author: PRICE, Chief Justice.

text:
    AUSTIN FIREPROOF WAREHOUSE TRANSFER CO. v. FALTINSON.
    No. 3991.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 24, 1940.
    Boone. Henderson, Boone & Dayis, of Corpus Christi, and Scott & Wilson, of Waco (Frank' M. Wilson, of Waco, of counsel), for appellant.

      Neel, King & Radial, of Corpus Christi, for appellee.
   PRICE, Chief Justice.

This case has been consolidated with case No. 4020 on the docket of this court, one being on the plea of privilege, the other on the merits.

Appellees, R. L. Faltinson and his wife, as plaintiffs, filed in the District Court of Nueces County suit against appellant Austin Fireproof Warehouse Company, as defendant. Hereafter the parties will be referred to in accordance with their designations in the trial court.

The plaintiffs, in substance, alleged that defendant was a common carrier and they delivered to it, in that capacity, certain enumerated household articles, of the alleged total value of $6,888.44, for transportation from Austin to Corpus Christi; that defendant failed to safely transport samo ⅛ accordance with its duty, and as a result the plaintiffs were damaged to the extent of the value thereof.

In due time defendant filed a plea of privilege in statutory form seeking to have the venue of the cause changed to Travis CoUnty, the county of its residence.

Plaintiffs in due time filed a controverting affidavit to said plea. The allegations of this affidavit were in due form, and in■voked. Subdivision 24 of Article 1995, R.S., as conferring the right on plaintiffs to sue defendant in Nueces County.

, hearing was had on the issue raised by the; plea and controverting affidavit. Defendant’s plea was overruled, and appeal was perfected from such ruling. While this appeal was pending, the case was tried off its’merits. ' On the verdict a judgment was rendered in favor of plaintiffs against defendant, and from this judgment defendant likewise duly perfected its appeal.

By order of this court the two appeals were consolidated.

'' A review of the judgment on the plea of privilege is called for before passing on the case on its merits.

’in the event the venue should have been changed^ 'and it is 'here so ordered, a review of the judgment on the merits is precluded.

A trial of the issue of venue in-vblvés^a' determination of the facts essential-(td iby such venue in'the county where s'iiclr sulV is- filed. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

The facts essential for plaintiffs to maintain this suit in Nueces County are prescribed by subsection 24 of Article 1995, R.S. Essential, under the cited subdivision, was the establishment by a preponderance of the evidence that this was, first, a suit for loss or damage to freight; second, defendant was a common carrier operating or doing business in the State as such; third, that the'defendant was doing business in or had an agent or representative in Nueces County.

Plaintiffs clearly discharged the burden as to the nature of the suit; they likewise established, beyond any question, that defendant received and agreed to carry the goods involved from Austin to Corpus Christi. Likewise it is clear that defendant was engaged in the operation of its business in the State. The evidence fails to show that the defendant, at the relevant times, had an agent or representative in Nueces County.

Defendant contends that the proof fails to show that it was a common carrier within the meaning of the subdivision involved; that it likewise failed to show that it was doing business in Nueces County.

If a preponderance of the evidence fails to show defendant was a common carrier and doing business in Nueces County, the judgment is wrong and must be reversed.

Defendant was operating under what is denominated as a “Special Commodity Carrier Permit” issued to defendant on its ap-‘ plication by the-Railroad Commission of the State. This permit was to transport household goods and used office furniture and equipment from Austin to all points in Texas, and from all points in Texas to Austin. In the permit it was recited that defendant here had declared an intention not to operate as a “common carrier” or “contract motor carrier.”

_ This permit finds its legal authorization in Chapter 314, Acts Regular Session of the Forty-First Legislature, 1929, as amended by Regular Called Session of the Forty-Second Legislature. See Article 911b, Vernon’s Annotated Civil Statutes. Subdivisions (f), (g) and (h) of section 1 are as follows:

“(f) The term ‘permit’ means the permit issued -to contract carriers under the terms of this Act.
“(g) The term ‘motor carrier’ means any person, firm, corporation, company, co-partnership, association or joint stock association, and their lessees, receivers or trustees appointed by any Court whatsoever owning, controlling, managing, operating or causing to be operated any motor propelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed; provided, that the term ‘motor carrier,’ as used in this Act shall not include, and this Act shall not apply to motor vehicles operated exclusively within the incorporated limits of cities or towns.
“(h) The term ‘contract carrier’ means any motor carrier as hereinabove defined transporting property for compensation or hire over any highway in this State other than as common carrier.”

It will be observed that the term “common carrier” is not expressly defined. A “contract carrier” within the meaning of the act is any carrier other than a “common carrier.”

In order to determine ;what, under the act, constitutes a contract carrier, it is necessary to define a common carrier of freight by motor. Now the means used have no bearing on the qualities essential to constitute a common carrier .of freight.

Involved in the case of Chevallier v. Straham, 2 Tex. 115, 47 Am.Dec. 639, was the question of whether defendant was a common carrier, or otherwise. In the coürse of the opinion Chief Justice Hemp-hill said: “It may be laid down as a rule, that all persons who transport goods from place to place, for hire, for such persons as see fit to employ them, whether usually or occasionally, whether as principal or an incidental and subordinate occupation, are common carriers and incur all their responsibilities.”

One of the elements of the test laid down is pursuing the business as an occupation. It is difficult to perceive how one could well pursue an occupation involving the patronage of others without in some way holding himself out as being willing to transport.

In the case of Haynie v. Baylor, 18 Tex. 498, Chevallier v. Straham, supra, is discussed, and the question as to the “holding * * * out as a common carrier” is given weight in the determination as to the status of a carrier for hire.

In the case of Burnett v. Riter, Tex.Civ.App., 276 S.W. 347, are to be found a number of definitions of a common carrier. In' all of which appears the element of holding out as carrying for the public.

In Vol. 13 C.J.S., Carriers, page 25, § 2, this very terse definition is given:. “A. common carrier is one who as a regular business transports personal property from, place to place for persons who may employ him and pay his charges.”

Coupled with this definiticto is this statement: “What constitutes a common-carrier is a question of law; hut whether-one charged as such is within the definition'is a question of fact.” This last statement finds support in Haynie v. Baylor, supra.

Under Article 911b there are two classes of carriers' — common carriers-and contract carriers. These two classifications ‘have long subsisted in the law of carriers.

The permit issued recites-that defendant had declared its intention not to operate as a common carrier, or a contract carrier. The permit purports to .authorize defendant to operate as a special commodity carrier. Purported basis for this classifica.tion is to be found in subsection (d) of Section 6, of Article 911b.- By this subdivision the Railroad Commission is empowered to issue special permits for the transportation of enumerated commodities. In thé. subdivision in question no provision is made for the classification of the motor carrier, either as contract or common. We take it to be fundamental that a carrier may be a common carrier and confine his services to one commodity. In our opinion, so far as its relationships to its patrons are involved, a motor carrier confining its services to the transportation of one commodity may be either a common carrier or a contract carrier. It is our understanding that the Attorney General of the State ruled in an official opinion- that under a permit issued under said subdivision a carrier might be either common or contract. Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 77 L. Ed. 288, loc. cit. 302, 87 A.L.R. 721.

It is true, the evidence is rather scant as to the holding out of defendant of itself as a common carrier and of its general activities under the permit in question. Still, we believe it is sufficient to- sustain a finding that defendant was a common carrier. It solicited this business, and had a solicitor or solicitors to obtain business of this character. Its very name is an indication that part of its activities was the transportation for.others.

While the burden rested upon plaintiff to establish that defendant was a common car-riel', there is no proof controverting the facts in evidence tending to establish it held itself out as carrying for the public indifferently.

Was defendant doing business in Nueces County within the meaning of subdivision 24 of Article 1995? The evidence is undisputed on the point. The contract was for transportation by motor from Austin to Corpus Christi. This contract was never complied with — the goods were destroyed by fire in Bell County.

Defendant had, perhaps, one time before transported goods of this character from Austin to Corpus Christi. Subsequent to the destruction of plaintiffs’ goods one of the defendant’s trucks was seen on the streets of Corpus Christi.

What is required to constitute “doing business" by a corporation in a particular locality has often been before the courts, and has been often decided. It has arisen in matters of taxation, as to obtaining service on a corporation, and in relation to foreign corporations’ rights to maintain a suit in the courts of the State. It is but fair to say that these definitions are in the light of the particular subject matter before the court at the time.

This definition appears in Restatement, Conflict of Laws, Sec. 167a: “ ‘Doing business’ is doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose, with the intention of thereby initiating a series of such acts.” This definition occurs in the treatment as to foreign corporations doing business in a State. The place involved, then, is the whole State. In the Texas Annotations numerous Texas cases are cited as being in accord with that definition. Substantial support is found for the definition in the Texas cases cited. In Words and Phrases, Permanent Edition, many pages are devoted to setting forth and explaining the definitions of this phrase. See Words and Phrases Permanent Edition, Vol. 13, pp. 127 to 235. Noted there is the case of S. R. Smythe Co. v. Ft. Worth Glass & Sand Co., 105 Tex. 8, 142 S.W. 1157, 1159. The question involved was the right of a foreign corporation to maintain a suit in this State. In the course of the opinion Judge Dibrell makes the following statement: “To do business in this state imports a carrying on of business of the corporation for the purposes of its organization, while the transaction of business in this state rather imports the idea of isolated transactions in the line, of course, of the purposes of its creation.”

In our opinion, the sporadic delivery of goods by a corporate motor carrier in a county does not constitute “doing of business” in such county. It may constitute the transaction of business therein, but this is not sufficient under the venue statute. A lawyer in active practice may transact business in many parts of the State, but is, however, ordinarily carrying on business in only one county. A mercantile corporation having its principal place of business in one county, making sporadic delivery of goods sold to other counties, could hardly be considered as carrying on business in the counties where such deliveries take place. We do not mean to hold that a continual and habitual delivery of goods 'in a county might not constitute doing business therein within the meaning of the venue statute.

Such is not the case in the instant case. The delivery in question in this suit was only contemplated, and not consummated. Before that time there was evidence that perhaps they had hauled goods from Austin to Corpus Christi for one other party. Subsequent to the filing of the plea of privilege herein, a truck of defendant had been seen on the streets of Corpus Christi. This is all the evidence on the subject, and, giving it full credence, with all legitimate deductions, we do not believe it sufficient to establish the doing of business in Nueces County.

By way of sustaining its proposition that the evidence failed to show the defendant was doing business in Nueces County, in its brief, defendant has furnished us three citations: Subdivision 24, Article 1995, Revised Statutes; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; 43 Tex.Jur., Sec. 112.

In their counter proposition plaintiffs are satisfied with merely citing Subdivision 24 of Article 1995.

The authorities cited by defendant have no bearing on the construction of the subdivision in question. The citation of the statute is, of course, most helpful. However, the parties to the appeal each seem to concede the question as to the status of ■defendant as a common carrier, or otherwise, is the principal question involved. 'This is true, because the proper determination of that question has important bearing both as to the proper disposition of the plea of privilege and the case on its merits. But the establishment of the doing of business in Nueces County is a venue fact, is a condition to the retaining of the ■venue in Nueces County.

It follows from what has been heretofore stated that defendant’s plea of privilege should have been sustained.

It is ordered that the judgment of the trial court be reversed and that the venue be changed to Travis County.

It follows from this judgment that the judgment of the trial court in favor of the plaintiffs on the merits of the case must likewise be reversed. It is so ordered.


source: Caselaw Access Project

author: LESLIE, Chief Justice.

license: Public Domain

text:
    COL-TEX REFINING CO. v. HART et al.
    No. 2099.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 11, 1940.
    Rehearing Denied Nov. 8, 1940.

      Ratliff & Worrell, of Colorado City, and Jarman, Brown, Looney & Watts, of Oklahoma City, Okl., for appellant.
    B. N. Carter, Co. Atty., of Colorado City, Gerald C. Mann, Atty. Gen., and Cecil C. Rotsch and Billy Goldberg, Asst. Attys. Gen., for appellees.
   LESLIE, Chief Justice.

The Col-Tex Refining Company, a private corporation, instituted this suit against Bruce Hart, tax collector and assessor of Mitchell County, and others, seeking an injunction against said officials to restrain them from collecting an intangible tax imposed upon it by virtue of Art. 7105, Vernon’s Ann. Civil Statutes, against the pipe line operated by the plaintiff. A trial was had before the court without a jury and resulted in judgment refusing plaintiff the relief prayed for. There are findings of fact and conclusions of law in the record. From the judgment the Refining Company appeals. The parties will be referred to as in the trial court.

According to the undisputed evidence in the case, the plaintiff owns in connection with its refinery about 65 miles of pipe line in Mitchell, Howard and Glasscock Counties. All the oil that passes through said pipe line is first purchased by the plaintiff from producers in the different fields and it is then transported through such lines to said refinery owned and operated by the plaintiff, Col-Tex Refining Company, at Colorado, Texas.

There is only one question for decision in the case, and that is: Poes said Art. 7105 apply to the type of pipe line owned and so used by said Refining Company? The pipe line is used exclusively for the transportation of its own oil to its refinery for the purpose of refining the same. The plaintiff contends that it is not subject to the intangible tax for the reason, as asserted by it, that only pipe line companies which operate pipe lines for hire are subject to said tax, whereas, the plaintiff uses its gathering system as a mere facility to' its refining business, and does not thereby bring itself within the provisions of said article. On the other hand, the defendants assert that the terms of Art. 7105 apply to pipe lines operated under the same conditions as the one by-the Col-Tex Refining Company.

Article 7105 reads as follows: “Each incorporated railroad company, ferry company, bridge company, turnpike or toll company, oil pipe line company, and all common carrier pipe Une companies of every character whatsoever, engaged im the transportation of oil, doing business wholly or in part within this State, whether incorporated under the laws of this State, or of any other State, territory, or foreign country, and every other individual, company, corporation or association doing business of the same character m this State, in addition to the ad valorem taxes on tangible properties which, are or may be imposed upon them respectively, by law, shall pay an annual tax to the State, beginning with the first day of January of each year, on their intangible assets and property, and local taxes thereon to the counties in which its business is carried on; which additional tax shall be assessed and levied upon such intangible assets and property in the manner provided in .this chapter. The county or counties in which such taxes are to be paid, and the manner of apportionment of the same, shall be determined in accordance with the provisions of this chapter.' Acts 1905, p. 35; Acts-1907, 1st C.S., p. 469; Acts 1933, 43rd Leg., p. 409, ch. 162, § 12.” (Italics ours.)

It, therefore, becomes necessary to construe the above article in order to determine whether or not the plaintiff’s pipelines making up its gathering system and. the use made thereof bring the same within said provision of the statute, subjecting-the company to the payment of the intangible tax apportionable to that part of the system lying in Mitchell County itself, as determined by the State Tax Board.

In order to bring the appellant within the terms of Art. 7105 it must be held that it is an (incorporated) “oil pipe line company”, or that it is a “common carrier pipe line company” of some character, or that it is “doing business” in this State of the “same character” as one or the other concerns before mentioned. This is obvious from a fair consideration of the italicized parts of said article.

The undisputed testimony, as well as the findings of the trial court, establish that the plaintiff is neither an incorporated oil pipe line company, nor a common carrier oil pipe line company, as designated in the statute. It thus becomes material to ascertain whether or not plaintiff is doing business in this State of the same character as an incorporated oil pipe line company, or a common carrier pipe line company.

A reference to the history of the intangible tax law may be of value at this point. It was originally passed 1905. The law was amended in 1907 and again in 1933. The 1933 amendment inserted for the first time the following words: “oil pipe line company and all common carrier pipe line companies of every character whatsoever, engaged in the transportation of oil.” Acts 1933, 43d Leg. p. 409, chap. 162, § 12. Not until that time does it appear that the growing pipe line business engaged in the transportation of oil attracted the attention of the tax raising authorities of this State, especially by the application of the intangible tax. This tax measure (amenda-tory act of 1933) incorporating in the original intangible tax the language—“oil pipe line company and all common carrier pipe line companies of every character whatsoever, engaged in the transportation of oil”—expressed its legislative intent and purpose in the following provision: “The purpose hereof is to place all common carrier oil pipe line companies under- all of the provisions of the Intangible Asset Tax Laws of this State; and, for the purpose of placing under said act all taxpayers similarly situated, and to bring about a better classification and a wider distribution of the burdens of taxation, as far as this class of taxpayers is concerned.”

In this language the purpose of the act is clearly expressed. It was designed to extend the terms of the intangible tax measure to a strong and growing class of taxpayers who had theretofore escaped this particular type of tax. This class was made up of (incorporated) “pipe line companies”, “common carrier oil pipe line companies of every character whatsoever” and “all taxpayers similarly situated”, and in so extending it, it was designed to “bring about a better classification and a wider distribution of the burdens of taxation, as far as this class of taxpayers is concerned.”

Naturally a common carrier oil pipe line company would carry on the business of transporting oil by pipe lines as its business and presumptively for hire. It would be a revenue producing concern within itself, and as such would readily fall within the class of taxpayers presumably subject to the intangible tax or sought to be subjected to that tax.

Upon the same principle and for the same reasons, an incorporated oil pipe line company would be carrying on the business of transporting oil by pipe line. The business would have as its object a profit or income for the owner, and that would be true whether it was a private or public carrier. The very purpose of its existence and nature of its business at once suggest it was similar in situation (as a subject for taxation) to that of the common carrier pipe line company, and, therefore, a proper subject for the application of the intangible tax measure which the Legislature was seeking to extend to taxpayers “similarly situated.” It would, therefore, seem logical not only to bring such companies within the spread of this tax measure, but also to extend the same and distribute its burden to «* * * every other individual, company, corporation or association doing business of the same character in this State.” Art. 7105.

The section of the statute just quoted designates a class of persons which would logically fall within the terms of the intangible tax measure as definitely as the first two classes discussed. The provision leaves no doubt as to who would be embraced in its terms. It specifically mentions “every other individual, company, corporation” doing business of the same character, referring, of course, to incorporated oil pipe line companies and common carrier pipe line companies engaged in the transportation of oil in this State. In the first place, every such “individual, corporation,” etc., would have to be engaged in business within the State and that business would have to be of the same character as that being done by the incorporated pipe line company, carrier, etc., that is, engaged in the transportation of oil as a business, and presumptively for hire. Clearly such companies, individuals or corporations doing the same character of business should, in fairness and under the terms of the law, bear a burden of taxation similar to that borne by other taxpayers in the same class. At least, the law-making power must have so thought, and that appears to be a- fair interpretation of the statute. However, this interpretation, if correct, would not bring the plaintiff or its gathering pipe line system within the terms of Art. 7105. Its gathering system of pipe lines is in no respect a common carrier of crude oil. Its gathering system is not within itself a revenue producing business. These pipe lines are merely incidental to the company’s business of refining crude oil and strictly limited to that purpose. The Col-Tex Refining Company was incorporated as a refining company, and not as a pipe line company or common carrier pipe line company. As a refining company it did not possess the right of eminent domain and in establishing its gathering system of pipe lines it did not assert or attempt to avail itself of any such privilege or right. In the use it made of its gathering system the refinery in no sense of the word was doing the “same character of business” as that referred to by such language in Art. 7105. Its gathering system was in no sense “similarly situated” to those of the taxpayers above discussed and classified. Hence, we conclude that the plaintiff, by the character and use made of its pipe lines, in no respect brings itself within the terms of said intangible tax measure.

Support for the conclusion that plaintiff’s pipe. lines do not come within the provision of Art. 7105 may be found in the opinion in Texas Co. v. Stephens et al., 100 Tex. 628, 103 S.W. 481,, 487. The Supreme Court was there construing a measure levying a gross receipt tax on certain individuals, firms and corporations. Section 12 thereof reads, in part, as foR lows: “Every individual, joint stock association, company, copartnership or corporation, whether incorporated under the laws of this state or of any other state, Territory, or of the United States, or of any foreign nation, which owns or operates a pipe line or lines within the State of Texas, whether such pipe lines be used for the transmission of oil, natural or artificial gas whether the same be for illuminating or fuel purposes or for any other purpose, or for steam, for heat or power, or for the transmission of articles ,by pneumatic or other power, shall be deemed and held to be a pipe line company; and every such pipe line company shall, on or before the first day of April of each and every year, and quarterly thereafter * * * file with the Comptroller a report” etc. Acts 1905,.c. 148. .

This statute is apparently as broad and liberal in its coverage as Art. 7105. It was ■ contended in the Stephens case, supra, that the act was unconstitutional, lacking uniformity in application, and discriminatory against the Texas Company in favor of persons, firms and corporations owning purely private lines, limited in use to some other business or incidental to the business of the owner. In disposing of such contention the Supreme Court said: “It is easily deduced from all of the provisions together that the taxes levied upon those engaged in the business of transportation by pipe lines for others for hire or profit, and the title of the act re-enforces this idea, in that all of the businesses specified in it are to be conducted for profit. To all such section 12 applies, and the position cannot be maintained that it exempts from the burden imposed any business of the same class; that is, such as are engaged • in serving the public for hire. There is no ■ doubt that those carrying on such businesses may be properly classified for taxation, apart from the owners of different businesses who, as an incident of their businesses, use pipe lines to transport exclusively their own commodities. The plaintiff falls within the class designated in the act, and the fact that owners of private businesses employing pipe lines for their own purposes are not also subjected to the tax raised no constitutional objection(Italics ours.)

Here the Supreme Court held that the Legislature intended to place the tax involved upon those operating pipe lines for hire and as a business. Also, the court must have considered that a purely private pipe line used in a business and as an exclusive incident thereto would not be a pipe line operated for profit as contemplated in the terms of the statute. The same reasoning, may well be applied to the facts of the instant case.

There are other convincing reasons for the conclusion that the Col-Tex Refining Company is not an “oil pipe line company” or a corporation doing business of the “same character” within the meaning of Art. 7105, and, therefore, subject to the tax. Some of these reasons follow:

At the time (1933) the words “each * * * oil pipe line company * * * of every character whatsoever, engaged in the transportation of oil” were inserted in the intangible tax law, and Art. 7105 took its present form, Art. 6018, R.C.S.1925, was then a part of our general statutes and had been since 1917. Several classes of taxpayers (railroad company, ferry company, bridge company, turnpike or toll company) had already been taxed under Art. 7105 in its original form, and by said amendment the transportation of crude oil by pipe line was brought within its provisions. Evidently the Legislature was attempting to bring all persons and corporations transporting oil by pipe line as a business within the provisions of Art. 7105.

At the time of this amendment (1933) the Legislature had already defined common carriers by Art. 6018. Hence, in so amended Art. 7105, it is significant that the Legislature incorporated the words “ * * * and all common carrier pipe line companies of every character whatsoever, engaged in the transportation of oil.” In four separate sections, Art. 6018 defines common carrier pipe line companies in language rather broad. The Legislature inserted after such definitions the following: “The provisions of this law shall not apply to those pipe lines which are limited in their use to the wells, stations, plants and refineries of the owner and which are not a part of the pipe line transportation system of any common carrier as above defined; nor shall such provisions apply to any property of such a common carrier which is not a part of or necessarily. incident to its pipe line transportation system.” Acts 1917, ch. 30, pp. 48, 49.

This provision in the Act was to make clear that “pipe lines which are limited in their use to the wells * * * and refineries of the owner and which are not a part of the pipe line transportation system of any common carrier as above defined” were neither included nor intended to be included in the definition of a common carrier pipe line company. Art. 6018. The insertion was to remove any doubt or chance for misunderstanding on that point.

In this provision there appears the legislative intent to leave in a favored position “those pipe lines which are limited in their use to the * * * refineries of the owner” etc., as well as to recognize that such gathering systems were never included in that statute. Evidently plaintiff’s pipe lines would and did challenge the same legislative consideration or treatment.

Our conclusions are also supported by the legislative intent as reflected in chapter 15, Title 32, R.S.1925 (Art. 1495 et seq., Vernon’s Ann.Civ.St. art. 1495 et seq.), relating to corporations formed or created for the purpose of “storing, transporting, buying and selling oil [and] gas” etc. While prohibiting corporations which own public pipe lines in this State from engaging in the business of producing oil and gas, nevertheless said chapter contains no limitation on the right of such corporations (even though “engaged in the production business”) to own and operate its “private pipe lines in and about its refineries, fields or stations.” 33 Tex.Jur. p. 376, secs. 1 and 2. Witness the language of the following articles:

“Art. 1499. Such corporation may also engage in the oil and gas producing business, prospecting for and producing oil and gas and owning and holding lands, leases and other property for said purposes and subject to the provisions of Chapter 4 of this title. No corporation shall exercise these powers while owning or operating oil pipe lines in this State.”
“Art. 1500. Any corporation heretofor; or hereafter organized under this chapter, and owning or operating oil pipe lines in this State, shall separately incorporate such oil lines, with the consent of a majority in amount of its stockholders and subject to the restrictions hereinafter imposed, whereupon, in addition to the other powers which it may possess, it shall then acquire the right and power to engage in said oil and gas producing business.”

Article 1503, to which special attention is directed, is: “Nothing in this chapter shall preclude the ownership or operation by any corporation, of private pipe lines in and about its refineries, fields or stations, even though such corporation may be engaged in the producing business(Italics ours.)

These statutes also reflect a legislative intent or policy toward purely private pipe lines limited to the use of the refinery owning them, and the effect of such policy would seem to be to exempt such private lines from the primary burdens of the particular statute under consideration and a like immunity was doubtless intended for the plaintiff’s private pipe lines or gathering system when the intangible tax measure was enacted. This would be a logical conclusion since the language of Art. 7105 makes “doing business of the same character” determinative of what classes shall pay the tax, and since, as pointed out, the function of the plaintiff’s gathering system was strictly limited to the refining business as incidental thereto and which produced no revenue within itself and otherwise failed to come within the terms of Art. 7105.

Farther, wherever the question of purely private pipe lines, limited in use to refineries of their owners, have been dealt with by legislation, such pipe lines have been excepted from the operation of the law in its primary purpose and object. In other words, the legislation is specific that such private pipe lines were never included in its terms. Evidently the Legislature had in mind Arts. 6018 and 1503 when it amended Art. 7105. The statutes containing Art. 6018 and Art. 1503 appear to have been enacted the same day and year.

Further, the Legislature has used such particular wording or designation of those classes sought to be taxed by Art. 7105 that the inference naturally arises that it had the purpose and intention of leaving untaxed some character of pipe lines transporting oil.» If it did not intend to do so, it could easily have levied the taxes in unmistakable language by assessing it against every individual, company, corporation or association transporting oil by pipe lines in this State. However, the statute is.not so broad as that, and the intention appears to be to omit from the provisions of the intangible tax law such pipe lines as those operated by the refining company and having only an incidental use in connection with the real revenue producing business for which the company was incorporated. The different statutes discussed point to the correctness of such conclusion.

In the light of the statutes under consideration it is not believed that the length of the pipe line is material 'in determining the plaintiff’s liability for the tax. We do not believe that 65 miles in length would bring the pipe line within the contemplation of this tax law any more than 500 feet of pipe line that carries the oil from the company’s two or three storage tanks to the distilleries. Should the time come when length or size would become a material element in determining the applicability of such a statute to an oil pipe line the Legislature will doubtless make the appropriate amendment to that effect. No such action has been taken and the length of the pipe line within itself is deemed immaterial to the decision of the question before us.

That the plaintiff, with its gathering system of pipe lines incident to its refinery business, is not subject to the tax is supported by the logic we discover in ¡Ilustra? tions taken from the brief of the plaintiff. For instance, suppose a sawmill owns and operates several miles of railway trackage into the timber producing lands in order to supply its mill with timber, limiting the use of such trackage to the mill, carrying no timber or freight for. anyone for hire. In the broad meaning of the word “business” it would be engaged in the business of hauling logs by railroad. It could be argued that it was saving for the mill company that which it would have been compelled to pay out to others to get the logs to the mill. Nevertheless, the mill company would not be doing business of the same character as an incorporated railroad company.

If an oil company with its refinery located on the opposite side of the bayou from the city of Galveston ferries its own employees back and forth across the bayou without charge, and limits its ferry to such use only, the company would in a certain broad sense be carrying on a ferry business, but it could hardly be held that by operating such ferry for the purpose stated, the oil company would bring itself within the meaning and operation of Art. 7105. Hence, it does not appear that the Legislature in the use of the words “and every * * * individual, company, corporation or association doing business of the same character in this State” intended to embrace all who transported oil through pipe lines as a mere incident of some business not at all of the nature of the business of oil pipe line companies within the terms of Art. 7105.

We do not think the opinion in Reagan County Purchasing Co. v. State, Tex.Civ.App., 110 S.W.2d 1194, has any special bearing on the issue here involved. The very great difference in the facts involved in the respective cases render the opinion of little or no value here. As we interpret the record, some of the distinguishing features are: The Purchasing Company was organized to transport oil, while the plaintiff here was incorporated to refine oil. The chief, if not the sole, business of the Purchasing Company was the “transportation” of oil for a price, while the chief concern of the plaintiff is to refine crude oil. Transporting oil was the main business of the purchasing company, while the .transportation feature is a mere incident in the plaintiff’s business. The pipe line was necessary to the life of the purchasing company, the very soul of its existence, while the plaintiff (corporation) is necessary to the life of the gathering-system. In the Reagan case, transportation of oil by pipe line was the real basis of revenue, while the refining of oil by plaintiff -is the basis of its income.

Further, the Purchasing Company, whether incorporated as a pipe line com-' pany or not, was not operating a strictly private pipe line, limited in its use to some other business, which other business was its chief concern. The precise ground upon which the court based that opinion is not entirely clear, since there was more than one ground upon which it could be based. Regardless of its name, the court may have considered the Purchasing Company as doing business of the same character as an incorporated oil pipe line company, or a common carrier pipe line company. In the beginning of the opinion it is stated “appellant is a pipe line company.” Upon the clear facts of- the case, the Purchasing Company could well have been considered an incorporated oil pipe line company, and, in any event, the real purpose of its existence was the transportation of oil in a congested field at so much per barrel.

For out-state authorities supporting this decision, see Magnolia Pet. Co. v. State, 175 Okl. 11, 52 P.2d 81; Shaffer Oil & Ref. Co. v. County Treasurer, 175 Okl. 6, 52 P.2d 76; General Refining Co. v. Davidson County, 139 Tenn. 401, 201 S.W. 737.

Again, Art. 7105 was evidently intended to embrace within its terms only such property or facilities as produced for the owner within and of itself, separate and apart from any other business of the owner, a tangible revenue or income. The plaintiff’s gathering system does no such thing, and we fail to discover in this gathering system an intangible value to which the tax measure attached.

The appellees have filed in this appeal a most excellent brief. Obviously we do not agree with their construction of the statute involved. We do not think it susceptible to the construction for which they contend; and since the points raised and deemed controlling have been carefully considered, this opinion will not be extended to give special mention to another theories advanced or relied on.

For the reasons assigned, the judgment of the trial court is reversed and judgment is here rendered for appellant, enjoining the collection of the taxes.


author: NORVELL, Justice.

text:
    RADIO NEWS ASS’N, Inc., v. EAGLE BROADCASTING CO.
    No. 10767.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1940.
    Rehearing Denied Nov. 27, 1940.
    R. A. Dunkelberg, of Brownsville, for plaintiff in error.
    E. T. Yates, of Brownsville, for defendant in error.
   NORVELL, Justice.

This case is before us upon writ of error. Tire parties will, for convenience, be designated as appellant and appellee.

Appellant, Radio News Association, Inc,, brought suit against appellee, Eagle Broadcasting Company, for a balance of $654.93 due under a written contract. Appellant pleaded the contract which, among other things, provided that:

“(1) RNA (Radio News Association) shall sell and deliver, and Broadcaster shall buy and accept the privileges of broadcasting from the radio broadcasting station KGFI (which Broadcaster warrants to be owned or controlled by him) the regular news service prepared and transmitted to Broadcaster by RNA.
“(2) The regular news service under this contract shall consist of RNA newscasts transmitted, six days a week (excluding Sundays) by short wave Telegraphy. * *
“(13) RNA does not guarantee that messages sent over short-wave transmitters shall be received by Broadcaster, whether by reason of atmospheric conditions, governmental interference by reason of the existence of a local, state or national emergency, or for any other reason. RNA undertakes to use diligent efforts to secure adequate transmission facilities and suitable radio frequencies.”

Appellee filed a general denial and the case was tried to a jury. The trial court overruled appellant’s motion for an instructed verdict and submitted one issue to the jury, as follows:- “Do you find from a preponderance of the evidence that the facilities employed by plaintiff during the period in question were adequate for the transmission to Corpus Christi, Texas, of the news service in question? Answer ‘Yes’ or ‘No’.”

The jury answered this question in the negative and judgment was entered that appellant take nothing.

The trial court erred in not granting appellant’s motion for a peremptory instruction. Appellee was liable on the contract unless appellant had breached the ' same. The contract expressly provided that appellant did not guarantee that its messages would be received by the ap-pellee. It was only bound to "use diligent efforts to secure adequate transmission facilities and suitable radio frequencies.” One witness testified that the Corpus Christi Radio Station after trying two or three standard receivers was unable to pick up appellant’s short-wave broadcasts, except intermittently. This is all the testimony in the record upon the point of the inadequacy of appellant’s transmitting facilities. Appellant did not obligate itself to secure adequate facilities in all events, but only to use diligent efforts in that regard. To hold that the mere fact that appellee received appellant’s broadcasts only at intervals, shows a failure of appellant to use due diligence in securing transmission facilities, would do violence to the wording of the contract and burden appellant with a liability which it expressly contracted against. It may be that appellee has suffered a hardship because of the wording of this particular contract, but there is no plea for cancellation, reformation or failure-of consideration in the case. It is therefore our plain duty to enforce the contract as written. Winningham v. Dyo, Tex.Com.App., 48 S.W.2d 600.

The judgment of the trial court is reversed, and judgment here rendered for appellant for the sum of $654.93, with interest thereon from January 1, 1937, at the rate of 6 per cent per annum.

Reversed and rendered.


author: BOND, Chief Justice.

text:
    YATES et al. v. TEXAS & N. O. R. CO.
    No. 12912.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 5, 1940.
    Rehearing Denied Nov. 9, 1940.

      Ira Butler and J. T. Harris, Jr., both of Fort Worth, for appellants.
    Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, and Baker, Botts, Andrews & Wharton, of Houston, for appellee.
   BOND, Chief Justice.

The Texas and New Orleans Railroad Company, plaintiff in the court below, instituted this suit against the defendants, Earl Yates and W. O. Yates, copartners, to collect the sum of $1,104.94, alleged to be due on account of deficiency freight rate charged on various shipments of sand and gravel. The Railroad Company, pertinent here, alleged:

“11. That on various dates during the months of February, March, April, and May, 1935, there were consigned to defendants and defendants received and accepted a total of one hundred fifty-seven (157) cars containing gravel or sand, said cars weighing various amounts. These said cars moved from Randol, Texas, and Byron, Texas, which points are situated on the Boisd’arc and Southern Railway, and were consigned to defendants at Appleby, Texas, which is situated on the line of the Texas & New Orleans Railroad Company, all as is more fully shown by Exhibit A attached hereto and made a part hereof for all purposes.
“111. That the 157 cars referred to above contained sand and gravel weighing fourteen million seven hundred thirty-seven thousand seven hundred (14,737,700) pounds; that after the delivery of the above-mentioned cars the defendants paid to plaintiff and plaintiff collected from de-' fendants freight charges at the rate of One Dollar and Twenty-five Cents ($1.25) per net ton, and based on said rate plaintiff collected from defendants the sum of Nine Thousand Two Hundred Eleven and 52/100 Dollars ($9,211.52); that after collecting the freight charges at the rate of $1.25 per net ton and after the total sum of $9,211.52 had been collected, plaintiff learned that the rate of $1.25 was not the correct and lawful rate to be charged for such shipments, and plaintiff learned that the rate applicable to such shipments was One Dollar and Forty Cents ($1.40) per net ton, which rate is shown in Texas, Lines Tariff, Agent Cummings 2-N ICC 361, Item 2762; that under the correct rate of $1.40 per net ton the total amount of freight charges due plaintiff by defendants on the 157 cars above referred to was and is the sum of Ten Thousand Three Hundred Sixteen and 46/100 Dollars ($10,-316.46) thereby creating an undercharge in the sum of One Thousand One Hundred Four and 94/100 Dollars ($1,104.94) all as is more fully set out in plaintiff’s Exhibit A, which exhibit shows in detail point of origin and date of shipment, car number, weight of sand or gravel in each car, rate applicable, total amount collected for each car at the rate of $1.25 per ton, the amount due at the correct, lawful and applicable rate of $1.40 per net ton and the amount of undercharge on each of the 157 cars.”

To said pleadings, the defendants answered by plea in estoppel, and, also, by way of cross-action, or set-off, alleging that the Railroad Company received and thereafter failed to deliver to the defendants 402 tons of material described in plaintiffs petition, of the reasonable value of $940.02, claimed to have been lost in transit. The answer, material here, is as follows :

“That on or about January 1, 1935, and before these defendants entered into a certain sub-contract with J. S. Moore and Son to perform certain highway construction work, that the' Texas and New Orleans Railroad Company, its servants, agents and employees, represented to these defendants that the freight rate applicable to such shipment of gravel and sand as are described in plaintiff’s original petition, was $1.25 per net ton and relying upon such representations, these defendants did enter into a certain sub-contract with J. S. Moore and Son, believing that said $1.25 rate was correct; but that for such representations on the part of the plaintiff, Texas and New Orleans Railroad Company, its agent, servants and employees, these defendants would not have entered into such sub-contract with J. S. Moore and Son and would not have arranged for and accepted the shipment described in plaintiff’s original petition. Defendants allege that they did rely upon said representations so made and do now rely upon such representations so made and in the event said representations were false, the said plaintiff well knew that said representations were false and quoted said price for the purpose of practicing fraud and deceiving these defendants, together with the public in general as to the correct freight rate, and is therefore estopped to deny their said acts and the said freight rate of $1.25 per ton. In this connection the defendants allege that at the time they were quoted said rate of , $1.25 by the plaintiff that there was a controversy and question as to whether or not the Boisd’arc and Southern Railway Company was a common carrier and if said railway road was not a common carrier the rate of $1.25 would have been correct.
“Now comes the defendants by way of set-off, counterclaim and reconvention, and respectfully show' that in the hauling and transporting the materials described in plaintiff’s petition and in Exhibit ‘A’ thereof, the plaintiff failed to deliver to the defendants four hundred and two tons of material described in plaintiff’s petition of the reasonable value of $940.02; that the plaintiff received the same from the North Texas Material Company for the defendants herein and the said materials were wholly within the custody and control of plaintiff herein and that defendants do not know how or where the said materials were lost nor from which of the cars described in plaintiff’s original petition the materials were-lost, but that plaintiff negligently failed to deliver the same to the defendants herein.”

To these allegations, plaintiff interposed: First, special exception to the allegations bearing on the defense of estoppel, in that, a railroad common carrier cannot be es-topped to charge and collect a true and lawful freight rate under the circumstances alleged; therefore, such pleading is not a legal defense to plaintiff’s suit for the collection of the rate applicable to the particular shipment here involved; and, second, to the pleadings directed to shortage of sand and gravel, in that, such allegations are too general; it is incumbent upon the defendants, in suits against a common carrier for loss of goods in transit, as against special exceptions, to allege and necessarily prove the identity of the railway car or cars, by numbers or otherwise, claimed to have been short in the particulars named.

The trial court sustained plaintiff’s contentions, and, on trial of the cause, the defendants having declined to amend, judgment was entered in favor of the Railroad Company against the defendants for the sum of $1,104.94. This appeal is directed to the action of the court in sustaining plaintiff’s demurrer to defendants’ defense of estoppel, and to its cross-action, accordingly, entering judgment for the Railroad Company.

We think the trial court correctly sustained plaintiff’s demurrer to defendants’ defense of estoppel, because such allegations, in effect, circumvent the letter and spirit of the statute (art. 6474, R.S.1925), obviously designed to prohibit common carriers from charging, demanding, collecting or receiving preferential or advantageous charges for transportation.

Article 6474, supra, reads:

“Unjust discrimination is hereby prohibited and the following acts or either of them shall constitute unjust discrimination.
“1. If any railroad subject hereto, directly or indirectly, or by any special rate, rebate, drawback or other device, shall charge, demand, collect or receive from any person, firm or corporation a greater or less compensation for any service rendered or to be rendered by it than it charges, demands, collects or receives from any other person, firm or corporation for doing a like and contemporaneous service, or shall give any undue or unreasonable preference or advantage to any particular person, firm or corporation, or locality, or to subject any particular description of traffic to* any undue or unreasonable prejudice, delay or disadvantage in any respect whatsoever.
“2. If any railroad company shall fail or refuse, under regulations prescribed by the Commission, to receive and transport without delay or discrimination the passengers; tonnage and cars, loaded or empty, of any connecting line of railroad, and every railroad which shall, under such regulations as the Commission may prescribe, fail or refuse to transport and deliver without delay or discrimination any passengers, tonnage or cars, loaded or empty, destined to any point on or over the line of any connecting line of railroad; provided perishable freights of all kinds and live stock shall have precedence of shipment.
“3. If any railroad company shall charge or ' receive any greater compensation in the aggregate for the transportation of like kind of property or 'passengers for the shorter line than for a longer distance over the same line; provided, that upon application to the Commission any railroad may in special cases, to prevent manifest injury, be authorized by the Commission to charge less for longer than for shorter distances for transporting .persons and property, and the Commission shall, from time to time, prescribe the extent to which such designated railroad may be relieved from the operation of this provision. No injustice shall be imposed upon any citizen at intermediate points. ' Nothing herein shall be so construed as to prevent the commission from making what are known as ‘group rates’ on any line or lines of railroad in this State.
“4. Penalty. — Any railroad company guilty of unjust discrimination as here-inbefore defined shall for each offense pay to the State of Texas a penalty of not less than five hundred dollars nor more than five thousand dollars.
“5. Exceptions. — Nothing herein shall prevent the carriage, storage or handling of freight free or at reduced rates, or to prevent railroads from giving free transportation or reduce transportation under such circumstances and to such persons as the law of this State may permit or allow.”

To prohibit a common carrier from collecting legally published rates for a shipment of freight on a defense of estoppel, as alleged in defendants’ answer, would be sanctioning a violation of an Act of the Legislature, expressly designed to prohibit discrimination by common carriers. This statute requires a common carrier to charge the same rate to each shipper of goods for the same haul. If one shipper could effectively circumvent the published legal tariff rate under circumstances as alleged by defendants, then, certainly, others could do likewise, under more or less favorable circumstances. Thus, by such means, a common carrier would be left free to quote an improper and lower rate, thereby permitting the shipper to rely thereon, ship the freight at the quoted rate, and, in a manner, abrogate the statute prohibiting common carriers from charging, demanding, collecting, and receiving discriminatory rates for the same haul.

■ The statute makes the collection of legal charges a public duty on the part of carriers and to prohibit under severe penalty the carrier from refunding or remitting in any manner or by any device any portion of such charges. Yates was charged with knowledge of these statutory provisions, and, too, the carrier could not by' any means evade its public duty in failing to collect the full amount of the legal freight rate. Houston & T. C. R. v. Johnson, Tex.Com.App., 41 S.W.2d 14, 83 A.L.R. 241.

In the Johnson case, above cited, the Commission of Appeals was dealing with the provisions of the Interstate Commerce Act, 49 U.S.C.A. §§ 2, 3(2), 6(7), relating to a shipment of freight in an interstate transaction; while, the instant case involves intrastate shipments, yet, it will be observed that the Interstate Act was designed for the same purposes, and the same reasons are behind that Act as are behind the enactment of the Legislature of the State of Texas. The language of the Texas statute is substantially the same as that of the Act of Congress, and clearly intended to cover the same situation and achieve the same result.

Therefore, the trial court having properly sustained plaintiff’s special exception to defendants’ defense of estoppel, and, otherwise, no question is raised as to the right of appellee to collect the legally published and proper freight rates for the shipments involved in its suit; and, appellants’ cross-action for damages for loss of materials in transit being an independent action, not based on any claim alleged by appellee, the judgment in favor of the Railroad Company against appellants for the sum of $1,104.94, with interest and cost of the court below, should be affirmed, affected, if any, only by such offset or counterclaim which appellants, on another trial, may recover.

A reference here to appellants’ offset or counterclaim is to be taken as a reference to the entire pleadings of both appellants and appellee. It will be observed that the-Railroad Company pleaded and attached to its petition an exhibit, depicting in detail the various shipping transactions had with appellants, showing the details of each transaction, the number of the railroad cars, the dates of shipment, and the weight of the materials received and transported in each car. It was, therefore, incumbent upon the plaintiff to prove the : various details to establish its cause of action. The defendants could also rely on the burden of plaintiff to establish its cause of action, and to avoid liability for any amount which plaintiff’s pleadings and proof failed to establish. The question of the existence of a shortage of materials received and that delivered in this case is one of fact and not of law. An examination of plaintiff’s pleadings discloses that the net weight of the cars of gravel involved in this suit varied from 80,000 pounds to approximately 115,000 pounds per car. The defendants alleged shortage of 402 tons, amounting to 804,000 pounds, or about 8 carloads, which, of necessity, would have had to be spread over a large number of the 157 cars involved in the shipment. It devolved upon the defendants to make proof of the extent of the Railroad Company’s liability. The mere fact that defendants allege that they did not know the identification of the railroad cars which were short when delivered does not imply, as a matter of law, that defendants cannot make the quantum of proof, in some legal way, necessary for them to recover.

An elementary rule of pleading requires the petition to be as specific and certain as the nature of the case will permit. Texas & N. O. Ry. Co. v. Farrington, 40 Tex.Civ.App. 205, 88 S.W. 889. Measured by that rule, or any other rule of pleading, defendants’ pleadings were sufficient, as against demurrer, to admit proof of shortage on any or all of the enumerated cars mentioned in the suit, and to put appellee upon full and complete notice of the kind and character of proof which would be offered in proving then set-off or counterclaim. A conjecture that the defendants shall not be able to meet the burden of proving by acceptable evidence of its loss of materials in transit from each individual car involved in this suit is beside the question.

In the light of the entire record, we think the pleading is sufficient to meet plaintiff’s demurrer. Consequently, the judgment of the court is reversed, .and cause remanded for trial on appellants’ set-off or counterclaim, and the judgment in favor of the plaintiff shall be reduced only to the amount of defendants’ recovery. The cost on appeal is taxed against appellee.

Affirmed in part; reversed and remanded in part, with instructions.


author: JACKSON, Chief Justice.

text:
    RANSOM v. PHILLIPS PETROLEUM CO. et al.
    No. 5214.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1940.
    Rehearing Denied Nov. 25, 1940.
    G. C. Harney, of Sherman, and Willis ■& Via, of Pampa, for appellant.
    E. H. Foster and Tom D. Lumpkin, both of Amarillo, for appellee Phillips Petroleum Co.
    Morgan, Culton, Morgan & Britain, of Amarillo, for appellee Hugh Miller.
   JACKSON, Chief Justice.

This suit was instituted in the 'District Court of Hutchinson County by the appellant, Lee Ransom, against the appellees, the Phillips Petroleum Company, a corporation, and Hugh Miller, its duly authorized agent, to recover actual damages in the sum of $15,000 and exemplary damages for a like amount.

The appellant alleged that Hugh Miller, acting within the scope of his authority as agent for the corporate appellee, without provocation or justification, violently and maliciously assaulted and inflicted great personal injuries .upon him and that the damages sued for proximately resulted from the injuries so received.

The case was called for trial on October 5, 1939, and on the verdict of the jury returned October 9th the court rendered judgment that appellant' take nothing by his suit and the judgment was entered October 14, 1939.

The appellant filed his amended motion for new trial on October 28th which was on the same day overruled and the appellant excepted thereto and gave notice of appeal to this court.

The appellant filed his affidavit of inability to pay costs or any part thereof or to give security therefor on November 13, 1939. He made application for, and was extended by the court below, an additional ten days from December 17, 1939, to obtain statement of facts and transcript and file in the trial court. He thereafter presented the transcript and statement of facts to the clerk of this court and they were filed on December 27, 1939.

On June 24, 1940, the case was set by this court for submission on October 21 following and notice of the date of submission promptly given to the attorneys of the appellant- and the appellees. On September 18th thereafter Newton P. Willis, who resides at Pampa, Texas, and who is one of the attorneys of record, requested the clerk of this court to forward to him at Pampa the record in the case for briefing and on the following day the clerk sent the record to said attorney by express. On October 15, 1940, the appellant tendered briefs to the clerk accompanied by a motion praying that his briefs be filed in this court.

In the motion he says that G. C. Harney, an attorney who formerly resided at Borger, Texas, was employed by him to try this case in the trial court and Harney engaged Newton P. Willis, a lawyer, to assist in the trial thereof; that G. C. Harney was employed to appeal the cause, prepared the appeal, attended to the perfection thereof and the filing of the record in this court; that thereafter G. C. Harney moved to Slierman, Texas, and entered the practice of law; that about three weeks prior to October 15th, the date appellant’s motion was filed, Harney notified Newton P. Willis by mail from Sherman, Texas, that he was engaged in a political race for county judge and had not been able to prepare briefs and requested that Willis do so; that Willis has been constantly engaged in court trials and because thereof unable to complete the briefs until the 15th day of October, 1940. Mr. Willis on October 19th thereafter forwarded the transcript and statement of facts to the clerk of this court and they were received here Sunday, October 20th, one day before the case was to be submitted.

The appellees filed an answer to the motion to file briefs and insist that in view of the admitted facts the motion wholly fails to show good cause for the delay.

Article 1848 of Vernon’s Annotated Civil Statutes reads as follows: “Cases upon the trial docket of said Court which have not been advanced as provided by law, shall be set for submission eight weeks ahead of the date of submission and the parties or their attorneys of record notified of the date for submission, as provided in Section 1 of this Act. The appellant, or plaintiff in error, shall have thirty days from the date of such notice in which to file his brief in the Court of Civil Appeals and the appellee’s brief shall be so filed at least five days before the date set for submission. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for the filing of their respective briefs, and may extend the time for the submission of the case. (As amended Acts 1931, 42nd Leg., p. 98, ch. 64, § 1; Acts 1935, 44th Leg., p. 225, ch. 90, § 1.)”

In Camp v. Neal, 2 S.W.2d 473, this court, speaking through the lamented Chief Justice Hall, said: “The general rule is that other professional engagements of counsel are not sufficient excuse for the failure of appellant’s attorney to properly brief his case. If he finds that he will not be able, because of other professional business, to prepare and file his brief, it is the duty of his client to employ other counsel to do so. American Warehouse Co. v. Hamblen (Tex.Civ.App.) 146 S.W. 1006; Lasker Real Estate Ass’n v. Word, 58 Tex.Civ.App. 316, 123 S.W. 709.”

In Commercial Standard Ins. Co. v. Carr et al., 22 S.W.2d 1101, 1103, in which other professional business was urged as “good cause”, this court approved the holding in Camp v. Neal, supra, and said: “In our opinion, the appellant has wholly failed to show ‘good cause’ for not furnishing appellees with a copy of its brief at an earlier date and presenting them to this court before November 27th, and appellees’ motion to strike its brief is sustained.”

In 3 Tex.Jur. 930, para. 651, the author says: “It has been held that the appellant’s brief was filed too late, resulting in its being stricken, where the periods remaining before submission of the cause amounted to one day, two days, three days, four days, five days, six days, seven days, eight days, nine days, ten days, eleven days and twelve days.”

While these decisions predate the article of the statute above quoted, in Duncan et al. v. Scott et al., Tex.Civ.App., 128 S.W.2d 136, after the article 1848 under discussion became effective, the court holds that if the appellant fails to file his briefs within the time prescribed and fails to show good cause for not doing so, his motion to postpone the submission if resisted by appellee should be refused.

In Pearlstone-Ash Grocery Co. v. Rembert Nat. Bank of Longview et al., Tex.Civ.App., 135 S.W.2d 559, writ refused, article 1848 is construed in harmony with the holdings of the earlier decisions and, in our opinion, the law is settled, since appellant did not' file briefs within the time required, his motion is entirely. insufficient to show good cause.

It is undisputed that the motion for an extension of time to file briefs was made in this court on October 15th; that the record was not received here until October 20th; the case had been set for submission on the 21st. Appellees could not have filed briefs in time for submission on the day set. The granting of appellant’s motion would have required postponing the submission and the disposition of the appeal would have been delayed and ap-pellees would thereby have lost their place on the docket due to the failure of appellant to comply with the statute either by filing briefs in time or showing good cause for such failure. Duncan et al. v. Scott et al., supra.

It will be noted that the good cause relied on by appellant is that one of his attorneys was constantly engaged in court trying cases — attending to professional business — and that the other was engaged in a political race for county judge. It has often been held that an attorney’s professional engagements are not good cause and we are certain that the fact that an attorney is engaged in running for office would not constitute the good cause required in the statute.

There is no fundamental error apparent of record and the law seems to 'be that when briefs are stricken for failure to file within the time prescribed by law the judgment should be affirmed. Pearl-stone-Ash Grocery Co. v. Rembert Nat. Bank of Longview et al., supra.

The motion of appellant to be allowed to file his briefs is overruled and the judgment of the trial court affirmed.


text:
    CITY OF STAMFORD v. KING et al.
    No. 2052.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 25, 1940.
    Rehearing Denied Nov. 15, 1940.

      Coombes & Andrews, of Stamford, for appellant. ”
    D. M. Oldham and Hudson Smart, both of Abilene, for appellee.
   LESLIE, Chief Justice.

Minnie L. King, individually and as executrix of the estate of C. H. King, deceased, instituted this suit against the City of Stamford and J. J. Kell, to recover title and possession of 276 acres of land, except as to the surface rights, and alleged easement therein, in favor of the city, for the-purpose of maintaining a water reservoir, etc. The defendants answered by general denial and plea of not guilty. A trial was. had before the court and jury, and on the verdict returned judgment was entered in favor of the plaintiff limiting the rights of the city to the surface of the lands for reservoir purposes only.

The city appeals and the parties will be referred to as in the trial court.

October 2, 1918, C. H. King, husband of the plaintiff, contracted to sell the city of Stamford the 276 acres of land in controversy, definite field notes, to be furnished later. April 8, 1919, he executed to the city of Stamford, a municipal corporation, a warranty deed, embracing the land. The contract of October 2, was referred to and made a part of the deed. The two instruments must, therefore, be considered together, and wherever the term “deed” is used, it will be in the sense that it is composed of both instruments.

In the first count of the petition the plaintiff asserts that the deed conveyed the city nothing but surface rights for the purpose of a reservoir, leaving her in sole ownership of all minerals and other sub-surface rights. In the second count, she alleges that the deed is ambiguous in different respects and by pleadings and proof endeavors to show the intention of the parties was to convey the city nothing but surface rights for a reservoir, etc. The third count is one in trespass to try title.

The defendants urged a general demurrer which was overruled, and at the conclusion of plaintiff’s testimony, and at the conclusion of all the testimony asked for an instructed verdict, which the court refused. Error is predicated upon these rulings and the points raised will be considered together.

The portions of the contract material to the questions raised are as follows:

“1st. It is the intention and desire of the City of Stamford to purchase, acquire and hold a certain part of the Clear Fork River, now owned by C. H. King and others, for the sole purpose of building and maintaining a city reservoir or lake to be used in furnishing the city of Stamford with an adequate supply of water and to acquire the fee-simple title to the land covered by a part of said lake and the surrounding bank of the same, as hereinafter designated more in detail, for the purpose of maintaining and preserving the purity of said lake, and to prevent the pollution and misuse of the waters therein. The lake to be known as ‘Clear Fork Lake’, as more fully shown by blue print No. 44, made by Ed Burrow, surveyor, on September 17, 1918, which is here now adopted and made a part of this agreement:

“2. The Clear Fork Lake shall embrace, among other lands, commencing at the Lue-ders Survey and extending up the Clear Fork to a point known as the Red Bluff, which comprises the entire lake proper, except that part of the same on land owned by J. M. Roberts, M. J. Berryhill and W. H. Myatt, which part will be on land now owned by C. H. King, and is marked X on the blue print; more fully described as follows : * * *
“Then beginning on the north line, 100 feet from the water’s edge on the Myatt land, to a slough about the lower end of the Johnson Hole; * * * and thence back to the water’s edge, (it being the intention of King to have reserved to his own use about 15 acres fronting on the water's edge at this point, and the same is not to be included in the part sold to the City of Stamford);
“Thence back to the bank to within 100 feet of the water’s edge, about 300 to 500 yards from said slough, thence following 100 feet from the water’s edge to the above Berryhill and Roberts lands. Then beginning on the north side of the Roberts Survey, 100 feet from the water’s edge on west side, following the water’s edge to the original corner of H. Lueders Survey, near the mouth of Cottonwood Creek; the above embraces all the land of C. H. King below the Red Bluff Hole of the Clear Fork, ruttu-ning north and west, 100 feet from the water’s edge of the lake, lying along the meanderings of the Clear Fork River. * * *
“The above description is intended to cover all that part of the land that will be used or covered by Clear Fork Lake belonging to C. H. King, and which the City here now agrees to buy from him, but a more corrected and better description of the field notes will be made, at the time a transfer of the land is made by him to the city; that part of the water on his land above what is known as the Red Bluff Hole of the Clear Fork will not be considered a part of the Clear Fork Lake.
* * *
“A. Said King agrees to furnish to the city for their examination a complete abstract of title down to date, showing a good and marketable title in him to the lands above mentioned, and if for any reason he cannot convey a good and marketable title to said lands to the city, or any part thereof, the city agrees to reject the title to that part only which does not show a marketable title, and to accept the balance of said lands, and give the said C. H. King necessary or proper time in which to perfect his title to the part that is rejected. The city agrees to examine said abstract of titles and report to him any and all objections made to the same within a reasonable time after being furnished an abstract of title.
* * *
“5. Said C. H. King is to have full right to all water that may be necessary or proper or reasonable for either domestic or livestock or household purposes, either for himself, his tenants, sub-lessees, assignees, ven-dees, legal or personal representatives, with the right to use and forever maintain any pump lines or pumping stations that may be necessary to appropriate said water out of said Clear Fork Lake; and the city agrees to build, erect and maintain at its own expense lanes or pass-ways into said lake and under any bridges of sufficient width and frontage on the water front to permit the passage of livestock and tenants or his assignees, with wagons and teams, to haul away or use said water, with free access: All without expense or cost to him, and free of any charges, and he agrees to protect the game on the lake proper. Said pipelines and pass-ways not to exceed ten in number.
* * *
“6. Said C. H. King is to have full and free access and privileges and rights to hunt, fish, boating or camping in or upon or around said lake, and this right shall extend to his family, and other persons who he may see fit to grant the right to in writing duly signed by himself; without any expense to himself. And he, the said C. H. King, further agrees not to do or permit to be done by any person under his control and authority, any act that would materially damage or injure said lake or. its fences or belonging, or' would cause a pollution or contamination of its waters or banks, and to use his efforts to prevent any of said persons from willfully trespassing upon said lake property, or the waters above said Clear Fork Lake proper, that is above the Red Bluff above mentioned, but he will use his best efforts to prevent any pollution or contamination of this part of the water or the banks, of said Clear Fork River: and not use or permit said water to be used for irrigation purposes, except gardens and domestic use.” (Italics ours.)

The deed of April 8, 1919, is the usual warranty deed and grants, bargains, sells and conveys in unrestricted scope eight separate tracts of land to the “city of Stamford, a municipal corporation.” They aggregate 276.30 acres, constitute a tract of land about 3½ miles long, extending back about 100 feet from the water’s edge on each side of Clear Fork. Following an accurate description of these tracts of land, the deed contains the following:

“This conveyance to the properties herein described is made subject to and encumbered with the rights, liabilities, claims, terms and effect of a certain contract made upon the second day of October, 1918, by and between the said City of Stamford and C. H. King, grantor, and now filed on record in the county clerk’s office of Jones County, Texas, to which reference is here now made for the full force, effect and reading of the same, which instrument is here now made a part and parcel of this deed of conveyance.

“To have and to hold the above described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the city of Stamford, Texas, its assigns and successors forever, and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said city of Stamford, Texas, its assigns and successors against every person whomsoever lawfully claiming, or to claim, the same, or any part thereof, provided this deed of conveyance, as stated above, is expressly made subject to the terms, reading and effect of a written contract by and between the city of StamT ford, Texas, and C. H. King, executed on the second day of October, 1918, and now of record in the deed records of Jones County, Texas, to which reference is made.”

While the plaintiff asserts that the terms of the deed' are clear and unambiguous in conveying the “river bed” and its banks to the city for the sole purpose of constructing a city reservoir and keeping the water thereof free from pollution (first count), nevertheless the plaintiff goes further and alleges in the alternative that if she be mistaken in this, that the words, phrases and paragraphs in the contract, and especially paragraph 1 thereof, may be looked at in different ways and different conclusions derived therefrom as to the legal effect of the same, thereby presenting elements or issues of ambiguity calling for the ascertainment of the true intention of the parties by proper pleading and testimony and reformation of the deed in accordance with the intention thus established.

In her brief the plaintiff also states:

“On the other hand, if we take that part of the paragraph reading ‘to acquire the fee-simple title to the land’ and disregard the other parts of the paragraph, then we have the one single idea expressed and one single purpose, that is to convey the whole fee simple title, such as would be used and conveyed under the words ‘grant, sell and convey to the city of Stamford, Texas, its successors and assigns forever.’ This would give the city complete ownership, right of dominion, title and possession in, upon or under the earth and no room for construction could arise.” (Sub-quotes from the deed).

In other words, by accepting a part of the deed a full fee-simple title to the lands is conveyed and by rejecting that part and adopting other portions of it the conveyance becomes limited to the surface only, and that for the sole purpose stated in the deed. In this and other respects, it is urged that ambiguity arises under such authorities as San Antonio Life Ins. Co. v. Griffith, Tex.Civ.App., 185 S.W. 335.

The trial court evidently concluded that the deed presented ambiguity and proceeded to permit the introduction of testimony, by virtue of which the sole issue was submitted to the jury. We are, therefore, called upon to determine whether the instrument conveyed to the city the full fee-simple title to the 276 acres of land, or a mere easement in the surface thereof, for the- purpose of maintaining a city reservoir and protecting its water from pollution.

The appellee dissects the deed, alleging in seven different respects that it presented ambiguities. In substance, these ambiguities are:

(a) That paragraph (1) of the contract “means and was intended to read ‘to acquire the fee-simple title to the surface of said land or an easement therein for the purposes mentioned.’ ”

(b) That although “to acquire the fee-simple title to the land covered by a part of said lake is a technical and legal term which would ordinarily mean to acquire the absolute .title to the soil, surface, subsurface and all minerals therein”, nevertheless when it was provided in that same connection that the property was acquired for the sole' purpose of maintaining and preserving the purity of said water and to prevent the pollution and misuse of the same, coupled with the express intention to acquire and hold the land for the sole purpose of building a city reservoir, the full fee-simple title was thus qualified and limited to that purpose alone. And it was not the intention of the parties that the instrument should be given its technical and legal meaning. ■

(c) That ambiguity arises by reason of the terms of the contract wherein King agrees to furnish the city for examination an abstract of title down to date showing marketable title in him to the lands without stating whether he will convey an absolute fee-simple title or' “conditional or base” title for the purpose mentioned in said paragraph (1).

(d) That the contract discloses ambiguity in that “under the intention of the contract” the. city of Stamford was to fence the lands conveyed but at the same time stipulates that the city was to build, erect and maintain at its own expense lanes or passways into said lake, etc., to permit the passage of livestock, wagons and tenants, etc.

(e) That ambiguity inheres in the deed by reason of paragraph (6) in that it provides that King was to retain the water above Red Bluff and that parol testimony was necessary to show what portion of the lake was above Red Bluff.

(f) That paragraph (1) of the contract evidences conflict and ambiguity in that it states the land was acquired for the sole purpose of a reservoir and also states it was acquired in fee-simple.

(g)Ambiguity arises wherein the contract (paragraph 6) provides that King retain complete control of the water “backed upon his land above Clear Fork Lake proper”, since the implication or inference therefrom would arise- “that he did own some right, title or interest in some part of the land which would be covered by water” and the city did not own the absolute fee-simple title to the land.

In substance, the plaintiff seems to contend that paragraph 1 is in conflict with various paragraphs oí the contract and deed, as well as containing conflicts within itself.

The first question to be determined, and, in our view, the one that is decisive of this lawsuit, is whether or not the deed is an ambiguous instrument in the specification of the right or estate conveyed. There are some fundamental principles of law that may be helpful in answering this question.

(1) The intention of the parties to a deed, or contract, is the paramount consideration, and such intention is to be gathered from a consideration of the entire instrument taken by its four corners. 10 Tex.Jur. p. 282, sec. 164; 10 Tex.Jur. p. 272, sec. 159.

(2) If there are no ambiguities in the contract or deed, its construction is a question of law for the court. San Antonio Machine & Supply Co. v. Allen, Tex.Civ.App., 268 S.W. 532.

(3) If there be no ambiguity in the contract the same will be enforced as written, even though it does not express the original intention of the parties. 10 Tex.Jur. p. 274, sec. 160; San Antonio Machine Co. v. Allen, supra.

(4) A deed will be construed most strongly against the grantor. Lott v. Kaiser, 61 Tex. 665; Demilly v. Texas & N. O. Ry. Co., 91 Tex. 215, 42 S.W. 540; 14 Tex.Jur. p. 926, sec. 148.

(5) Each paragraph and clause of the contract must be construed with every other clause and paragraph therein.'

(6) If possible, that construction will be adopted which gives effect to each and every part of the instrument. Hearne v. Gillett, 62 Tex. 23; Giles v. Corbett, Tex.Civ.App., 293 S.W. 180.

If, when considered as a whole, a deed or contract is susceptible of a reasonable construction whereby all of its provisions can be given effect, that is the construction to be placed thereon by the court.

(8) It is the general rule in this State, both of statute and decision, that where an estate in land is granted or devised, unless limited by express words or by a fair construction, the fee-simple estate is always favored. Art. 1291, Vernon’s Ann.Civ.Statutes, and authorities thereunder. This article of the statute reads: “Every estate in lands which shall hereafter be granted, conveyed or devised to one although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.”

In Gulf Prod. Co. v. Continental Oil Co., Tex.Sup., 132 S.W.2d 553, 563, it is said: “By reason of this statute, the intent to convey an estate in fee simple will be presumed where a less estate is not expressly and unequivocally declared.” Citing many authorities.

This record has been carefully considered in the light of pertinent rules of law, and we are of the opinion that any fair analysis of the deed in the instant case leads to but one conclusion, namely, that it is plain and unambiguous in its terms and that such deed alone must be held to be the sole evidence of the intention of the parties. So viewing it, what •was that intention? Reading it from its four corners it clearly shows that the city of Stamford desired to acquire the full fee-simple title’ to the land, the bed, and banks of the Clear Fork of the Brazos River for the purpose of building a city reservoir and maintaining the purity of the • water therein. In the instrument the reservoir itself was designated “Clear Fork Lake” and commonly spoken of as “the lake proper.” The metes and bounds of the lands to be acquired were set out in the deed as definitely as engineering ■skill could well make them. As to the lake proper, anything less than a full fee-simple title was not deemed sufficient to enable the municipality to impound the water and protect the same from contamination of mining and other like operations.

The strip of land is about 3½ miles in length, in the main narrow, and extending from the stream about 100 feet on each side. From the field notes it obviously extended up the river to a point known as Red Bluff. The land' above Red Bluff was not purchased by the city but remained the property of the grantor. King and the officials representing the city recognized that the dam would not only impound water in the limits of Clear Fork Lake, but that the dam would necessarily throw water back on to the lands of King above the Bluff. As to such waters, awaiting consumption by the city but backed over and standing upon the unconveyed lands of King, the contract provided that in exercising the rights and privileges retained by him in the lake proper that he also “use his efforts to prevent any of such persons from willfully trespassing on said lake proper or the waters above said Clear Fork Lake proper that is above the Red Bluff above mentioned, but he will use his best efforts to prevent any pollution or contamination of this part of the water or the banks, of said Clear Fork River and not use or permit said water to be used for'irrigation purposes, except gardens and' domestic use.”

In these stipulations a mere easement or servitude is plainly created in behalf of the city, granting it the right to back waters over the unpurchased land of King along the Clear Fork and above Red Bluff. This feature of the deed would seem to put beyond doubt the intention of the parties to the deed; that is, it clearly appears that the city merely acquired an easement for storage purposes in the unpur-chased lands of King above. Red Bluff, whereas it acquired a full fee simple title to the 276.30 acres of land constituting Clear Fork Lake or the lake proper.

As to the unpurchased lands above Red Bluff, they were evidently sufficiently far away from the intakes to render the possibility of pollution negligible or quite improbable. As to the lake proper, the full fee-simple title was necessary to achieve the purposes of a reservoir and the protection of the waters therein.

Further, the granting clause to the deed under consideration is as broad as the “grant, bargain, sell and convey” provision can well be made. The same breadth of expression is retained in the habendum and the warranty provisions of the deed. True, there is a stipulation in the deed referring to the original contract and making it a part of the same, hut, as pointed out, that is in any event a part of the deed and when its contents are considered we find that in paragraph (1) it is specifically provided that the city not only desires to acquire the King and other lands for the purpose of building a water reservoir but “to acquire the fee-simple title to the land covered by a part of said lake and the surrounding banks of the same.” As to 'the lake proper the deed carries an emphasis on full fee-simple title.

It would seem to be entirely unnecessary to appeal to the provisions of R.S. Art. 1291 to support our conclusion. Evidently there are no express words in the deed limiting the full fee-simple title, and there is no rule based upon construction or operation of law that restricts the conveyance of such title.

The deed contains other evidence making certain the intentions of the parties, as we find it. The grantor, against whom the instrument must be construed most strongly, specifically enumerated a number of rights and privileges reserved to him in this conveyance of his lands. Among them (1) “full right to take all water, necessary or proper * * * for domestic, livestock or household purposes either for himself, his tenants * * * vendees, legal * * * representatives with the right to use and forever maintain any pump lines or pumping stations that may be necessary to appropriate said waters out of said Clear Fork Lake * .* See paragraph 5 of contract for these and other rights, etc. (2) “Full and free access * * * and rights to hunt, fish * * * upon or around said lake” and rights “extend to * * * family and other persons whom he may see fit to grant the right to in writing.” Paragraph 6 contains these and other rights and the stipulation hereinbe-fore considered, namely, “to use his (King’s) efforts to prevent any of said persons from willfully trespassing upon said lake proper or the waters above said Clear Fork Lake proper, that is above the Red Bluff above mentioned, * * * and not use or permit said water to be used for irrigation purposes except gardens and domestic use.”

Since the grantor by his deed (including contract) specified with such particularity the interests, rights and- privileges reserved or retained by him in this transaction with the city, we must necessarily conclude that rights, privileges and interests not specifically mentioned and reserved were conveyed to the municipality. It would have been as easy to stipulate for the reservation of minerals as to stipulate for the use of the waters, etc., “forever.”

The plaintiff’s contention that the deed granted only a limited fee or surface right only must be overruled for another reason. As said by our Supreme Court in Hughes v. Gladewater County Line Ind. School District, 124 Tex. 190, 76 S.W.2d 471, 473: “It is definitely settled in this state that where a deed contains apt language denoting the grant of an unconditional fee estate in land, other language contained in the instrument, which merely denotes that the grant was made for a particular purpose is not regarded as implying that the grant is conditional. Texas & P. Ry. Co. v. Martin [123 Tex. 383], 71 S.W.2d 867, and authorities there cited. The same rule applies in construing a given provision for the purpose of ascertaining if it limits the duration of the grant. It is quite. clear, therefore, that neither of the following clauses of the deed here under consideration imports either a condition subsequent or a limitation respecting the duration of the grant, namely, the granting clause which in terms denotes a grant ‘for school purposes only for the colored children of the County of Gregg,’ etc.; and the clause reading, ‘It is understood that the land is deeded to the trustees for school purposes only for the colored children of District No. 3 of Gregg County, Texas.’ ” (Italics ours)

On this proposition we also cite the following authorities which we believe are conclusive of the correctness of our construction of the deed: Taylor v. County School Trustees of Eastland County, Tex. Civ.App., 229 S.W. 670, writ refused; Wilson v. County School Trustees of Eastland County, Tex.Civ.App., 229 S.W. 669; Texas & P. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W.2d 867.

In each of the cases in 229 S.W. land was conveyed “for school purposes”, etc., the granting and habendum clause in each were, in substance, as those involved in the instant case. In each case it was held that a full fee-simple title passed and that it included oil, gas and minerals.

In the opinion in Texas & P. Ry. Co. v. Martin, supra [123 Tex. 383, 71 S.W.2d 870], Judge Critz, in discussing a contention similar to that here under consideration, referred to the following rule laid down in 18 C.J. p. 336, sec. 335: “But a fee will pass by a deed containing a clause or recital which is merely declaratory of the use contemplated of the land where the other parts of the deed operate as a conveyance of the fee. * * * ” That, in our opinion, fits the case before us.

Other contentions of the plaintiff suggesting ambiguities in the deed have been duly considered and are believed to be without merit. They do not bear upon the proposition of limitation of estate granted. Hence, we have addressed our attention to the controlling point.

Plaintiff further contends that the city of Stamford had no right to acquire the full fee-simple title to the land in any event. That prior to 1923, during which time the city of Stamford acquired these lands for the purposes stated, a municipality could not acquire the full and complete fee-simple title to lands, including the minerals, etc. In support of such contention we are cited to the opinion in Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268. It was there held that a railroad in acquiring lands for right of way purposes did not acquire sub-surface minerals, etc. As applied to the, facts in the instant case, we do not believe there is any merit in this contention and rest the conclusion upon Art. 1175, R.S.1925, subds. 3, 11, 13, 15; Isaac v. City of Houston, Tex.Civ.App., 60 S.W.2d 543. We do not believe the character of interest which the municipality could then acquire for a proper purpose was so restricted or cut down by the statute. The facts of the instant case are so different from those involved in Right of Way Oil Co. v. Gladys City Co., supra, that it is deemed unnecessary to point out the distinguishing features, rendering that opinion inapplicable here. The facts of other authorities relied upon by plaintiff likewise differ from those of the instant case and will not be discussed.

If we are correct in the views above expressed they put an end to this lawsuit and it becomes our duty to reverse and render the same in favor of the city of Stamford. It is so ordered.


author: STOKES, Justice.

text:
    SAULSBURY v. ATLAS SUPPLY CO. et al.
    No. 5213.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1940.
    Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.
    Walter E. Rogers, of Pampa, for appel-lees.
   STOKES, Justice.

This case is before us upon the motion of appellee to reverse the judgment and remand the cause to the trial court to be by that court transferred to one of the district courts of Potter County. Appellant acquiesces in the motion. The case was before this court on May 27, 1940, in an appeal by the appellant from an adverse judgment upon a plea of privilege filed by him. We then held the plea should have been granted and reversed the judgment with instructions that the cause be transferred to one of the district courts of Potter County. Saulsbury v. Atlas Supply Co., 141 S.W.2d 992. After the case had been appealed upon the plea of privilege and before it was submitted in this court, it was tried on the merits and judgment rendered against appellant. The judgment on the plea of privilege having thereafter been reversed, it follows that the court below did not have jurisdiction to try the case on its merits. O’Brien v. Smith, Tex.Civ.App., 80 S.W.2d 459, and authorities there cited. The motion to reverse the judgment will, therefore, be granted and the cause remanded in order that the court below may observe the ruling of this court upon the former appeal.