author: CALVERT, Justice.

text:
    John Fleetwood OGLETREE, Petitioner, v. Margie Bolding CRATES et vir, Respondents.
    No. A-9222.
    Supreme Court of Texas.
    Jan. 9, 1963.

      Lola L. Bonner, Rockport, Young, Young & Daggett, Houston, for petitioner.
    John Flinn, Sinton, Robert J. Pickens, Beeville, Reese D. Wade, Beeville, Ellis Clark, Rockport, Fischer, Wood, Burney & Nesbitt, Corpus Christi, Tracy N. DuBose, Corpus Christi, for respondents.
   CALVERT, Justice.

By petition for writ of habeas corpus, petitioner, John Fleetwood Ogletree, put in issue the custody of John Fleetwood Ogle-tree, Jr., young son of petitioner and respondent, Margie Bolding Crates. He alleged that he was entitled to custody under and by virtue of a judgment of an Alabama court. By way of answer and cross-action Mr. and Mrs. Crates sought to set aside the judgment of the Alabama court and sought a judgment awarding custody of the minor to them. Petitioner answered by appropriate pleas of res judi-cata.

The trial court awarded custody of the child to respondents, with a right of reasonable visitation given petitioner. The Court of Civil Appeals affirmed. 359 S.W.2d 54. We reverse the judgments of the Court of Civil Appeals and trial court and here render judgment awarding custody of John Fleetwood Ogletree, Jr., to John Fleetwood Ogletree and respondent, Mrs. Margie Crates, according to the terms of a judgment rendered and entered by the Circuit Court, Tenth Judicial Circuit of Alabama, August 13, 1957, in Cause Number 107-597, styled John Fleetwood Ogletree v. Margie B. Ogletree.

John Fleetwood Ogletree and Margie Bolding, now Mrs. Crates, were married in 1953. John Fleetwood Ogletree, Jr. was born to the marriage in 1955. The family resided in Birmingham, Alabama. The parents were divorced August 17, 1956 by judgment of the Circuit Court, Tenth Judicial Circuit of Alabama, which judgment, pursuant to an agreement between the parties, awarded general custody of the minor child to Mrs. Ogletree. The parties remarried December 29, 1956. They were again divorced by judgment of the Circuit Court, Tenth Judicial Circuit, August 13, 1957. The judgment of the court ratified and approved an agreement of the parties filed in the cause, and made the agreement a part of the judgment.

The agreement provides, among other things, that Margie Ogletree shall have custody of the child for a period of two weeks from the date of the judgment and that John Ogletree shall thereafter have “the sole care, custody and control” of the child, except during the period from June 15 to August 15 of each year when custody shall be in Mrs. Ogletree. The agreement provides for a right of visitation by each party when the other has custody “but only upon approval and with the consent of the party who then has such custody.” . Finally, the agreement recites: “The said respondent, Margie B. Ogletree, affirms and acknowledges that, based on her own decision, and after having consulted and obtained competent legal advice from solicitor of her own choice, the custody arrangement as set forth herein, is to the best interest of the said minor child, John Fleetwood Ogletree, Jr.”

On April 1, 1958 Ogletree was transferred to Oklahoma City, Oklahoma, by his employer, The Underwood Corporation. On May 4, 1958 he married Floy Barton. The child was removed from Birmingham to the home of its father in Oklahoma City. On August 5, 1958 Margie Ogletree, then having the minor child in her custody under the provisions of the judgment described above, filed her petition in Cause Number 107-597, in the court which rendered the original divorce and custody decree, seeking a modification of that decree. Ogletree answered and filed a cross-action by which he also sought a modification of the decree. Upon consideration of the pleadings and the evidence, the court, on September 12, 1958, dismissed the petition and the cross-petition with the following finding:

“The Court is convinced that at the time of the second divorce between the parties, they better than others, knowing all that was involved and all that had gone before, could more equitably discern and determine what would be for the best interest and welfare of their minor child, and that their agreement, requested by them to be honored by the Court and made a provision of the final decree herein, was sound, wholesome and wise. The Court is convinced that the plan and schedule agreed upon by the parents for the said child is for its best interest and welfare and should not be disturbed.”

Following entry of the foregoing judgment, the minor was returned to the custody of Ogletree. On December 13, 1958 Margie Ogletree married Ernest Warder Crates. On November 1, 1959 Ogletree’s employer transferred him to Houston, Texas. In the summer of 1960 Mrs. Crates and her husband filed suit against Ogletree in a Domestic Relations Court of Harris County, Texas, seeking a change of custody of the minor child because of changed conditions. The trial resulted in a judgment, dated July 15, 1960, denying the relief sought.

On June 15, 1961 Mrs. Crates obtained possession and custody of the child for a two-month period in accordance with the terms of the 1957 Alabama judgment. She took the child to Aransas County, Texas, where she rented a house. At the end of her legal custody period she refused to return the child to its father. This suit followed.

By her pleadings and by evidence offered at the trial of this case Mrs. Crates sought to obtain sole and exclusive legal custody of the minor child on two theories: 1. She sought to set aside the 1957 Alabama judgment on the ground that her consent to the agreement on which it was based was procured by duress and fraud, and to obtain custody by proving that the best interests of the child would be served by award of its custody to her. 2. She sought to prove changed conditions as a basis for awarding custody to her. Since no formal findings of fact or conclusions of law were filed by the trial judge, the judgment must be affirmed if it can be sustained on either theory. It is our opinion, however, that it cannot be sustained on either theory. We will deal first with the theory of changed conditions.

A final judgment in a custody proceeding is res judicata of the best interests of a minor child as to conditions then existing. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, 97 Am.St.Rep. 928; Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787. The judgment of the Domestic Relations Court of Harris County was thus res judicata of the best interests of the child as to conditions existing on July 15, 1960. To authorize a change of custody there must have been a material change of conditions since that date. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Short v. Short, Tex.Sup., 354 S.W.2d 933; Mumma v. Aguirre, Tex.Sup., 364 S.W.2d 220.

Respondents enumerate in their brief some twelve “conditions,” finding support in the evidence, which they contend justify the change of custody. There is no need to repeat them here. Examination of the evidence adduced on the trial establishes that some of the same conditions existed before July 15, 1960 and fails to establish that the other conditions did not exist before that date. Respondents did not discharge their burden of proving changed conditions so as to avoid the bar of res judicata of the Harris County Domestic Relations Court judgment.

The doctrine of res judicata also bars the effort of respondents to set aside the 1957 judgment of the Alabama Circuit Court on grounds of duress and fraud. For the purposes of this opinion we will assume that the Alabama judgment may be attacked on the grounds indicated in this collateral proceeding.

The duress and fraud alleged by respondents and which they undertook to prove on this trial were based upon false representations made to Mrs. Crates by petitioner and coercive inflictions upon her, by virtue of which petitioner procured her signature to the agreement of custody made the basis of the 1957 Alabama judgment. The allegations and the evidence may be summarized as follows: That Mrs. Crates, then Mrs. Ogletree, returned to Birmingham from a visit to New York in August, 1957 in response to an urgent message that her mother was critically ill; that petitioner insisted on talking to her about a divorce and the custody of their child while she was at the hospital in Birmingham and in an emotional condition, and even threatened to enter her mother’s hospital room and discuss the matter with the mother; that she was anxious to see their child but petitioner refused to let her see the child unless she would agree to a divorce and would sign an agreement that he could have custody of the child; that when she demurred, petitioner stated that his custody would be only temporary and promised that she could have the child with her at any time she wanted him and that he would not take him away from Birmingham, where they both lived; that petitioner induced her sister to assure her that petitioner would keep his promises; that petitioner repeated the promises in a prayer and also with his hand on her family bible; that she went to the office of petitioner’s lawyer where the agreement had been drawn and where it was discussed; that the lawyer advised her that if she did not sign he would have to implicate others and paint the “blackest picture” possible of her. She admitted that she did not sign at the time, but went to the office of a lawyer of her own choice for advice; that on the following day she went with her lawyer to the office of her husband’s lawyer for further discussion of the agreement, at which time her lawyer read the agreement and had it amended to include the provision for her immediate custody of the child for two weeks, whereupon she signed. She testified that she was so emotionally upset at the time that she had no idea what she was signing and relied implicitly on the promises made to her by. petitioner.

The summarized evidence paints an un-pretty picture; ■ but the difficulty with Mrs. Crates’ position is that prior to this proceeding she has twice filed proceedings seeking to relieve herself of the binding effect of the 1957 judgment, once in the very court which rendered it and later in the Domestic Relations Court of Harris County. Her testimony shows that all of the false promises, if any, were known to her to have been false and that she knew she was a victim of duress, if any, before she filed the proceeding in the Circuit Court for the Tenth Judicial Circuit in Birmingham in 1958. She could have litigated the issues of duress and fraud in that proceeding. She did not. Neither did she urge or litigate them in the suit in Harris County in 1960 when she also knew that she might do so.

No proof of the Alabama law of res judicata was introduced on the trial, nor was the Court requested to take judicial notice of that law as permitted by Rule 184a, Texas Rules of Civil Procedure. The Alabama law, therefore, is presumed to be the same as the law in this state. Ferguson-McKinney Dry Goods Co. v. Garrett, Tex.Com.App., 252 S.W. 738, 742; Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, 603, writ refused.

The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 99, 47 Am.St.Rep. 79. In this connection, we are not unmindful of the limitation on the rule of' res judicata applied in Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745. In that case the rule of res judicata was held not to bar a second suit based on a technically different cause of action.

There may be a technical distinction between a suit to obtain custody and possession of a minor child through modification of a final judgment and a suit to obtain custody and possession of the child by setting aside a final judgment, but the broad cause of action and the relief sought in both suits are the same. The suit in each instance tests the rights of the parties to custody of the child and the only pertinent inquiry is the best interests of the child. As a matter of public policy there-should be a high degree of stability in the home and surroundings of a young child, and, in the absence of materially changed conditions, the disturbing influence of constant re-litigation should be discouraged. Once a final judgment of custody is rendered, a subsequent suit to modify or to avoid the judgment should be res judicata of all causes of action which, with diligence, could have been asserted in the suit as a basis for obtaining custody and possession of the child.

The wisdom of the rule can be no better illustrated than by the history of the struggle for this child’s custody. On two occasions, in Birmingham in 1958 and in Houston in 1960, Mrs. Ogletree has affirmed the validity of the 1957 judgment of the Alabama court and sought its modification. Now, in a third suit, she seeks to assert the invalidity of the judgment on the basis of facts fully known to her when the two prior suits were filed and tried. There should be an end to litigation of this type. We hold that respondents’ effort to set aside the 1957 judgment of the Alabama Circuit Court on the ground that Mrs. Crates’ signature to the agreement made the basis of that judgment was procured by duress and fraud is barred by the rule of res judicata.

In reaching the conclusion set' forth above we have considered only the record made on the main trial of this case. The pleadings filed and the evidence introduced in the trial of the case in Alabama in 1958 were not introduced on the main trial of this case. They were offered in evidence at the hearing on the motion for new trial in this case, but the trial judge refused to admit them. They were included in a bill of exceptions. They establish the wisdom of the rule of res judicata as we have applied it. They disclose that all of the evidence now asserted to establish duress and fraud in procuring Mrs. Crates signature to the 1957 agreement was introduced and was before the Alabama Court in 1958 and must have been considered by that court before rendering its 1958 judgment. Moreover, Mrs. Crates testified on the trial of this case that she had informed her attorneys in both of the former proceedings of the facts which in her opinion constituted fraud and duress in obtaining her signature to the 1957 agreement.

The judgments of the Court of Civil Appeals and the trial court are reversed and judgment is here rendered awarding custody of John Fleetwood Ogletree, Jr. to petitioner, John Fleetwood Ogletree, and respondent, Mrs. Margie Crates, according to the terms of the judgment of the Circuit Court, Tenth Judicial Circuit of Alabama, rendered and entered on August 13, 1957 in Cause No. 107-597, styled John Fleet-wood Ogletree v. Margie Ogletree.

It is further ordered -that the Clerk of this Court issue a writ directed to any sheriff or constable of this State commanding that immediate possession of John Fleetwood Ogletree, Jr. be taken and that said minor child be delivered into the possession and custody of John Fleetwood Ogletree.

No motion for rehearing will be entertained. Rule 515, Texas Rules of Civil Procedure.


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    W. W. McMILLAN et al., Petitioners, v. R. E. SMITH et al., Respondents.
    No. A-8888.
    Supreme Court of Texas.
    Nov. 14, 1962.
    Rehearing Denied Jan. 23, 1963.

      Bell & Singleton, Houston (Otto Yelton, Houston, of firm), for petitioners.
    Hofheinz, Sears, James & Burns, Houston, for respondents.
   GREENHILL, Justice.

This is a suit for specific performance of a written contract for the sale of the McMillan Ranch in Brazoria County, Texas. The suit was brought by the purchasers, R. E. Smith and Roy Hofheinz of Harris County. The sellers, W. W. McMillan, Arthur Mandell, and Herman Wright, filed a cross action for rescission of the contract. The major issues are whether the buyers made a sufficient tender of the purchase price; and if they did not, whether such failure precluded them from obtaining specific performance. A determination of those issues requires a construction of the contract, particularly as to the necessity for the payment for an alleged vacancy of approximately 36 acres within the area.

Trial was to the court sitting without a jury. At the conclusion of the buyers’ (plaintiffs’) evidence, both parties rested. The sellers moved for judgment upon the basis that the undisputed evidence showed an inadequate tender by purchasers. The trial court entered a take-nothing judgment against the buyers and declared the contract null and void.

A majority of the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for a new trial. 352 S.W.2d 872. The “majority opinion” is by Justice Werlein. The concurring opinion by Justice Coleman agrees with that of Justice Werlein only as to the result reached: that of reversal and remand. Otherwise he disagreed with Justice Werlein on major issues. Chief Justice Bell, in dissent, agreed with Justice Werlein in many respects, but he would have affirmed the judgment of the trial court because of what he regarded as an insufficient tender by the buyers. Both buyers and sellers applied to this Court for writ of error.

Under the contract of sale dated August 24, 1959, the sellers agreed to furnish an abstract of title showing good and merchantable title to the ranch. Upon examination of the abstract submitted, buyers’ attorney listed twenty-five objections to ti-tie, many of which were removed by sellers. In February of 1960, sellers advised buyers of their refusal to take action on several objections and their (sellers’) inability to clear others. Sellers were thus in default on the contract. Thereafter buyers repeated their request for removal of these defects on several occasions and finally gave sellers written notice on February 29, 1960, of their election to take title subject to unsatisfied objections as authorized under the contract.

In this letter of February 29, buyers demanded that sellers execute a deed which conveyed the entire ranch, with the exception of certain outstanding royalty and mineral interests. This deed, which was drafted by buyers’ attorney, included a general warranty to all land conveyed, but excepted from the warranty all claims arising under certain canal and county road easements. Pursuant to the agreement, the purchasers agreed to assume an indebtedness of $152,-874.43 which was secured by a deed of trust lien on the property. It was in this same letter that buyers made their tender of $525,000, less deductions for the debt assumed, survey costs, filing fees, Federal documentary stamp tax, and the “reasonable cost and expense of curing and clearing title.” The last deduction of $27,898.12 is the focal point of the controversy and is the foundation of sellers’ position that buyers failed to make an adequate tender of purchase price as a condition precedent to specific performance.

As will be later set out, the contract provided that if the sellers did not own 1,184 acres, or if it should be determined that the over-all parcel of land, after survey, should contain less than 1,184 acres, the consideration to be paid would be adjusted at the rate of $443.42 per acre, or this amount would be added per acre for land in excess of 1,184 acres.

The buyers’ deduction of $27,898.12 as the “reasonable cost and expense of curing and clearing title” was detailed as follows:

(a) $1,500.00: this charge was buyers’ estimate of the reasonable cost and expense for procuring two quitclaim deeds from the Sharp and Sandidge interests and for obtaining a certificate of succession of ownership from a school district. The amount included anticipated attorneys fees, court costs and miscellaneous legal costs “since suit in trespass may be necessary.”

(b) $16,093.04: this amount was asserted to be the reasonable cost of acquiring title to a vacancy existing within the ranch. Buyers claimed that a survey of the ground and an examination of the abstract both revealed a 36.293-acre vacancy of unpatented school land to which sellers owned no title. For this failure of title, buyers deducted $443.42 per acre pursuant to a provision in the contract referred to above. They nevertheless demanded a general warranty deed to all the land including the area in the vacancy.

(c) $10,305.08: this amount was buyers’ calculation of the cost of removing three easements which prevented sellers’ title from being good and merchantable. The survey of the property had established that the total gross acreage of 1202:825 acres included easements of 18.76 acres in the Houston Lighting and Power Company (which easement was unrecorded); 4.28 acres in the Dow Chemical. Company; and .20 acre in the Trunkline Gas Company. Approximately 5 acres of the power company easement was across the alleged vacancy. Buyers’ position was that sellers had made no attempt to get the easements removed; and that by negotiations with the holders of the easements, it was possible to get them removed. In buyers’ letter of February 29, I960, they stated that they did not know what it would take to get the easements removed. But buyers estimated that it would be at least $443.42 per acre. So buyers demanded a general warranty deed to the land which was subject to the easement but deducted $443.42 per acre from the purchase price for such land. An 18-acre county road easement and an 11-acre canal easement are not in issue here.

Following buyers’ final demand and tender, the sellers, in a letter dated March 18, 1960, refused to execute the deed demanded of them, asserting that the $27,-898.12 deduction was unauthorized and that the tendered purchase price was therefore insufficient. In the same letter, sellers stated that they were rescinding the contract by reason of buyers’ insufficient tender. At all times, buyers insisted that each of the disputed deductions set out above was-expressly authorized under the contract of sale.

Upon the trial of the case, the purchasers • pleaded that they were ready, willing and able to carry out the contract. They offered to do complete equity as between the parties, and deposited $336,038.10 in the court, the amount they regarded as owing. They further pleaded that “in the event the Court * * * determines that any further sum is due to Defendants under the sale agreement, Plaintiffs stand ready, willing and able and here and now offer to deposit such further sum in court or pay the same to the Defendants, as the Court may order.” There is no question as to the solvency of the purchasers.

The controlling parts of the agreement read as follows:

“1. Subject to the following terms, conditions, and stipulations Sellers have agreed to sell and Purchasers have agreed to buy all of the following described tracts or parcels of land lying and being situated in the County of Brazoria, State of Texas:
“All of the property owned or claimed by the Sellers in Section 76 [and other sections adjacent thereto].
“2. The Sellers will convey the surface to all of such lands by general warranty deed to the Purchasers * * * [The mineral estate was also to be conveyed by general warranty deed, subj ect to any outstanding royalty and mineral interests shown of record]
* * * * * *
“4. ■ The overall consideration of $525,000.00 is subject to the agreement and understanding of the parties that 1,184. surface acres are contained within the overall parcels of lands to be-conveyed under this agreements Should it be determined upon examination of abstracts of title that the Sellers do not own 1,184 surface acres, or should it be determined that the overall parcel of lands actually contains less than 1,184 acres or more than 1,184 acres by survey upon the ground, conducted by a -Licensed State Land Surveyor selected by the Purchasers, at •Sellers’ cost, the final cash consideration to be paid shall be adjusted at the rate of $443.42 per acre, such sum to be deducted for acreage short of -1,184 •acres, or added for acres -in excess o-f 1,184 acres. Provided, that if either examination of title or survey reveals-that the over-all parcel of lands contains less than 1,000 acres, Purchasers, shall be entitled to cancel this contract and have -the earnest money returned to them.
* * * ⅝ * *
“6. Sellers agree to furnish the Purchasers an abstract of title covering the above described lands from the sovereignty of the soil to a current date, which abstract shall be furnished without delay and within a reasonable time from and after the date of this agreement, and which abstract of title, upon examination, will show a good and merchantable title in the Sellers as represented in Paragraph 2 hereof, to the-satisfaction of Purchasers’ attorneys. Within a reasonable time after delivery of such abstracts, Purchasers will either accept the title as good and merchantable as herein set out, or will furnish to the sellers the written title opinion of Purchasers’ attorneys, stating objections to the title, whereupon Sellers shall have a reasonable time to clear the objections, at Sellers’ sole cost and expense, and show a good and mer-■chautable title as aforesaid. In the event of the failure of the Sellers to furnish a good and merchantable title satisfactory to Purchasers’ attorneys, the Escrow Agent shall upon Purchasers’ demand, return to Purchasers the $25,000.00 earnest money whereupon this contract shall be cancelled; or Purchasers may enforce specific performance of this contract; or, in the ■event of Sellers’ failure to meet and ■cure objections to the title Purchasers may demand and take title subject to such objections and shall be thereupon entitled to charge the Sellers and recover from them the reasonable cost and expense of curing and perfecting the title so acquired.
“7. Not later than thirty (30) days from and after the delivery of all curative instruments necessary to show a good and merchantable title to the satisfaction of Purchasers’ attorneys, or thirty (30) days after acceptance by Purchasers’ attorneys of the title as shown in the abstract as good and merchantable, the Sellers agree to deliver a good and sufficient General Warranty Deed (subject to the exceptions set out above) in form satisfactory to the Purchasers properly conveying the lands herein contracted to the Purchasers; ■and upon the delivery of such deed, Purchasers agree to pay the consideration by assumption and cash payment as set out above. At the time of such closing, the Sellers will be charged with their prorated portion of taxes for the year 1959, with the cost of Federal revenue stamps, and with abstract and title costs (including the cost of curing title).”

As will be set out below, the tender of buyers was not the precise sum due under the contract. The controversial deductions will be discussed in order. The effect of this tender in view of other circumstances and purchasers’ tender in the trial court will be discussed later herein.

Neither paragraph 6 nor paragraph 7 of the contract authorizes buyers to deduct for attorneys fees and court costs which have not yet been incurred. The last sentence of paragraph 6, entitling buyers “thereupon * * * to charge the Sellers and recover from them the reasonable cost and expense of curing and perfecting the title so acquired,” cannot be so construed. Buyers purport to deduct for costs which might or might not be incurred in acquiring the quitclaim deeds and transfer certificates in question. Suit may or may not be necessary to cure title. Even assuming that the contract did permit deductions of such costs as were reasonably anticipated, the clause would nevertheless be unenforceable because the projected costs are too-speculative at this time. Guesswork would underlie any estimation of such costs whether it be made by buyers’ attorney or by the courts. The cost of the curative work and possible litigation involved here simply does not lend itself to forecast with certainty under the facts before the Court.

We agree with the majority of the Court of Civil Appeals that Paragraph 7 does not authorize the $1,500.00 deduction for attorneys fees. The provision under which buyers may charge sellers with “abstract and title costs (including the cost of curing title),” refers to actual costs expended by either party up to the time of closing. The entire paragraph deals with closing deductions in the event seller transfers good and merchantable title and all defects have been cured. If the buyers elected to take the title in a defective condition, as they did, they may, under the contract, recover the cost of clearing title. But they may not deduct a sum in advance under the contract as we construe it.

We turn now to the deduction made by purchasers of $16,093.14 from their tender because of the alleged vacancy. The figure represents 36.293 acres said to be in the vacancy at $443.42 per acre. Sellers made no effort to cure this title objection-Under the contract of sale as we interpret it, buyers had several choices:

1. They could exclude the 36.293 acres from the deed and abate the purchase price at $443.42 per acre.

2. Since sellers failed to show good and merchantable title, buyers could have demanded the return of the $25,000 earnest money and cancelled the contract.

3. They could specifically enforce the contract as to all land owned or claimed by sellers (which would include the vacancy) subject to the title defects, with a right of recovery from sellers of the reasonable cost of curing and perfecting title, and look to sellers on their general warranty on the entire title.

Buyers elected the third alternative: to take the land subject to the title defects. They tendered a general warranty deed to the entire acreage, including the vacancy, and demanded its execution. At the same time they tendered the cash for the purchase which excluded $443.42 per acre for the vacancy. Under the agreement as we construe it, they cannot do both of these things.

Counsel for buyers argue that under the contract and the third alternative that they are “thereupon” entitled to deduct the cost of curing and perfecting title which they estimate to be $443.42 per acre, and for that reason they made the correct tender. As we have indicated above, we are unable to agree with this construction. When the reasonable cost of such curative work has been established, it may be recovered; and buyers have a right on their warranty.

It is also argued that buyers should recover for the failure of title to the vacancy in this suit and not have to pay their money and then bring another suit later after they have done all the work sellers were supposed to do. Williston suggests that a suit for damages for breach of warranty may be combined with a suit for specific performance to dispose of the two rights of the purchaser in one suit. 5 Williston, Contracts (Rev. ed.) 4016, § 1436. However, no such claim was pleaded or presented in this case.

We think the same reasoning applies to the acreage over which there were easements. Having elected to take the acreage subject to its defects and having demanded a general warranty deed to the land, buyers must look to their rights to recover their reasonable costs of curing title or to recovery on their warranty if the defects cannot be cured.

Having thus held that the tender of purchasers was not of the precise amount due, we turn to the question whether this failure prevents the granting of specific performance. Two additional factors are present here: as indicated above, sellers were in default when the tender was made (they had failed to show good title and had failed and refused to attempt to cure certain defects) ; and the purchasers had made a tender in court of $336,038.10 and had offered to put up such additional sum as the court might direct. We regard this as an offer to' do equity and an adequate tender in court.

There is a well-recognized exception to the rule that a purchaser, to obtain specific performance, must have made a correct tender to the seller. Historically, in a suit for specific performance, the question as to the necessity for a tender of performance by a purchaser has been determined according to equitable rules rather than to those applicable to an action at law. The latter requires the purchaser, as a condition precedent, to tender performance. Courts of equity, on the other hand, have not been bound by strict and inflexible rules. This problem is the subject of an annotation in 79 A.L.R. 1240. It is there concluded that,

“Hence if, because of defects in the vendor’s title, which he fails or refuses to cure, * * * a tender of performance by the vendee would be a useless act * * *, his failure to make such tender will not preclude in his behalf the equitable relief of specific performance, at least where he tenders performance in his bill or petition.”

Support for this rule is also found in 4 Pomeroy, Equity Jurisprudence, 1051, § 1407a; 5 Corbin, Contracts (1951), 769, § 1175; and 49 American Jurisprudence 166-167, Specific Performance §§ 143-144. We think the substance of this rule was adopted by this Court in Burford v. Pounders, 145 Tex. 460, 199 S.W.2d 141 (1947).

The particular contract in question, though drawn by able counsel for the purchasers, is difficult to construe. The three opinions of the Court of Civil Appeals attest to this fact. The sellers were in default prior to the purchasers’ tender. Their default, the negotiations in evidence prior to the tender, the many flaws in sellers’ title, and the objections to these defects made it even more difficult to arrive at a precise amount which the courts would say was due under the contract. The purchasers tendered the amount which they believed to be due. In their pleadings in the trial court, the purchasers said, in substance: we have tendered what we, in good faith, consider to be due; if we owe any more, we herewith make a full tender of whatever the court finds to be due. Under these circumstances, the trial court was in a position to protect fully the rights of both the purchasers and the sellers. And under these circumstances, our holding is that the failure to make a tender of the amount actually due does not preclude a court of equity from specifically enforcing the contract. For the same reasons, the sellers are not entitled to rescission of the contract of sale. Armstrong v. Ross, 61 W.Va. 38, 55 S.E. 895, 899 (1906).

The “majority” opinion reversed the judgment and remanded the cause for a new trial because of the exclusion of certain evidence. Included in that category was evidence tendered by purchasers af the existence of the vacancy; evidence of purchasers’ attorney which gave his reasons for believing, in good faith; that the title was defective; and a letter written by sellers immediately after buyers’ letter of tender which related to a waiver by sellers of buyers’ insufficient tender. In view of the holdings of this opinion, we see no purpose in remanding the case generally for a new trial. In so far as we have been able to determine, none of these matters would be decisive. Our decision has assumed the existence of the vacancy, the good faith objections of counsel to the sellers’ title, and the insufficiency of purchasers’ original tender. So these errors, if any, become harmless.

The tender in the trial court included the assumption of the indebtedness of $152,874.43, about which there is no question, and cash in the amount of $336,038.10. In addition, purchasers tendered such additional amounts as might be found to be due. That would include the $27,898.12 which buyers had deducted and which this Court directs be paid into court as a condition precedent to the specific performance demanded by buyers. Upon fulfillment of this requirement, buyers are entitled to execution of the deed which they submitted to sellers on February 29, 1960.

This action by purchasers will not prejudice purchasers’ right to .recover, under the contract, the reasonable cost of curing the title to the property or their rights under sellers’ covenant of general warranty. Implicit in this holding is the right of purchasers to any after-acquired title which sellers might obtain to the property in question.

In so far as judgment of the Court of Civil Appeals reverses that of the trial court, it is affirmed. In so far as the judgment of the Court of Civil Appeals remands the cause to the trial court for a new trial, it is set aside, and the cause is remanded to the trial court with instructions that if within 30 days from the day on which the opinion of this Court becomes final, the purchasers shall pay into the registry of the trial court the sum of $363,936.22 due to sellers under the contract, the purchasers shall he entitled to specific performance. Otherwise, judgment shall be entered for sellers.


author: CALVERT, Chief Justice. NORVELL, Justice

text:
    SAN ANTONIO RIVER AUTHORITY, Petitioner, v. G. Garrett LEWIS et al., Respondents.
    No. A-8304.
    Supreme Court of Texas.
    Nov. 28, 1962.
    Rehearing Denied Jan. 23, 1963.
    Sawtelle, Hardy, Davis & Goode, San Antonio, for petitioner.

      Foster, Lewis, Langley & Onion, San Antonio, for Lewis et al.
    Oliver & Oliver, San Antonio, for Daniel & Townsend.
   CALVERT, Chief Justice.

The judgment rendered herein on February 14, 1962, is set aside and the judgment of the Court of Civil Appeals is affirmed. The opinions heretofore filed herein are withdrawn and the following is now filed as the opinion of the court.

This is a declaratory judgment suit.

Petitioner is a governmental agency created by the Legislature pursuant to authority contained in Section 59 of Article 16 of the Constitution of Texas, Vernon’s Ann.St. See Art. 8280-119, Vernon’s Annotated Texas Civil Statutes. In discharge of its duty of flood control and for the protection of the lives, health and property of those living or owning property in the area, it is engaged in a project of straightening, widening and deepening the channel of the San Antonio River. By this suit it seeks a judgment declaring that it is not responsible in damages to the respondents-landowners by reason of diverting the waters of the river from their accustomed channel to a new channel some two hundred feet to the west. The trial court, by summary judgment, did so declare. The Court of Civil Appeals at San Antonio, the Chief Justice dissenting, reversed the judgment of the trial court and remanded the case for trial of respondents’ claims for damages which are asserted by cross-action. 343 S.W.2d 475.

Respondents claim certain rights to water for irrigation under grants made by the Mexican government in 1824. Their position is that these rights are vested property rights which have been taken, damaged or destroyed by the changing of the river channel and for which they are entitled to compensation under Section 17 of Article I of the Constitution of Texas. Petitioner’s claim to non-liability rests upon an assertion that respondents have no vested property rights which are taken, damaged or destroyed by the changing of the river channel, and that, in any event, the changing of the river channel is an exercise of the police power of the State for the consequences of which there can be no liability in damages.

The trial court was of the opinion that respondents’ “irrigation rights” are “vested property rights,” but that such rights were granted, and are held, subject to “the inherent power of the State, reasonably exercised, to protect the public health, safety and welfare without making compensation” for the taking or damaging thereof. Based upon that opinion, or conclusion, the court adjudged the taking of respondents’ rights to be damnum absque injuria. The Court of Civil Appeals also held that respondents have certain vested property rights which are being taken, damaged or destroyed by the changing of the channel of the river, but, contrary to the declaration of the trial court, held that the fact that the river channel was being changed by petitioner in the exercise of the State’s police power did not insulate it against liability.

In order to determine the rights of the parties it is necessary to summarize the material facts which appear to be without dispute.

In 1730 the Spanish government established the Mission of San Juan Capistrano on the east side of the San Antonio River, a few miles south of the original site of the present City of San Antonio. Mission personnel, no doubt with the aid of Indian labor, built an acequia or irrigation ditch on the east side of the river in 1731. Water was diverted from the river by a dam, built in the bed of the river, which raised the water level and permitted water to enter ihe ditch by gravity flow through a head-gate. Water from the river was thus made available to the mission and for irrigation of lands adjacent to the ditch. The irrigation system is similar to others built by early Spanish settlers in and near San Antonio and El Paso.

In 1824 Mexico, then an independent nation of which Texas was a part, made grants of land and of water to settlers along the San Juan ditch. One of these grants, fairly illustrative of all, is copied as a footnote to the opinion of the Court of Civil Appeals. See 343 S.W.2d 478-479. The instrument was executed by Jose Antonio Saucedo, Gefe Politico of the Province, on February 5, 1824, and recites:

“ * * * I have decided to grant him [Francisco Maynes] and I do hereby grant him in the name of the Mexican Nation, two dulas of irrigation water with the accompanying land for cultivation; the water to be taken from the irrigation conduit of the Mission of San Juan Capistrano, so that as his own property he may cultivate and enjoy the land within the term prescribed by law; he may possess it for his own use or the use of his successors at the rental of 10 pesos annually which he must pay for the said dulas granted him for the period of four years, in accordance with the provisions of the Very Excellent Provincial Deputation. After the four years have elapsed he may enjoy the two dulas of irrigation water, clear of all encumbrance and as such he may sell or mortgage them at his pleasure.
“To this end Francisco Maynes will be placed in formal possession of the two dulas of water, and will be provided with any certified copy or copies he may request in protection of his title.”

On February 7, 1824, Saucedo executed another instrument which recites: '

“I * * * went to the land which by the preceding decree I had granted to the petitioner, Bachelor Francisco Maynes, and there I measured two suertes of land with 200 varas on each frontage. * * *
“I placed the petitioner, Bachelor Francisco Maynes, in real and corporal possession of the land with its accompanying irrigation water, * *

On June 25, 1825, Saucedo signed a writing in which he recited: “Francisco Maynes paid 40 pesos to this government, the amount of the five pesos annual tax imposed on him for four years on each of the two dulas of irrigation water with the accompanying land which were granted to him in the labor of San Juan Mission.”

The dam, headgate and ditch, although renewed and repaired from time to time, were still in existence, and in use as facilities for irrigating respondents’ lands until the river channel was changed by petitioner. Except for destruction of the dam, none of the physical structures of the irrigation system have actually been taken, damaged or destroyed by petitioner. Petitioner has installed a pump in the new channel of the river which is being used temporarily to pump water into the irrigation ditch, without prejudice to the legal rights of the parties.

To clarify the question before us it may be well to note some questions which are not here for decision. Petitioner does not deny that respondents have vested property rights to take water from the San Antonio River for irrigation; it assumes they do, and so will we. Petitioner does not claim that diversion of the waters to a new channel is in aid of navigation. Petitioner does not not question respondents’ rights of access over its land to the new channel of the river for the purpose of obtaining the water to which they are entitled, and the trial court’s judgment confirmed, in effect, easements in respondents across lands of petitioner for the transportation of the water to the mouth of the San Juan ditch by any means which do not seriously interfere with flood control or the flood control project. As we analyze respondents’ pleadings, they do not seek to recover damages based on the value of their lands as depreciated by loss of, or damage to, any of the physical structures composing the irrigation conduit—the ditch, the headgate and the dam; rather, they seek to recover damages based on the value of their lands as depreciated by loss of their rights to obtain the granted waters from their accustomed channel through the irrigation conduit. We will approach the problem on that basis.

Viewed in the proper factual context, the irrigation water, although to be taken from the San Juan ditch, was granted from the San Antonio River. True, as stated in the opinion of the Court of Civil Appeals, the river is not mentioned in the grants, but the river was the real source of the waters granted. The question to be decided, then, as the issue has been narrowed, is whether under the Mexican grants respondents acquired, as against the sovereign, vested property rights to have the waters of the San Antonio River continue to flow in their accustomed channel. The question must be answered under Mexican law applicable when the grants were made. Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438; Luttes v. State, 159 Tex. 500, 324 S.W.2d 167.

Associate Justice Pope of the Fourth Court of Civil Appeals at San Antonio has recently written a scholarly and comprehensive analysis of the sources from which the law applicable to Spanish and Mexican grants in this state must be derived. See The State of Texas v. Valmont Plantations, Tex.Civ.App., 346 S.W.2d 853. There is no need to undertake here a second analysis, no doubt of less luster, of the same matter. History records that the constitutional and statutory law of the Mexican nation and of its component States, like the government itself, was in an unsettled state from the date of the independence of the nation in 1821 until the promulgation of the Federal Constitution of the United Mexican States on October 4, 1824. It was during this period that the water grants to respondents’ predecessors in title were made. Research does not disclose any Mexican constitutional, code or other law which, in itself, either expressly or impliedly governs the question as it has been stated above. In the absence of any such law it is an accepted fact that the civil law of Spain was the law of Mexico and fixed the rights of the grantees under the grants. Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451. Hence, we must turn to the Spanish law for an answer to the question. Inasmuch as we have been cited to no Spanish law which expressly governs the question and none has been found by research, our conclusion of necessity must rest upon a process of reasoning from law which tends to shed light on it.

We begin our process of reasoning in the matter with acceptance of the fact that the decisions of this court, made only after careful analysis of Spanish law, have long since affirmed that under that law the sovereign was the owner of the beds of all perennial streams in this State, whether navigable or not, State v. Grubstake Inv. Assn., 117 Tex. 53, 297 S.W. 202; Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728, and that while the sovereign could, indeed, grant the beds to individuals, City of Galveston v. Menard, 23 Tex. 349, it will not be presumed to have done so, and will not be held to have done so in the absence of direct and certain evidence that such was its intention. City of Galveston v. Menard, 23 Tex. 349; State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728. Acceptance of that fact may well mean that respondents did not acquire property rights in the bed of the San Antonio river. The grants do not expressly create easements or impose servi-tudes for continued maintenance of the dam in the river bed and it may be strongly reasoned from Spanish law that none are to be implied. Law 5, Title 17, Book IV, Recopilacion de las leyes de Indias, 2 White 56; Laws 6 and 8, Title 28, Part 3, Las Siete Partidas; Hall’s Laws of Mexico, §§ 1388, 1401, 1406; An Act Concerning Irrigation Property, 3 Gammel’s Laws of Texas 958. Continued existence of the dam in the bed of the river appears not to have been reasonably necessary to enjoyment of the water granted from the acequia; there were other methods of capturing and delivering the water into the ditch. But whether the grants do or do not create easements or impose servitudes in the river bed is not determinative of the true question in the case, viz.: Did respondents acquire, as against the sovereign, vested property rights to have the waters of the river continue to flow in their accustomed channel?

In Rhodes v. Whitehead, 27 Tex. 304, 310, this court declared that “Aqua currit et deb-et currere lit currere solebat, is a maxim no less of the civil than the common law.” Black’s Law Dictionary translates and defines the Latin phrase Aqua currit et debet currere, ut currere solebat as follows: “Water runs and ought to run, as it has used to run. 3 Bulst. 339; 3 Kent, Comm. 439; A running stream should be left to flow in its natural channel, without alteration or diversion. A fundamental maxim in the law of watercourses.” See also Haas v. Choussard, 17 Tex. 588. The Code law of Spain as expressed in Las Siete Partidas gives validity to our former declaration.

There are express provisions in Las Siete Partidas protecting the rights of those entitled to the use of waters of streams against diversion by others of such waters from their accustomed channel. Thus it is provided in Law 13, Title 32, Part 3, that one who “obstructs the current, or diverts the stream so that others who are accustomed to make use of it, cannot irrigate their lands by it, as they were formerly accustomed to do” shall demolish the offending structures at his own cost and expense and shall pay all damages and losses suffered by his neighbors by reason thereof. In Law 15, Title 32, Part 3, it is provided that if a stream running through the lands of several persons becomes obstructed from natural causes “so that the channel is cut off, and the water removed from the place where it formerly flowed” the person on whose land the obstruction occurs can be compelled to “open the channel through which the water formerly ran and cause it to resume its accustomed course” or to permit the complaining party to open it. By Law 16, Title 32, Part 3, protection is afforded a purchaser from an injured party against one who has built a structure (“anything”) on his premises “by means of which water is cut off or obstructed where it was formerly accustomed to flow,” and rights against the offender are preserved even though he has sold his land. By Law 17, Title 32, Part 3, similar protection and separate rights to damages against multiple offenders are preserved even though he has sold his land. By Law 18, Title 32, Part 3, it is provided that one may build a mill or a machine propelled by water power for beating cloths on his own land, “or on ground belonging to the king” with his consent, near another such mill or machine, but that the “work should, however, be performed in such a way that the course of the water will not interfere with the other mill, but that the party may freely have it as it was formerly accustomed to run.” See Scott’s Translation, Pages 871-873. These detailed provisions of the Partidas manifest a clear purpose in the Spanish law to protect one’s right to the use of waters of a stream against diversion by others of the waters from their accustomed channel. It hardly seems reasonable to say that the sovereign reserved the right to do the very thing which the law so carefully prohibited others from doing.

Considering that respondents’ predecessors in title paid for their rights to water, which they were at liberty to sell or to mortgage at their pleasure, at a time and under circumstances when both they and the sovereign must have contemplated that the waters of the San Antonio River would continue to flow indefinitely in their accustomed channel, we are disposed to resolve any doubt of a proper answer to the question in favor of respondents. The water rights of tlie grantees were neither riparian nor appropriative; but our holding will harmonize the rights of respondents with the rights of riparians in this area of the law, McGhee Irrigating Ditch Co. v. Hudson, 85 Tex. 587, 22 S.W. 398, 967, 22 S.W. 967, and they ought not to enjoy less. If the rights granted were to have value it was essential that the waters of the river continue to flow in their accustomed channel. The grantees knew that when they purchased their rights to water from the river and the Mexican government knew it when it sold them. To hold that the right to change the river channel was reserved to the sovereign would be to permit the sovereign to take or to destroy, without compensation, rights which it had sold for compensation. But for consent by petitioner to the granting of an easement across its lands by judicial decree, respondents’ rights to water would have been lost entirely. What effect the granting of the easement will have on the legal measure or the recoverable amount of respondents’ damages is not in issue on this appeal.

Once we conclude, as we do, that respondents’ predecessors in title acquired vested rights to have the waters of the San Antonio River continue to flow in their accustomed channel, we must reject the idea that petitioner can take the rights without payment of compensation. By changing the channel of the river and diverting its waters petitioner is taking respondents’ property. McGhee Irrigating Ditch Co. v. Hudson, 85 Tex. 587, 22 S.W. 967, 968; Mud Creek Irr. Agr. & Mfg. Co. v. Vivian, 74 Tex. 170, 11 S.W. 1078, 1079. The provisions of Section 17, Article I of the Constitution of Texas applies as well to the State and its agencies as to private corporations. Similar limitations on the right of the sovereign to take private property are found in Spanish and Mexican law.

In Part II, Title 1, Law 2, of Las Siete Partidas, dealing with the power possessed by the emperor and how he should make use of the empire, it is said that the emperor has “no authority to deprive anyone of his property without his consent, unless he does something on account of which he should lose it by reason of law. And where it happens that the emperor was compelled to take it, for the reason that he had need to make disposition of it for the common benefit of the country, he is required by law to give beforehand something in fair exchange for said property which is worth as much, or more, so that the owner is remunerated in the sight of all good men.”

One of the restrictions imposed on the power of the king in Article 172 of the Constitution of 1812 for Spain and her dominions reads:

“The King can not appropriate the property of any private individual or corporation, nor disturb them in their possession, use and benefits of it; and if in some specific case it should be deemed necessary to seize the property of a private individual for a purpose of recognized public utility, it could not be effected without, at the same time, indemnifying him, by giving him a fair compensation in the good judgment of honest men (of the commun ity) in good standing.” (See Diccion-ario de la Administración Española, by M. Martínez Alcubilla, 6th ed. Vol. IV, p. 267. Madrid, 1915, as translated by Dr. Ramon Martinez of the University of Texas faculty).

Paragraph 3 of Article 112 of the 4th Section of the 1824 Constitution of Mexico provides (1 Gammel’s Laws of Texas 86):

“The president cannot occupy the property of any individual or corporation, nor disturb them in their possession or use of the same; and if in any case it should be necessary for some object of acknowledged utility to take the property of an individual or a corporation, it cannot be done without previous approbation of the senate, and in the recess, the council of government, always indemnifying the party the value fixed by appraisers chosen by himself and the government.”

In like manner the Constitution of Coahuila and Texas of 1827 imposed a restriction on the power of the governor in this language (1 Gammel’s Laws of Texas 330):

“Fourth, — Take possession of the property of any private individual or corporation, or disturb him in the possession, use, or benefit thereof, unless it should be necessary for a purpose of manifest public utility in the judgment of the executive council, in which case he may do so with the concurrence of the council, and approval of congress, and during the recess, of the permanent deputation, always indemnifying the. party interested agreeably to the opinion of appraisers chosen by the executive and the said party.”

A similar provision was included in the Constitution of the Republic of Texas in which it was provided (1 Gammel’s Laws of Texas 1083):

“No person's particular services shall be démanded nor property taken or applied to public use, unless by the consent of himself or his representative, without just “Compensation being made therefor according to law.”

Similar provisions have been included in every Constitution of the State.

It was contended in Brazos River Authority v. City of Graham, Tex.Sup., 354 S.W.2d 99, as it is here, that the property involved was being taken or destroyed in the exercise of the police power and that the taking was therefore damnum absque injuria. This court rejected the contention without attempting “a distinction between the power of eminent domain and an exercise of the police power” because it would “involve us in a sophistic Miltonian Ser-bonian Bog.” 354 S.W.2d 99, 105. We need not enlarge on what we said in that opinion. We consider it as foreclosing the argument that respondents’ property may be taken as an incident of the exercise of the police power, without the payment of compensation.

Petitioner is granted fifteen days from this date in which to file a motion for rehearing.

SMITH, CULVER, NORVELL and STEAKLEY, JJ., dissenting.

NORVELL, Justice

(dissenting).

In the concluding sentence of the opinion of the Court of Civil Appeals it is said that “appellants (respondents Lewis et al.) have vested property rights in the San Juan Dam, headgate and ditch.” 343 S.W.2d 481. This stated conclusion is the basis upon which the final holding of the Court of Civil Appeals is based. This Court has now affirmed the judgment of the Court of Civil Appeals upon the primary holding that some vested property right was violated because the petitioner has moved the channel of the San Antonio River. While I recognize that this case must turn upon the definition or delineation of the rights which respondents possess with reference to the San Juan Acequia and the water therein, I am unable to agree with the basic holdings of either court as above stated. I find myself in' general agreement with the trial judge and the dissenting justice of the Court of Civil Appeals, ■although there are differences as to detail.

My thesis is that respondents have no vested right in and to the bed or banks of the San Antonio River, nor to the dam and headgate located therein, and that they have no vested right to demand that the river remain in its present channel. Such rights as respondents possess seem adequately protected by the judgment of the trial court, —at least they are not prejudiced thereby. Any difference in legal theory between the trial court and this Court could be set at rest in this declaratory judgment proceeding by an opinion setting forth the proper basis upon which the decretory provisions of the trial court’s judgment should be affirmed.

At the risk of further augmenting the quantity of the writings in this case, of which there has been an abundance, I will here set forth a brief statement which I hope will aid in making my position clear and enable me to affirmatively state my views.

This is a suit for a declaratory judgment which terminated in a summary judgment based upon motions and affidavits filed by the respective parties. The case turns upon the nature and extent of the rights of the respondents in and to the waters of an ancient acequia or irrigation conduit (the San Juan Ditch) which originally was used to supply water to the lands of the San Juan Capistrano Mission. The trial court concluded that the bed of the San Antonio River and San Juan Dam located therein were the property of the sovereign; that the relocation of the channel of the river by the River Authority which destroyed the usefulness of the dam came within the police power and hence the loss of the gravity flow of water to the San Juan Irrigation Ditch was damnum absque injuria. It is conceded that petitioner in the relocating of the river was acting as an agency of the sovereign. Article 16, § 59 of the Texas Constitution. Article 8280-119, Vernon’s Ann.Tex.Civ.Stats.

The trial court further declared that it would be feasible to pump water from the San Antonio River into the San Juan Ditch and it appears that water may be transported over the lands of the petitioner so that the ditch may be supplied with water from the new channel by pumping.

The lifting of water in small quantities at a time by means of primitive pumps, such as water wheels and buckets, is as old as irrigation itself and on large river courses, such as the Nile, these devices were even more common than the construction of dams which impeded the river’s flow while raising the level of the water therein. In' Texas, water wheels were sometimes used in connection with the Bexar acequias, Betty Earle Dobkins, “Spanish Elements in Texas Water Law”, p. 113, and the larger portion of the irrigated section of the Lower Rio Grande Valley is today supplied with water by the use of pumps. It should also be mentioned that the corporate and governmental power of the San Antonio River Authority are extremely broad. The Authority is “declared to be a governmental agency, a municipality, body politic and corporate, vested with all the authority and full sovereignty of the State, in behalf of the State, in so far as intended by this Act, and with the authority to exercise the rights, privileges and functions hereinafter specified.” Article 8280-119, § 2. Except as limited by the Act itself, the Authority is authorized to exercise, “all powers, rights, privileges, and functions necessary and convenient for accomplishing the purposes of this Act conferred by General Law upon any District or Districts created pursuant to Section 59 of Article 16 of the Constitution of Texas * * Article 8280-119(3). Numerous specific powers are also listed. There can be no doubt but that the Authority, should it elect to do so, is empowered to supply-water to those having appropriative rights in and to the river’s water by any means it might select.

I am in agreement with the holding of the trial court insofar as it declares that the District is not liable in damages for the loss of the gravity flow of water from the San Antonio River into the San Juan Ditch. I do not, however, reach this conclusion upon the theory that the destruction of this gravity flow by moving the river away from the dam was an exercise of the “police power”, as that term is commonly understood. In my opinion, the right of gravity flow by the use of a dam to' raise the water level of the river was never included within the grants under which the respondents claim.

There is much discussion in the briefs relating to Spanish and Mexican legal authorities. Such discussion however leads to the conclusion that these sources throw very little light upon the problem other than what may be gleaned from general historical circumstances. Undoubtedly the San Juan acequia was a part of the ancient Spanish settlement of Bexar consisting of a 'villa, a presidio and a number of missions.’ -Upon its original establishment and for sometime thereafter, no title emanated from the sovereign and such rights or privileges as were exercised by private persons were permissive and tentative only. Spanish Towns, 37 Notre Dame Lawyer 630. All inferences are against a Spanish grant to the bed of a stream or a portion thereof for a damsite. In Lewis v. San Antonio, 7 Tex. 288, this Court remarked upon the attitude of the sovereign toward alienation of property dedicated to a public use as were the banks and beds of rivers and streams. (State v. Grubstake Inv. Ass’n, 117 Tex. 53, 297 S.W. 202). It was said in the Lewis case, quoting in part from New Orleans v. United States, 10 Pet. 662, that:

“ 'So careful was the King of Spain to guard against the alienation of property which had been dedicated to public use, that in a law all such conveyances are declared to be null and void.’ (10 Pet.R. 730) The law cited in the above is in Novissima Recipilacion, 1.1, b. 7, tit. 16, and is as follows, i. e.,: ‘Our pleasure and will is to preserve their rights, rents, and property to our cities and places, and not to make any gift of anything of them; wherefore we command that the gift or gifts we may make of them, or any part of them, to any person whatsoever, are not valid.’” .

With the secularization of the missions, grants of the mission lands and water were made to private individuals, but the Spanish background of these grants suggests a strictness rather than a liberality of construction insofar as the rights of the grantee from the sovereign are concerned.

The title of the sovereign over the riverbed, except as may have been heretofore legally alienated (see, Anderson v. Polk, 117 Tex. 73, 297 S.W. 219) is now vested in San Antonio River Authority by legislative enactment and there is no element or factor disclosed by the record other than actual user which would suggest an enlargement upon the express terms of the grants under which respondents claim. It is primarily the wording of these grants that determine the rights of the parties hereto.

The grants were made during an unsettled period of Mexican history from a constitutional standpoint. The particular plan for granting titles to private individuals in and to the mission lands and water dulas may have originated during the short regime of the Emperor Iturbide. Undoubtedly it was a carry-over from the period of Spanish rule. The grants purport to have been made by the Jefe Politico of the City of San Fernando de Bexar, the mother city of Texas (Lewis v. San Antonio, 7 Tex. 288; Dittmar v. Dignowity, 78 Tex. 22, 14 S.W. 268), upon the recommendation of ' the Ayuntamiento of the municipality, acting “In the name of the Mexican nation and by virtue of the authority vested in (him) by their Exalted Highness, the Supreme Executive Power for distribution of the lands of these Missions.”

While constitutional or fundamental sovereign authority for the execution of these grants may be obscure, there is no reason to doubt the validity of such grants but on the other hand, there is no reason to enlarge their scope beyond their wording except for the considerations hereinafter mentioned.

" The grant taken as an example by the Court of Civil Appeals in so many words calls for “two dulas of irrigation water with the accompanying land for cultivation; the water to be taken from the irrigation conduit of the Mission of San Juan Capistrano.” No reference is made to the San Antonio River nor to any structure therein. In view of the position of the sovereign under the Spanish system of laws, I am unable to agree with the majority of the Court of Civil Appeals that “the grant was not merely two dulas of water in the ditch, but included the right to the dam and headgate as well as the irrigation ditch.” The grant says water to be taken from the San Juan conduit. To me that means “water in the ditch.” I do not construe the conduit or ditch as including a device for raising water, such as a dam. The grant expressly refers only to' an instrumentality for conveying water such as a ditch, canal or aqueduct. Of more importance than dictionary meaning of words, however, is the Spanish legal concept of the public interest in riverbeds and banks which was carried, over into the Mexican, law and renders it extremely improbable that the sovereign would have granted more than a permissive user of sort in the bed and banks of a river.

The taking of water from streams' and rivers and putting the same to .use .upon noncontiguous lands is' a practice that antedates recorded history. Clough v. Wing, 2 Ariz. 371, 17 P. 453. The irrigating, process and the appropriation of waters .from streams is an inheritance from the Spaniards who, in their turn, received it from the Romans and Moors. Dobkins, “The Spanish Element in Texas Water Law,” p. 63. ’ '

The' rights- of the Mexican appropriator were not identical with those developed in the Western- States under either the Colorado system (Arid Region Doctrine of prior Appropriation) or the California system (Western' -Doctrine of Riparian Rights). Dr. Waltér Prescott Webb in "The Great Plains” , p. 440 states that:

“It is known that the common law adopted many .principles of the civil law. But. in. England law developed along lines to. meet the particular needs of England. The law of riparian rights cam.e from the civil law, but England added, the feature which required the stream to run as it was wont to run in its .accustomed channel. As it developed in the West the arid-region doctrine of appropriation bears a closer resemblance to the civil law than to the common law of England.
“The Mexicans introduced into the Southwest a modified form of the civil law. Since irrigation had been practiced in Spain and in Mexico, we find that its institutions were fairly well developed. The principles of the Mexican laws as applied in the Southwest were as follows:
“1. The Mexican government owned the rivers and streams, and held that the corpus of water belonged to no one; but the government could confer the exclusive use of a portion of the water on an individual or a corporation.
“2. The Mexican government could confer this right on owners of lands either riparian or nonriparian.
“3. The Mexican government had the right to grant the exclusive right to water of nonnavigable streams under stipulated conditions as to use. If the user complied with the conditions, he had a vested right in the water as long as he continued to use it. But there was no provision in the Mexican law for the acquisition of exclusive rights by prior appropriation. This fetaure was to be added by the Western states, and distinguishes the arid-region doctrine clearly from the Mexican system”

In all probability, “the people who were responsible for the origin of the (prior appropriation) doctrine were not versed in these by-ways of legal learning” relating to Spanish water customs and practices. It is most likely that the miners of the California territory simply made use of a system suitable for their needs and conditions wholly unaware of the fact that centuries ago the Moors in the arid portion of the Iberian Peninsula had adopted analogous measures to meet similar situations. The Spanish civil law background has, however, been used to support the legality of an appropriation system. Clough v. Wing, 2 Ariz. 371, 17 P. 453, and analogies between the Mexican system of appropriations and that of the Western American States are entirely valid. We may, with confidence, look to similar appropriative systems in determining the rights under the Mexican plan. For example like the Spanish-Mexican appropriator, the taker of water under the prior appropriation system of the Western States acquires no property in the channel nor to the water itself, but acquires only the right of an usufructuary use. See, Wiel, 3rd Ed. §§ 277, 278 and 279.

There is one situation in the water history of the Western States which presents a close analogy to our problem here. The record before us contains much information as to prospective pump sites upon the new river channel. To change from the old river channel and its dam to the new river channel and a pump site is, in substance, nothing more than a change in the point of diversion which is a common thing in the Western States. Changes in points of diversion have been discussed in numerous decisions. In Wiel, we find the following:

“It is said, ‘The appropriator took the water with the right to have the stream flow as it was wont to flow’ (citing in a footnote Morris v. Bean, 146 F. [423] 435 but see Schodde v. Twin Falls, [9 Cir.] 161 F. 43) which is as strict a statement as the ’aqua currit et debet currcre ut currere solebaf of riparian rights. And he can insist on the flow, though he has also rights on another stream which would supply him — • he cannot be made to exhaust his rights on one before using the other.
“This exclusive right of the prior appropriator does not, however,: enable him to insist upon receiving it in' the natural channel; the upper a^proppator may instead give it to him by returning it to him into his ditch above his place for use — not necessarily into the stream above the head of his ditch— if he gets the quantity to which he is entitled, thereby substantially permitting the substitution of an artificial flow if it can be done without damage (providing the party substituting an artificial flow sustains the burden of proof which is upon him) that he will not now, or in the future, damage the pri- or appropriator; for if he does, not plead and prove this, or if his plan has any element of doubt, it will be unlawful * * *
“The right to exclusive use carries with it such right to exclusive flow as is necessary to preserve the appropriator’s use without damage to his use; but it is not violated by any act that does not interfere wih his use of the water. The right to the flow is subordinate to the right of use, and cannot exceed it. The principle (quoting from Pomona [Land &] Water Co. v. San Antonio Water Company, 152 Cal. 618, 93 P. 881) in brief, is this: ‘That where one is entitled to a given amount of water at a given point, he may not complain of any prior use made of the water which does not impair the quantity or quality to which he is entitled, and on the other hand, he may not lay claim to any excess of water over the amount to which he is entitled, however it may he produced.’ ” Wiel, “Water Rights in the Western States (3rd Ed.), § 279.

Upon examination of the authorities cited by Wiel, we find that in Morris v. Bean, 146 F. 423, 435 which was a decision of the Circuit Court for the District of Montana, the District Judge in using the phrase mentioned by Wiel in his text was speaking of the claim of an upstream junior appropriator to take water to the detriment of a downstream senior appropriator. The statement in context is as follows:

“The (senior) appropriators (the complainant and intervener) took with the right to have the stream continue to flow as it was wont to flow, and to remain in the condition in which they found it, and whenever water is diverted above it keeps back that which would otherwise reach them, and the more water that is kept back the less will the complainant and intervener have. But for the wholesale diversions by defendants the water would reach them later in the season, and abide longer, and this is what their appropriations entitled them to.”

On the other hand in Schodde v. Twin Falls Land and Water Co., 161 F. 43, affirmed 224 U.S. 107, 32 S.Ct. 470, 56 L.Ed. 686, the Ninth Circuit Court of Appeals, discusses means of raising water in a stream for purposes of diversion and attendant legal problems, particularly insofar as the sovereign and the nature of the grant are concerned. The Court said:

“The permission here given is a mere license to the owner of lands adjacent to a stream to use any appropriate method for raising the water to a level above the banks for distribution upon such adjacent lands, but it is immaterial to the state what particular method is used. The landowner may use a ram, a pump, or a wheel, or he may raise the water by means of a ditch. And he may change from one method to another as the situation or circumstances may require. Charnock v. Higuerra, 111 Cal. 473, 476, 44 Pac. 171, 32 L.R.A. 190, 52 Am.St.Rep. 195. The method adopted cannot be said to have attached as appurtenant to the appropriation as against other appropriators of water from the saipe stream. Perhaps in a conveyance of land having upon it or in the adjacent stream a ram or other machine for raising water from the river such a machine would pass to the grantee of the lands under a deed containing the term ‘appurtenances,’ but that would be a very different proposition from the one now under consideration. We are, therefore, of opinion that the means of utilizing the current is not attached as appurtenant to the appropriation.”

The privilege of placing a dam in a stream when given its broadest implication can amount to no more than a mere license. Insofar as the sovereign is concerned there is no transfer of title to the dam or the portion of the stream bed occupied by it. While those holding under the grants have a right to receive water in the ditch, they have no vested rights in and to the means whereby the water is conveyed to the ditch. Hence they have no vested right in the channel of the river remaining in any particular geographic position. A change in channel would simply mean a change in method or process whereby water is conveyed to the ditch. It amounts to no more than a change in the point of diversion.

In the recent Colorado case of City of Colorado Springs v. Yust, 126 Colo. 289, 249 P.2d 151 the right of an appropriator to change the point of diversion is spoken of as a right which exists independently of statute. It was said that:

“The inherent right to change the point of diversion includes not only the right to change without condition, if such change can be made without substantial injury to the vested rights of others, but also the right to change subject to conditions, if injury to rights of others may thereby be avoided.”

The rule thus stated should be applied here.

We may of course examine the facts that were in existence at the time the grants were made in order to determine the parties’ rights relating thereto. The pertinent .facts are as follows: The sole source of water to supply the San Juan Ditch was and is the San Antonio River. There was in existence before and at the time of the grant a device for raising the water level 'in the river to a point where.it would flow into the San Juan Ditch. A consideration had been paid by the grantees to the sovereign for .their dulas of water in the ditch. These thre'e elements under .our conception of economic fair- dealing — viewed from either a common law or a civil law standpoint, lead to the conclusion that the sovereign should not destroy the dam which was then being used to-supply the ditch with water unless some other means were devised whereby water from the river could be obtained to supply the needs of the ditch, or some compensation were paid because of the destruction of the dam. At the present .time a means is being provided for supplying the ditch with water which does not ■involve the use of the dam. As long as water is supplied by the present existing means or some other means at a cost which did not exceed the cost of maintaining the dam theretofore borne by respondents, there can be no invasion of respondents’ property rights. While it may not be definitely determined what course the Authority will pursue in the years to come, it is indicated by affidavits in the record that pumping is a reasonable method for meeting respondents’ demands for water and the trial court concluded that pumping was feasible. However that may be, it would seem that unless and until there is a failure of water in the San Juan Ditch, no property rights of respondents have been either taken or diminished. An appropriative right to water represents a cession of the use of public waters for private purposes. Article 16, § 59 of the Texas Constitution. So long as the sovereign abides by the terms of the cession, it cannot be held liable in damages for a change in methods by which the letter of the cession or grant is fulfilled. As, if and when waters are not delivered to the ditch a problem might then arise as to respondents’ damages but that matter is not presently before us.

I respectfully dissent from the order afr firming the judgment of the Court of Civil Appeals,

SMITH, CULVER and STEAKLEY, JJ., join in this dissent.

      . “Sec. 17. No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by tbe consent of sucb person * *

      . Informative discussions of these early irrigation systems and their operation and management may be found in The Spanish Element in Texas Water Law by Dob-kins; The Community Acequia: Its Origin and Development, 31 S.W. History Quarterly, by Hutchins, and in a Memorandum on The Spanish and Mexican Irrigation System prepared by the Water Division of the office of the Attorney General of Texas.

      . A “dula” of water was a “day” of water —one day’s flow of the water in the acequia. On this acequia, irrigation rights were based on a twenty-five day cycle.

      . Emphasis ours throughout unless otherwise indicated.

      . Emil Ludwig, “The Nile” p. 247.

      . By the “police' power” as I generally understand the term as used in the context of this ease and as I believe it was used by the trial court, is meant the sovereign governmental power to destroy or damage property under certain circumstances without compensating the owner therefor, such as the destruction of a house to prevent the spread of a fire. Every governmental act designed to promote the public health, safety and welfare while within the legitimate orbit of governmental activity is not within the police power in the sense that no compensation need be paid to the owners of property taken as an incident to the governmental program. Compare, City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640; Brazos River Authority v. City of Graham, Tex.Sup., 354 S.W.2d 99.

      . Article 8280-119, § 3(r) provides that: “[T]his District hereby is vested with such title and right of control as the State has, or may have, in, to, and eon-cerning the natural bed and banks of the San Antonio River in its entire length, and such tributaries thereof as may be affected by the creation of said Canal, and whether to remain as an integral part of said waterway or to be abandoned in the construction of said Canal; which investment, however, shall be in trust, and to authorize said District to make such uses, and/or disposition of such lands and rights (and the proceeds, income, revenues, or trading values thereof) as in actual experience may prove to be reasonably required for, or in aid of, the accomplishment of the purposes of this Act.”

      . “An opposing doctrine (to the riparian system) based upon exclusive rights in the use of water for lands regardless of the matter of contiguity to streams was followed in portions of the new world by the Spanish and Mexican settlers. That doctine which we now call appropriation is also said to have had its roots in the civil law of Rome. It materially influenced the development of water law in several States of the American Southwest iri'which thé Spaniards and Mexicans had made settlements.” Wells A. Hutch-ins, Proceedings, Water Law Conferences, University of Texas — 1954, p. 107.
      Mr. Hutchins also refers to Wiel’s thesis that th'e' modern riparian doctrine was brought to the Atlantic seaboard by Kent and Story who received it from the French. “If this presentation is correct, the common law of water courses is not the ancient result of the common law, but is . a French doctrine (modern at that) received into the English law only through the influence of two eminent jurists.” (Said Wiel in “Waters: American Law and French Authority”, 33 Harvard Law Review 133, l. c. 147). Hutchins then points out that “The doctrine was first laid down in the English law in Mason v. Hill (5 Barn. & Adol. 1, 110 Eng.Reprint 691) in 1833, but the law waivered from then until 1849 when Wood v. Wand (Exch. 748, 154 Eng. Reprint 1047) was decided. That set the matter at rest. Having thus been received into the English common law, the riparian doctrine became the law in several of the Western States that adopted the common law of England as the rule of decision in their courts.”
      It seems that the English riparian system; unsuited as it was to a large section of the state and hence subsequently modified, was imported into Texas law by the decision of Haas v. Choussard (1856), 17 Tex. 588, wherein Kent (Vol. 3, p. 439) and Mason v. Hill were cited. This gave rise to the somewhat exaggerated statement that thus Texas chose to follow the English, who knew nothing of irrigation, rather than the Spanish, who were the best irrigators on earth. As to Spanish irrigators, see, 1 Kinney 272, Dobkins, p. 63.

      . In the main IVebb follows Wiel and Kinney in his discussion of Water Rights in the Western States. It is referred to here because the statements contained in “The Great Plains” are brief and succinct and at the same time sufficiently detailed for present purposes. The present day surface water system in Texas is perhaps more similar to the California (Western Doctrine of Riparian Rights) than to the Colorado (Arid Region Doctrine of Appropriation) insofar as actual operation is concerned. The Texas and California systems have radically different theoretical bases, however, because of the circumstance that the federal government never held title to Texas lands. For a brief discussion of the development of the Western Water Laws, see Webb, p. 431.

      . Frank ,T. Trelease, Water Conference, University of Texas, p. 206.

      . What has been said above is not based upon an agreement that pending this litigation, the Authority should supply the ditch with water through pumping operations. This agreement was executed without prejudice to the litigants. The trial court did however conclude as an undisputed fact that pumping was feasible and in this he is supported by the affidavits in the record.


author: BELCHER, Commissioner.

text:
    Harry W. McCUTCHEON, Appellant, v. The STATE of Texas, Appellee.
    No. 35054.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    Rehearing Denied Jan. 23, 1963.

      C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty'., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to rob, with two prior felony convictions alleged for enhancement; the punishment, life.

While testifying for the state, Ross Lewis, co-manager of a large grocery store, and Richard Edward Haines, an employee, identified the appellant as one of two men they met after entering the store about 6 A.M.; that the appellant and his companion were wearing stockings over their faces and each exhibited a pistol and told them it was a hold-up, that all they wanted was money and to obey them and they would not get hurt which put them in fear of serious bodily injury or death. During the arrival of about ten employees who were being held as they arrived in an upstairs room, appellant had Lewis down■stairs trying to open the money safe which he was unable to do. While waiting for "the cashier to arrive the telephone rang, •Lewis was told to answer, it was the manager, and by-Lewis-calling-him'“Joe” he 'was alerted that something was wrong at the store. The officers were notified, and when they arrived, the appellant and his companion, without obtaining any money, ran out the rear door. The appellant was apprehended approximately three blocks from the grocery store before noon that day.

The written statement • of the appellant was introduced in evidence and his admissions therein are in substance the same as the evidence of the state above summarized, except the additional fact that he and his companion had concealed themselves in the store the day before, where they had remained until the next morning.

Proof was offered of the prior convictions alleged and that the appellant was the same person so convicted.

The appellant testified that he was in another city at the time of the offense here charged, that he had .returned with another person who had let him out of the car, near the place where he was arrested. He denied the truth of any facts in his written statement connecting him with the robbery; and stated that he signed the statement based upon promises that if he would no enhancement of the punishment would be sought by the use of any prior convictions.

The officer to whom the written statement was made denied that he made such promises to the appellant.

The issue of the voluntary character of the . written statement was submitted to the jury.

The appellant sought to quash the indictment on the ground that a written confession was involuntarily obtained from him due to certain promises.

An indictment will not be invalidated because an involuntary written statement of the accused about the offense with which he stands charged was obtained from him by the peace officers. 1 Branch 2d 490, Sec. 504; Edwards v. State, 73 Tex.Cr.R. 380, 166 S.W. 517; Holliman v. State, 108 Tex.Cr.R. 92, 299 S.W. 249; Barnes v. State, 134 Tex.Cr.R. 461, 116 S.W.2d 408.

It is insisted that the trial court erred in refusing appellant’s motion for a change of venue on the .ground of the publicity given by radio, television and newspapers of the announcement made by the District Attorney that the appellant was one of the twelve persons he most wanted to convict and send to the penitentiary, and that such publicity deprived him of a fair and impartial trial in Harris County.

In Mendez v. State, Tex.Cr.App., 362 S.W.2d 841, 1962, a similar contention was presented in substantially the same manner, and to which no exception was reserved. There it was observed that there was no showing that any prejudice found its way into the jury box.

The other contentions presented have < been carefully considered and they do not show error.

The evidence is sufficient to sustain the conviction.

Although the indictment used the word "attempt” instead of the word “intent” it did not vitiate the same. King v. State, 127 Tex.Cr.R. 566, 78 S.W.2d 632. The court in its charge submitted the primary offense of assault with intent to rob and also the prior convictions, and the jury found the appellant guilty as charged..,. The judgment and sentence designating the., primary offense as attempted robbery by ; assault are reformed to read assault with intent to rob. 37 Tex.Jur. 23, Sec. 22; 4 Branch 2d 221, Sec. 1892.

As reformed the judgment is affirmed.

Opinion approved by .the Court.


author: WOODLEY, Presiding Judge.

text:
    A. C. McGAFFEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35007.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    Rehearing Denied Jan. 23, 1963.

      Net attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Neal English, Prank Wright and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s 'Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

‘The offense is 'ope'rating a motor vehicle upon a'public highway while intoxicated; the punishment, 14 months in jail and a fine of $250;

-Police JDffieer J. N. Crosby testified that about one o’clock A.M., after he observed that it.had.no tail light,, he stopped the automobile appellant was driving on Southern Oaks Boulevard, in Dallas. He testified that appellant “seemed a little confused the way he was talking” and that he smelled a strong odor of alcoholic beverage; that he asked the appellant what he had been drinking and “he told me he drank 25 to 30 beers”.

The witness further testified that, as he walked to'the squad car, the appellant “was staggering and swaying quite a bit”; that his eyes.-“seemed quite a bit watery” and that “his speech was quite a bit confused”.

Officer Crosby further testified that appellant “was still staggering quite a bit and had a hard time keeping his balance” as he walked from the car to the jail office.

Officer Crosby testified that he had had occasion to handle many intoxicated persons and expressed the opinion that appellant “was very intoxicated”.

Patrolman G. D. Payton, who was on patrol with Officer Crosby, gave similar testimony as to appellant’s statement and demeanor and expressed the opinion that - he was intoxicated.

An intoximeter test taken with his consent, after he reached the jail, revealed that appellant’s blood alcohol concentration at that time was 0.264 per cent. Dr. . Mason, Toxicologist" and Director of the Dallas City-County Criminal Investigation Laboratory, who testified to the result of the intoximeter test analysis, expressed the opinion that any individual attaining' á concentration in his blood of alcohol as high as a tenth per cent or greater would be . under the influence of alcohol. On cross-examination his attention being directed, to 'Dr. Leon Greenberg’s statement in his,' book published in 1959, he testified:

“Well, yes, Dr. Greenberg apparently chose to use the standards adopted many years ago by the American Medical Association and the National Safety Council which stated that any individual having a concentration of alcohol in his blood greater than fifteen hundredths per cent-is under the in-fluénce of alcohol. I agree with that statement. In recent years,- studies of-this matter have convinced most, if not the overwhelming, convinced the ovér-.whelming majority of experts in this field that all individuals are under the influence at a tenth per cent.”

Appellant denied that he was intoxicated or that he told the officers he had consumed 25 or 30 beers. He admitted having had one or two mixed drinks shortly after noon and that he “might have drank one or two beers after dark.”

The jury resolved the issue against appellant and assessed a punishment within the terms of the statute under which he was prosecuted.

The evidence is sufficient to sustain the jury’s verdict, and no reversible error appears.

The judgment is affirmed.


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    John Stokes GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 34989.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.
    Rehearing Denied Jan. 9, 1963.
    W. S. Carpenter, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for unlawfully carrying a pistol; the punishment, six months in jail.

The evidence adduced by the state reveals that the appellant, while driving on a public street in Dallas County, was carrying a pistol in the glove compartment of his motor vehicle.

The appellant did not testify, but testimony was offered that appellant \yas to loan the gun to William Garvin and he was en route at night to Garvin’s residence when he was stopped by'the police because the vehicle he was driving had no tail light.

Appellant contends that the trial court erred in refusing his requested charge that if the jury found “the defendant was taking the pistol to the residence of William Garvin and that he did not make an unreasonable deviation from his residence,” then to find him not guilty.

There is no showing that the requested charge was presented to or acted upon by the trial court before the main charge was read to the jury, therefore the claimed error cannot be considered. Art. 659, Vernon’s Ann.C.C.P., and cases cited in note 10.

The evidence being sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON MOTION FOR REHEARING .

MORRISON, Judge.

In addition to what we said in our original opinion, and after an examination of the supplemental transcript which has been furnished this Court, we call attention to the fact that the record fails to reveal that appellant excepted to the action of the court in refusing the requested charge which appears in the transcript. This is requisite to preserve an alleged error in the charge. Medlock v. State, Tex.Cr.App., 356 S.W.2d 312, and cases there cited.

Appellant’s motion for rehearing is overruled.