filed for appellees against appellants, except one, were consolidated and were carried as Cause No. 595,229. Ap-pellees addressed special exceptions to that part of appellants’ fifth amended original petition, which appellants denominated their “Second Count,” which purported to allege a cause of action for abuse of civil process. Upon the sustaining of such exceptions, appellants stated they could not further amend and moved the court to sever this count, it representing a separate cause of action. The count was severed and is now carried as Cause No. 595,229-A on the trial court’s docket. Appellants then filed their original petition in the severed Cause No. 595,229-A and the appellees’ exceptions to it were sustained and the cause dismissed on refusal of appellants to amend. Consolidated Cause No. 595,229, which includes all of appellees’ suits against appellants, except one which was not consolidated, remains undisposed of as does the the other suit of appellees filed against appellants that was not consolidated.

The position of appellants is that they have sufficiently alleged a cause of action for damages for abuse of process. The position of appellees is that appellants have asserted nothing more than a suit for damages for malicious prosecution of civil suits and the petition is even insufficient to state such a cause of action or one for abuse of process.

Appellants’ original petition in the severed cause consists of paragraphs numbered I through VII. To each paragraph, except paragraph I, special exceptions going to the substance of the pleading were urged and sustained. Paragraph I, to which no exception was urged, in substance sets out the ownership by appellants of specifically enumerated lots on Taylor Lake, it being alleged they each owned title to the water’s edge and had the exclusive and unrestricted right of ingress and egress from the respective lots to the water. They further allege that in May, 1962 the appel-lees began filling a portion of the lake in front of appellants’ property but were restrained by an order of the United States District Court. Thereafter the appellees, Tatum and Wallace Investments, Inc., in pursuance of a common design induced Paul C. Harris, common source of title of all parties, to execute to these two ap-pellees a correction deed to elaborate on a previous deed to Tatum, which correction deed described a strip of land claimed to adjoin appellants’ land on the lakeward side, the land described measuring in width up to 88 feet. It is alleged that some of appellants were using and enjoying their property, including the riparian rights, and such was known to appellees. Appellants claim the strip of land and all riparian rights. We should note that the issue of ownership is really not involved here but is involved in the consolidated cause. However, we recite the above portion of paragraph I because it shows appellants, claiming as above set out, filed the Federal Court suit and Cause No. 595,229 in the State Court to establish their ownership of the above strip and the appurtenant rights and that appellants claim that the suits hereinafter mentioned that were filed by appellees were filed and are being prosecuted for the purpose of coercing appellants into dismissing Cause No. 595,229.

Paragraph II in substance alleges that about September 1, 1963 appellees determined to force appellants Blackstock, King and Phipps to abandon their suit. They allege the title procured by the correction deed was a spurious one and its acquisition was for the sole purpose of furthering the unlawful conspiracy of appellees. It is alleged that the other appellees conspired, confederated and combined with North Clear Lake Development Corporation to file suit against appellants and others to litigate title to the above strip and this was for the purpose of forcing appellants to abandon their suit. They say the purpose was to “misuse and abuse the process of the courts.” The cause immediately complained of in paragraph II is No. 627,-718 and was filed by North Clear Lake Development Corporation against all of the appellants, their wives and lienholders. It is asserted the suit cannot possibly be filed for a legitimate purpose because ownership of the strip could not benefit appellees since they could not build on the land and had no right of ingress and egress to the land. Appellees’ said suit, appellants say, was filed for the evil and fraudulent purpose of threatening appellants with loss of their water frontage, thereby destroying one-half the value of their homes and making them unsalable while the suit is pending. There is no allegation of any contemplated sale. Cause No. 627,718 is one in trespass-to-try title and was filed against appellants and other persons. It alleges ownership of the strip of land as of January 1, 1963. It was filed May 12, 1965.

Paragraph III of appellants’ petition alleges that the appellees, not content with the above fraudulent conspiracy to “abuse and misuse” the process of the courts, through their corporate tool, Bank Line Development Corporation, filed Cause No. 628,593 in the 61st District Court wherein Bank Line sought of appellant Blackstock and four other persons damages because the property owners in El Lago Estates have sought to use funds belonging to them to assist appellants in this suit to defeat the efforts of appellees to destroy the value of the subdivision. We find no further description of Cause No. 628,593, nor do we find a copy of the petition in the transcript.

In Paragraph IV it is alleged that as a part of the conspiracy to browbeat, harass, threaten and punish appellants for filing their suit, appellees filed Cause No. 632,865 in the 152nd District Court, which is alleged to be identical with Cause No. 627,718. The suit complained of in this paragraph is in trespass-to-try title and seeks to establish title in North Clear Lake Development to the strip of land above mentioned. This petition, however, alleges title as of December 2, 1963. It was filed May 12, 1965. It is asserted this cause is an additional flagrant abuse of the process of the court and is a further attempt to accomplish the unlawful aims and objectives entertained and fostered by appellants in Cause No. 627,718.

In Paragraph V it is alleged that ap-pellees, in an effort to intimidate the appellants and cause them to give up Cause No. 595,229, filed Cause No. 632,969, against the appellant Blackstock seeking damages because of alleged actions taken by him that were actually efforts by him to protect his home. This last suit was filed May 12, 1965, and is for damages in the amount of $300,000.00. The bases of the suit are the alleged false statements made by Blackstock concerning a real estate development being promoted by North Clear Lake Development Corporation and Lester L. Tatum. This subdivision is west of Taylor Bayou abutting Taylor Lake. The above referred to strip of land is no part of the land involved in Cause No. 632,969.

Paragraph VI alleges that as a result of the above “parade of lawsuits” appellants have suffered material damage from the “abuse of the process of the courts.” It is alleged each suit “was not filed” to accomplish its ostensible purpose, but for the wrongful purpose of forcing appellants by pressure of litigation to give up their attempt to prevent appellees from building an island in the vicinity that would deprive appellants of the advantage of Taylor Lake. It is alleged that the suits achieved wide notoriety in the area and have permanently reduced the value of appellants’ land by 50%. It is further asserted that appellants’ right of privacy has been invaded by persons seeking to learn the meaning of this litigation and that neighbors of appellants have continuously made inquiry about the suits and some of them, fearful of similar action against them, have urged appellants to drop their suit. Then follows the allegation that fear of losing this property has caused tension to each appellant and has impaired their health. The same injury is alleged to have resulted to appellants’ wives. Damages generally are asserted for invasion of right of privacy and impairment of health. Actual and exemplary damages are sought.

The trial court sustained Special Exceptions 22 through 32. Separate special exceptions were levied against each numbered paragraph of appellants’ pleadings and the complaints urged in each exception in substance pointed out the same substantive defects in a particular paragraph of appellants’ petition. The exceptions pointed out that apparently appellants sought to allege a cause of action for malicious prosecution but the particular paragraph failed to state a cause of action for the following reasons:

1. There was a failure to allege the seizure of or damage to the person or property as required in a suit for malicious prosecution or any similar type of suit.

2. There was no allegation in the particular paragraph excepted to that the ap-pellees’ suit there complained of had terminated favorably to appellants.

3. There was no allegation of malice.

4. There was no factual allegation to support any claim of want of probable cause.

5. The allegations in connection with probable cause attempting to allege motive are immaterial.

6. The allegations fail in any way to allege any wrongful use, misuse or abuse of process.

Appellants say they are not suing for damages for malicious prosecution of civil suits but for abuse of process, and, therefore, termination of the suits, and want of probable cause, are not necessary and malice is material only as to exemplary damages and they have sufficiently alleged malice.

From an analysis of appellants’ pleading, their brief and oral argument, we gain the impression that appellants are urging that the mere filing and continued prosecution of these suits by appellees when appellees’ purpose is to coerce appellants into dismissing their suit against appellees is a misuse or abuse of process and that in such a case want of probable cause and prior termination of such suits are unnecessary elements of such cause of action. Appellants are urging in effect that the maintenance of a civil action in itself is an abuse of process if its purpose was to coerce them into dismissing a suit they have pending against appellees.

We do not so understand the cause of action for abuse of process. As we understand it, abuse of process consists not in the filing and maintenance of a civil action, but rather in the perversion of'some process issued in the suit after its issuance. The process referred to in the cases is not in the filing and maintenance of a civil action, but in the wrongful use of a writ issued in the suit. The writ or process must be used in a manner or for a purpose for which it is not by law intended and the use must interfere with the person or property of another. In all cases cited, and which we have found, a writ issued in a suit was executed so there was in some manner wrongful seizure of property or actual interference with the person.

The most concise and clear statement of the nature of the cause of action for abuse of process is to be found in Prosser on Torts, 3rd Ed., Section 115. It reads in part as follows:

“Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance * * *

“The essential elements of abuse of process * * * have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort. * * ” See also Miller v. Stern, 262 App.Div. 5, 27 N.Y.S.2d 374; Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268; Ross v. Peck Iron & Metal Co., 264 F.2d 262 (4th Cir.); 72 C.J.S. Process § 120; 16 North Carolina Law Review 277; 1 Am.Jur.2d Secs. 1 and 4; 27 Harvard Law Review 594.

All cases relied on by appellants are distinguishable from the cause asserted by them in their petition. In each case there was the wrongful execution of process that resulted in actual wrongful seizure of property. In such cases there was no contention that the mere filing and prosecution of suits amounted to an abuse of process. An analysis of appellants’ petition shows there is no allegation that process of any kind was ever issued or executed. As we view the allegations appellants’ petition merely attempts to assert a cause of action for damages for malicious prosecution of civil suits. In this respect it is defective, as we will notice. While appellants use the general term “abuse of process,” their other allegations clearly show they are using the term to mean the mere filing and maintenance of civil suits.

The petition is insufficient to allege a cause of action for malicious prosecution, at least to the extent it fails to show actual interference with person or property and fails to allege appellees’ suits against them have terminated favorably to them. We need not notice the other claimed defects asserted by the special exceptions.

We deem these Texas cases controlling: Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153; Andrews v. Brown, 283 S.W. 288 (Tex.Civ.App.), aff’d 10 S.W.2d 707 (Tex.Com.App.); Shapleigh Hardware Co., Inc. v. Kneeland Bros., Inc., 60 S.W.2d 510 (Tex.Civ.App.), no writ hist.

While appellants urge in oral argument that appellees’ exception “There was no allegation of any wrongful use, abuse or misuse of process” is a general demurrer, it is noted no complaint of the form was made below or by point of error here. However, we are of the view it is not a general demurrer but specifically calls the court’s attention to the omission of an essential substantive allegation.

Affirmed.


author: McDONALD, Chief Justice.

text:
    CITY OF WACO, Appellant, v. S.C. BUSBY, Appellee.
    No. 4383.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1965.
    Rehearing Denied Dec. 2, 1965.

      Thomas R. Hunter, City Atty., Waco, for appellant.
    Ñaman, Howell, Smith & Chase, George Chase, Waco, for appellee.
   McDONALD, Chief Justice.

This is an appeal by defendant City of Waco from a judgment against it in a negligence case.

Plaintiff Busby sued the City of Waco for damages for the negligence of its employees in destroying 2 floating type boathouses belonging to plaintiff. Plaintiff alleged the boathouses had been torn loose from their moorings on Lake Waco by heavy rains; that he was in the course of repairing them in preparation for returning them to their original moorings, when the employees of the City, under the direction of the Waterworks Superintendent, pulled the boathouses out of the lake, breaking them into pieces, and completely destroying them.

Trial was to a jury which acquitted defendant of removing boathouse #1 from the lake; and found in connection with boathouse #2:

1) Employees of the City of Waco removed boathouse #2 from the point it was lodged in Lake Waco.
2) In removing boathouse #2 from Lake Waco the employees of the City damaged or destroyed boathouse #2.
5) Employees of the City of Waco were negligent in the manner in which they attached the cable to boathouse #2.
6) Such negligence was a proximate cause of plaintiff’s damages.
7) Employees of the City of Waco were negligent in pulling boathouse #2 onto the shore.
8) Such negligence was a proximate cause of plaintiff’s damages.
9) Employees of the City of Waco did not exert more force than was required under the circumstances on boathouse #2 in pulling it from the lake.
12) Employees of the City of Waco failed to inspect boathouse #2 to determine whether it would float before attempting to remove it from the lake.
13), 14) Such failure was negligence, and a proximate cause of plaintiff’s damages.
20), 21) Fixed the damages to boathouse #2 at $500.

The trial court rendered judgment on the verdict for plaintiff for $500.

Defendant City appeals, contending the trial court erred in holding the City liable because:

1) The action of the City in removing the boathouse from the lake was a governmental function.
2) There is material and fatal variance between the allegations of plaintiff’s NOTICE OF CLAIM, and the proof.
3) There is a conflict between the answer to Issue 9, and the answers to Issues 5, 7 and 12.

We revert to defendant’s 1st contention that the action of the City in removing the boathouse from the lake was a governmental function. It is undisputed that the employees of the City under the supervision of the Waterworks Superintendent pulled plaintiff’s boathouse from Lake Waco with a winch truck and destroyed it. The record further reflects that the Waco Waterworks Superintendent is responsible for Lake Waco and that some of the waterworks’ employees are assigned to Lake Waco to take care of the gates, filtration plant, and to pull trash out of the lake. The record reflects the use of the lake for waterworks and recreational purposes. The maintenance of a waterworks by a City is a proprietary function and the City is liable for the negligent acts of its employees in connection with the furtherance of this activity. White v. City of San Antonio, Sup.Ct., 60 S.W. 426; City of Wichita Falls v. Lipscomb, CCA, W/E Ref., 50 S.W.2d 867; City of River Oaks v. Moore, CCA, (n. r. e.) 272 S.W.2d 389. If the City maintained the lake for more purposes than in connection with its waterworks, the acts of the employees were at least concurrently in furtherance of the waterworks’ function along with other functions, and the City is liable for negligence of its employees acting in a concurrent governmental and proprietary capacity. City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480. We think the City liable.

Defendant’s 2nd contention is that there is a material and fatal variance between the Notice of Claim and the proof.

The Charter of the City of Waco provides that:

“The City shall not be held responsible on account of any claim for damages to any person or property unless the person * * * claiming such damages shall, within 30 days * * * file a statement under oath, as to the nature and character of such damages or injuries, the extent of same, and the place where same happened, the circumstances under which happened, the conditions causing same, with a detailed statement of each item of damages and the amount thereof * *

Plaintiff filed his claim under oath within the proper time, stating he was the owner of

“2 light stall boathouses which were moored to the west bank of Lake Waco just south of the old highway 6 bridge * * * flood caused the waters of said lake to rise to such an extent that the moorings * * * were broken loose and the boathouses were caused to be washed out into the lake. * * * On or about July 14, 1964 without notice to (Busby) * * * employees of the City under the direction of their superior attached a winch truck cable onto the said boathouses, and in an attempt to remove them from the lake, completely destroyed the said boathouses. * * * said boathouses had a value prior to the acts of the * * * employees of the City * * * of $2250 * * * and after the * * * employees of the City finished their task * * * had a value of zero * * * >>

Plaintiff’s proof showed that employees of the City caused the destruction of the boathouse by the intentional act of pulling it onto the shore from the lake. Defendant asserts that plaintiff failed to direct its attention with reasonable certainty to the place and injury complained of; that plaintiff’s witness placed boathouse #2 on the north side of the bridge, but that no mention of the north side of the bridge is made in the Notice of Claim.

Where the description is such that the City is enabled to locate the place of the accident, the object of the charter provision is accomplished. City of Dallas v. Myers, CCA (n. w. h.) 64 S.W. 683. A statement is sufficient if it designates the place that men of common understanding and intelligence can, by the exercise of reasonable diligence, and without other information from the claimant, find with reasonable certainty the place where it is claimed the injury was received. Gardner v. City of Houston, CCA (n. w. h.) 320 S.W.2d 715; City of Wichita Falls v. Williams, CCA, (n. w. h.), 342 S.W.2d 588.

Under the record, we think the Notice sufficient, and that there is no material and fatal variance between the Notice and proof.

Defendant’s 3rd contention is that there is a conflict between the jury’s answers to Issue 9 and Issues 5, 7 and 12. Issue 9 found that .the employees of the City did not exert more force than was required under the circumstances in pulling the boathouse from the lake. Issue S found that the employees of the City were negligent in the manner they attached the cable to the boathouse; Issue 7 found that the employees were negligent in pulling the boathouse onto the shore; and Issue 12 found that the employees of the City failed to inspect the boathouse to determine if it would float before attempting to remove it from the lake (which was negligence).

There is no conflict in the issues.

All of defendant’s points and contentions are overruled.

Affirmed.


author: MURRAY, Chief Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Frank VIZZA, Appellee.
    No. 14408.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1965.
    Rehearing Denied Dec. 8, 1965.
    Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.
    Rudy Rice, San Antonio, for appellee.
   MURRAY, Chief Justice.

In a jury trial in the 131st District Court of Bexar County, appellee, Frank Vizza, recovered a judgment for total-temporary incapacity for a period of 148 weeks, and for partial-temporary incapacity of 104 weeks, amounting to a total sum of $8,114.-39. Texas Employers Insurance Association has prosecuted this appeal.

Appellant has alleged misconduct of the jury in that during their deliberation at least three or four of the jurors, in the presence of other jurors, discussed their own injuries, including back injuries, described their own injuries in detail, and further stated inter alia that, based on their experience with their own injuries, appellee would never recover from his back injury, and thus the jury was influenced to answer the special issues submitted to them in a manner unfavorable to appellant.

At the hearing on appellant’s motion for a new trial, eight of the jurors were sworn and testified. It is clear from this testimony that at least four of the jurors during their deliberations discussed their own injuries, and at least three such injuries were back injuries. When the jurors would discuss their own injuries, either the foreman or some other juror would state that they should not consider their own injuries and their own experiences, but notwithstanding these admonitions such jurors continued to again and again discuss their own experiences and injuries. It seems that neither the foreman nor other jurors were successful in stopping these improper discussions. Some of the jurors stated in substance that from their own experiences they knew that Dr. Munslow was wrong when he stated that appellee would recover in about a year. All of these discussions took place during the deliberations and before the jury had answered the questions relating to the length of time appellee would be incapacitated. The trial judge overruled the motion for new trial, but this must have been based upon his opinion that the admonitions given to the offending jurors was sufficient to remove the harmful nature of the discussions, and they therefore did not amount to misconduct. It is clear from the evidence that the discussions did occur time and time again.

The issue as to whether appellee sustained an accidental injury in the course of his employment which caused serious disability was a hotly contested question, one doctor testifying that appellee had a herniated disk in his back and another doctor testifying in effect that he did not. The jury deliberated over nine hours, and we have concluded from the entire record, both on the trial of the merits and on the hearing on the motion for new trial, that appellant was in all probability prejudiced as a result of these improper discussions by the jurors.

The recent case of National Sur. Corp. v. Moore, Tex.Civ.App., 386 S.W.2d 327, is almost identical with this case. The Court there said in effect, where a juror improperly mentions his own back injury similar to that received by a plaintiff, and such juror is sufficiently rebuked by the foreman or other jurors, and the jury admonished not to consider such personal injury and it is not again brought up or further discussed, such mention does not constitute jury misconduct. But where the foreman or other jurors are not sufficiently in command of the situation to prevent such discussion from being repeated time and time again, then and in such event such repeated discussion of personal experiences with back injuries does constitute jury misconduct.

The record shows that one of the jurors during an overnight recess by the jury looked up in the dictionary the meaning of the following six words: Partial, Permanent, Temporary, Total, Incapacity and Incapacitate. These definitions were different from the legal definitions given in the court’s charge. The definitions were read to the jury. This conduct by this juror was highly improper, but we will not here pass upon the prejudicial effect of this matter as the judgment must be reversed in any event. Such conduct in all probability will not happen upon another trial.

The judgment is reversed and the cause remanded for a new trial.


author: NYE, Justice.

text:
    Harry J. COYNE, Appellant, v. C. W. BUTLER et ux., Appellees.
    No. 140.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 4, 1965.
    C. T. Mortensen, Harlingen, for appellant.
    Jon Dee Lawrence of Smith, Mcllheran & Jenkines, Weslaco,' for appellees.
   NYE, Justice.

This is a summary judgment case. The trial court granted the plaintiff C. W. Butler and his wife’s motion for summary judgment. Defendant Harry J. Coyne has perfected his appeal.

The plaintiffs, hereafter called Butler, sold a citrus orchard consisting of two tracts of land, to the defendant Coyne (appellant herein) in October of 1961, reciting as consideration therein certain cash down payment, the assumption of an existing note and mortgage on the property, and the execution of a second lien note in favor of Butler. Butler excepted and reserved one-half of the minerals under the first tract. There is no dispute concerning the second tract. The citrus grove was destroyed by a freeze which occurred in January and April of 1962. In May of 1962, Coyne decided he would like to' reconvey the property back to Butler and cancel the indebtedness owed on the second lien note and his responsibility for the debt on the first lien note. All negotiations between the parties were conducted through their respective attorneys. Coyne proposed the reconveyance of the property, releasing him of the obligation of the indebtedness owed, but retaining his one-half interest in the minerals under the first tract as a partial recoupment of his cash down payment and loss caused by the freeze. Butler considered the offer of Coyne, but would not agree that Coyne could retain any of the minerals. He would accept only the reconveyance of all of the property, including the minerals, in satisfaction of the release of the indebtedness. Coyne admits that no agreement was reached between the parties. However, Coyne instructed his attorney to prepare a deed retaining one-half of the minerals, and submit it to Butler for his acceptance or rejection. The deed was prepared by Coyne’s attorney, inspected by Coyne, and forwarded to Butler who accepted the deed and recorded it. Later, Butler sold the property to a third party, when a question arose as to the status of the minerals.

Coyne admits that the second deed of reconveyance to Butler from him was a clear and unambiguous warranty deed. He contends that there was no mistake, mutual or otherwise; that the deed reserves one-half of the minerals on the disputed tract in him. Butler, on the other hand, contends that there is no allegation of fraud; that he had instructed Coyne that if he wished to reconvey the property in consideration of the cancellation of the indebtedness he would have to act promptly, which Coyne did; that the deed, as a matter of law, conveyed everything that Coyne had heretofore owned to Butler. This suit was brought by Butler for a declaration of the rights of the parties under the deed.

Appellant seeks reversal upon the basis that the trial court erred (1) in holding as a matter of law that an exception in a general warranty deed conveyed title to the grantee of the excepted estate, and (2) in holding that a question of fact was not raised by the summary judgment evidence.

In the first deed from Butler to Coyne, Butler excepted and reserved one-half of the minerals in the following language:

“EXCEPTING THEREFROM an undivided 1/2 of the Oil, Gas and other Minerals lying in, on and under said property which are hereby expressly reserved to the Grantors, their heirs or assigns forever together with the right of ingress and egress for the purpose of producing said minerals.”

In the deed back from Coyne to Butler, Coyne conveyed the fee simple title to the property, excepting one-half of the minerals in the following language:

“EXCEPTING THEREFROM an undivided 1/2 of the oil, gas and other minerals lying in, on and under said property, together with the right of ingress and egress for the purpose of producing said minerals.”

Coyne warranted the above described property, agreeing therein to forever defend “all and singular the said premises unto the said grantees * * *.”

The two deeds here involved are clear and unambiguous. Butler’s deed conveyed a one-half mineral interest to Coyne, but contained a provision which was clearly a reservation of the remaining one-half interest. Coyne’s return deed to Butler re-conveyed all of the property in question, but contained a provision which was clearly only an exception of a one-half mineral interest.

Well settled rules are applicable here. A reservation operates for the benefit of the grantor, and it serves to retain in him his ownership to the extent stated. An exception, however, is no more than an exclusion from the grant and operates to the benefit of the grantor only to the extent that ownership in the excepted interest is vested in the grantor and is not outstanding in another person. Klein v. Humble Oil & Refining Company, Tex.Civ.App., 67 S.W. 2d 911, (1934), reversed on other grounds, 126 Tex. 450, 86 S.W.2d 1077 (1935), but specifically approving the holdings of the Court of Civil Appeals on the meaning and effect of the reservations and exceptions; Pich v. Lankford, 157 Tex. 335, 302 S.W.2d 645 (1957). See also 5 Tex. Practice— Land Titles, § 701, pp. 107-109. The effect of Coyne’s return deed was to convey to Butler all of the one-half interest which he owned. Butler then owned one hundred percent of the mineral estate, made up of the one-half interest reserved in his deed to Coyne and the one-half interest re-acquired by Coyne’s subsequent deed to him.

Where a deed expressly undertakes to except or reserve the specified undivided interest in favor of the grantor, he will be estopped to assert title to this interest, if such assertion would have the effect of reducing the fractional interest that the deed purports on its face to convey to the grantee. If the subject deed was not plain and clear and if both the grant and exception could not be given effect, the exception must fail. The risk of title loss is on the grantor. Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (Sup.Ct.1940).

Appellant Coyne’s first point is not well taken because it is premised on the assumption that the trial court held that an exception in a general warranty deed conveys title to the grantee of the excepted estate. The trial court did not so hold, either directly or by implication, and error is not shown by such contention. Appellant’s first point is overruled.

Appellant Coyne’s second point presents the contention that a fact issue was presented which precluded summary judgment. He points out that appellees, in their First Amended Original Petition, plead mistake in the first alternative and fraud (actually alleged fraudulent concealment by appellant) in the second alternative. He further argues that it was his intention to retain and reserve a one-half mineral interest to himself and that his pleadings and affidavit support his position. The record fails to establish that any genuine issue of material fact was presented. The summary judgment is squarely based on the first count of Appellees’ First Amended Original Petition and their motion in reliance upon it. The alternative pleas of fraud and mistake were never reached by the trial court and it was not necessary to consider them on the motion for summary judgment. Appellant’s allegations and statements in his affidavit to the effect that he was satisfied that his deed to appellees retained a one-half mineral interest in him would not prevent the rendition of a summary judgment on the record as here presented. At most, this would present a mistake of law. We are concerned with Coyne’s legal intention which is clearly shown on the face of his return deed to Butler and in the context of the whole record. Appellant’s second point is overruled.

The trial court properly held that there was no genuine issue of material fact and that appellees were entitled to summary judgment as a matter of law decreeing that Coyne conveyed to Butler by his deed of May 22, 1962, all of the interest which he owned in the tract in question.

The judgment of the trial court is affirmed.