author: O’QUINN, J.

text:
    STUART v. LARRABEE et al.
    (No. 1771.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 13, 1929.
    Rehearing Denied Feb. 27, 1929.
    Charles Murphy, of Houston, for appellant.
    W. P. Hamblen, of Houston, for appellees.
   O’QUINN, J.

Appellant was plaintiff in the court below, and A. R. Larrabee and his son, Ray Larrabee, were defendants. We shall refer to them as plaintiff and defendants.

Plaintiff sued defendants asserting ownership of a certain described tract of land, and alleged that the defendants ,had cut and' destroyed his wire fence inclosing said land and had cut down a certain tree growing upon said land, which was of great age and beauty and worth $100, and had removed from his said land a certain cement water trough of the value of $100, and appropriated the same to 'their own use and benefit. He alleged his damages for the depredations upon and destruction of his said property in the sum of $1,500, for which he prayed judgment. He also alleged a threatened continuation of said invasions of his said property, and prayed for an injunction to restrain defendants from further depredations on his said premises. The petition was duly verified, and the cause was, by order of the court, set down for hearing on J-une 25, 1927, and was continued over until July 2,1927.

The defendant A. R. Larrabee answered, disclaiming any right, title, claim, or interest in or to the land described in plaintiff’s petition, save only that he had used a certain road over said land in going to and returning from the residence of his son, Ray Larrabee, situated at the back of and adjoining plaintiff's said land, and denied that he was in the possession of a water trough belonging to plaintiff, but said that said trough was his own property.

• The defendant Ray Larrabee answered by general demurrer, general denial, and specially as follows:

“And for further answer herein, if required, this defendant says that it is not true as alleged by plaintiff, that said plaintiff is the owner in fee simple and is entitled and in possession of all of the land as described and set out in plaintiff’s petition, but said plaintiff is the owner of said land subject to the following right of way which was reserved in the Deed from Ada M. Goodrich and John B. Goodrich to the plaintiff, and which Deed contains the following reservations: ‘There is, however, reserved, the right to the free and uninterrupted passage in and along the road fifteen feet in breadth, on the East side of the land herein conveyed, parallel and adjacent to the Menard-Larrabee line from the North side of the county shell road to the South line of the Dan Burns tract, together with the right to free ingress, egress and regress to and for the.said Wiley Burns and Dan Bums as the owners, users and occupiers of one and three-fourths acres of land out of the North part of the Ada Menard five acres, and as purchasers from Ida Goodrich, et vir, with their wagons, carriages and vehicles and their stock and cattle as by them it shall be necessary or convenient, at all times and seasons, but said right to use said road is limited solely to said persons as owners and for no other persons or purposes.’
“That this defendant is the owner of twenty-five-one-hundredths (.25) of an acre of land out of the Dan Bums tract, conveyed to this defendant by Rosa Menard and husband, O. J. Menard, by Deed dated November 23, 1926, and that the only outlet, ingress and egress to and from the property so owned by this defendant is over and across said 15 foot right of way mentioned and described in said reservation, and that this defendant has been using said right of way for the purpose of ingress and egress from and to his said land to the public road and said 15 foot right of way is the only outlet from his said land to the public road.
“That in addition thereto, this defendant is the occupier of a tract of one acre of land, more or less, owned by AViley Bums out of said Ada B. Menard five acre tract, which adjoins the .25/100th of an acre owned by this defendant, as the tenant of said AViley Burns and Lillian Nelson, and that the only right of way for ingress and egress to and from said property so occupied by this defendant as the tenant of Wiley Burns and Lillian Nelson is over and across said 15 foot right of way hereinabove mentioned and described.
“This deféndant says, that under advice of his counsel, he did cut the fence which was erected by the plaintiff across said right of way, the said plaintiff having denied this defendant the right to use said right of way for the purposes of ingress and egress to and from his land and the tract occupied by him, and that this defendant had no other means of ingress and egress to his said property, and it was necessary for him to remove the fence erected by plaintiff in order to get to and from the same. That other than as above stated this defendant did not cut or injure said fence. That no trees were cut by this defendant except such as were necessary for him to use said right of way, and that before cutting said trees this defendánt approached the plaintiff and informed him that in order for him (the defendant) to use said right of way it was necessary for him either to cut one or two trees, unless the plaintiff would consent to defendant going around said trees with his wagons and automobiles, which would necessitate this defendant getting off of said 15 foot of right of way and on to the land of the plaintiff, but that the said plaintiff refused the defendant the said right to so go around said. trees on to his (plaintiff’s) land, whereupon this defendant in order to use said right of way and to get to and from his said land, it was necessary for him to cut and remove one or two small trees.
“This defendant says that said right of way reserved in said Deed, above set forth, is ap; purtenant to the land owned and occupied by this defendant and that he has the right to use the same free and uninterrupted by said Iilaintiff.
“And in the alternative, this defendant says, th¿t if it should be found by the Court that he has not the right to use said right of way by virtue of the reservation contained in said deed, hereinabove set forth, then he says that he is entitled to a' way of necessity over and across the land of the said plaintiff, for that the said plaintiff is the owner of all of the said Ada B. Menard five acres, save and except the land owned by this defendant and by the land owned by AViley Burns, and occupied by this defendant, all of which is situated on the North end of said five acres and which has no outlet to any public road except across the land of the said plaintiff, he being a purchaser from Ada B. Menard. That AVil-ey Bums, whose tenant this defendant is, has purchased this land prior to the purchase of the plaintiff, and that this defendant put-chased from Ada M. Goodrich, et vir, the .25 acres owned by him, and that same is entirely enclosed by the land of the plaintiff, and other partios,- and has no ingress or egress to any county or public road, except across said land and this defendant believing that he had the right to use said right of way has continually used the same, and that should it be held that he'is not entitled to the right to use the said right of way, then he prays that a way of necessity be granted him across the land of the plaintiff, and this defendant says that said reservation is the most convenient right of way for his use and will interfere less with the use of the plaintiff.
“Defendant alleges that said plaintiff is undertaking to interfere with the free and uninterrupted use of said right of way reserved in said Deed, and that he has fenced the same and placed iocks on the same, and has threatened injury to this defendant should he continue to use the same, and has denied this defendant the right to cross said land and is undertaking to enforce said right and will continue to do so unless restrained by your Honor’s Most Gracious Writ of Injunction.
“Wherefore this defendant prays that the application of the plaintiff for an injunction be denied, and that a temporary injunction be granted this defendant restraining said plaintiff from interfering with defendant in the free and uninterupted use of said right of way, or that a way of necessity be granted him, and that said plaintiff be restrained from interfering with this defendant in the use of said way of necessity.”

The cause was tried to a jury, but at the conclusion of the evidence offered by plaintiff the court sustained a motion by defendants that there was no issue to be submitted to the jury, and withdrew the case from the jury and found for the defendants, and rendered judgment that plaintiff take nothing by his suit, and enjoined plaintiff from interfering with the defendants in their free and uninterrupted use of the 15-foot right of way along the east side of plaintiff’s tract of land, as shown by plaintiff’s deed from his vendor, Ada Goodrich. Motion for a new trial was overruled, and the case is before us for review on appeal.

At the request of appellant the court filed findings of fact and conclusions of law. They are:

“Findings of Fact.
“The plaintiff, Stuart, owns a tract of land of about 145 by 1,200 feet running back North from dear Lake. The shell road runs along the North bank of Clear Lake on the South Line of the plaintiff and his neighbors on either side of him. The defendant, A. R. Lar-rabee, owns a tract adjoining Stuart’s tract on the East which has an approximate frontage of 400 feet and runs back 1,800 feet. Immediately North of Stuart’s land are two small tracts, one of which was deeded by Mrs. Goodrich, Stuart’s vendor, to Wiley Burns, and another deeded by her to Dan Burns. These latter tracts lie next to A. R. Larra-bee’s West line, and were owned by the Bums at the time Mrs. Goodrich conveyed to the Plaintiff Stuart.
“Stuart’s deed from Mrs. Goodrich contains a reservation in the following language: ‘There is, however, reserved the right to the free and uninterrupted passage in and along the road fifteen feet in breadth on the East side of the land herein conveyed parallel and adjacent to the Menard, Larrabee line from the North side of the County Road and the South line of the Dan Bums’ tract, together with the right to free ingress, egress and regress, to and for the said Wiley Burns and Dan Burns, as the owners, users and -buyers-of 1¾ acres of land out of the North of the A. D. Menard five acres, and as purchaser from Ada Goodrich, with wagons, carriages and vehicles, and their stock and cattle, as by them shall become necessary at all times and seasonable, but said right to use said right-of way and said road is limited to said persons, as owners, and. for no other persons, or purposes.’
“Ada Goodrich was formerly Ada Menard.
“The County highway follows the North shore of the lake at the South end of the properties of A. R. Larrabee and plaintiff Stuart and is the only present outlet of the property to the Bums; and the road or right of way in question is the nearest and most convenient one leading to the county road. The only other road near it is a private road which does not come to, nor touch, any of the lands of the Larrabees, Stuart or Burns.
“At the time of the occurrence made the basis of this suit, defendant Ray Larrabee, son of Á. R. Larrabee, lived on the Wiley Burns tract, and at the time of the trial, and the evidence shows, inferentially at least, that he owned it.
“When plaintiff fenced his land on the South side and the East side he placed wire gates twelve feet wide on the land and across the 15-ft. right of way, one of which gates was at the East end of the South line and the other one at the East end of the North line. These were provided with Iocks, and plaintiff gave a key to each of the locks to Wiley Burns, who, at the time, did not live on the property. The gate next to the Burns property was cut by Ray Larrabee, and the one on the South line was cut by him assisted by his father, A. R. Larrabee. There was an interval of several days between the cutting of these gates. There were two trees cut by the defendant Ray Larrabee on the fifteen feet strip. These gates and these trees prevented the free and uninterrupted passage in and along the right of way.
“Defendant Ray Larrabee sought permission from plaintiff to pass around the trees and to go outside of the 15-foot strip, which was refused.
“Some time prior to 1925, defendant A. R. Larabee and a" man named Steams who owned land immediately West of the plaintiff procured permission from the owner of the land to build a concrete trough to water their cattle. After Stuart bought the land, defendant A. R. Larrabee removed the trough. This trough was never a part of the realty.
“Some time after the cutting of the gates and the trees and while the right of way was open for the occupants of the Burns’ property, some one cut the fence between the plaintiff and the defendant A. R. Larrabee. There is no sufficient evidence to show that either of the defendants cut these fences. The Burns, as vendees of Mrs. Goodrich, and their ten-' ants, were entitled to, and had acquired, a way of necessity over the land sold to plaintiff.
“Conclusions of Law.
“The reservation in the deed from Mrs. Goodrich to plaintiff was a covenant running with the land reserved by the grantor in the deed to her previous grantees, and herself to the Burns,, their families and tenants and to their vendees, one of whom is the defendant Ray Larrabee. The defendant Ray Larrabee had a right to cut the gates and the trees, and to remove the trees, and no cause of action is maintainable against him and A. R. Lar-rabee therefor.”

There is also in the record a complete statement of facts agreed to by the parties and approved by the court, which fully supports the court’s findings. Appellant has nowhere questioned their correctness. We adopt the court’s findings and will make such further findings as we may deem necessary.

By several assignments of error appellant has challenged the action of the court in withdrawing the case from the jury, contending that the evidence raised issues of fact that should have been submitted to the jury. The controlling facts are without dispute. The case, as we view it, must be determined by the correct construction of the right of way clause or reservation in appellant’s deed pleaded by defendant Ray Lar-rabee. It being unambiguous, its construction was for the court, and, the facts being without dispute, there was nothing to submit to the jury.

The easement, right of way, or road provision or reservation in appellant’s deed and pleaded, by defendant Ray Larrabee is set out in the court’s findings, supra. Appellant contends that this right was an easement in gross personal to Wiley and Dan Burns, and that no other person had the right to use said road, and that as neither of said persons were using said road, he had the right to fence up and close same. Appellees contend that the right to use said road or right of way was not a personal covenant, but was an easement appurtenant to the said lands of Wiley and Dan Bums, and ran with the land.

A right of way is either in gross or appurtenant. The 'first is attached to and vests in the person to whom it is granted. The second is an incident to an estate, one terminus of which is the land or tenement of the party claiming it. It inheres in the land, concerns the premises, and pertains to its enjoyment and passes with it. Alley v. Carleton, 29 Tex. 74, 94 Am. Dec. 260. Easements in gross are not favored, and an easement will never be presumed to be a mere personal right when it can be fairly construed to be appurtenant to some other estate. Whether an easement is in gross or appurtenant must be determined by the fair interpretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the surrounding circumstances. 19 C. J. 868.

The following rough sketch shows the premises in controversy, together with the surrounding tracts:

The undisputed facts are:

Each of the tracts shown on the sketch was a part of the A. H. Menard homestead. The Menard land was cut, up into small tracts and sold off to different parties, some of which are shown in the above sketch. Ada Goodrich was a daughter of A. H. Menard. The portion marked “Ada Goodrich (E. B Stuart)” was deeded to her by her father. Mrs. A. R. Larrabee was also a daughter of A. H. Menard, and the tract marked “Virginia Larrabee” was deeded to her by her father. The Stearns tract borders Stuart’s tract on the west, and was a part of the Menard homestead tract. Appellee A. R. Larrabee resides on the tract marked in his name east of his wife’s tract. The Roderick tract was sold by Menard and lies immediately on the north of these other tracts. Ada Goodrich sold two small tracts off of the north end of her tract, one to Wiley Burns and the other to Dan Burns. In her deed to appellant she reserves for the use of Wiley and Dan Burns the 15-foot road shown on the sketch leading from the county shell road on the south to the Dan Burns south line. There is no other way to reach the county shell road from the two Burns tracts than by this 15-foot road. It had been used by them for this purpose before Ada Goodrich sold the remainder of her tract to appellants. This right to them as owners and occupiers of the land' sold by Ada Goodrich was preserved to them in her deed to appellant. Defendant Ray Larrabee purchased a portion (if not’ all) of the Dan Burns tract, and occupied the Wiley Burns tract as a tenant of Burns. Appellant erected a wire fence on the east line of his tract between his land and the tract marked “Virginia Larrabee,” and also on the south line of the Dan Burns and on the south of his tract along the county shell road. He put wire gates at the entrance to the 15-foot road at the Dan Burnses, and at the south end of said road opening into the county shell road, and locked said gates and gave Wiley Burns a key to the gates and told him he could use the road through the gates, but that no other person could. These gates closed the only egress and ingress that existed to the Burns tracts of land, and prevented any one occupying said tracts from reaching the county shell road. Ray Larrabee requested the permission of appellant to go out of the 15-foot road to avoid two trees that stood on said 15-foot strip, which was refused. Ray Larrabee then cut down the two trees'and cut the two wire gates that obstructed the road, this upon advice of counsel. The wire fence on the east line of appellant’s land was also cut in many places, but there is no proof of any character showing who did this cutting. Ray Larrabee testified that he did not cut this wire, but that he did cut the wire gates and the trees because they obstructed the free use of the road. The proof was positive and undisputed that the water trough for which appellant sued was not the property of appellant, but that same belonged -to appellee A. R. Larrabee.

The court did not err in his conclusion of law that the reservation in the deed from Ada Goodrich to plaintiff was an easement appurtenant to ihe Burns lands and ran with said lands. In determining the scope of the grant, we should consider, not only the terms of the grant itself, but the nature of the right and -the surrounding circumstances. Ada Goodrich sold Wiley and Dan Bums each a portion of her tract. She recognized that the land so sold by her was so situated that a way over the remainder of her tract was necessary for her vendees to reach the county shell road. In selling the remainder of her tract to appellant, she reserved this right to her said vendees as owners of a portion of her former tracts, and as necessary to their reasonable enjoyment of said sold portions, by writing into appellant’s deed the easement in question. The right to use the 15-foot road being in connection with the land and for the benefit of the estate of her said vendees, the easement could not be in gross, as contended by appellant but was and is appurtenant thereto and ran with the land, to the benefit of appellee Ray Larrabee, a subsequent venders of appellant’s vendor, Dan Burns, and as tenant of Wiley Burns, a vendee of appellant’s vendor. Perkins v. Madison, 144 Ky. 718, 139 S. W. 967; Chase v. Cram, 39 R. I. 83, 97 A. 481, L. R. A. 1918F, 444; Railway v. Bays (Ky.) 102 S. W. 302; Myers v. Berven, 166 Cal. 484, 137 P. 260; McCoy v. Railway, 176 Iowa, 139, 155 N. W. 995; Cassens v. Meyer, 154 Iowa, 187, 134 N. W. 543; Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 791; Goldstein v. Raskin, 271 Ill. 249, 111 N. E. 91; Hammonds v. Eads, 146 Ky. 162, 142 S. W. 379; Schmidt v. Brown, 226 Ill. 500, 80 N. E. 1071, 11 L. R. A. (N. S.) 457, 117 Am. St. Rep. 261; Blanchard v. Maxson, 84 Conn. 429, 80 A. 206.

Moreover, as the land sold by Ada Goodrich to Wiley and Dan Bums was so situated that her vendees could not reach the public highway, the county shell road, except by-traveling over the remaining lands of Ada Goodrich or lands of strangers, then said vendees, Wiley and Dan Burns, had a right of way over the remaining land of their vendor, Ada Goodrich, by necessity, and as appellant succeeded to the ownership of said Ada Goodrich’s land, the way, of necessity, existed against him in favor of Wiley and Dan Burns and their tenants or assigns. Holman v. Patterson, 34 Tex. Civ. App. 344, 78 S. W. 989 (writ refused); Alley v. Carleton, 29 Tex. 74, 94 Am. Dec. 260; 19 C. J. 923, § 117; 9 R. C. L. 768, § 31.

As appellee Ray Larrabee was entitled to the free and unobstructed use of the road, he was not liable to appellant for damages for cutting and removing the gates placed across said road by appellant, nor for the value of the two trees cut from said 15-foot road, which prevented him from using same. They constituted a nuisance, which he had the right to remove. 19 C. j. 988, § 244; 9 R. O. L. 801, § 57; O’Brien v. Murphy, 189 Mass. 353, 75 N. E. 700; Schmidt v. Brown, 226 Ill. 590, 80 N. E. 1071, 11 L. R. A. (N. S.) 457, 117 Am. St. Rep. 261; Blanchard v. Maxson, 84 Conn. 429, 80 A. 206. The undisputed evidence shows that appellee, in cutting the gates and trees, did no other injury to appellant’s premises. He was not connected with the cutting of the wire on the east line of fence.

From what we have said, it follows that the judgment should be affirmed, and it is so ordered.

Affirmed.


source: Caselaw Access Project

author: SMITH, J. COBBS, J.

license: Public Domain

text:
    HIDALGO COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1 v. GOODWIN et al.
    (No. 8100.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1929.
    Rehearing Denied March 6, 1929.
    See, also, 6 S.W.(2d) 231.
    Neal A. Brown and Geo. P. Brown, both of Edinburg, and Don A. Bliss, of San Antonio, for plaintiff in error.
    James R. Daugherty of Beeville. and Vernon Hill, of Mission, for defendants in error.
   SMITH, J.

The contract out of which this controversy arose is as follows, .the clauses deemed material to this discussion being italicized:

“State of Texas, County of .Hidalgo.
“The contract this day made and entered into between the Hidalgo County Water Control & Improvement District No. 1 and E. M. Goodwin, is as follows:
“(a) It is contemplated by the said E. M. Goodwin that a water improvement district, or a water control and improvement district, shall be organized under the laws of Texas to embrace lands in Porciones 48, 49, 50. 51 and 52, in Hidalgo County, Texas, and after the incorporation of such a district, said district as so incorporated shall have the right at its option to contract with the said Hidalgo County Water Control and Improvement District No. 1, as hereinafter set forth, and that in the event no such district should be organized under the laws of the State of Texás, then the said E. M. Goodwin at his option shall have tfie right to contract with the said Hidalgo County Water Control and Improvement District No. 1 upon the terms and under the conditions as hereinafter set forth.
“(b) l&e contract herein provided to he made between the said Hidalgo County Control & Improvement District No. 1, Party of the First part, and the said E. M. Goodwin, Party of the Second part, is as follows:
“1. Th'e. said Hidalgo 'County Water Control &'Improvement District No. 1 agrees with thé, said E. M. Go'odwin that it will furnish unto the said E. M. Goodwin, or his assigns a shpply of water sufficient to properly irrigate a minimum of 5,600 acres of land in said Porciones, and a maximum amount sufficient to irrigate 25,000 acres in said Porciones, for'^hich the said E. M. Goodwin, or his assigns, Is to pay the Hidalgo County Water Control & Improvement District No. 1 at the rate of $17.50 per acre as the price of a water right to be extended by the said Hidalgo's County Water Control & Improvement Difetrict No. 1 to the lands embraced within the Water Improvement District or Water Control and Improvement District, to be organized, or included in the irrigation system installed by the said E. M. Goodwin, and being lands out of said Porciones 48, 49, 50, 51 arid 52, the payment of said $17.50 per acre to be made as follows:
“Onror before nine (9) months from the - day of -, 1926; it being -understood, however, that it is contemplated by the E. ⅞£. Goodwin to perfect the organization of said Water Improvement or Water Control and Improvement District, and that bonds will be voted and marketed for the-purpose of .constructing the pumping plants and canals, and of paying for the water right hereby contracted to be conveyed, it is further agreed that in the event the said E. M. Goodwin should be unavoidably delayed in the organization of said District and the marketing of the bonds of said District, as above provided for, upon satisfactory proof to the Board of Directors of the Hidalgo County Water • Control & Improvement District No. 1 that fair and reasonable progress is being made in the perfection of said District and the marketing of said bonds, a reasonable extension of time for the payment of said $17.50 per acre to the Hidalgo County Water Control & Improvement District No. 1, shall be granted to the said E. M. Goodwin for the purpose of perfecting the organization of said District and the marketing of said bonds by said District.
“2.- In addition to said charge for said water right, the said E. M. Goodwin agrees to pay to the said District at the rate of $2.50 per acre foot for each actual delivery of water, based on the price of fuel oil at $1.75 per barrel and for each 10 cents in excess in the price of said fuel oil per barrel said District shall have the right to increase said charge at the rate of 12 cents per acre foot, during such time as the price of said fuel oil shall be in excess of $1.75 per barrel; the minimum price to be $2.50 per acre foot, unless and in the event said District shall reduce the price of the water charge to the land owners within its District to a less sum than $2.50 per acre, then and in that event the rate herein provided for to be charged to the said E. M. Goodwin, or his assigns, shall be reduced proportionately to the reduction made to the land owners within said Hidalgo County Water Control & Improvement District No, 1.
“3. The said E. M. Goodwin agrees to pay for 250 acre feet of water for the first year after the said district to be oi^'anized by him, or the irrigation system to be established by him, is ready to receive water for the irrigation of said lands included therein, whether such water should be used or not, and that such fixed charge shall increase each year at the rate of 250 acre feet until the minimum yearly charge shall be for the same number of acre feet as the number of irrigable acres of land in the district to be organized or under the system to be-established by the said E. M. Goodwin.
“4. Said charge for water shall be paid in advance by the said E. M. Goodwin, or his assigns to the said Hidalgo County Water Control & Improvement District No. 1, on the first day of November of each year to be credited upon the amount of water that said Goodwin actually takes from the canal of the Hidalgo County Water Control & Improvement District No. 1, during such year, provided, however, that all water in excess of said 250 acre feet shall be paid' for in advance upon application of demand for the furnishing of said water for the irrigation of said additional land.
“5. Should the said E. M. Goodwin fail to pay unto the said District the said amount as hereinabove provided for then the said District shall have the right to shut off any water supply whatsoever until sajd charge is fully paid unto it with interest at the rate of ten per centum per annum from the date when such charge shall have accrued; and in case the said Goodwin should desire a greater supply of water over and above the minimum he pays for, then he shall pay cash to said District for any and all water that may be delivered to. him under the ternis of. this contract, at the rate herein specified.
“6. A supply of water sufficient to irrigate all said lands as they become ready for irrigation shall be delivered by the said District in its canal, and the said Goodwin hereby agrees and binds himself to construct, maintain and operate at his own expense a pumping plant on said canal for the purpose of pumping water from the canal of said district, and the said Goodwin further binds himself and his assigns to install a meter at said pumping plant at his own expense, for the purpose of measuring the amount of water, the plans for the installation of said pumping plan and of said meter to be submitted to the Engineer of the District beforehand and to be approved by the said Engineer of the District. Said pumping plant and meter shall at all times be subject to inspection by the Engineer of said District, and said meter shall at all times be under the joint control of the Engineer of said District and the Engineer of the said E. M. Goodwin or his assigns, and any deficiencies therein shall be corrected and supplied by the said E. M. Goodwin, or his assigns.
“7. Should any lands be included in the District that is to be organized, which lands the said Hidalgo County Water Control & Improvement District No. 1 has agreed to supply with water under a contract, or contracts heretofore made, then the said lands shall be entitled to receive a supply of water under the terms of this contract at the price and under the terms hereinbefore set forth, regardless of what may have been the original contract or contracts between this District and the said person or persons owning said lands; provided, however, that if the said Hidalgo County Water "Control & Improvement District No. 1 shall have heretofore contracted with any owner of land or lands that may be embraced within the limits of the District that the said Goodwin expects to be organized for a premium or price of a water right less than $17.50 per acre, as stipulated herein, the said Goodwin shall have the advantage of said price for said water rights; but, in no event shall he be entitled to receive the water actually supplied for a less rate per acre foot than herein specified.
“8. The privileges and rights herein.' extended unto the said E. M. Goodwin by the terms of this contract shall be assignable by him to the said District that he expects to be organized and, when so assigned by him, shall in all respects be binding as between the said Hidalgo County Water Control & Improvement District No. 1, and such District that may be organized: In the event such a District should be organized and the said E. M. Goodwin should assign unto it all of his rights and privileges under the terms thereof, then the total amount of the price hereinbe-fore agreed upon for the water right, that is, the right to take water from the said canal of the said Hidalgo County Water Control & Improvement District No. 1 shall be paid in cash according to the terms of this contract by such District so organized.
“9. Should it he necessary that any additional permit to take water from the Rio Grande River he secured vn order to supply the lands to he supplied under the terms of this contract with water for irrigation purposes, then the said Goodwin and his assigns bind themselves to secure such water permit and to convey same to Hidalgo County Water Control & Improvement District Number 1. It is further agreed, however, that in the event the said E. M. Goodwin should be unable to obtain a permit from the Board of Water Engineers to take water from the Rio Grande for the irrigation of said land, the Hidalgo County Water Control & Improvement District No. 1 hereby agrees to assign and transfer to the said E. M. Goodwin, or his assigns, a sufficient amount of water of the Rio Grande River, which is already owned by the said Hidalgo County Water Control & Improvement District No. ⅛
“10. Should there at any time be a shortage of the supply of water within the Rio Grande River, then it is distinctly understood that the lands within the territorial limits of the said Hidalgo County Water Control & Improvement District No. 1 shall first be supplied with water before any water shall be supplied under the terms of this contract unto the lands hereinbefore mentioned in which event the said Hidalgo County Water Control & Improvement District No. 1 shall not be liable in damages for a failure to supply a sufficient amount of water to irrigate any lands under the terms of this contract.
“11. The said Goodwin or his assigns under the terms of this contract shall report to the Board of Directors of said Hidalgo County Water Control & Improvement District Number 1, the acreage to be irrigated and the character of the crops for the succeeding year on the first day of November of each year.
“The said Goodwin has this day paid unto the Hidalgo County Water Control & Improvement District Number 1, the sum of Twenty-five ($25.00) Dollars in cash, and the said Hidalgo County Water Control & Improvement District Number 1, hereby acknowledges the receipt of said sum of money as the consideration for this option contract.
“It is understood and agreed that this contract shall be binding upon the Hidalgo County Water Control & Improvement District No. 1 and upon its successors and assigns.
“This Contract to be signed in Duplicate and each of the parties to retain a copy hereof.

In Testimony whereof the Hidalgo County Water Control & Improvement District No. 1 has caused these presents to be signed by its President and countersigned by its Secretary, and the corporate seal hereunto affixed, and in testimony whereof witness the hand of the said E. M. Goodwin on this, the 26th dáy of June, A. D. 1926. Hidalgo Co. Water Control & Im. Dist. No. 1, by Emile Monney, President, Party of the First Part. E. M. Goodwin, Party of the Second Part.

“Attest: J. W. Hardin, Secretary.”

The instrument as a whole constituted a mere option by its own express provisions. In paragraph (a) it' is provided, as shown above, that Goodwin, or his named assign, “Shall have the right at Ms or his assign’s option to contract,” with the district, “as hereinafter set forth,” and in paragraph (b) it is recited that “the contract herein provided to he made is as follows.” The proposed contract, to be entered into at the option of defendants in error, is then set forth in eleven numbered paragraphs, at the conclusion of which it is recited that on the date of the contract Goodtvin had paid plaintiff in error district the sum of $25, “as the consideration for this option’ contract.” The intention of the parties to constitute the contract a mere option could not be more clearly or definitely expressed than in the terms employed.

■ It is conceded by plaintiff in error that ■ defendants in error never exercised the option to enter into the proposed contract, and that that contract was never entered into by the parties.

Plaintiff in error has singled out paragraph 9 of the proposed contract, and asserts that, by tfie terms of the whole instrument, the provisions of that particular- paragraph con-stitute4 an independent and absolute contract upon the part of defendants in error to do and perform the obligations therein provided for, although conceding in effect that no other provision of the proposed contract is effectual.

Plaintiff in error asserts in the alternative that, if the contract should be construed as a mere option to enter into the proposed contract as embraced in the numbered paragraphs of the instrument, then it was the intention of the parties that paragraph 9 should be an independent and binding obligation of defendants in error, notwithstanding the optional character of the contract as a whole. Plaintiff in error asserts that this intention is disclosed by the circumstances leading up to and surrounding the execution of the option agreement, as shown by parol evidence, and seeks to reform the contract so as to effectuate that intention, and to enforce specific performance of the instrument as so reformed. Much evidence was introduced under this contention, which was vigorously contested by defendants in error. There was a sharp conflict in this evidence. It was resolved against plaintiff in error by the trial judge whose finding thereon is binding upon this court.

We conclude that by its own provisions, viewed at large, the instrument clearly conferred upon defendants in error the option to enter into the proposed contract set out in the numbered paragraphs of the instrument,' and that, because defendants in error elected not to exercise that option, the proposed contract was never vitalized into an obligation binding upon either party. But, even if there could arise from the language of the instrument a doubt of the optional nature of the agreement, that doubt has been effectually resolved against plaintiff in error by the findings of the trial court, fortified by ample evidence in support of those findings, which we adopt as the findings of this court.

Plaintiff in error does not contend that any of the provisions of the proposed agreement embraced within the option contract, other than those in paragraph 9, are enforceable against defendants in error, as independent and binding obligations upon the parties, although all the provisions of all the eleven paragraphs in the' proposed agreement are obviously of equal dignity and force. Goodwin planned to" purchase certain lands and bring them under an irrigation system to be owned and operated privately, or by a public irrigation district, but could not afford to purchase them until assured in advance, and in any event, of water rights for them. With this purpose in mind he began negotiations with plaintiff in error district, whose officials he fully informed of his plans. His object, fully disclosed to plaintiff in error, was to obtain an option to procure water from plaintiff in error district with-which to irrigate the lands he proposed to purchase, so that with this option secured he could proceed with his plans with the assurance of water in any event, if not through his own direct operations, then through the exercise of this option.

The option contract in controversy result- ' ed from these negotiations. By this contract plaintiff in error bound itself, in event of Goodwin’s election thereto, to supply Goodwin or his assigns with all the water requisite to the irrigation of the lands he had then contracted for or that he might subsequently acquire in his project, within a prescribed territory, not to exceed 25,000 acres, for which water rights, if obtained from plaintiff in error by the exercise of the option granted, .Goodwin or his assigns were to pay plaintiff in error district the prices and upon the terms stipulated in the proposed contract. The provisions concerning this subject comprise the first eight sections of the proposed agreement embraced in the option contract. These provisions are folllow-ed by section 9 of the proposed contract now sought by plaintiff in error district to be reformed and specifically' enforced as reformed as an independent and absolute contract, notwithstanding the fact that defendants in error never elected to exercise their option to make that contract, which was in fact never entered into by the parties. No reason appears for singling out said section 9 from the eleven sections in the proposed agreement or for giving it any more force than all or either of the other ten sections. ■All the eleven sections are interdependent. To set out either of them and give it a different force- or status from the others would serve to place tbe whole proposed agreement awry. This is especially true of section 9, the operation and effect of which is peculiarly dependent upon the preceding eight sections. This is apparent from the very language of section 9, as is shown by a consideration of that language. In the first eight sections provision is made that, in the event defendants in error exercise their option to enter into the proposed contract, plaintiff in error district shall supply defendants in error’s 25,000 acre block of land with water with which to irrigate those lands. After the expression of this object-in the first eight sections, it is provided in the ninth that, “should it be necessary that any additional permit to take water from the Rio Grande River be secured in order to supply the lands to he supplied under the terms of this contract -with water for irrigation purposes,” then the provisions in section 9 shall be effective; that is to say, that, should the necessity therefor arise by reason of operations under sections 1 to 8, Goodwin and his assigns bind themselves, as provided in section 9, to procure such permit and convey it to plaintiff in error district. In other words, by the express language of section 91 the provisions therein were to become effective only in the event defendants in error exercised their option to enter into the contract obligating plaintiff in error district to supply the water and water rights necessary to irrigate defendants in error’s lands, under the provisions of sections 1 to 8 of the, proposed contract, and only in the event an additional permit should be required by plaintiff in error in performing that obligation. A necessary inference from the language of section 9 is that, if this additional permit should be necessary to enable plaintiff in error district to supply the water it obligated itself in the preceding sections to supply to defendants in error, at their election, then, and only in such event, such permit should be procured and assigned to plaintiff in error district, thus co-ordinating its powers with the duties imposed upon it in sections 1 to 8, inclusive. Sections 1 to 8 formed the foundation and the only reason for section 9, and by its own terms the latter could be vitalized only by the active operation of the former. Not only is it true that defendants in error refused to exercise the clearly expressed option to enter into the proposed contract embracing sections 1 to 11, inclusive, but plaintiff in error district itself refused to enter into that part of the agreement embraced in sections 1 to 8, inclusive. And yet the whole purpose of this suit by plaintiff in error is to require defendants in error to specifically perform as to section 9. The position is wholly untenable.

Electing not to exercise his option to contract with plaintiff in error district for water rights, Goodwin applied to the state board for a permit and for appropriations out of the Rio Grande and obtained them, and with these appropriations as a .basis proceeded with his plans for a distrki. He organized the Hidalgo County water control and improvement district No. 6, and conveyed to that district all his interest in the whole transaction. The newly created district issued the necessary bonds, built its own irrigation system, and from that system is now irrigating the lands in question under permits obtained by Goodwin from the state. .Goodwin had this very plan in mind, as an alternative to the exercise of his option to make the agreement embraced in sections 1 to 8 of the option contract, throughout all his negotiations with plaintiff in error district, whose officials were fully cognizant of his plan at all times, before and after granting the option to him.

Plaintiff in error district now demands that the newly created district No. 6, one of the defendants in error, convey this permit to plaintiff in error, contending that defendants in error were obligated so to do under section 9 of the optional contract, which was never entered into.

It is apropos of this contention that we have expressed the conclusion that section 9 is inoperative, since the contract embracing that section was never entered into by the parties, and since the contingency expressly provided for in said section as a condition precedent to its vitality has never happened, and cannot be forced. Moreover, the trial court found, upon sufficient evidence, that it was the intention of the parties to give effect to the contract as written and as here construed.

Plaintiff in error contends that it had existing permits from the state to appropriate waters from the Rio Grande for the purpose of irrigating the lands purchased by Goodwin and now embraced within the bounds of defendant in error district No. 6; that, relying upon Goodwin’s agreement in section 9 of the optional agreement to convey to plaintiff in error any permits he might obtain covering said lands, plaintiff in error waived its permits and appropriations, and aided Goodwin in procuring said rights; that, without such waivers and assistance, Goodwin could not have obtained said permits or appropriations ; that, because of these circumstances, defendant in error is estopped to deny plaintiff in error’s right to an assignment of those benefits. The trial court found that plaintiff in error did not in fact own or hold the claimed permits, and, moreover, that plaintiff in error was not deceived into waiving its rights in said appropriations, but voluntarily waived them in pursuance of its general policy to help and encourage the operation of such improvement districts as an aid to the development of that section. The evidence fully warranted this latter finding, which renders it unnecessary for this court to determine the question of whether or not plaintiff in error district in fact owned valid water appropriations covering the lands in question, at the time it waived its claims thereon.

The transcript and statement of facts cover about 1,000 typewritten pages, and the briefs of the parties nearly 600 printed pages, presenting 47 assignments of error, 37 “questions of law,” and 30 propositions of law. The conclusions expressed above have the effect of disposing of all the material questions raised, rendering it unnecessary to discuss the remaining points presented, unless it be those now to be briefly mentioned. In many assignments of error complaint is made of qualification appended by the trial court to plaintiff in error’s bills of exception, but the rules of pratice provide for such qualification, and those assignments are without merit. Complaint is also made of findings of fact made or refused by the trial court, but the evidence is deemed sufficient to support the findings complained of, and no error is shown in rejecting those proposed by plaintiff in error.- Complaint is made of the admission of certain evidence, but no prejudicial error is shown by these complaints. Plaintiff in error also complains of the refusal of the court to grant a jury trial, but the facts recited in the judgment concerning this matter show clearly that the trial court was fully justified in his ruling.

The judgment is affirmed.

COBBS, J.

Plaintiff in error sued defendants in error for the specific performance of a contract in writing between said parties. The petition of plaintiff in error alleged that the said Goodwin had obtained the water appropriation referred to in clause No. 9 of said contract from the state board of water engineers, but had not only failed and refused to comply with said clause of said written contract, but had, in direct violation of said clause, conveyed the said appropriation unto the other defendant in error, the Hidalgo county water control and improvement district No. 6, which had full knowledge and notice at the- time of said conveyance to it of the terms of the said contract between the plaintiff in error and the defendant in error Goodwin.

Plaintiff in error in the alternative, in case the court should hold that it was not entitled to specific performance, sought to recover of both defendants in error and of each of them the value of said water appropriation, alleging such value to be the sum of $437,500. Plaintiff in error also prayed for general relief.

In its original petition, plaintiff in error made the entire contract in writing between it and the defendant in error Goodwin an exhibit.

At the instance of defendant in error, the case was set for trial on November 3, 1927, to which plaintiff' in error agreed. At that time plaintiff in error had made no demand for a jury, and did not know that there was no jury for that particular week.

On said 3d day of November, A. D. 1927, the trial court sustained a general demurrer to plaintiff in error’s original petition and also a special exception, and plaintiff in error, with leave of the court, prepared and filed its first amended original petition in which it still sued on said clause in said written contract for a specific performance, but, in the event that the court should persist in holding that the entire contract from beginning to end was a mere option, and that, under the terms of said contract as expressed in the writing, the said Goodwin had the right to do as he pleased with the said water appropriation, then the plaintiff in error prayed for a reformation of the contract so as to express the true intention of the parties with' reference to said water appropriation and then - enforce the specific performance of the said contract with reference to said water appropriation as the contract should be reformed, setting up all the facts and circumstances attending the transaction.

In the alternative, plaintiff in error sought to recover of the said Goodwin damages in said amount on account of a fraud perpetrated upon plaintiff in error by the said Goodwin, setting up all the facts.

The defendants in error pleaded a general demurrer and a number of special exceptions to plaintiff in error’s first amended original petition, and also pleaded a general denial and a special answer.

Plaintiff in error specially excepted to the special answer of defendants in error.

The trial court, after overruling a motion of plaintiff in error for a jury trial, proceeded to try the cause without a jury; and on November 27, 1927, rendered judgment that plaintiff in error take nothing, and that the defendants in error go without day and recover of plaintiff in error all costs of the suit.

The court made and filed his findings of fact and conclusions of law, which plaintiff in error contends were made by defendants in error’s attorney and are erroneous. We do not think the court, under the circumstances, committed any error in refusing a jury trial to plaintiff in error, and this objection is overruled.

What seems to be the main question in the case grows out of the controversy arising between the parties as to the proper construction of the terms» of the contract in respect to E. M. Goodwin’s supposed or claimed obligation to acquire certain water rights and thereafter to convey the same to plaintiff in error, when acquired.

Plaintiff in error was the owner of water appropriations covering porciones 48, 49, 50, 51, and 52 in Hidalgo county. It had constructed main canals of sufficient capacity to irrigate about 40,000 acres of plaintiff in error’s lands and all the lands capable of irrigation in said porciones. And, when plaintiff in error was completing the construction of its new pumping site at the village of Penitas, and about to finish the con-, struction of its main canal,' about 13 miles long, connecting said pumping plant with the irrigation system in its district, the defendant in error Goodwin, who had acquired an option to purchase about 5,000 acres in por-ciones 51 and 52, commenced negotiations with plaintiff in error to acquire a permanent water right from plaintiff in error to irrigate said lands of which he held an option to purchase, with additional land as he might- acquire an option on. During these negotiations Goodwin conceived the plan of organizing a new water control and improvement district to embrace within its limits the lands in which he had acquired an option to purchase, being 5,000 acres in porciones 51 and 52 and other lands in the five porciones.

The purpose of the parties was that Goodwin should purchase from the plaintiff in error a permanent water right appurtenant to said lands and procure an actual supply of water for said lands, and plaintiff in error to sell to Goodwin said permanent water right and to furnish such actual supply of water.

The record in this case is very voluminous. The transcript' contains 220 pages and the statement of facts contains 514 pages. Plaintiff in error filed a printed brief containing 241 pages, a supplemental printed brief containing 117 pages, and then a typewritten reply brief containing 28 pages. Defendant in error filed a printed brief containing 171 pages.

As the real question involved, to my way of thinking, is as to the effect of the contract in respect to defendant in error’s obligation to convey unto plaintiff in error the water right in question that it acquired or was to acquire, so we have mainly determined the entire controversy by passing on that question.

Paragi^>h 8 expressly allows plaintiff in error to assign the contract.

The contract expressly and. specifically, obligates Goodwin, in paragraph 9, as follows:

“Should it be necessary that any additional permit to take water from the Rio Grande River be secured in order to supply the lands to be supplied under the terms of this contract with water for irrigation purposes, then the said Goodwin and his assigns bind themselves to secure such water permit and to convey same to Hidalgo County Water Control & Improvement District Number One. It is further agreed, however, that in the event the said E. M. Goodwin'should be unable to obtain a permit from the Board of Water Engineers to take water from the Rio Grande for the irrigation of said land, the Hidalgo County Water Control & Improve-' ment District No. 1 hereby agrees to assign and transfer to the said E. M. Goodwin, or his assigns, a sufficient amount of water for the irrigation of said lands from the appropriation of water of the Rio Grande River, which is already owned by the said Hidalgo County Water Control and Improvement District No. 1.”

■ There is no question as to the fact that plaintiff in error, as a part of the consideration of the contract, and because the court so found, that it aided the defendants in error and thereby waived its prior claim and rights and assisted as he had contracted to do, in favor of defendant in error to secure the additional water rights appropriation. Goodwin secured the additional right to secure the water as is mentioned in the ninth paragraph for irrigation purposes.

Erom the view I take of this contract, it is not altogether optional but it was an express contract to procure for the use and benefit of said proposed district a necessary permit from the state board of water engineers of the state of Texas 'to take water from the Rio Grande river, for the purpose of irrigating said lands to be included in said proposed district, which said appropriation shall be conveyed to said district No. 1 if that be necessary in order to carry out the provisions to be inserted in the contract for furnishing water to said lands for the purposes therein set out. Whether we call this an option or a contract, it is a valid and enforceable stipulation; it was acted upon and the water permit was secured. Corsicana Petroleum Co. v. Owens, 110 Tex. 571, 222 S. W. 154, cited in Commerce Realty Co. v. Warner Bros. Pictures (Tex. Civ. App.) 8 S. W.(2d) 191. The opinion of the majority of the court, -by holding it an option contract, ignores the same as a binding obligation.

We see no allegations of fraud or ambi: guity or mistake alleged that would permit parol proof to vary it. -As a question of law, as it is here, in the absence of fraud or mistake, parol testimony is not admissible to explain the transaction.

There is no question of forfeiture involved in this case against the plaintiff in error. Forfeitures generally are obnoxious. The state was the owner of the use of the water in the Rio Grande on its border, and had the sole right to force or waive a forfeiture, which it has not done. Only the state board of water engineers was empowered with authority to cause a forfeiture' and cancel a water appropriation once made.

The court said in. Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914B, 322, that laws relating to irrigation should be liberally construed and given such effect as to best promote irrigation and thereby carry out the purpose of the Legislature. To the same effect is the holding in Platan v. State, 56 Tex. 93.

And, further, we see no facts that woutó justify the application of the statute of frauds.

The provisions of the contract provide for the organization of a water improvement district to be made by the parties hereto.

It then provides that plaintiff in error will furnish Goodwin a minimum of 5,000 acres of land and a maximum amount to irrigate 25,-000 acres for which Goodwin is to pay at the rate of $17.50 per acre for land included within the system installed by Goodwin.

Paragraphs 2 to 7, inclusive, provide the manner of payment and forfeiture for nonpayment and inspection. Paragraph No. 8 provides for the assignment of the contract. Paragraph No. 9 is as first set forth herein in full.

Paragraph No. 10 provides in respect to water shortage.

■ Paragraph No. 11 provides for Goodwin to make annual reports of the acreage and the payment by Goodwin of $25 in cash, and “acknowledges the receipt of said sum of money as the consideration for this option contract,” and that the contract is binding upon the plaintiff in error and its successors.

This is all there is to the contract, or so-.ealled option. The contract is not as stated in the majority opinion. The majority opinion has not correctly stated the provisions of the contract at all. But the majority opinion does truly state that Goodwin paid the consideration of $25. Well, what becomes of that payment? Shall appellee be allowed to put it in his pocket and when called upon to perform say, “O, no, it was an option contract and in no way binding.”

It is not conceded at all that defendants in error ever “exercised the option to enter into the proposed contract,” because it became a 'binding contract from the very moment of its acceptance and the organization of the corporation and work commenced and done under it. Besides, it was clearly shown that it “secured the additional permit to take water,” as is provided for in said paragraph 9. It is not remarkable at all that no other provision of the contract was stated than that contained in paragraph No. 9. There was no doubt or ambiguity in its clearly plain statement.

The findings of the trial court in the construction of the contract are in plain and obvious conflict with the clearly, distinctly written provisions of the written instrument itself. I do insist that each and every provision besides that contained in paragraph No. 9 are binding upon defendants in error and refer each to the other.

I do not know what was the “thought behind Goodwin’s brow,” b.ut do know that he organized his company under this so-called optional agreement and no other.

I do not very well appreciate that portion of the court’s opinion that “no reason .appears for singling out said section No. 9” any more than the action of this court does in eliminating the section. It is the only material one between the parties under consideration; without it there would be no case here.

The eleven sections are “interdependent,” and we fail to see how the section 9,' the most important of the whole controversy, can possibly place the “whole proposed agreement awry”; that is, twisted or one-sided or erroneous.

The evidence in this case shows that Judge Bliss, representing plaintiff in error at the time the contract was entered into, refused to sign the agreement as was presented and protested against it with the provisions of number 9 left out, and, after much discussion, Goodwin waived the point, and accepted the contention of Judge Bliss as expressed in No. 9. Men are ordinarily held bound by what they write and sign. This contract was deliberately entered into. Suppose we agree that it was an option contract, still such are enforceable, as shown by the opinion of Chief Justice Phillips in Corsicana Petroleum Co. v. Owens, 110 Tex. 571, 222 S. W. 154, supra.

The only material question involved is to determine whether under the contract itself the defendant in error was so bound in writing to convey the water permit to plaintiff in error when he acquired it, or was, as said in the majority opinion herein, a mere option not binding upon any one, just a little plaything.

The amended petition of the Hidalgo county water control and" improvement district set up all the facts surrounding the parties at the time the contract was made and the object and purpose that the parties had in view with more detail than was alleged in the original petition, and prayed for a reformation of the contract so as to express the real intention of the parties to the contract showing that it was the intention of the parties to the contract that any new water appropriation obtained by Goodwin was to be conveyed unto the Hidalgo county water control and improvement district, regardless of whether he or his assignee should exercise the option to purchase a permanent water right from said district or not. And it will be observed that this amended original petition’ set up distinctly the fact that, in consideration of his agreement to convey such new water appropriation unto said district, the said district waived its prior appropriation in his favor, and surrendered to him the benefit of the contracts it had made with divers owners of land to which the district had already extended permanent water .rights and for which these owners were to pay unto said district amounts from $15 to $25 per acre, aggregating about $35,000.

The contract actually entered into was drafted entirely by Goodwin and his attorney.

The testimony showed that Wade Bliss brought to the conference in an office in San Antonio a draft of the contract prepared by him as understood by the board of directors of the district. That occurred previous to the execution of the contract. The testimony further showed that Goodwin and his attorney brought with them a draft of th'e contract as Goodwin .understood it. The draft prepared by Wade Bliss is set forth on pages 61-64 of the original brief of plaintiff in error; and the draft prepared by Goodwin’s attorney is foiand on pages 111-117 of said brief.

While Goodwin testified that there was no discussion whatever between him and his attorney on the one side and Bliss, as the attorney for the Edinburg district, Wade Bliss, Della Guerra, and Don A. Bliss testified positively that there was a discussion of clause 7 of the draft of the contract made by Goodwin and his attorney that had been brought with them to the conference at San Antonio, and that Don A. Bliss positively refused to agree to this clause 7, which appears on page 115 of the original brief filed by plaintiff in error, and that this discussion lasted practically the whole day, ending in an agreement that, if any new appropriation should be obtained by Goodwin from the state board of water engineers, this new appropriation should be conveyed unto the Edinburg district, and that Goodwin and his attorney took all the papers with them, including the draft that had been made by Wade Bliss, the draft that had been made by Goodwin’s attorney, prior to the conference, and the draft that Don A. Bliss had made. It was further shown that Dawson, the attorney of Goodwin, at the conference, fell sick that afternoon before he and Goodwin went away, taking with them the documents, with the promise that they would return next morning with a draft of the contract and submit the same to Don A. Bliss.

It was undisputed that Goodwin returned the next morning with duplicates of the contract that he said had been dictated by Mr. Dawson, and it is further undisputed that Bliss looked over this contract and discovered that the stipulation requiring Goodwin to convey to the Edinburg district any new water appropriation that he might obtain from the state board of water engineers had been omitted. And it is undisputed that, after it was called to his attention; Goodwin stated that this omission was an oversight, and the language of the draft was then and there changed by Wade Bliss so as to require Goodwin, in case he obtained a new water appropriation, to convey it to the Ed-inburg district.

The clause of the draft made by Dawson, the attorney for Goodwin, that was brought by Goodwin and his attorney to the conference at San Antonio, being clause 7, and the clause of the contract actually executed, being clause 9 thereof, are set forth side by side on page 91 of the supplemental brief for plaintiff in error, the Edinburg district.

By the terms of the contract that was actually executed, which is set forth, in full on pages 9 to 15 of plaintiff in error’s original brief, the district surrendered unto Goodwin the benefits of the contracts that the district had already made extending permanent water rights to lands, for which the owners had bound themselves to pay to the district from $15 to $25 per acre, aggregating about $35,-000, where such lands should be included in the new district to be organized by Goodwin. Clause 7 of the contract, found on pages 12-13 of the original brief, shows this surrender, though it does not state the particular lands nor the prices for the water rights that the district was to receive from the owners.

The testimony is undisputed that Goodwin requested Bliss to appear, before the state board of water engineers and help him get a new water appropriation, and that the district directed Bliss, as its attorney, to appear before the state board of water engineers and waive in favor of Goodwin the water appropriations that the district already owned and aid Mr. Goodwin in getting a new water appropriation. The undisputed testimony further shows that Goodwin and his attorney deemed it necessary to get the new appropriation for fear that the appropriations that the district claimed to own, covering the lands, might have lapsed by reason of nonuser and abandonment.

Goodwin could not have obtained the new appropriation from the state board of water engineers without the district waiving the prior rights which it claimed.

I cannot agree with my associates in the statement made in their opinion that the giving a construction to clause 9 of the contract, which its language plainly imports, that, if Goodwin obtained a new water appropriation, he was bound to convey it unto plaintiff in error, “would serve to place the whole proposed agreement awry.” I cannot see how the construction of the contract claimed by plaintiff in error as requiring Goodwin to convey the additional water appropriation unto plaintiff in error if he should obtain the same can put the other provisions in the contract awry. The stipulation in clause 9 of the contract plainly states that; “Should it he necessary that any additional permit to take water from the Rio Grande be secured in order to supply the lands to be supplied under the terms of this contract with water for irrigation purposes, then the said Goodwin and his assigns bind themselves to secure such water permit- and to convey the same to the Hidalgo County Water Control & Improvement District Number One.” Now, Goodwin was contracting with plaintiff in error to obtain an option to' purchase from it a permanent water right, that portion of plaintjff in error’s appropriations covering the lands. This necessarily presupposes that plaintiff in error owned a water appropriation covering the lands, for plaintiff in error would have had no right not power to grant unto him a permanent water right unless it already owned an ap■propriation or appropriations covering the lands. The stipulation in clause 9 of the contract necessarily contemplates something to be done by Goodwin and his assigns after he and plaintiff in error had entered into a binding contract by the terms of which plaintiff in error should extend to his lands a permanent water right and bind itself to furnish an actual supply of water for irrigation purposes at the prices set forth. In other words, this stipulation could not possibly take effect until after such binding contract had been entered into by Goodwin or his assigns availing himself or themselves of the option to purchase such permanent water right from plaintiff in error, for it could not be determined whether any additional permit — water appropriation — -would be necessary until it should be found that the permanent water right — appropriation—extended to the lands by plaintiff in error was insufficient to supply the lands with water for irrigation purposes. The language in the stipulation cannot receive any other reasonable construction. Evidently the parties had in mind the possibility that the water appropriations covering the lands owned by plaintiff in error might not be sufficient to furnish a full water supply for the irrigation of the lands after Goodwin or his assigns should have commenced actually using water from tlje main canal of plaintiff in error. Thus the construction of the stipulation in said clause 9 of the contract contended for by plaintiff in error, not only does not put the other provisions in the contract awry, but is perfectly consistent with the other provisions of the contract. Whereas, the construction of this stipulation contended for by defendants in error appears to me to twist and distort the real meaning of this stipulation.

Thus Goodwin got the benefit of the waiver on the part of the district of its prior rights, and also got the benefit of including in liis district the lands to which the Hidalgo eounty water control and improvement district had already extended permanent water rights, for which said Hidalgo county district 'was .to receive an aggregate amount of at least $35,000.

This case was assigned to me to write the opinion of the court, which I did, hut Judge SMITH, not liking it, wrote an opinion in which Judge FLY concurred, thus making it the majority opinion.

To my mind it is clear that plaintiff in error is in the right in demanding a specific .performance of the contract, or in the alternative for damages.

As much as I regret it, I feel compelled to disagree with the majority and file this as my dissent. I would not do so but for the plain error that my associates have fallen into.


author: LANE, J.

text:
    INDEPENDENCE INDEMNITY CO. v. POLK.
    (No. 9229.)
    Court of Civil Appeals of Texas. Galveston.
    Jan. 29, 1929.
    Rehearing Denied Feb. 21, 1929.
    Haynes Shannon, of Navasota, and C. A. Lord, of Beaumont, for appellant.
    W. W. Heath, of Anderson, and A. M. "Vance, of Houston, for appellee.
   LANE, J.

On the 15th day of January, 1926, Ruble E. Polk was an employee of Pure Oil Pipe Line Company of Texas, which was a subscriber, as that term is used in our workmen’s compensation statute (Rev. St. 1925, arts. 8306-8309), and which, it is claimed by appellee, held a policy of compensation insurance issued by Independence Indemnity Company. On the above-named date said Ruble Polk, while in the course of his employment, suffered an injury to his right foot and ankle. In time and manner as required by law, said Polk gave due notice of his injury, and filed his claim with the Industrial Accident Board of Texas; on the 2d day of December, 1927, the board made its final award. Within the time and manner as required by law, said Polk gave notice to the board, to the Pure Oil Pipe Line Company, and to the Indemnity Company that he would not abide by the decision of the board, and that he would bring suit to set such decision aside. In due time after giving such notice, Polk filed this suit in ■ the district court of Grimes county to set aside the award made by the board. In his petition he alleged his injuries and the facts as above stated, and prayed for a recovery of his damages against the Independence Indemnity Company.

The Independence Indemnity Company answered by general denial. The cause was tried before the court without a jury, and judgment was rendered for ‘ the plaintiff, Polk, against the defendant, Independence .Indemnity Company, for the sum of $5,980.-31, providing that one-third of such sura should be paid to W. W. I-Ieath, the plaintiff’s attorney. The Indemnity Company has appealed.

Upon a.request by appellant for findings of fact and conclusions of law, the court found, in addition to the facts hereinbefore stated, the following:

“That on January 15, 1926, defendant had theretofore issued its policy of workmen’s compensation insurance to said Pure Oil Pipe Line Company of Texas, in accordance with the term.s of the Workmen’s Compensation Law of the state of Texas, and said policy of insurance was in force on said date. That on January 15, 1926, plaintiff sustained personal injuries, while about the due and customary duties of said employment, consisting of a complete fracture of the os calcis. That, as the direct and natural result of the fracture of the os calcis, plaintiff has developed a neuritis along the course of the sciatic nerve from the foot upward through his leg, thigh, and hip, and into his back, and since the said date of his injuries has suffered, and will continue to suffer for the rest of his life, from xrain in his foot and ankle and along the course of the sciatic nerve above described.
“That all the injuries from which plaintiff has suffered since January 15, 1926, and from which he will continue to suffer as aforesaid, were proxinjately caused by the fracture of- os calcis, received by plaintiff on said date. That as a direct and natural result of the said injuries received by plaintiff on January 15, 1926, plaintiff has been totally incapacitated from performing the usual and customary tasks of a workman to such an extent as to disable him from securing and retaining employment, at all times since the date said injuries were received; and such total incapacity is permanent.
“That defendant has paid to plaintiff 53 weekly payments of compensation of $20 per week, in the total sum of $1060, same covering the period from the date of plaintiff’s injuries to January 28,1927, after taking into account the waiting period of one week, and that defendant has made no other payment of compensation to plaintiff. That plaintiff’s case is a special case within the meaning of the Workmen’s Compensation' Law, and that manifest hardship and injustice will result unless plaintiff’s compensation be paid to him in a lump sum. That, as of February 10, 1928, there were unaccrued and unpaid and due plaintiff 54 weeks of compensation at the rate of $20 per week.
“That on January 15, 1926, Pure Oil Pipe Line Company of Texas was a subscriber under the Workmen’s Compensation Law of Texas, as the term ‘subscriber’ is defined in - said law. That plaintiff is entitled to have said compensation paid to him in a lump sum, subject to a depreciation of said lump sum payment for present value on the basis of interest on the unaccrued payments involved at the rate of 6 per cent, per annum.
. “That the law is with the plaintiff, and therefore the plaintiff is entitled to payment of compensation at the rate of $20 per week for the period of 401 weeks, less the waiting period of one week, and less the sum of all previous payments of compensation already made to plaintiff by defendant, with interest at the rate of 6 per cent, per annum on all payments of compensation which were accrued on the date of the final judgment of the court in this cause from the respective dates of accrual of said respective accrued payments (which interest on said accrued payments was computed by the court as of February 10, 1928, for convenience), and less the depreciation aforesaid of said lump sum payment for present value, which, after performing the necessary and proper process off calculation, amounts to the sum of $5,980.31, the sum of compensation which plaintiff was entitled to be paid as of the date of the final judgment in this issue.”

By appellant’s eighth, ninth, and tenth propositions contention is made that the court erred in finding that appellant had, prior to January 15, 1926, same being the date on which appellee received his injuries, issued its policy of workmens’ compensation insurance to the Pure Oil Pipe Line Company, and that such policy was in force on said date, and in finding that on such date the Pure Oil Pipe Line Company was a subscriber under the Workmen’s Compensation Law of Texas, in that there was no evidence whatever that appellant had issued any such policy to the Pure Oil Pipe Line Company, or that the last-named company held any such policy at the time of appellant’s injury. Therefore the plaintiff failed to establish any compensation claim or jurisdiction in the trial court.

We overrule such contention. We think there was sufficient evidence to support the findings complained of. The undisputed evidence shows that on the 15th day of January, 1926, the time of his injury, appellee, Polk, was an employee of the Pure Oil Pipe Line Company, and that at such time he was engaged in the performance of his duties as such employee.

It is shown that on or about the plant or premises of the employer, where appellee was required to work, there were' posted notices relative to the Workmen’s Compensation Law, stating that the Pure Oil Pipe Line Company had insured its employees with the Independence Indemnity Company; that such notices were there at the time of appellee’s injury: that it was stated in such notices that the employes, in case of injury, were to keep account of expenditures incurred at the hospital by reason of such injury, and return them to the Independence Indemnity Company for refund; that appellee kept such account, and that I-Iomer E. Sanders, adjuster for the Independence Indemnity Company, paid such expenses by checks signed “Homer E. Sanders, Adjuster for Independence Indemnity Company”; that in a few days after appel-lee was injured the Independence Indemnity Company began to pay him weekly compensation under the provisions of the Workmen’s Compensation Statute.

Relative to such payments and the manner in which and by whom same were made, ap-pellee testified as follows: “I got 53 payments in all, I believe. Each payment was $20. It' was the Independence indemnity Company that made the payments. Mr. Homer E. Sanders delivered some of these cheeks in person. ⅜ $ * He [Sanders] is the adjuster for the Independence Indemnity Company. He said, T am your insurance man, and want to know how you are getting along;’ and I told him, I couldn’t tell. ⅜ * * He said he was the Independence Indemnity Company’s adjuster, and, if I needed anything, he would see that I got it. He has given me in person and has mailed me checks signed by ‘Homer E. Sanders, Adjuster for Independence Indemnity Company.’ 1-Ie told me he was their adjuster, Independence Indemnity Company’s adjuster.”

And again plaintiff testified: “This company, Pure Oil Pipe Line Company of Texas, was known as the Pure Oil Company when I worked for them the first time. I think it was changed to the Pure Oil Company of Texas, and later known as the Pure Oil Pipe Line Company of Texas.”

It was shown that Homer E. Sanders told W. W. Heath, attorney for appellee, that he was the adjuster of the Indemnity Company, and that said company was the insurer of ap-pellee, Polk. It was shown that Homer E. Sanders represented the Indemnity Company in the proceedings of the Industrial Accident Board relative to the claim of appellee. The testimony establishing the facts above stated was undisputed.

In his petition the plaintiff alleged that the policy issued by appellant to the Pure Oil Pipe Line Company was inaccessible to him, but was accessible to the defendant, and called upon defendant to produce the same upon the trial, etc. We think the trial court could but reasonably conclude from the facts stated that the employer of appellee did in fact hold a policy of compensation insurance issued by appellant, at the time appellee received his injury.

In Texas Employers’ Insurance Association v. Pierce (Tex. Civ. App.) 254 S. W. 1019, the question arose as to whether or not facts and circumstances might be shown to prove that a party was a subscriber under our Workmen’s Compensation Act, in the event the policy creating him such is in existence and not produced. In deciding the question the Dallas court said:

“The policy is never in the possession of the employg, but is in the possession and control of the employer, and great inconvenience would result in many cases, where the employer has a large number of employés, with, many claims pending and in litigation at the same time and in different places, if the policy is to be the only sufficient evidence. In the absence of any claim that the policy is narrower in its terms than is contemplated by the act, the court may assume that it is not. Huddleston v. Texas Pipe Line Co. (Tex. Civ. App.) 230 S. W. 250.”

That court further held that it must be kept in mind that policy in such case is in the possession and control of the employer, who is not to be regarded as a stranger or “third party” to the insuring company, and that secondary evidence to prove the issuance and existence of such policy is admissible, the policy not having been produced on the trial after written notice had been given by the plaintiff to the defendant.

In Georgia Casualty Co. v. Ginn (Tex. Civ. App.) 272 S. W. 601, it was shown that a claimant under our Compensation Law had been paid installments on his claim of compensation by the insurance company for several months before the claimant resorted to the Industrial Accident Board to compel further payments, just as in the present case. In that case, as here, the insurance company contended that the evidence did not show that the insurance company was carrying compensation insurance of the claimant’s employer at the time of the injury complained of. In disposing of that contention the San Antonio court said:

“Under the facts in this case, showing the conduct of appellant in making these partial payments and its acquiescence, it does not lie in the mouth of appellant to now deny the issuance of this policy. It was in possession of its own books and records relating thereto, and, if it had not issued such a policy, it was in a position to make the proof, and its silence or failure to produce the evidence will be construed most strongly against appellant.”

Many authorities are cited in support of such holding.

By appellant’s first, second, and third propositions, contention is • made that the court erred in finding that the injury to ap-pellee was proximately caused by a fracture of the os calcis (heel bone), and that such injury totally and permanently incapacitated him, and, upon such findings, rendering judgment for appellee as for total and permanent disability, because appellee introduced in evidence written statements from Dr. Glass, who treated him to the effect that there was no evidence of a fracture of the heel bone; that no evidence of such fracture could be found; such statements showing that appellee was not totally and permanently disabled. Extracts from the- statements referred to as having been made by Dr. Glass, and which for some inexplicable reason were introduced in evidence by counsel for appellee, were substantially as follows:

By Dr. Glass: “We have made two X-ray plates of this foot * * * and are unable to find any evidence of fracture, dislocation, or diseased condition of any bones. Several X-ray pictures have been made, and we have never been able to find any evidence of fracture. We have made two X-ray plates of his foot in the last six or eight weeks, and are unable therefrom to find any evidence of fracture, dislocation, or diseased condition of any of the bones.” Again: “I believe that this condition will gradually clear up, but no doubt this man is going to be disabled for a period of three to six months from this date.”

In support of the foregoing contention, counsel for appellant argues that, since appel-lee offered in evidence the statements from which the above extracts were taken, and others of practically the same import, he is bound by their recitations and cannot question their truth. We overrule the contention of appellant. We have read the whole of the statements from which the extracts mentioned were taken, and have reached the conclusion that they show only that the doctor had been unable, by iheans of X-ray plates made of appellee’s foot, to discover any fracture of the heel bone. Nowhere is it positively stated that there was in fact no such fracture. In letters written by Dr. Glass, introduced in evidence by appellee, of dates January 22, April 29, and May 31, 1298, respectively, it is said, in part, as follows:

■ “He was admitted to Baylor Hospital two or three days ago, and an X-ray picture was made by Dr. Martin, which revealed a possible fracture through the os calcis, with no displacement. ⅜ * * After reviewing the plate with Dr. Martin, I concluded that the best thing to do for this man was to treat it as a complete fracture, placing foot and heel in a plaster of paris cast, which will probably be necessary for him to wear from three to four weeks. * * * Disability will probably be six or eight weeks.”
“ * * * I find that there is marked swelling of the tissue of the foot and ankle, with some discoloration of the tissue, and on manipulation he complains of pain in- the ankle and instep. * * * Dr. Martin, of Baylor Hospital, made an X-ray plate a few days after the injury and reported a probable fracture of the os calcis. * * * We are of the same opinion as to the condition, and believe that he has developed a traumatic arthritis, which we will probably be able to demonstrate with X-ray plates later on. * * ⅜ No doubt this man is going to be disabled for a period of three to six months from date, and it may be possible that he will have some certain per cent, of permanent disability.
“He has been under my care since January, and has had a rather unusual condition, marked swelling of foot and ankle, with discoloration of tissue, and on manipulation of ankle and foot he complains of pain. * * * This is a rather unusual condition and has reacted very unfavorably to any line of treatment which we have outlined. * ⅜ * Think it will be 30 or 90 days before he will be able to take up his usual line of duties.”
“Several X-ray pictures have been made, and have never been able to find any evidence of fracture; however, the last one we made, a few days ago, showed marked evidence of chronic arthritis, probably traumatic in origin.”

We cannot agree with appellant that, by introducing the statements mentioned, appellee has cut himself off from showing by other competent evidence that he had suffered a fracture of his heel bone, and by reason thereof had been totally and permanently disabled.

Nor can we agree with the contention made by appellant, by its fourth, fifth, sixth, and seventh propositions, to the effect that the evidence was insufficient to support the finding of the court that there was a fracture of the heel bone, or that such finding was against the weight and preponderance of the evidence, or that the finding that appellee had, by reason of his injury, suffered total and permanent disability, was either unsupported by the evidence or contrary to the weight -thereof. We think the evidence — indeed, the preponderance of the evidence — supports both findings complained of by the propositions last mentioned, and the judgment rendered thereon.

Dr. Barnes, Dr. Van Zant, Dr. Bost, and Dr. Plotts, physicians and surgeons, testified in the case for appellee. Dr. Barnes testified that he had experience in examining X-ray plates; that he had been the family physician of appellee, and was familiar with his physical history during such time.

Examining X-ray pictures of appellee’s injured foot, made by Dr. Van Zant, Dr. Barnes «said: “This picture shows a fracture of the os calcis or ealcaneum bone. Here is the line of fracture, running up into the joint. The piece of fracture comes off the cuboid'; this piece ought to be way up in here. * *’ * That fracture runs up toward the joint. It goes into the joint. It is a complete fracture. I mean by a complete fracture, that it is broken completely through. The picture shows that the upper fracture is out of line.”

On cross-examination Dr..Barnes testified: “This X-ray picture shows a fracture of the os calcis; this one did, and there are a lot of fragments in there. This one shows some trouble there; * * * both of these [pictures] show a fracture. That fracture runs clear across there, as well as I can see from this. Both of those pictures show a fracture of the os calcis. * * * There looks to be a fracture in that bone we were talking about a while ago, in these two last pictures. I found the bone in that picture. It has some kind of a fracture in it. The pictures marked 2 — 17—26, No. 5721, show a fracture of the os calcis, and the picture marked 4 — 5—26, No. 5059, shows a fracture of the os calcis; it shows a fracture or deformity. It looks like a fracture. ⅜ * ⅜ He has some fracture and fragments in there that would not let his foot move; it is locking.”

On recross-examination Dr. Barnes testified: “There is just a displacement of the upper fragments of this bone. Between several of those joints there is a thickening up, and in one picture it looks to be that some fragments are broke off of the cuboid bone, These pieces usually stay there. In some cases, a deep scar tissue grows around them, That hás happened to his foot.”

Dr. Barnes, testifying further, said that after appellee received his injury he examined his foot several times, all during the year, and found him tender over the nerves; that in his opinion appellee was suffering from a neuritis of the'sciatic nerve; that he had known appellee practically all of his life, and never knew of any sickness he had ever had, or of any fall or injury he had ever suffered ; that about six or eight weeks before testifying he examined appellee, and at that time he had trouble with his joint, and had a neuritis from one of the sciatic nerve to the other, presumably caused from his injury; that appellee is disabled in the per-formalice of his usual work 100 per cent, as the result .of his injury; that, when appellee had to stand on his injured foot, he could not work; that his disability to perform the work he had been performing would last indefinitely; that he could not tell how long it would last; that it might last a lifetime, and that he thought it would; that he might get well, but he did not think he would.

The effect of Dr. Barnes’ testimony was that appellee, Polk, was in his opinion totally and permanently disabled from performing the work for which he was fitted.

Dr. Van Zant, witness for appellee, after-stating that he was a physician, limiting his wyork to X-ray diagnosis and treatment, and was one of the pioneers of X-ray work in the state of Texas, having been engaged in the practice 31 years, testified that he made X-ray pictures of appellee’s right foot on March 21, 1927, and found: “An old fracture -obliquely through distal end of os caléis extending between the two particular processes, Fragment carrying mesial process is slightly rotated and displaced slightly upward, encroaching on the interosseous space. Healing seems very well progressed. * ⅜ * The rotation and displacement of distal fragment of os calcis brought about a faulty position of the joint between the os calcis and the cuboid, and head of astragalus, interfering with free movement, and to a certain extent destroying the integrity of the longitudinal arch of the foot.”

Dr. James R. Bost, after stating that he had been a physician since 1911, and that his practice is now confined to specializing in bone and joint surgery, testified that he had examined appellee’s right foot, and he had examined X-ray pictures of same with reference to the extent of the fracture of the os calcis. His testimony was as follows: “I diagnosed the condition of his foot as a painful foot, as a result of fractures of four of the bones in the foot, with sciatic neuritis, ⅜ * ⅜ I examined X-ray pictures of Mr. Polk’s foot. These pictures showed injury to four of the bones in the middle of his foot. The bones in his foot that were injured were the os calcis, cuboid, scafoid, and strageles. The os calcis was fractured on the superdis-tal border. The evidence of fracture, as disclosed by these pictures, was certain. The cuboid was a little cupped out, that was evidently fractured where the bone had been absorbed. The injury to the scafoid was practically the same, and so was the stra-geles. The injury to the last three mentioned bones can be caused by injury and absorption following. * *' * This one [picture] marked ‘Right,’ that indicates the right foot; I saw it, too. Some of the fractures don’t show as clearly as others. This picture shows, but not as clearly as one of these, This one shows all the fractures I testified about. You see that joint conies around there; that part of the bone is broken off and sloped down hero. All of the pictures of the right foot show a fracture.”

Dr. Cockerham testified that he was called soon after appellee received his injury to render him medical aid; that he did render such aid, and was paid for the same by some insurance company, but he did not remember the name; that he examined the'right foot of appellee the night of the day of the acei-dent, and according to his tentative diagnosis he found a fracture of the heel bone,

' Dr. Plotts testified that from his examination of appellee’s foot he thought there had been a fracture of the heel bone,.the os calcis.

In a letter written by Dr. Glass, introduced in evidence, it is said: “After reviewing the plate with Dr. Martin, I concluded that the best thing to do for this man was to treat it as a complete fracture, placing foot and heel in a plaster cast, which will probably be nee-essary for him to wear from three to four weeks, after which time I have advised him' to return to the office for another examination.”

Dr. Bost and Dr. Plotts both testified that in their opinion appellee, by reason of his injury, could not perform ordinary tasks of a workman; that he would never be entirely well.

We have quoted and stated the testimony ■of the several witnesses at considerable length, so as to show that the contention of appellant, that the findings of the court, com- ' plained of are so against the great weight and preponderance of the evidence as to be wholly wrong, is without merit.

For the reasons above expressed, the judgment is affirmed.

Affirmed.