author: HALL, J.

text:
    PANHANDLE & S. F. RY. CO. et al. v. HUBBARD.
    (No. 1080.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1916.)
    1. Limitation oe Actions &wkey;>32(l) — Natubh ot Action — Toet—Damages to Shipment.
    A petition for damages to an automobile during shipment alleging that the damages occurred in transit and consisted in the loss of a number of the parts and injury to others, stating the reasonable value at destination in good condition, and in the condition in which it did arrive, states an action in tort, not on contract, to which the two-year statute of limitation applies.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 143, 145; Dec. Dig. <&wkey; 32(1).]
    2. Limitation op Actions &wkey;>119(2) — Commencement op Actions — Delay in Sebvice —Vacating.
    Where the petition was filed and citation issued some time before the action was barred, but the citation was not sent by plaintiff’s attorneys to the sheriff for service for nearly two months, at which time the right of action was barred, the plaintiff must show a bona fide intention to have the process served in time, and a reasonable excuse for not having done so.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent.Dig. § 530; Dec.Dig. <&wkey;119(2)J
    3. Limitation op Actions <&wkey;199(l) — Questions pob Juey — Excuse pob Delay — Seev-ice.
    Where a citation was not sent for service until two months after it was issued and after the right of action was barred by limitations, plaintiff’s intention to have it served and the reasonableness of his excuse present questions for the jury.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 727; Dec. Dig. &wkey;?199 (1).]
    4. Cabbiebs &wkey;>91 — Convebsion op Goods— Demand pob Excessive Eeeight.
    Where the carrier demands excessive and illegal freight charges and on the refusal of the shipper to pay them declines to deliver the goods, and sells the goods for the charges, there is a conversion.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 338-355; Dee. Dig. &wkey;91.]
    5. Cabbiebs <&wkey;191 — Stoeage Chaeges — Weongful Detention.
    A carrier is not entitled to storage charges on -goods wrongfully detained by it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 878; Dec. Dig. &wkey;»191.]
    Appeal from Hale County Court, W. B. Lewis, Judge.
    Action by B. A. Hubbard against the Panhandle & Santa Fé Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, Geo. Thompson, of Ft. Worth, and Madden, Tru-love, Ryburn & Pipkin, of Amarillo, for appellants. W. W. Kirk and Y. W). Holmes, both of Plainview, for appellee.
   HALL, J.

The following statement of the nature and result of the suit is adopted from appellee’s brief:

“Appellee, B. A. Hubbard, brought this'suit in the county court, August 28, 1915, against appellants, the Panhandle & Santa Fé and the Texas & Pacific Railway Companies, for alleged damages to an automobile shipped by him from Plainview to Weatherford, Tex., on October 7, 1913, consigned to H. G. Gilbert, alleging that the damages occurred in transit, and the damages being the loss of a great number of parts and injury to two parts to the extent of worthlessness; that the reasonable market value at destination in the condition in which the automobile should have arrived was $700; that the reasonable market value in the condition in which the same did arrive was $405, and further for conversion of the automobile in the condition in which the same did arrive at destination, the conversion occurring in either one or two ways, viz. the first alleged being that consignee refused to accept the automobile by reason of its damaged condition, and that when plaintiff called at Weatherford to pay the proper freight charges thereon and to receive same the agent of defendants at destination demanded payment of plaintiff excessive freight charges, which he refused to pay, and the same sued for in this instance of conversion being $405, the alleged reasonable market value of the car at destination at the time of arrival, the second instance of conversion being alleged that thereafter, without the knowledge or consent of plaintiff, the defendants removed the car from destination to Weatherford, thereby converting the same, and the sum sued for in this instance being whatever the reasonable market value of the car might be at destination at the time of such removal as proof might'show upon trial, and setting out that freight charges had not been paid, and asking for judgment against the defendants in the sum of $700, loss proper freight charges.”

Defendants answered by general demurrer, special exceptions, general denial, plea of two-year statute of limitation; that the shipment arrived at destination as alleged by plaintiff, but that it arrived in the same condition in which it was received by them for shipment; that they had tendered the automobile to the consignee at destination upon his paying freight charges to the amount of $52.80; that freight charges and demurrage at the time of suit was $104.40, for which they ask judgment. The answer also tendered the automobile to plaintiffs upon payment of said sum.

The issue of limitation is raised by several assignments. It is shown that the shipment was made from Plainview October 7, 1913, and arrived at Weatherford, its destination, October 12, 1913. The consignee was notified of its arrival October 13, 1913. It was understood that consignee would pay the freight. Appellee testified that he was notified by appellants’ agent at Weatherford about ten days after its arrival there that appellee would not accept the automobile.

The original petition was filed August 28, 1915, and citations were issued the same day. The first regular session of the county court convened September 6, 1915, and the second regular session December 6, 1915. The sheriff of Hale county, where service was made upon the Panhandle & Santa Eé Railway Company, testified that the citation to said company was received at his office October 23, 1915; that he served it October 25, 1915, as appears from the return of the writ; that if it had reached him August 28, 1915, he could have served it on that day; that, according to his recollection, he received the citation from one of appellee’s attorneys. The return on the citation served on the Texas & Pacific Railway Company shows that it was issued August 28, 1915, by the county clerk of Hale county, was received by the sheriff of Nolan county, where said company had an agent, October 18, 1915, and executed the same day by service on the local agent of said railway company. It further appears that November 9, 1915, alias citations were issued, and that the one issued to Hale county was returned the same day, duly served; but the one issued to be served on the Texas & Pacific Railway company was not found in the files.

According to the allegations in thepeti-’ tion, plaintiff did not base his action upon the contract of shipment, but endeavored to hold the defendants liable in tort, and therefore the two-year statute of limitation applies to the action. Elder, Dempster & Co. v. St. Louis & Southwestern Railway Co. of Texas (Sup.) 154 S. W. 975.

The petition was filed within the two-year period of limitation, and citations were issued the same day. The first question to be considered is: Were they served in time to prevent the bar? The shipment arrived at Weatherford October 12, 1913, and the consignee was notified the next day but refused to pay the freight and accept the automobile on account of its battered condition and because some parts were missing. Appellee’s right of action to recover for such damages accrued October 13, 1913. In the absence of a sufficient excuse for the delay in having the first citations which were issued August 28, 1916, served, the action is barred as to all such damages. In regard to that part of appellee's action for conversion, by reason of the demand by the station agent of an illegal amount of freight, the record is not very clear. When the demand was made, and when the proper sum was tendered, is left uncertain, even by the testimony of appellee himself. The evidence of the clerk of the court and the sheriff of Hale county tends to show that the citations were in the hands of ap-pellee or his attorneys between August 28, 1915, and the dates they were received by the sheriffs of Hale and Nolan counties, respectively. Under such circumstances appel-lee must show a bona fide intention to have the process served and a reasonable excuse for not having done so. Faires v. Loessin, 46 Tex. Civ. App. 551, 102 S. W. 924; Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645; Estes v. McWhorter, 182 S. W. 887; Wiggs v. Dooley, 28 Tex. Civ. App. 61, 66 S. W. 306.

We think in the light of the record these were questions of fact which should have been submitted to the jury, and the court erred in refusing appellants’ special charge, requesting such submission. Gulf, etc., Ry. Co. v. Flatt, 36 S. W. 1031; Wood v. Railway Co., 15 Tex. Civ. App. 322, 40 S. W. 24.

Where the carrier demands an excessive and illegal freight charge, and upon the refusal of the shipper to pay it declines to deliver the goods and sells them for the charges, it is a conversion. P. & N. T. Ry. Co. v. Porter, 183 S. W. 98, and authorities cited.

The wrongful detention of goods by a carrier will defeat its claim for storage. Sou. Pac. Co. v. Redding et al., 17 Tex. Civ. App. 440, 43 S. W. 1061.

What has been said disposes of all the material questions presented, and the remaining assignments are overruled.

Reversed and remanded.
      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    SILVER VALLEY HORSE CO. v. C. V. EVANS & CO.
    (No. 5698.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1916.
    On Motion for Rehearing, Jan. 6, 1917.)
    1. Pleading &wkey;248(2) — Amendment — New Cause, of Action.
    Where any evidence introduced under appellant’s third amendment to its petition could have been offered under its first or second amendment, the same defenses urged against each, the same measure of damages recovered, and a recovery had upon either would have barred, a recovery upon the others, no new cause of action is pleaded by the third amendment.
    TEd. Note—Eor other cases, see Pleading, Cent. Dig. § 687; Dec. Dig. &wkey;24S(2)J
    2. Limitation of Actions <&wkey;127(13) — Amended Pleading — New Cause of Action.
    Where appellant’s original petition to recover damages for appellee’s refusal to furnish him with another stallion of equal value m place of one purchased which proved unsatisfactory was filed within four years after the breach of contract, appellant’s amended petition, filed more than four years later, alleging the same facts and in addition that appellees were bound to furnish another stallion l1of the same kind and breed, and of equal value,” which was omitted in the contract by mutual mistake, dub not set up a new cause of action, but merely set out the entire contract and implied the facts pertaining thereto, and was not barred by the statute of limitations.
    [Ed. Note.—Eor other cases, see Limitation of Actions, Cent. Dig. § 545; Dec. Dig. <&wkey;> 127(13); Pleading, Cent. Dig. § 688.]

      Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Action by the Silver Valley Horse Company against C. V. Evans & Co. Exceptions to amended petition sustained and suit dismissed, and plaintiff appeals.
    Reversed and remanded.
    Hill, Lee & Hill, of San Angelo, and Woodward & Baker, and Critz & Woodward, all of Coleman, for appellant. Snodgrass, Dib--rell & Snodgrass, of Coleman, for appellee.
   RICE, J.

This suit was brought October 12, 1911, by appellants, plaintiffs below, in the district court of Tom Green county, to recover damages by reason of alleged breach of contract on the part of appellees, and after-wards, on plea of privilege, was transferred to the district court of Tom Green county, where the same was finally tried; appellant alleging that on the 9th of April, 1910, it purchased from appellees for $1,800 a certain stallion for breeding purposes, the latter guaranteeing that the stallion was a satisfactory and sure breeder, and agreeing that in the event he should prove not to be as represented, that they would furnish appellant another stallion of equal value. Further alleging that the stallion, upon trial, proved worthless for the purposes mentioned, and that it had tendered such stallion back demanding of appellees that they replace him with another stallion of the same kind and breed-and’ of equal value, which they refused to do. Thereafter on November 20, 1911, and on April 22, 1912, respectively, appellant filed its first and second amended original petitions, wherein it set out substantially the same facts, amplifying the same in matter of detail, but pleading the same contract between it and appellees, which it alleged was in writing, setting up the breach thereof by the latter, adding, however, in each that the appellees agreed to take said stallion back and give appellant another stallion of equal value, thereby meaning that if said horse proved unsatisfactory under said contract and agreement, and that if said stallion-failed to be as represented, they agreed to take said stallion back and to give appellant another of equal value, thereby meaning another stallion of the same kind and breed and of equal value. Thereafter on December 13, 1915, appellant filed its third' amended original petition, which set out substantially the same facts as previously alleged, except that it alleged that the original contract between the parties bound appellees to furnish appellant, in the event said horse proved to be unsatisfactory, another of the same kind and breed and of equal value, which it was averred was omitted from the original contract by mutual mistake.

Appellees addressed special exceptions to the last-named petition, insisting that said pleading set up a new cause of action from that alleged in the amended petitions, which said new cause of action was not pleaded until four years after it accrued, for which reason it was barred by the statute of limitations.

This exception was sustained, and appellant, declining to amend, the suit was dismissed, from which judgment appellant prosecutes this appeal, urging that the court erred in sustaining such exception, insisting by its proposition thereunder that its third amended original petition only enlarged upon the1 cause of action theretofore pleaded, alleging more specifically the terms and conditions of the contract of guaranty, the breach of which was the foundation of its cause of action ; so that the only question for our determination is the correctness of the ruling of the court upon such exception.

It is always permissible for the plaintiff to amplify and set out more fully the facts upon which the cause of action originally sued upon was based, in order to make the pleading conform to the facts sought to be offered in evidence to sustain it; and this we understand to be the settled law of this state, supported by many adjudicated cases. See Thouvenin v. Lea, 26 Tex. 612; Burton-Lingo Co. v. Beyer, 34 Tex. Civ. App. 276, 78 S. W. 248; T. & N. O. Ry. Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 155; Cotter, Truelove & Co. v. Parks, 80 Tex. 539, 16 S. W. 307; Booth v. Houston Packing Co., 105 S. W. 46; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 363; Green v. Loftus, 132 S. W. 502; McWhorter v. Estes, 175 S. W. 846; W. U. Telegraph Co. v. Smith, 146 S. W. 332; S. A. & A. P. Ry. Co. v. Bracht, 157 S. W. 269; W. U. Telegraph Co. v. Smith, 133 S. W. 1062; Baker v. Gulf, C. & S. F. Ry. Co., 184 S. W. 257, recently decided by this court, not yet officially reported.

The case of Thouvenin v. Lea, supra, was one where the plaintiff sued to recover land and the value of certain improvements. The land had been sold under a parol contract, and the plaintiff claimed the value of certain improvements by virtue of a parol agreement that he should be paid for making them. By amendment the plaintiff set out more fully the terms of the contract under which he claimed. To this the defendant pleaded the two-year statute of limitation, which was sustained by the trial court. The Supreme Court, in passing on the question, said:

“Nor should the exceptions to the amended petition, upon the ground that it set up a new cause of action which was barred previous to the filing of the amendment, have been sustained by the court. The cause of action presented in the original petition was the breach of contract in the sale by parol of a tract of land, by reason of which, it was alleged, appellant became liable to pay for the improvements made upon the land. The amended petition merely enlarges and states more fully and accurately the facts with reference to the same contract upon which the original petition was based. It only states an additional stipulation in the agreement between the parties, which was omitted in the original petition. It enlarges, but in no manner contradicts, the allegations previously made. The very object of an amendment is to supply the omissions of the original pleadings. And it never has been supposed that the statute of limitations would present any impediment to its being done at any time during the progress of the cause. The statute only operates as a bar when it is sought under the name of an amendment to present a new suit.”

The case of Western Union Telegraph Co. v. Smith, 133 S. W. 1063, was one where plaintiff sued to recover damages from the telegraph company for failing to deliver a death message. The court in that case held that the plaintiff, not having alleged a contract on the part of the company to deliver the message, the demurrer was properly sustained. The same case upon a second trial (146 S. W. 332) announces the doctrine that, although the plaintiff had failed in his original petition to allege a contract with the company to transmit and deliver the message, the amendment setting up the contract and alleging payment of the fees demanded by the company, and which amendment was filed more than two years after the injury occurred, was not barred by the statute of limitation of two years, and did not set up a new cause of action. Mr. Chief Justice Key, in passing upon the question, said:

“We held on the former appeal that the petition then under consideration did not allege that the defendant had entered into a contract, or had otherwise obligated itself to transmit and deliver the telegram referred to. The amended petition cured those defects; but the defendant took the position in the court below that the amended petition was in fact the commencement of a suit, and, as more than two years had elapsed, the cause of action was barred by limitation. The trial court overruled that contention, and that ruling is assigned as error. It is also contended that the amended petition set up a new cause of action, and, as more than two years had elapsed, it was barred by limitation. We overrule both of these contentions, and hold that, although the plaintiff’s original petition was so defective as that it did not sufficiently state a cause of action, the amended petition, which supplied the omissions and stated a cause of action, was not barred by limitation. Both petitions sought a recovery on account of defendant’s negligence and delay in the transmission and delivery of a certain-message. The first failed to allege facts showing that any legal duty rested upon the defendant concerning the message; and the second supplied that omission. The first, although essentially defective, arrested the statute of limitations.”

In Mayes v. Magill, supra, it was said:

“But if the amended petition in any way retained even a part of the cause of action as asserted by the original petition, and afterward reasserted by the amended petition, it is sufficient to prevent the running of the statute after the original petition was filed.”

In San Antonio & Aransas Pass Ry. Co. v. Bracht, supra, the court, in pointing out the four tests for determining whether a new cause of action is pleaded, said:

“(1) Would a recovery had upon the original bar a recovery under the amended petition? (2) Would the same evidence support both of the pleadings? (3) Is the measure of damages the same in each case? (4) Are the allegations of each subject to- the same defense?”

In the present case appellant relied for recovery upon the breach of the same contract, based upon the same facts, made at the same time between the same parties; and we are of opinion that any evidence introduced under the third amended petition could have been offered under the first or second, and that the same defenses could have been urged against each — the same measure of damages could have been recovered under the one as under the other, and a recovery had upon either would have barred a recovery upon the others. It is true, the entire contract was not set out in the original petition or in the first two amendments; but appellant had the right, we think, to amend its pleading and set up the entire contract and all facts upon which it sought a recovery, provided, of course, it did not set up a new cause of action.

In the instant case it occurs to us that under the allegations of the first two amendments, appellant had the right to show the purpose for which the horse was purchased, and if he was not suitable for such purpose that appellees guaranteed to replace him with another of equal value, and that by the expression “equal value,” under the circumstances of this case, was meant a horse of like kind and breed.

Believing that the court erred in sustaining the exceptions above discussed, its judgment is reversed, and the cause remanded for another trial.

Reversed and remanded.

On Motion for Rehearing.

We have carefully read and considered appellees’ motion for rehearing, together with the cases therein relied upon, and are constrained to believe that they are not applicable to the point raised in this appeal. This was not a suit to reform and enforce a contract; but, on the contrary, was a suit to recover damages for breach of an alleged written contract. The original petition and the two amendments having failed to state fully the entire terms of the contract, the third amended petition undertook to do so, averring that certain portions thereof, setting the same out, were omitted through mutual mistake. Appellees contend that since this last amendment was filed more than four years after the date of the contract and the discovery of the mistake, it was barred by limitation, which it urged by its demurrer as a defense to plaintiff’s right to recover in this action. If plaintiff had brought the suit to recover damages more than four years after the breach of the contract, then it is conceded that appellees’ exception ought to have been sustained. This is not the ease, however, but, on the contrary, the suit was brought to recover damages before it was barred, but the plaintiff in its petition omitted to set out portions of the contract which it subsequently did by its amendment; and as the amendment was made four years after the cause of action arose, it is contended on- the part of appel-lees that the statute of limitation could be urged against it. It was not setting up or undertaking to set up a new cause of action, but merely an amplification of the original cause of action partially pleaded.

While the petition undertook to recover for a breach of the contract, it omitted to fully state what the contract really was; and plaintiff had the right, we think, by amendment, to plead the contract as it in fact existed. The allegation that a part of the contract was omitted by mutual mistake may be stricken out, and still the petition as finally amended shows a good cause of action for a breach of contract.

We therefore adhere to our original opinion in holding that the court erred in sustaining the demurrer, and overrule the motion for rehearing.

Motion overruled.
      ¿a^Kor other cases see same topic anil KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    FIRST NAT. BANK OF EMORY v. HERRELL.
    (No. 7650.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 16, 1916.)
    1. JuDGEs'&wkey;>45 —Disqualification to Act —Relationship to Person Interested.
    A judge of the county court, who presided at the trial of a cause, who was related within the third degree to one of the sureties on the appellant’s bond against whom judgment should have been rendered, by reason of his undertaking as such surety, should have recused himself as disqualified, and declined to make any order in the ease on appeal to the county court.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 268-212; Dec. Dig. <&wkey;>45.]
    2. Judges <&wkey;42 — Disqualification to Act.
    Where a judge had actual knowledge that the allegations of a cross-action in a suit in the justice’s court were sufficient to show a cause of action against him, and the record fails to show that the purpose for making him a party was to disqualify him to try the original suit, having thus been made a party to the suit, he should have held himself disqualified to sit in the case on appeal to the county court.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 190-200; Dec. Dig. &wkey;42.]
    3. Appeal and Error <&wkey;499(2) — Record-Showing Reservation of Ground for Review-Bill of Exception.
    Where a transcript does not show that the necessary order was made and entered of record, showing what disposition was made of a plea in abatement for nonjoinder of necessary parties, and it does not appear, except by bill of exception, that the plea was called to the attention of the court and action taken thereon, the plea cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2296; Dec. Dig. &wkey;>499(2)).]
    4. Usury &wkey;>110 — Recovery of Usury Paid —Necessary Party.
    The joint and several obligors with the defendant on contracts claimed to be usurious are necessary parties to an action to recover the usurious interest paid.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 270, 271; Dec. Dig. &wkey;U0.]
    5. Justices of the Peace &wkey;3l46(l) — Decisions Re viewable — “Final Judgment.”
    A judgment in a justice court in favor of the plaintiff, though it failed to expressly dispose of the defendant’s cross-action or plea in reconvention, is a “final judgment,” which will support an appeal.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 490, 491; Dec. Dig. &wkey;146(l).
    For other definitions, see Words and Phrases, First and Second Series, Final Judgment.]
    6. Pleading <&wkey;214(l) — Demurrer — Admissions by Demurrer.
    • For the purpose of a general demurrer, the allegations of a cross-bill must be taken as true.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525, 529; Dec. Dig. &wkey;214(l).]
    7. Pleading &wkey;>148 — Cross-Bill—Sufficiency.
    In action to recover usury on promissory notes, a cross-bill, alleging that the plaintiff and others had entered into a conspiracy to bring suits against the defendant bank, charging it with dealing unfairly with its customers, and that plaintiff’s counsel was to accept as compensation a part of whatever moneys could be obtained from this defendant, that in pursuance of this conspiracy this suit was brought by plaintiff willfully and maliciously to injure the defendant, and that by the bringing of the suit the defendant has been injured in damages stated was sufficient to show a cause of action in reconvention or cross-action and authorize the admission of evidence to support it.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 301; Dec. Dig. &wkey;>148.]
    8. Appeal and Error <§=^554(1) — Statement of Facts — Affidavit as to Deprivation OF.
    In an action to recover usury charged on notes, an affidavit that a statement of facts had been prepared, signed by attorneys for both parties, as a fair and correct statement, but that the trial judge had refused, either to approve or disapprove of same, stating that he intended to prevent an appeal, was sufficient to warrant the conclusion that appellant and counsel did all possible to procure a statement of facts in accordance with the statute, and that they were deprived of such statement by the arbitrary action of the judge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §S 2472-2474, 2476, 2477; Dec. Dig. ,<i&wkey;554(l).]
    9. Appeal and Error &wkey;>571 — Statement of Facts — Proceedings to Compel — Settlement AND SIGNING.
    Where a trial judge arbitrarily refused to approve a statement of facts made out and agreed to by the parties, or to make and file one himself, the appellant’s remedy is by mandamus to compel the trial judge to discharge his statutory duty, and not to have the judgment against him reversed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2550-2553; Dec. Dig. &wkey;> 571.]
    Appeal from Rains County Court.
    Suit by J. B. Herrell against the First National Bank of Emory. From a judgment of the county court for plaintiff on appeal, and from a judgment of the justice court for plaintiff, defendant appeals.
    Reversed and remanded.
    W. B. Wynne, of Wills Point, and O. H. Bodes aíld W. H. Clendenin, both of Emory, for appellant.
   TALBOT, J.

This suit was instituted in the justice court of precinct No. 1,. Rains county, Tex., by the appellee to recover of the appellant the sum of $53 as usury, alleged to have been charged appellee on three certain promissory notes set out in his pleadings. The appellant answered by a general denial, and by way of a cross-action or plea in reconvention alleged, among other things:

“That it is engaged in the banking business, and the life and interest of its business is dependent largely upon its dealings with the citizenship of Rains county and its honesty and fair dealings with its customers is one of its Chief assets. And defendant charges that for the purpose of destroying this defendant’s business this plaintiff has entered into a conspiracy with a large number of citizens of Rains county to bring suits against this defendant, charging it with dealing unfairly with its customers, and thereby destroying its business and its business interests. And that in pursuance of this conspiracy this suit was filed against it. That W. W. Berzett and J. B. Allred have joined with this plaintiff as coconspirators to bring this suit, W. W. Berzett agreeing to act as counsel, agreeing to accept as compensation a part of whatever moneys could be obtained from this defendant. That this is done solely and purely for the purpose of destroying this defendant’s business and injuring it. And in pursuance of this conspiracy and agreement this suit was brought by this plaintiff willfully and maliciously to injure this defendant, and that by the bringing of this suit this defendant has been injured and damaged in the sum of $125.”

In this pleading appellant asked that W. W. Berzett and J. B. Allred be made parties defendant and served with citation, and that it have judgment against all of the defendants in its said cross-action in the sum of $125. It seems that the justice of the peace refused to have the1 said W. W. Berzett and J. B. Allred served with citation, and the case went to trial on the appellee’s pleading and the appellant’s cross-action as to appel-lee, and the trial resulted in a judgment for the appellee in the sum of $53. From this judgment the appellant appealed to the county court of Rains county, in which court a trial without a jury resulted again in favor of the appellee for the sum of $53, and the appellant perfected an appeal to this court.

There is no appearance in this court on the part of the appellee, and the case was submitted on the brief of appellant.

Numerous assignments ’of error are presented, but we shall not undertake to state and discuss them in detail. The first question for decision is whether or not the county judge erred in not holding himself disqualified to try the case. The record as pointed out by the appellant discloses that before the parties announced ready for trial the appellant, by proper pleadings, suggested to the trial judge, the Hon. J. B. Allred, that he was disqualified to sit and try the case, because appellant had, in its pleadings in the justice court and in the county court, over which said judge was presiding, made him a party defendant to the cross-action filed in the cause, and because of his relationship by marriage to J. K. Woosley, one of the sureties on the appellant’s appeal b'ond filed in the justice court for removing the cause by appeal from that court to the county court, and that thereupon the said judge admitted that he was a second cousin to the said Woosley’s wife, who was then living, but refused to hold himself disqualified to try the case. It is the law of this state that no judge of the district or county court shall sit in any case wherein he may be interested, or where either of the parties thereto may be connected with him by affinity or consanguinity within the third degree. Judge Allred, who presided at the trial of this cause, being related to J. K. Woosley, one of the sureties on the appellant’s bond, against whom judgment might and should have been rendered by reason of his undertaking as such surety for the amount recovered by appellee against appellant, should have recused himself and declined to make any order in the case.

But if he was not disqualified by reason of his relationship to said surety, he had, by appellant’s pleadings, been made a party to the suit, and for that reason he was and should have held himself disqualified to sit in the case. The allegations of the cross-action were sufficient to show a cause of action against Judge Allred, of which he had actual knowledge, and the record fails to disclose that appellant’s purpose in making him a party thereto was to disqualify him from trying the original suit.

The complaint made in the third assignment of error, to the effect that the county court erred in overruling appellant’s plea in abatement or nonjoinder of necessary parties plaintiff, cannot be considered, because it does not appear, except by bill of exception, that said plea was called to the attention of the county court and action taken thereon. If this plea was passed on by the trial court, an order should have been made and entered of record, showing' what disposition was made of it, and a copy of that order should have been sent up in the transcript. 1

We have found no such order, and a bill of exception will not suffice.

We will state, however, in view of the probability of another trial of the ease, that the plea of nonjoinder of parties in question, charged, in substance, that several other parties named were joint and several obli-gors with the appellant on the contracts claimed in this suit to be usurious, and prayed that each of them be made parties thereto. The law upon this subject seems to be well settled. Alston v. Orr, 105 S. W. 234, decided by the Court' of Civil Appeals for the Third District of this state, was an action for the recovery of the penalty given by our statute to any person or persons aggrieved for having been required to pay usurious interest, and the court held that all the makers of a joint and several note are necessary parties to an action to recover the usurious interest paid thereon. The court said:

“The right of recovery of the penalty, being based upon the statute, is in its nature indivisible” ; that in such a “case there is but one cause of action based upon the usurious contract, * * * and the law does not contemplate, * * * the bringing of separate end distinct suits.”

Of course the rule applies to joint and several makers of a note, and not to sureties thereon.

The contention that the county court erred in assuming jurisdiction of the cause because the record fails to show that a final judgment had been rendered in the justice court, in that it does not appear that appellant’s plea in reeonvention or cross-action had been disposed of in that court, is not, under the comparatively recent decisions of the Supreme Court of this state made in Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, well founded. Following that decision of the Supreme Court, this court, in Parker v. Emerson, 176 S. W. 146, held that a judgment in the justice court in favor of the plaintiff, though it failed to expressly dispose of the defendant’s cross-action or plea in reconvention, was a final one which would support an appeal.

The record shows that the county judge sustained a general demurrer urged by the appellee to appellant’s plea in reconvention or cross-action, which has been set out in the former part of this opinion, and that ruling of the court is assigned as error. We are of the opinion that the assignment should be sustained. The allegations of appellant’s cross-bill for the purposes of the general demurrer must be taken as true, and, while not as full and specific as they should have been, were sufficient to show a cause of action and authorize the admission of evidence in support thereof.

It is made to appear by the affidavit of W. H. Clendenin, one of the appellant’s attorneys, that it has been deprived of a statement of facts, and appellant insists, under an appropriate assignment of error, that the case should be reversed and remanded for this reason, if for no other. The affidavit of the attorney referred to appears to have been made and filed in the county court of Rains county on the 24th day of November, 1915. It recites that a statement of the facts in the case was prepared in the affiant’s presence, and agreed to and signed by both the attorneys for the appellant and appellee as a fair, true, and correct statement of all the facts proved on the trial of the case; that said agreed statement so signed was presented by the affiant to J. B. Allred, county judge of Rains county, Tex., before whom the cause was tried, on three several days and dates, to wit, October 23, 1915, November 20, 1915, and November 23, 1915, with requests on each occasion that he approve same or prepare and file himself a statement of facts in the case within the time required by law, and that each time such request was made the said county judge refused either to approve or to disapprove the said agreed statement of facts, and refused to prepare and file a statement of facts himself. The affidavit further declares that the county judge did not claim that the agreed statement of facts was not fair, true, and correct, but that on the 23d day of November, 1915, the last time it was presented, he made the following statement:

“You have no right to appeal this ease, and it is my business to see that you don’t appeal it, and I will not do another thing in this case.”

This affidavit is sufficient to warrant the conclusion that appellant and his counsel did all they could in the way pointed out by the statute to procure a statement of facts material to appellant’s appeal, and that it was deprived of such statement by the arbitrary action of the judge who tried the case. In Joachim v. Hamilton, 186 S. W. 251, the opinion is expressed that it is well settled that where an appellant has been deprived of a statement of facts material to his appeal, without fault or negligence of himself or counsel, he is entitled to a reversal of the judgment from which he has appealed. But, according to decisions of the Supreme Court of this state, it seems that no matter how faultless an appellant’s efforts may have been to secure a statement of facts in the manner prescribed by the statute, and no matter how arbitrary and unwarranted the trial judge may have been in refusing to approve a statement of facts made out and agreed to by the parties or to make and file one himself, the appellant is not entitled on appeal to have the judgment against him reversed, because his remedy was by mandamus to compel the trial judge to discharge his statutory duty in this regard. Reagan v. Copeland, 78 Tex. 551, 14 S. W. 1031; Railway Co. v. Lane, 79 Tex. 643, 15 S. W. 477, 16 S. W. 18; Osborne v. Prather, 83 Tex. 208, 18 S. W. 613. In the cases cited the court holds that in the exercise of proper diligence it is incumbent upon the parties aggrieved by the failure or refusal of the trial judge to approve or prepare and file a statement of facts to apply for a writ of mandamus to compel him to do so. In Railway Co. v. Lane, supra, the court said that:

“Since the passage of the statute which permits a statement of facts under * * * circumstances to be filed after the elapse of ten days from the adjournment of the coui’t, no reason exists why a party who has used diligence to procure a statement of facts may not, by mandamus, compel the trial judge to prepare and file one when he has failed to do so.”

There are other questions raised, but they have been disposed of by what we have already said, or cannot be considered in the absence of a statement of facts, or do not disclose reversible error.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & P. RY. CO. v. LUCAS.
    (No. 7674.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1916.)
    1. Sales <&wkey;52(5) — Purchase oe Goods — Contract— Agency — Evidence — Suefi- ' CIENCY.
    In an action against a railroad to recover for groceries and supplies furnished by the plaintiff to the defendant’s section hands and laborers pursuant to an alleged agreement with defendant’s foreman that defendant would be responsible for the amount of bills incurred by said laborers, evidence held insufficient to show either an express or implied contract on the part of defendant to pay for the goods or to show that any agent of the defendant acting within the scope, or within the apparent scope of his authority who bought the goods or authorized their sale and delivery to support a judgment for the plaintiff.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 136, 137, 139; Dec. Dig. &wkey;52(5).]
    2. Sales <&wkey;52(2) — Purchase oe Goods — Evidence — Burden oe Prooe.
    In an action against a railroad to recover for groceries furnished defendant’s section hands and laborers pursuant to an alleged agreement with defendant’s section foreman that defendant would be responsible for the goods, the burden •of proof was upon the plaintiff to show his right to recover.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 124, 125, 127, 128; Dec. Dig. &wkey;52(2).]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit by H. J. Lucas against the Texas & Pacific Railway Company. From a judgment of the county court for plaintiff on appeal and from a judgment of the justice court for plaintiff, defendant appeals.
    Reversed and rendered.
    George Thompson, Flippen, Gresham & Freeman and Walter G. Miller, all of Dallas, for appellant. C. M. Means and W. M. Pier-son, both of Dallas, and L. P. Pierson, of Winnsboro, for appellee.
   TALBOT, J.

This suit was instituted in the justice court of Dallas county, Tex., by the appellee, H. J. Lucas, by petition filed on August 30, 1913, to recover of the appellant the sum of $185.20, which appellee alleged was for groceries and supplies furnished by the appellee, Lucas, to section hands and laborers working on the railway company’s tracks and right of way during the months of January, February, and March, 1913. Ap-pellee, Lucas, alleges that T. C. Archer, the section foreman of the railway company, contracted and agreed with appellee that the appellant railway company would pay appel-lee and hold him whole and harmless for the amount of bills incurred by said laborers, not to exceed 75 cents a day for each laborer; that said goods sued for were sold on the faith and credit of defendant; that said persons were and are transient and mostly Mexicans; and that it was very necessary to defendant’s business that said employes, or similar employés, be retained in its service, they being trackworkers, “transient, shiftless,” and without funds to. pay their usual and necessary living expenses. The railway company plead a general demurrer, a general denial, and specially denied the authority of the section foreman, Archer, to purchase groceries or supplies from the plaintiff Lucas and charge same to appellant, alleging that, if Archer made representations to the plaintiff that the defendant railway company would pay for merchandise and supplies purchased from appellee, in so doing he was not acting within the scope or apparent scope of his authority; further, that it had no notice of such representations or transactions between Archer and the appellee. Upon trial in the justice court judgment was rendered against appellant for amount sued for, and the defendant railway company perfected an appeal to the county court of Dallas county at law, Dallas county,' Tex. Upon trial in the county court of Dallas county, at law, the case was submitted to the jury upon special issues, and on the findings of the jury in that court judgment was rendered in favor of appellee against appellant for the sum of ^$207.42, which included interest, from which judgment this appeal is prosecuted.

The first assignment of error complains of the trial court’s refusal to give a special charge requested by appellant, directing the jury to return a verdict in its favor, appellant’s contention being that the evidence adduced was insufficient to show that it was liable in any manner for the claim sued on; that if the evidence shows that appellant’s section foreman, Archer, contracted and agreed with the appellee, Lucas, that appellant would pay him for goods sold and delivered to its section hands, it fails to show that Archer in making such contract was acting within the scope, or apparent scope, of his authority as appellant’s agent. This is the controlling question arising on the appeal, and the strongest testimony found in the record in support of the ruling here complained of is that of the appellee himself, which can be better understood by setting it out practically in full. Appellee testified;

“I am the plaintiff in this suit, and am suing the Texas & Pacific Railway Company for $185.-20, same being for supplies which were furnished by me during the months of January, February, and March, 1913, while I was engaged in the grocery business at Grand Prairie. I know T. O. Archer, who was section foreman at that time for the T. & P. Railway Company. He had men working for him who were mostly ne-groes and Mexicans, who were mostly classed as transient people. I did not credit Mr. Archer or the Mexicans working under him individually, but I credited the Texas & Pacific Railway Company. These people were working for the Texas & Pacific Railway Company. These supplies consisted of eatables — different kinds of groceries. I have an itemized statement of these supplies which were sold and delivered by me, and same is true and correct. I did not keep any books; I just had the McCasky system. This system is where you take an order and it makes a duplicate form, and you give the customer a duplicate and keep the original yourself and bring the amount forward, and you keep all the tickets with the amount forwarded, and your last bill always shows the whole grand total. The statements which I have here are the originals. These originals represent the accounts, and I have not received payment for any of this $185.20 for which I am suing, and which amount is still due and unpaid. There áre not any lawful offsets to it or payments or credits. These tickets showing the items of supplies furnished and the cost of same are made out to Archer or headed to Archer, by such and such an individual, and that is turned into Archer each pay day. These slips are made out to Archer as a matter of form. Sometimes I just keep it under the name of each individual Mexican or laborer. X have been out at Grand Prairie about eight years. I was raised near there. I had been there about five years at the time this account arose, and during all of such time I was engaged in business at Grand Prairie. During such time I knew that the Texas & Pacific Kailway Company had its general offices in Dallas. I also knew that it had a paymaster. I saw the pay car come to Grand Prairie each month. I also then knew that Mr. Archer, the section foreman, was working under a higher officer. I then knew that there was a roadmas-ter over each division and who were over the section foreman. I never spoke to Mr. Everman, the general superintendent of the Texas & Pacific at Dallas, as to whether or not the Texas & Pacific would pay for these groceries. I never had any conversation about it with anybody except Archer or some other section foreman who was there. Just the section foremen are the only ones I had anything to do with. All of these tickets are made out to Archer with the date, showing the Mexican or particular laborer who got the merchandise, with the amount brought forward on each ticket. None of the tickets are made out to the Texas & Pacific Kailway Company. I never did make out and mail to the officers of the Texas & Pacific any bill or ticket for any of these supplies or for any other supplies at any time. I merely gave the tickets to the section foreman and he paid me. The section foreman always paid me, with the exception of this time, and the amount for which I am now suing. The section foreman always called upon the 1st of the month, I think it was, and I give him all the claims I had. They gave me the privilege of extending 75 cents a day credit, and no more. I took the precaution not to go over that. On the 1st they called for these bills, and I suppose they turned them in with the board bills, but I don’t know. These bills are for January, February, and March, 1913, and are for groceries furnished Mexicans during those months. On February 1st Archer, the section foreman, I think, paid part of the amount due for January. I think he gave me $59 at that time. I don’t remember how much balance that left due for January. Archer at that time claimed that the full amount of the board bill had not been allowed at the general office. He did not pay on March 1st the balance due for January and for the month of February ; he running away some, time in March, I believe. There were two months that he failed to pay up like he had before. When he fell behind and failed to pay I did not write or say anything to the paymaster or write to the Texas & Pacific at Dallas. I trusted the section foreman and believed what he said, and thought he would come up all right. In a way I accepted what he said, hut I investigated it the best I could through our ticket agent, Mr. G. M. Doyle. Anyhow, all the information I had was what the section foreman gave me and those whom I had dealings with. I turned the statements over to them and they paid me the amount of the bills. _ There was no section house at Grand Prairie. At that time the Texas & Pacific had built a siding and put some box cars out there and had some tents, and these Mexicans slept and cooked there, and I think one of the section foremen lived at Eagle Ford for .a long time. That section foreman’s name was Columbus Moore. They did not get all their groceries from me all the time, but quite frequently they did. I have been a resident of Grand Prairie about eight years, and during such time the Texas & Pacific section foreman did not trade with me regularly all the time. Maybe they trade six or eight months during the year with me, and then switch off, and then they get some things from the general supply house the company has. I suppose they have dealt with me in this manner during at least half of the time, or more than half the time. During all of that time I never turned in any bill to any official of the railroad at Dallas, nor to the roadmaster. I always turned in my bills to the section foreman. The section foreman told me that my bills were turned in to the general office as board bills of the Texas & Pacific which he collected and paid me. This must have gone on something over four years. I never received any notice from the Texas & Pacific or any of its agents or employes that they objected to this course of dealing. I never communicated with any of the officers or employés about it, except the section foreman. Some of these Mexicans or laborers who were working under Archer when he skipped out, and who should have been paid by Archer, but were not, were later paid by the company. These supplies were furnished for the Texas & Pacific. These men who got the supplies were working for the Texas & Pacific. I knew the Texas & Pacific agent at Grand Prairie. He knew of my course of dealing with the section foremen with reference to furnishing supplies. He never raised any objection to it. I never heard of any objections being raised in the course of my dealings until this particular case came up. I understood that Archer went off with a lot of money on the pay roll. I did not know anything about Archer’s, the section foreman’s, dealings with the head office. I did not know that on the first of March the Texas & Pacific paid Archer $265 for board alone. I did not know that for the month of January the Texas & Pacific paid Mr. Archer something like $150 or more for board for men working under him. I did not know what Archer got. During such time I knew that the Texas & Pacific had a supply house at Marshall, but I don’t know about Ft. Worth. I have heard the laborers or the section foreman working for the Texas & Pacific say that the Texas & Pacific had a supply house where they could present orders and get groceries. During such, time I knew that they sometimes got supplies from Marshall. The railway company worked these men on the section that I furnished these groceries to. I did not know of any secret limitation on the authority of the section foreman to purchase these groceries for the Texas & Pacific. X did not inquire of any of the Texas & Pacific officials as to whether or not there were any restrictions upon Archer’s authority. The Texas & Pacific Railway Company did not make any objections to me as to my course of dealing with Archer, or with any of the other section foremen with whom I had had dealings. I never had any instructions or communication or any advice or any objections from any of the Texas & Pacific officials.”

The practically undisputed testimony offered by the appellant is to the effect that during the months the goods Involved in this suit were purchased from appellee upon the alleged contract made witli the section foreman Archer, and for a long time prior thereto appellant had supply houses located in each division of its road and an agreement with them to furnish service supplies to its section foremen, and from which houses such supplies could be obtained by its section foremen, both for themselves and the section men working under them; that appellant had an arrangement with its section foremen, including the said T. O. Archer, whereby they could board section men and get board deduction orders from them, properly signed, and send them in with his time book, and the amounts, if correct, would be deducted on the pay rolls from the time of the men, in the foreman’s favor, but that neither Section Foreman Archer, nor any other section foreman working for it, had ever been permitted at any time to buy goods of any character from appellee or any other merchant of Grand Prairie to be charged to or paid for by the appellant; that Foreman Archer worked in H. M. Levinson’s division and under his control and subject to his orders and instructions, and that Levinson did not give Archer authority to contract bills for himself or for any of his laborers with the appellee at Grand Prairie or anywhere else; that Levinson never gave Section Foreman Archer, or any other section foreman working for appellant prior to him at Grand Prairie, authority to buy supplies for himself, or laborers under Mm, to be paid for by .the appellant, and that he (Levinson) never made any contract with the appellee, Lucas, or any other merchant at Grand Prairie, to pay for goods and merchandise supplied Archer or laborers working under him, and that he did not know of any one else who had for the appellant done so; that Foreman Archer had the privilege of boarding the laborers working under him, but that no statements or bills for goods, groceries, or supplies furnished Archer or Ms laborers were received by the appellant.

Obviously this testimony is insufficient to support the judgment of the lower court. It fails to show either an express or implied contract on the part of appellant to pay for the goods sued for by the appellee. It fails to show that any agent of the appellant acting within the scope or apparent scope of his authority bought the goods or authorized the sale and delivery of them to the parties to whom appellee claims they were sold and delivered. Its lack of sufficient probative force to show liability on the part of appellant for the payment of the amount charged therefor is apparent. The phrase “any evidence” does not mean the slightest scintilla of evidence, but such as from which a jury might reasonably infer the existence of the alleged fact. In Hyatt v. Johnston, 91 Pa. 200, cited with approval in Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, it is said:

“Since the scintilla doctrine has been exploded, both in England and in this country, the preliminary question of law for the court is not whether there is literally no evidence, or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted; if not, it should be withdrawn from the jury.”

The burden of proof was upon the appellee to show his right to recover, and since, in our opinion, there was no evidence adduced from which the jury could properly conclude that this burden had been discharged, we hold the peremptory instruction asked by the appellant should have been given.

From this it follows that judgment should have been rendered in the court below in favor of the appellant, and that it becomes our duty under the statute to render such judgment in this court.

It is therefore ordered that the judgment of the court below be reversed, and that judgment be here rendered in favor of the appellant.
      i@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J. HARPER, O. J.

text:
    HOEFS et al. v. SHORT.
    (No. 625.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1916.
    Rehearing Denied Jan. 5, 1917.)
    1. Waters and Water Courses <&wkey;115 — Surface Water.
    A creek flowing through a well-defined channel and well-defined banks and bed fed by rains falling within its watershed outside of the defendants’ land, and through which water flows only after a rainfall, was not diffused surface water flowing across defendants’ land which could be regarded as their absolute property.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 126; Dec. Dig. &wkey;> 115.]
    2. Waters and Water Courses <&wkey;38 — Natural Water Courses — Riparian Rights.
    A creek flowing through a well-defined channel and well-defined banks and bed fed by rains falling within its watershed outside of the defendants’ land, and through which water flows only after a rain fall, is not water flowing in a water course to which riparian rights attach or of which an appropriation under the doctrine of riparian rights could be made.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 30; Dec. Dig. <&wkey;> 38.]
    3. Waters and Water Courses <&wkey;130 — Appropriation op Rights — Title to Waters —Water Rights in Lands op .State.
    Title to water in a creek flowing through a well-defined channel and well-defined banks and bed, fed by rains falling within its watershed outside of the defendants’ land, and through which water flows only after a rainfall, not having been legally appropriated, and not being subject to appropriation under the doctrine of riparian rights, remains in the state and the water is subject to appropriation under Acts 33d Leg. c. 171, § 1.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 145; Dec. Dig. <&wkey;> 130.]
    4. Waters and Water Courses &wkey;>152(ll) — Surface Waters — Appropriation.
    A decree enjoining the defendants from placing or maintaining any obstruction across a well-defined channel in which surface water flows, which would divert from the creek water in excess of amount named and to permit water in excess of that amount to flow down to the dam of the plaintiff did not require the defendants to maintain works to deliver water to the plaintiff and the enforcement of the plaintiff’s right to its continued flow does not constitute the imposition of a new right of way or easement upon the lands of the defendants.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 156; Dec. Dig. &wkey;152(ll).]
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Suit by J. C. Short against Otto Hoefs and others. From the judgment, the defendants appeal.
    Affirmed.
    See, also, 178 S. W. 11.
    Clay Cooke, of Pecos, for appellants. iRoss & Hubbard, of Pecos, for appellee.
   HIGGINS, J.

This suit was brought by Short against appellants, Otto, Rudolph, Edwin, and Arthur Hoefs. The material allegations of plaintiff’s petition are substantially as follows: That he is the owner of section 58 in block 13, Houston & Great Northern Railway Company survey, which is crossed by an intermittently flowing stream called Barilla creek, situated in the arid or semiarid region of the state, where irrigation is required to grow ‘crops; that said creek is fed by rains falling within its watershed, which lies south of his land; that the creek flows in a well-defined channel, with well-defined banks and bed, to a point below and north of his land; that for many years there had been maintained a dam across the creek, known as the “U” dam, about two miles south of his land; that the residue of the water diverted by the dam for many years after its use for stock watering and irrigation has been permitted to flow back into the channel of the creek and has flowed to and across plaintiff’s land; that the water so obstructed by the “U” dam and which flowed around the ends thereof and returned to the channel, in times of flood, aggregated much more than 100 cubic feet per second of time, and was ample to afford plaintiff the water to which he was entitled as well as to satisfy any superior legal rights which the defendants might have; that a permit had been legally issued by the board of water engineers to plaintiff permitting him to appropriate and divert 10 cubic feet of water per second for 24 days of 24 hours each annually from the flood or storm waters of the creek by means of a diversion dam located on his section for the purpose of irrigation; that plaintiff had begun and completed construction of his dam within the time required by law; that defendants own a section of land lying between plaintiff’s land and the “U” dam, and are threatening to construct a dam on their land, together with a canal leading therefrom, which will result in diverting all the flood waters of the creek away from -the channel of the creek and onto defendants’ lands remote from the creek.

An injunction was asked restraining defendants from placing any dam or obstruction in the channel of the creek or any canal or ditch as an adjunct thereto in such manner as that same would divert and withhold from the plaintiff The water to which he was entitled toy virtue of his appropriation.

Defendants pleaded that when they and their predecessors in titjl'e acquired their lands (describing same) the draw or depression known as Barilla draw did not exist thereon; that they were flat, or only slightly depressed, and they acquired their lands and the state parted with title thereto long before the draw washed out and before the Legislature attempted to reserve title to any waters flowing thereon, and there was no title in the state to any portion of said lands when plaintiff applied for his permit, and no title in the state to any waters flowing across said lands, and no easement or right of way therein by which plaintiff or the state could require defendants to run said waters across their lands, but the title was in defendants free and clear of any claim, reservation, easement, right of way, or any other right in the state; that the lands were owned in fee simple, and neither the state, the Legislature, nor the board of water engineers had the right to limit defendants in the enjoyment thereof, including the right to use the rainwaters falling upon and flowing across same; that the “U” dam was constructed in 1899 by the Wilson-Popham Cattle Company, and since that date all rainwaters reaching the depression had been held up and diverted; that all of said waters were actually appropriated and applied to beneficial uses by the said cattle company, and defendants long prior to the time plaintiff acquired his land from the state; that section 323, upon which is located the diversion dam complained of, was patented in 1874, and all of defendants’ lands were patented and acquired by them long prior to the passage of any legislative act attempting to reserve or hold any rainwaters or other flowing waters, and as to such lands no such reservation had ever beeh or could be made; that at said times and long prior to the time alleged by plaintiff there was no draw or depression across defendants’ lands, but ‘all of the waters in the creek were held up, appropriated, and applied to beneficial uses at the “U” dam; that defendants have acquired from the Wilson-Popham Cattle Company a right to the use of the waters diverted at the “U” dam; that on January 24, 1914, defendants Otto Hoefs and said cattle company, toeing the joint owners of said diversion dam, filed their statement and plat in accordance with the act relating to the appropriation of waters proposing to appropriate. at said point 100 cubic feet of water per second of time; that Barilla draw is without water most of the year, and has no water flowing therein, except from rainfall, and none of the rainfall collects or is collected below the “U” dam. Defendants further (deny that the plaintiff had procured any appropriation according to law, and deny that there were any unappropriated waters subject to appropriation, and that plaintiff has no right of way across defendants’ lands tp carry water.

The cause came on for trial, and judgment was entered as follows:

“That the defendants, Otto Hoefs, Rudolph Hoefs, Edwin Hoefs, and Arthur Hoefs, be, and they hereby are, perpetually enjoined from placing or maintaining any dam or obstruction in or across the channel of Barilla creek or draw, or any canal, levee, or ditch as an adjunct thereto or leading therefrom in manner or form as that such obstruction, dam, canal, levee, or ditch will divert from or away from said Barilla creek in excess of 100 cubic feet of water per second of time, unless and until such obstruction dam, canal, levee, or ditch be so constructed and maintained as that the same will permit to flow unimpeded in and into the channel of said Ba-rilla creek and down to the dam of plaintiff, J. 0. Short, such excess of water over and above said 100 cubic feet per second (if any) as may be flowing in said channel, or would flow into and therein if not obstructed or impeded by defendants, up to 40 cubic feet of water per second of time for 24 days of 24 hours each, annually, and not to exceed 1,920 acre-feet of water per annum.”

From this judgment the defendants prosecute this appeal.

The facts material to a consideration of the questions presented by this appeal are as follows:

Barilla creek or draw rises in the Davis Mountains many miles south of the land described in the pleadings, and extends in a northerly direction. The area drained by the creek south of the “U” dam is about 350 square miles, or 225,000 acres. It only has water in it when it rains; all the water flowing therein being rainfall. After a big rain, it will run a day or two. A light rain runs immediately off. It usually runs from one to twenty-two times annually, on an average about five or six times. There is testimony that the creek had a well-defined channel extending 50 or 60 miles above (south) the “U” dam and a well-defined channel below such dam to and through plaintiff’s land. The channel at sections 323 and 58 is 40 to 75 feet wide at the present time and 5 to 10 feet deep. There is testimony that in 1885 or thereabouts there was not a very well-defined channel at plaintiff’s land; that there was very little channel, if any, then across defendant’s section 323, but the same stopped at the Old Ft. Stockton road, below the “U” darn, and the water then spread out over the country. It has since washed out 75 to 100 feet wide. In 1887 what is now the draw below the Stockton road (above the Hoefs’ dam) was covered with soil and grass, with the exception of an occasional small hole or washout. There was then no continuous defined channel there. The waters1 then would spread out over the country at least one-half mile in time of freshet. Section 323, belonging to defendants, was crossed by the draw; likewise section 5S, belonging to plaintiff.' Defendants constructed a diversion dam upon section 323. This is the dam complained of, and is situate some distance below (north) the “U” dam. Plaintiff’s dam was upon section 58. Plaintiff acquired section 58 in 1911, and has some of it in cultivation. On June 10, 1914, the board of water engineers issued to him a permit to annually appropriate 40 cubic feet per second for 24 days of 24 hours to be diverted from said creek at the diversion dam on section 58. Defendant Otto Hoefs owned section 323, upon which he and his codefendant had • constructed the dam complained of. Said section 323 was patented in 1874, and title by mesne conveyances passed to the defendants. The “U” dam was about a mile south of the defendants’ dam on section 323. The “U” dam was constructed in 1899 by the Wilson-Popham Cattle Company, and had been diverting water since its construction. On January 24, 1914, Otto Hoefs and said cattle company filed in the county clerk’s office a sworn statement of water appropriation from the draw at the “U” dam, proposing to appropriate at said point 100 cubic feet of water per second of time, and filed certified copy thereof in the office of the board of water engineers.

Plaintiff finished his dam in October, 1914, and the defendants built the dam complained of in February, 1915. Both dams washed out, and the plaintiff had commenced rebuilding his, and defendants were intending to rebuild theirs, which, being higher up on the draw, will prevent the water flowing to plaintiff’s dam. When the water comes down the draw it covers a space sometimes as wide as 300 yards, depending on the size of the rains, spreading out over the lands.

It is feasible for Hoefs to construct and equip his dam so as to divert the 100 cubic feet of water as per his appropriation, and permit the excess, if there should be any, to flow on down to plaintiff’s dam. The lands of the parties are in the arid or semiarid region of the state, and require irrigation to grow crops. Plaintiff has not acquired, by purchase or condemnation, any right of way or easement, to carry his 40 cubic feet of water across defendant’s lands.

Appellants, in support of their assignments, complaining of the decree entered by the court, present three propositions of law, as follows:

“First. The act of the Legislature permitting the appropriation of waters belonging to the state of Texas, under which plaintiff claims the right to the injunction, by its express terms only permits the,appropriation of the ‘ordinary flow and underflow and tides of every flowing river or natural stream, of all lakes, bays or arms of the Gulf of Mexico, collections of still water, and of the storm, flood or rainwaters of every river or natural stream, canyon, ravine, depression, _ or watershed, within the state of Texas, the title to which has not already passed from the state,’ and, it appearing that the lands of defendants across which said rainwaters flow passed from the state of Texas in 1874 long prior to any attempted reservation of said waters, the right to said rainwaters was vested in defendants absolutely, and said act has no application thereto, nor could same be appropriated in the manner sought, it being incumbent on plaintiff to show that the title to said depression and the watershed thereof was in the state of Texas at the time of the passage of said act.
“Second. It appearing that the dam of defendants is constructed upon their own land, patented by the state of Texas in 1874, prior to the passage of the act of the Legislature attempting to reserve flood or storm waters in the state of Texas, and that said dam is not across any flowing stream to which riparian rights attach, the sole claim of plaintiff being based upon his permit granted by the board of water engineers to take 40 cubic feet of water per second from said draw at his dam under the provisions of said act of the Legislature, the defendants cannot be compelled to maintain works upon their land for the delivery of said water to the plaintiff, nor to grant plaintiff an easement or right of way across their land for the conduct of said water to his dam, nor abridged in their use of their own premises, as same would be the taking of private property for private use without compensation or the consent of the owner.
“Third. The proof showing conclusively that long prior to the passage of the act of the Legislature permitting the appropriation of public waters the title to the land of defendants had passed from the state of Texas, said act and the acts of plaintiff and the board of water engineers thereunder can have no application to said land, nor abridge the use and enjoyment thereof by defendants to the same extent as they might have used and enjoyed same prior to the passage of said act.”

The appellee claims the right to an injunction in protection of his water appropriation made under the provisions of chapter 171, Laws Thirty-Third Legislature (Reg. Sess.), the first section of which reads:

“The unappropriated waters of the ordinary flow and underflow and tides of every flowing river or natural stream, of all lakes, bays or arms of the Gulf of Mexico, collections of still water, and of the storm, flood or rainwaters of every river or natural stream, canyon, ravine, depression or watershed, within the state of Texas, the title to which has not already passed from the state, are hereby declared to be the property of the state, and the right to the use thereof may be acquired by appropriation in the manner and for the uses and purposes hereinafter provided.”

See article 4991, Vernon’s Sayles’ Civil Statutes 1914. This act by its terms relates to unappropriated waters, the title to which has not already passed from the state. It does not refer to -the lands upon which such' rivers, streams, canyons, ravines, depressions, and watersheds are situate.

No question is raised as to the manner and form of appellee’s appropriation and that it was for, and is being applied to, a purpose provided by law, namely, irrigation. So it must be determined whether the water flowing in Barilla creek is to be considered as water the title to which had not passed from the state, so that it might be lawfully appropriated, and the right to its use acquired, by plaintiff. Appellants’ first proposition rests upon the premise that the title to his-lands passed from the state in 1874, which was long prior to any attempted reservation of the waters in Barilla creek flowing across the same, and thereby he became vested absolutely with the right and title to such waters as appurtenant to his lands, and that the appropriation act could have no application, and such waters could not be appropriated unless the state had title to Barilla creek and its watershed at the time of the passage of the act. We have found no authority in support of such a contention, and appellants have cited none. They refer to McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587, 22 S. W. 898, Barnett v. Matagorda, etc., 98 Tex. 855, 83 S. W. 801, 107 Am. St. Rep. 636, and Batla v. Goodell, 58 Tex. Civ. App. 178, 115 S. W. 622, but their pertinency is not apparent.

In McGhee, etc. v. Hudson, the court had under consideration the act authorizing the condemnation of land for irrigation purposes. The irrigation company was seeking to condemn so much land as was necessary for the construction of a dam across the Concho river and the opening of a ditch. The Con-cho river is a flowing stream to which riparian rights had attached, and it was held that section 2 of the, act could not operate, and probably was not intended to operate, on the rights of riparian owners existing when the law was passed, but was intended ter operate only on such interests as were in the state by reason of its ownership of lands bordering on rivers or natural streams; that land included everything attached to it, as trees, herbage, and water, and plaintiffs were entitled to have the water flow through their land in its accustomed channel, and to use it for all purposes for which a riparian owner may use water so flowing; that, if the irrigation company undertook to divert such water, they, in effect, took land, and could not do so without making compensation to the riparian owner for the water of which he was deprived by such diversion. In that case, however, the question of riparian rights upon a flowing stream was involved, which is not the case here. Appellants make no such claim, and in their second proposition affirm that their dam was not across any flowing stream to which riparian rights attached.

The other cases cited by appellants simply relate to questions of drainage rights arising out of the obstruction of the flow of surface waters. Under the common-law rule adopted in this state, such waters are regarded as a common enemy which the lower landowner may keep from coming from upper lands, and which either owner can get rid of as best he can, provided there is no artificial accumulation thereof discharged upon another’s land. Those cases relate to drainage questions rather than of title to such waters. Appellants insist that the waters attempted to be appropriated are mere surface waters flowing across their lands during times of rainfall, and their rights with respect thereto must be governed by the rules of law prior to the passage of the appropriation act, and such water is not subject to appropriation. It is stated by Mr. Weil in his work on Water Rights in the Western States (3d Ed. § 349) that diffused surface water cannot be appropriated against the landowner on whose land it lies; that its presence and movements are too capricious to found any right upon distinct from the land where it is gathered, and such water is owned by the owner of the land where it happens to lie. Mr. Weil in the section noted says further:

“The English cases have gone into this quite thoroughly. In Rawstrom v. Taylor it was held that, in the case of common surface water flowing in no definite channel, the landowner was entitled to get rid of it in any way he pleased, although he cut it off from plaintiff’s mill which it had supplied. In Broadbent v. Ramsbotham it was decided that a landowner has a right to impound surface water which flows over his land in no definite channel, although the water is thereby prevented from reaching a brook the stream of which had for more than 50 years worked the plaintiff’s mill. Baron Alderson, in delivering the judgment of the court in that case, says: ‘No doubt, all the water falling from heaven, and shed upon the surface of a hill, at the foot of which a brook runs, must, by the natural, force of gravity, find its way to the bottom, and so into the brook; but this does not prevent the owner of the land on which this water falls from dealing with it as he may please, and appropriating it. He cannot, it is true, do so if the water has arrived at and is flowing in some natural channel already formed. But he has a perfect right to appropriate it before it arrives at such channel.’
“All the many cases already cited considering whether there was or was not a water course held that, if there was not a water course, but only diffused surface water, neither the law of riparian rights nor the law of permanent rights by priority of appropriation applies.”

Mr. Kinney (2 Kinney on Irrigation & Water Rights [2d Ed.] § 654) announces the same rule, quoting _ with approval King v. Chamberlin, 20 Idaho, 504, 118 Pac. 1099. In that case King had collected and impounded on his own land surface water which was not flowing in a well-defined channel. Chamberlin sought to appropriate the water under the water appropriation statutes of that state. It was held that:

“If a man collect and impound surface and flood waters from his own land before they reach any natural stream or channel and holds the same on his land and premises, the fact that he may not use it for irrigation or any other commercial purpose does not render it any less his property or authorize any one else to invade his property or appropriate and divert the same. A permit from the state engineer cannot give any sanction to such a procedure. The state engineer has no right to grant permits to one man to use another man’s property.”

In that case it will be noted that the landowner’s absolute right to surface water flowing across his land was conditioned upon it being impounded before it reached a natural stream or channel. Diffused surface waters have been thus defined:

“Surface waters are waters of a casual and vagrant character, which ooze through the soil or diffuse or squander themselves over the surface, following no definite course. They are waters which, though customarily and naturally flowing in a known direction and course, have nevertheless no banks or channel in the soil, and include waters which are diffused over the surface of the ground, and are derived from rains and melting snows, occasional outbursts of water which in time of freshet or melting of snows descend from the mountains and inundate the country; and the moisture of wet, spongy, springy, or boggy ground.” 24 Am. & Eng. Ency. Law (1 Ed.) 896.

40 Cye. 639, defines surface waters to be:

“Such as diffuse themselves over the surface of the ground, following no defined course or channel, and not gathering into or forming any more definite body of water than a mere bog or marsh.”

See, also, 3 Earnham on Waters, § 978.

Barilla creek has all of the essential characteristics of a water course to which riparian rights would attach, except a permanent source of water supply. It has a channel, consisting of a bed and banks, but it is held without dissent that these characteristics alone will not constitute a water course in its legal sense to which riparian rights attach ; that in addition there must be running water, which has a definite source of supply, and is permanent in the sense that similar conditions will always produce a flow of water and that these conditions recur with some degree of regularity, so that they establish and maintain for considerable periods of time a running stream; that ravines, gullies, canyons, sloughs, and swales through which mere surface water from rain or melting snow, at irregular periods, is discharged from a higher to a lower level, and which at other times are destitute of water, are not water courses in a legal sense to which riparian rights will attach. 1 Kinney on Irrigation & Water Rights (2d Ed.) §§ 301 to 315; Farnham on Waters, §§ 455, 455a, 457, and 459; 40 Oyo. 556; 30 Am. & Eng. Ency. Law (2d Ed.) 325; Hoyt v. Hudson, 27 Wis. 656, 9 Am. Rep. 473; Parke County v. Wagner, 138 Ind. 609, 38 N. E. 171; Sanguinetti v. Pock, 136 Cal. 466, 69 Pac. 98, 89 Am. St. Rep. 169; Los Angeles, etc., v. Los Angeles, 103 Cal. 461, 37 Pac. 375; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519.

So it is apparent that the water which flows in Barilla creek is not mere diffused surface water as above defined and which may not be subject to appropriation. And, for reasons indicated, it is not water flowing in a water course to which riparian rights attach. But it is surface water which has collected from a very large area and is flowing in a well-defined channel, with a bank and bed. We see no reason why such water cannot be appropriated under our appropriation statute.

Mr. Weil says that diffused surface water cannot be appropriated against the owner of the land on which it lies because its presence and movements are too capricious to found any right upon distinct from the land where it is gathered. But this objection does not apply to surface water which flows in a canyon, ravine, or depression, with a well-defined channel, and flows with sufficient regularity during the growing season to be of value for irrigation of agricultural products, as is the case with Barilla creek. We therefore hold that such water is subject to appropriation under the first section of chapter 171, Acts 33d Leg. (Reg. Sess.) if the title thereto has not heretofore passed from the state by appropriation or otherwise.

Of course, the title to this water was originally vested in the state. The title thereto has not passed to riparian owners of land upon the creek under the doctrine of riparian rights, because it is not a water course to which such rights would attach. No such contention is made.

There is no contention made that title has passed from the state by virtue of any prior appropriation, except the prior appropriation of 100 cubic feet of water per second of time claimed by Otto Hoefs and the Wilson-Popham Cattle Company by virtue of their statement filed January 24, 1914, and the decree protects this appropriation and subordinates appellees’ appropriation to the same.

In the absence of a divestiture of its title under the doctrine of riparian rights or by virtue of legal appropriations, there is no reason why the water in Barilla creek should not be regarded as water “the title to which has not already passed from the state,” and it is so held.

There is no reason why the water which falls upon the vast area of land in the watershed of the creek south of appellants’ land should be in any wise regarded as belonging to appellants or in any wise appurtenant to their land so as to be considered as a part thereof. It does not fall upon their land, and assuredly appellants have no better title to such water than landowners further up the creek, and unless the accident of location be a controlling factor,- they have no better title than landowner further down the creek. But whatever may be the relative rights of the parties to this litigation to the water, it has no bearing upon the question of whether the title thereto has heretofore passed from the state. Upon that phase of the case we conclude:

1. That it is not diffused surface water falling upon or flowing across appellants’ land which possibly may be regarded as their absolute property, and not subject to appropriation. Whether or not such water is subject to appropriation it is not necessary to decide, and we express no opinion upon that question.

2. That the title thereto has not passed from the state by prior appropriation or under the doctrine of riparian rights.

3. This being true, the title to such water remains in the state, and is subject to appropriation under the laws of our state.

Under this view of the case, it is immaterial when the title to the lands in the creek’s watershed passed from the state and when-the state parted with its title to appellants’ lands.

Taking up appellants’ second proposition, it is first asserted they cannot be compelled to maintain works upon their land for the delivery to plaintiff of water flowing in the creek. There is nothing in the court’s decree requiring appellants to maintain any works to deliver water to appellee. Under the decree appellants are at liberty to demolish the dam which they have constructed upon section 323. An inspection of the decree will readily disclose that it imposes no duty to maintain any works upon their land. It simply undertakes to regulate and impose conditions upon the placing and maintenance of such works so that appellees’ appropriation may be protected. Neither does it grant an easement or right of way across their land to conduct water to appellee’s dam, nor unduly affect appellants in the use of their own property. Every man must use his own property with due regard for the rights of others. The water the flow of which was obstructed by appellant’s dam was surface water flowing in a well-defined channel. It had flowed in that channel or depression across appellants’ lands for many years, and the enforcement of the right to its continued flow does not constitute the imposition of a new right of way easement.

The right to flow in its accustomed channel, and to have it so flow, results necessarily from the rule which forbids the obstruction of water flowing in a well-defined channel. By his appropriation appellee became vested with a property right in a portion of the waters of Barilla creek, and the court properly protected that right by prohibiting the placing of such obstructions in the channel by an upper landowner as would result in diverting from the creek, water to which such upper landowner has no title, but which must pass in such channel across his premises before reaching appellee’s point of diversion upon his own land.

What has been said disposes of the further contention made in the second proposition that the decree constitutes a taking of private property for private use.

From what has been said it follows that the third proposition is regarded as without merit.

The decree seems most adequately and properly to protect the rights of both parties to this litigation, and it is in all things affirmed.

HARPER, O. J.

(concurring). Appellants accept in their motion for rehearing the statement of the nature and result-of the case, and likewise the findings of facts in the majority opinion.

By the first assignment and its proposition it is urged that the state of Texas parted with its title to the land upon which their dam is situated in 1874, together with all the rights thereto in any wise appertaining including the depression now known as Ba-rilla draw, and that the act) of the Legislature (article 4991, R. S. 1913) declaring that “the ordinary flow, * * * collections of * * * rainwaters of every * * * ravine, depression or watershed * * * the title to which has not already passed from the state” has no application thereto, unless plaintiff shows that the title to the depression in question and the watershed thereof was in the state at the time of the passage of the act.

Therefore, they say, by their third assignment, the court erred in its decree in enjoining the construction and maintenance of the dam in question “unless it be so constructed •as that it will permit all waters over 100 cubic feet, etc., to flow down to appellee,” because, they further say, it places an unjust burden upon defendant, in that it compels them at great expense to construct for the benefit of plaintiffs an irrigation work for the delivery of water to the plaintiff and to maintain same, etc., and that the decree is an unjust and illegal interference with the use and enjoyment of private property and constitutes the taking of private property without compensation.

By their second they say that to comply with the provisions of this decree would require them to construct and maintain such expensive concrete dams as to render their property unprofitable; therefore they offer to permit plaintiff to construct such works as he may see fit at his own expense upon their property, so as to permit the excess over and above the amount apportioned to them, 100 cubic feet, etc., to flow down to his (plaintiff’s) property.

If I comprehend the contentions of the appellants, they are that: (a) The uncontra-dicted facts establish, first, that the waters sought to be appropriated by the parties to this suit are surface waters; (b) that, being surface waters, they have the right to use their premises as they may see fit to impel or impound them and without regard to the location of appellee’s premises, i. e., that appellee has no right to have the waters flow across their premises down to him; (c) and that being surface waters, not owned by the state, because not having fallen upon state lands, the act the provisions of which are sought to be invoked by appellee has no application.

If these are surface waters as contended for by appellant, his propositions are correct, but I concur in the holding of the majority of this court that, “under the facts, they are not surface waters in the true meaning of the term” ; therefore the rule of the common law "that an owner in the ordinary use of his property may divert them” does not apply. Batia v. Goodell, 53 Tex. Civ. App. 178, 115 S. W. 622. But they are waters which have fallen upon a large area of country, not claimed by appellant, and afterwards by virtue of the natural drainage of the country, come together or accumulate, from time to time in a canyon, ravine, or depression, with a well-defined channel, and flow with sufficient regularity during the crop season to be of value for irrigation. Therefore the waters therein become subject to ownership or appropriation by those who may own irrigable lands adjacent thereto, in the proportion that the relative rights of the parties may obtain, and as to such rights, i. e., as to the equitable distribution to persons entitled thereto, the law must and does furnish the rules by which they may be obtained.

Under the statement of facts in this case there is no evidence that the state owns (by any means known to the law) the lands upon which these waters fall nor the depression through which they flow; consequently there is no ownership in the state of the water flowing thereon. Therefore the statute invoked does not apply, unless said statute was intended to and does fix a new and definite rule, in the place of the common-law rule, for the distribution of the waters of this and similar natural water courses. And I see nothing in this statute, which by its provisions, by strict construction, or, by necessary intendment, indicates that it was intended to give a new rule applicable to the distribution of such waters; and, since there is no proof that it, the state, owned the waters by any of the means known to the law, I conclude that the rule of common law adopted in Fleming v. Davis, 37 Tex. 173, is the rule by which we must determine the relative rights of the parties to this litigation. The property of appellee being below that of appellant, and it appearing that he (appellee) is entitled to water for irrigation from Barilla creek, and appellants having admitted that appellee is entitled to water, first, by applying for a permit from the state, and, by their second assignment, agreeing that they may have it, etc., I conclude that the judgment entered meets the equities in this case, because appellants must so use their premises as not to injure the property rights of appellee. And if they must construct a dam in order to convert the water due them from the usual flow of this depression, they must so construct it as not to take waters to which ap-pellee is entitled. And, since there is no question raised as to the distribution made by the state being equitable, appellee is entitled to his injunction, whether the rule as enunciated in the statute or the common-law rule applies.

I therefore concur in the final conclusion or result of the majority opinion, but not in the reasoning upon which it is based.
      other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes