author: LANE, J.

text:
    GALVESTON & W. RY. CO. v. CITY OF GALVESTON.
    (No. 6842.)

    (Court of Civil Appeals of Texas. Galveston.
    April 20, 1916.
    Rehearing Denied May 18, 1916.)
    1. Railroads <@=>76 — Location ox Track— City Streets — Statutes.
    Where the charter of a railroad authorized it to construct and operate a continuous line along Ninth street, in the city of Galveston, thence into and along Avenue N, etc., to which the city assented by ordinances granting the right to locate within certain limits its line connecting the streets, the railroad and its successor had no implied right to relocate its line of connection between Ninth street and Avenue N on and across other streets whenever it became necessary to do so to avoid the sea wall and to preserve the continuity of its line of railroad, especially in view of Rev. St. 1911, art. 6497, providing that no railroad shall be constructed upon any street of any incorporated city without its assent.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 195, 196, 199-201; Dec. Dig. <©=>
    2. Railroads <@=>79 — Laying Track — Enjoining Interference — Pleading.
    In suit by a railroad to enjoin the city of Galveston from interfering with the laying of its track to form a continuation between its tracks on two streets, where the city’s answer to the railroad’s fourth amended petition and its answer to the road’s trial petition set up that if, by city ordinance, the railroad had the right to select the location of its track, such track had been located differently from the location presently selected by the railroad, the city’s pleadings raised the issue whether the right granted under the ordinance had been exercised and exhausted b.v the railroad.
    [Ed. Note. — For other cases, see Railroads, Gent. Dig. §§ 192, 193, 202, 203; Dec. Dig. <@=> 79.]
    3. Pleading <@=>93 (1) — Answer Setting up Inconsistent Matters — Statute.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1902, providing that the answer may include several matters, etc., defendant may plead as many inconsistent matters of defense as he desires, provided he files them in due order of pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. | 189; Dee. Dig. <@==>93 (1).]
    4. Railroads <@=>76 — Relocation ox Track —Powers under Ordinance — Exercise— “Right ox Way” — “Passway Easement”— “Franchise.”
    Where the city of Galveston, by ordinance of March 8, 1889, authorized a railroad to relocate and reconstruct its line over Ninth street into Avenue N at any degree of curvature not less than three degrees, such grant was not that of a railroad “right of way,” but of a “passway easement” or “franchise” only, and the act of the railroad in relocating its line in 1891 from the center of Ninth street onto the sidewalk thereof, at a point to avoid encroachments of the sea, was an exercise and exhaustion of the road’s right under the ordinance.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 195, 196, 199-201; Dec. Dig. <@=> 76.
    For other definitions, see Words and Phrases, First and Second Series, Franchise; Right of Way.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by the Galveston & Western Railway Company against the City of Galveston. From a judgment for defendant, plaintiff ap--peals.
    Affirmed.
    Walter Gresham, of Galveston, and T. D. Gresham, of Dallas, for appellant. Mart H. Royston, I. Lovenberg, Jr., and P. A. Drouil-het, all of Galveston, for appellee.

       Application for writ of error pending in Supreme Court.

   LANE, J.

This is a suit brought by the-Galveston & Western Railway Company to enjoin the city of Galveston and its governing body from interfering with the laying of track to form a connection between its track on Ninth street and its track on Avenue N north of the sea wall and its right of way in the city of Galveston. This is the third appeal in this case. On the-day of November, 1910, said railway company appealed from an order of the trial court refusing a temporary injunction. On this appeal this court, by an opinion reported in 137 S. W. 724, affirmed the judgment of the trial court. The main case was again called for trial on the 28th day of November, 1911, when the trial court sustained general demurrer to plaintiff’s petition, and upon plaintiff declining to amend the cause was dismissed. On appeal from such judgment of dismissal this court, in an opinion reported in 155 S. W. 273, held that the trial court erred in sustaining said general demurrer, and reversed and remanded the cause for trial.

In the opinion last referred to Judge Reese has made a full and complete statement of the nature of the cause, covering six pages of the Southwestern Reporter, which is still applicable, and, if it were not for the statement made by the Supreme Court in the case of St. Louis Southwestern Ry. Co. of Texas v. Alexander, 172 S. W. 709, which is that the Supreme Court will not entertain a case where the Court of Civil Appeals in its opinion makes no statement of the case other than to refer to a statement made by a Court of Civil Appeals of the case upon a former appeal of such case, by reference to the style and number .of the former opinion and the volume and page where it is to be found, we would refer to said statement as now applicable to this ease and not restate the case; but, in view of such holding of the Supreme Court, we here substantially reproduce said statement as preliminary to the decision upon the questions of law presented by this appeal, to be followed by such further reference to the particular allegations involved in the several assignments of error as may be necessary.

The Galveston, Brazos & Colorado Narrow Gauge Railway Company was chartered by special act of the Legislature of February 2, 1875. Sp. Laws 1875, c. 12. By the charter the company was authorized to construct and operate a continuous line of railroad, commencing at any point within the corporate limits of the city of Galveston; thence west-wardly on Galveston Island on the most practicable route to cross West Bay; thence across the Brazos river, in Brazoria county; thence up Colorado valley, on either side of the Colorado river, passing through Matagor-da, Wharton, Colorado, Fayette, and Bas-trop counties near to the city of Austin— said railroad to be of three-foot gauge. Under this charter this company located and built in 1S75 a narrow gauge railroad beginning on Avenue A near Tenth street; thence curving into Ninth street, and thence on Ninth street to a point near Avenue N; thence into and along Avenue N westwardly to a point near Thirty-Seventh street; thence into and southwardly along Thirty-Seventh street to a point near Avenue T; thence into and westwardly along Avenue T to Fifty-Seventh street; thence south and west to and across Fifty-Seventh street to the western limits of the city; thence southwardly and westwardly to Lafitte’s Grove, on Galveston Island, about 12 miles from the city limits. This road was operated by the company until about April, 1881, about which time it was sold under deed of trust to one Henchman, by whom it was sold and conveyed, about July 1, 1881, to the Texas & Mexican Railway Company, which was chartered under the general laws of the state on March 12, 1882, with power to own and operate said railroad, and by which company said road was operated until 1888.

The city of Galveston, by ordinance adopted in 1881, granted to this last company the right to occupy, among other streets mentioned in the ordinance, Ninth street and Avenue N with the railroad theretofore constructed by the Galveston, Brazos & Colorado Narrow Gauge Railway. In February, 1S88, the properties, rights, and franchises of the Texas & Mexican Railway Company were acquired by sale under judgment and execution by the Galveston & Western Railway Company (the present plaintiff), which company was created under general laws on December 9, 1887, and was empowered by its charter “to build and acquire, or partly build and partly acquire, a railroad, commencing at a point on Galveston Bay in Galveston city, Galveston county, Tex.; thence through the streets and public highways of said city to a point in said city of Galveston at or near Carankaway Reef westward of the city, with the right to provide for other extensions and branches, or other branches in the manner provided by law.” It was álleged that under and by virtue of the aforesaid purchases and transfers plaintiff acquired ahd succeeded to all and singular the railroad rights, properties, and franchises belonging to its said predecessors.

In November or December, 1888, the railroad, then a narrow gauge, by transfers of plaintiff’s capital stock, passed from the original corporation into the control of certain Galveston parties, when it was determined to broaden the gauge to standard and to rearrange its tracks in the city of Galveston. In order to be able to further the purpose of holding an exhibition at Centennial Park, in the western part of the city, as well as for furnishing terminal facilities for another road then contemplated, plaintiff, before March 8, 1889, broadened the gauge to standard, by adding a third rail along Ninth street; thence crossing into and extending along Avenue N to a point, where it passed out of Avenue N. The connection from Ninth street into Avenue N as originally located in 1876 by the Galveston, Brazos & Colorado Narrow Gauge Railway Company was north of the sand hills and several hundred feet from the Gulf of Mexico; but by gradual erosion the Gulf waters encroached upon this connection, and in 1886, while the road was being operated by the Texas & Mexican Company, the same was damaged by storm, but was immediately rebuilt upon a trestle. In 1889, as the result of further erosion, the trestle was extended by plaintiff along the gulf shore nea,r the water’s edge. This trestle was again damaged in 1896, and by erosion, and as the result of the great storm of 1900, was entirely washed away, and the land upon and near which it was built became, and has been continuously since, submerged by the waters of the Gulf. The Gulf waters encroached upon the shore line opposite the intersection of Ninth street and Avenue N about 400 feet from 1876 to 1889. There was a further slight encroachment from 1889 to 1899, and a further encroachment of more than 175 feet from 1899 until September, 1900 (the date of the storm aforesaid). The effect of such encroachments was to cause the waters of the Gulf to entirely cover the point of the intersection of said Ninth street and Avenue N, and at no time since such encroachment has there been any actual connection of said two streets.

By act of the Legislature of March 30, 1887 (Sp. Laws 1887, c. 6), the charter of the city of Galveston was amended for the purpose of authorizing the construction of a sea wall or breakwater, and the issuance of bonds and levying a tax to pay for the same. This act, as shown by the emergency clause, was predicated upon the necessity of a speedy construction of such sea wall for the protection of .the city.

Plaintiff was constructing and had in contemplation a three-rail combination narrow gauge and standard gauge railroad in the city of Galveston, and the curves in the original lines from Ninth street into Avenue N, from Avenue N into Thirty-Seventh street, and from Thirty-Seventh street into Avenue T, and particularly the last two, were upon sharp curvatures intended for narrow gauge equipment. With a view of acquiring the right to a continuous and unobstructed line along Ninth street, and thence into and west-wardly along Avenue N, plaintiff made application to the city council for a confirmation of the rights and franchises in its streets and highways heretofore exercised by the Galveston, Brazos & Colorado Narrow Gauge Railway Company, and in addition to grant to plaintiff its assent to certain other rights and franchises, including the right at any time thereafter to relocate its connection from Ninth street to Avenue N should encroachment of the Gulf render it impracticable to maintain the connection in the original location, or should the sea wall be constructed along the Gulf shore and intersect (he same. Thereupon the city, by its governing body, on March 8, 1889, enacted an ordinance which is fully set out in the plaintiff’s petition, but only the material provisions of which are here set out, and are as follows:

“Section 1. That the rights of way heretofore granted in the city of Galveston to the Galveston, Brazos & Colorado Narrow Gauge Railway Company and to the Texas & Mexican Railway Company on Ninth street from Avenue A to Avenue N, thence along Avenue N to Thirty-Seventh street, thence along Thirty-Seventh street to Avenue T, thence west-wardly along Avenue T to Fifty-Eifth street, with the right to curve south and west at any point west of Fiftieth street, be and the same are hereby confirmed. The right to construct, maintain, oiwn and operate a railroad with either broad or narrow gauge tracks, or both, and with such side tracks, turnouts and switches as may be necessary, be and the same are hereby granted to the Galveston & Western Railway Company, as the successor of said railway companies, over and along the above-mentioned streets, and on Avenue N west from Thirty-Sixth street, with the right to curve northwardly from Avenue N at any point west of Fortieth street, into Forty-Third street, or at any street west of and parallel to Forty-Third street that said railway company may select and occupy, thence northwardly down the street selected, with the right to connect with tracks of the Galveston, Houston & Henderson Railway Company, and the Gulf, Colorado & Santa Fé Railway Company at any point west of Forty-Third street. That the said railway company shall construct, operate and maintain its railway on the streets over which the right of way is hereby confirmed and granted within one year from the date hereof; otherwise the right herein granted shall be forfeited.
“Sec. 2. The right is hereby granted to said railway company to curve from Ninth street into Avenue N, from Avenue N into Thirty-Seventh street, and from Thirty-Seventh street into Avenue T, upon any degre^ of curvature not less than three degrees which said railway company may determine upon, with the right to come into Avenue A and connect with any and all railroads now, or that may hereafter be constructed on that street, with the further right to curve into and construct, maintain, own and operate its railroad on Post Office street, or on Church street, from Forty-Third street west-wardly to the western limits of the city. The said railway company shall construct their railway over Church or Post Office street, as in this section granted, within one year from date hereof; otherwise the right to build on said streets shall be forfeited. * * *.
“Sec. 8. That in the event said railway company shall proceed to construct, maintain and operate a railroad over the right of way herein granted, then any other railroad company desiring to participate in the ownership and operation of same may do so by paying an equal pro rata of the costs of said railroad over said right of way, and in case said railway companies cannot agree upon the cost of said railroad or upon terms satisfactory among themselves, then the same shall be determined by a board of arbitration consisting of one arbitrator to be appointed by the city of Galveston, and one arbitrator to be appointed by the railway company or companies owning or operating the same, and in case of disagreement of said arbitrators, they shall appoint an umpire to decide the matter; and should the said railway company or companies refuse to appoint an arbitrator when applied to, then in that case the city council shall proceed to appoint two arbitrators, who shall proceed to determine the matter as hereinbefore provided. It is the object of this section to make a general railroad over the right of way herein granted, to the end that all railway companies that may now or hereafter terminate in Galveston, so desiring, may acquire equal rights in the ownership and operation of said railroad.”

Plaintiff accepted the rights and rights of way given and assented to by the ordinance, and immediately after its passage hurriedly extended its line to Centennial Park before the opening of the exposition in June, 1889, built a combination narrow and standard gauge three-rail railroad along Avenue A westward from a point near Thirty-Seventh street to Forty-Second street; thence curving into and extending along Forty-Second street southwardly along Avenue Q; and thence curving onto and extending along Avenue Q to Centennial Park. Within one year from the passage of the ordinance plaintiff constructed, operated, and maintained all of its tracks in the city of Galveston required by the ordinance to be constructed and operated within that time, including a track curving from a point near Forty-Second street and Avenue N into and north-wardly along Forty-Third street, curving into Post Office street, and forming connection near Forty-Fifth street with the tracks of the Gulf, Colorado & Santa Fé Railroad and of the Galveston, Houston & Henderson Railroad; also a track from Centennial Park westwardly along Avenue Q to Fifty-Seventh street; thence southwestwardly across the city limits to a connection with the original line to Eafitte’s Grove.

Thereafter, about May, 1890, plaintiff ceased to use and took up the track of the original narrow gauge lines on Thirty-Seventh street south of Avenue N; thence into and along Avenue T to Fifty-Third street; thence south and west to and across Fifty-Seventh street to the western limits of the city. Shortly after the passage of the ordinance referred to, to wit, on July 17, 1889, plaintiff amended its charter. A copy of the charter is attached to and made a part of the petition, but only the material parts of the same are here set out, as follows:

“This corporation shall be and is hereby invested with the right of locating, constructing, owning, operating and maintaining a railroad and telegraph line, commencing in the city of Galveston at a point on Avenue A; thence into and along Ninth street to Avenue N; thence along Avenue N to Forty-Third street; thence along Forty-Third street to Avenue Q; thence along Avenue Q, curving southwestwardly to the western limits of the city of Galveston, with the right to curve into and from any and all of the streets and avenues, at any point or points it may select; thence southwestwardly to a point on its line as now constructed, south of lot No. 42, in section No. 1 of Galveston Island; thence westwardly down Galveston Island to a point near Carankaway 'Reef, with the right to build to and connect with any railroad running into said city,” etc.

The gulf waters did not encroach upon its Ninth street and Avenue N connections so as to render it impracticable to maintain the same in its former location until after the great storm of 1900. Immediately after this storm the question of the erection of a sea wall began to be agitated. This sea wall was built in 1903. It was built by the county of Galveston, the city being financially unable to- carry the burden; but its purpose and design was to protect the city of Galveston, its property and inhabitants, and the movement for its building was begun and actively instigated by the city of Galveston; the city council acting in concert with the commissioners’ court representing the county. Immediately after the sea wall was constructed plaintiff selected the route of the proposed relocation of its line connecting the line on Avenue N and Ninth street. About the same time the city began the work of raising the grade of the city, and in connection with such filling operations excavated a canal 200 feet, wide and 20 feet deep inside the sea wall and along the line selected by plaintiff for such relocation line, and continuously thereafter and until September, 1910, plaintiff’s railroad along Ninth street, Avenue N, and Forty-Third street was affected by such grade-raising operations, and plaintiff was compelled at great expense to elevate its track upon temporary trestlework from 2 to 7 feet to place the same above the filling. As soon as practicable after the sections of the city through which its track lay were filled to grade plaintiff, between August and December, 1909, at an expense of more than $15,000 rehabilitated its tracks along Forty-Third street, thence eastwardly along Avenue N to the grade raising canal, and along Ninth street southwardly to the canal, when such work of reconstruction was held in abeyance pending the refilling of the canal, which was not completed until about September, 1910, when plaintiff commenced to lay its track from Avenue N along the proposed line of connection inside and north of the sea wall, when defendant tore up the track so laid, and has since with its police force forcibly prevented the laying of this track connecting the lines of Avenue N and Ninth street. The location of this connection is upon a curvature of more than three degrees, and is wholly between a three-degree curve and the intersection of the two streets, being described as follows: Turning out from the original track on Ninth street near the south line of Avenue D, curving southwardly upon approximately a thirteen-degree curve to a point near the south line of Avenue M, and about 10 feet from the sea wall right of way; extends thence westwardly parallel with the sea wall right of way to a point near the west line of Eleventh street; curves thence southwestwardly upon approximately a ten-degree curve to the original track on Avenue N near the east line of Twelfth street, a distance of about 1,200 feet. A map hereto attached shows the location of this relocation, and also a full three-dogree curve, which shows that the relocation is within the limitations of the ordinance, being between the full three-degree curve and the original line at the intersection of Ninth street and Avenue N.

In 1894 the city council adopted a resolution declaring all the privileges, rights, and franchises theretofore assented to by the city to be forfeited, and under the instruction of the council a suit was brought by the city of Galveston against the plaintiff to have such forfeiture judicially declared. This suit was tried in 1896, and resulted in a judgment in favor of the city, declaring the forfeiture as prayed for, but this judgment was in 1897 reversed by the Supreme Court, and judgment rendered for plaintiff. During the pend-ency of said proceedings plaintiff was unable to raise money to maintain its road in proper condition,- and by a contract executed May 21, 1895, by and between plaintiff and the Galveston, La Porte & Houston Railway Company it was agreed that the respective properties should be operated and used together, with a view to consolidation, and therein the La Porte Company agreed to maintain plaintiff’s tracks, roadbed, etc., in the city of Galveston, and to operate trains over its tracks, and pursuant to said contract the La Porte Company took possession of and operated plaintiff’s railroad. _ By an act of the Twenty-Fifth Legislature (chapter 167, Acts 1897) the La Porte road was authorized to acquire by purchase, lease, or otherwise the property and franchises of plaintiff, and plaintiff was authorized to sell the same. On January 27, 1896, by proceedings instituted in the United States Circuit Court, a receiver was appointed for the La Porte road. Thereafter, during the year 1898, the trestle at Ninth street and Avenue N was damaged by the water of the gulf, and said receiver was without funds with which to repair the same, though it operated other portions of plaintiff’s road. Upon the termination of the receivership proceedings in 1899 the properties of the La Porte Company, together with all its rights under said contract with plaintiff, were sold by the receiver under order of the court and acquired by the Southern Pacific Company, whereupon said last-named company took possession of plaintiff’s railroad and began to repair its tracks, commencing on Avenue N near Twenty-Fifth street, and had proceeded eastwardly along Avenue N to Twenty-First street, when the storm of 1900 interrupted all business in the city of Galveston and forced a cessation of Improvements along plaintiff’s tracks, including repairs to the trestle at Ninth street and Avenue N.

It was alleged that a connection inside of and north of the sea wall between the separated portions of its tracks is necessary to the operation of its railroad, and that after the sea wall was constructed across its line at Ninth street and Avenue N, and after plaintiff had selected a line along which to relocate its said connection, application was made by it to the Railroad Commission of Texas for authority to change its line, and to construct a track along the proposed line of relocation. Thereupon the Railroad Commission on July 27, 1903, made the following order:

“The matter of the application of the Galveston & Western Railway Company for permission to change the location of its track in the City of Galveston, on account of the construction of the Galveston sea wall, having been heard by this commission on July 23, 1903, and the same having been taken under advisement, it is now hereby ordered by the Railroad Commission of Texas that permission be, and the same is hereby, granted to said railway company to change its track and to construct its railroad from Avenue N into Ninth street upon any line it may select, south of Avenue L and north of the concrete sea wall, and upon which it may legally acquire the right of way.”

The line along which plaintiff proposes to reconstruct its track is north of the sea wall and south of Avenue L, and plaintiff has by purchase and otherwise legally acquired a right of way varying from 50 to 100 feet wide and contiguous to the north line of the sea wall right of way along and across all private property over which it proposes to extend its said connecting track.

After the sections of the city through which its tracks were extended were filled and raised to grade, and when plaintiff began to rehabilitate its tracks, the city did not oppose the reconstruction of its railroad along Forty-Third street, and thence eastwardly into and along Avenue N to the grade-raising canal, or along Ninth street southwardly to the canal, but recognized its rights and rights of way in said streets. When plaintiff commenced placing its tracks in condition for operating trains along Forty-Third street, Avenue N, and Ninth street, a petition was •presented to the board of commissioners ol the city praying them to instruct the city attorney to institute proceedings to annul the franchises theretofore given to plaintiff by the city for nonuser. The said board, upon the opinion of its attorney, denied the petition, on the ground that it was wholly without authority to grant it. Thereafter a similar petition was presented to the said board, praying that the Attorney General be requested to institute proceedings in the name of the state to forfeit plaintiff’s charter and thereby accomplish a removal of plaintiff’s tracks, which petition was on October 28, 1909, forwarded to the Attorney General. After a verified answer and brief had been filed with that officer by plaintiff, and after a personal investigation by him, he declined to institute such proceedings. Thereupon plaintiff reconstructed its tracks along Forty-Third street, thence into and along Avenue N, and southwardly along Ninth street to the grade-raising canal.

After the Railroad Commission had issued its order as aforesaid plaintiff, on July 31, 1903, and before purchasing a right of way over private property for such relocation of its tracks, notified the board of commissioners of the city of the said order, and of its intention to relocate its said connection along the proposed line, but expressed a willingness to establish same upon some other line should this line not be satisfactory; but no other or different line was suggested by said board, whereupon plaintiff proceeded at an expense of more than $5,000 to acquire a right of way over all necessary private property. After the filling of the canal plaintiff formally applied to the board of commissioners for a grant of assent to a connecting track along the proposed.relocated line, and offered to them the opportunity to grant its assent in the manner prescribed by law and upon such conditions as it might legally impose; but said board, by resolution adopted September 22, 1910, denied its assent for plaintiff to lay a track across or upon any street in the city for the purpose of such connection.

It is alleged, in substance, that the section of the city where the relocated line is proposed is sparsely settled, where the streets are little traveled; that there are no buildings south of said line, and none on the north nearer than 200 feet; that the proposed connecting line will not extend along any street or alley of the city; that the proposed line is less than 400 feet at its farthest point from the old location; and that there are no approaches to the sea wall boulevard over the connecting line from Avenue M and M 1/2, or intervening alleys. It is charged, in substance, that defendant’s refusal to give its assent to the relocation of this line across the intervening streets and alleys is harsh, oppressive, unreasonable, and unjust, and done for the purpose of preventing the operation of its said railroad over the streets over which it has the right to operate, and a mere form and pretense under the guise of which it seeks to maintain a disconnection of plaintiff’s track, and indirectly divest plaintiff of its lawful rights on Ninth street and Avenue N, and force it to abandon its railroad on said streets; that, if it is not allowed to relocate such connection between Ninth street and Avenue N, the most valuable part of its railroad will be destroyed, and its creditors, who hold an aggregate secured indebtedness of more than $170,000 against plaintiff’s railroad and franchise, will lose the greater part of their debt.

There were further specific allegations as to the building of the sea wall, which was alleged to have been strenuously urged by the city as a necessary means of saving and protecting the city, but which the city was unable to undertake on account of its financial condition, but which was, upon the plea of the city, undertaken by the county, and disruption of the plaintiff’s line by the building of the sea wall, and the consequent permanent disconnection of the two ends of its line, and the necessity for a relocation of such connection on the line proposed north of the sea wall to preserve the life of the enterprise. There was a prayer that plaintiff be adjudged to have the right to establish the relocation of the connection between its line on Avenue N and on Ninth street as proposed, and that defendant be enjoined from interfering with the exercise of this right.

The following map will illustrate the situation as alleged in the petition: [See 155 S. W. 279.]

Appellee, the city of Galveston, answered by general demurrer, special exceptions, and by general and special denial of all the material allegations of appellant’s petition. It also by special plea answered to the effect that subsequent to the passage of the ordinance of March 8,1889, mentioned in the foregoing preliminary statement, the appellant changed and relocated its track connecting its two lines of track, one in Ninth street, and the other in Avenue N, by moving, ana locating its said connecting track some distance west from where it had been constructed and operated prior to March 8, 1889; that by such change and relocation it selected the location granted by said ordinance of March 8, 1889, and thereby exhausted all its rights granted by said ordinance to change and relocate its said connecting track at any other place in any of the streets of said city than the one so selected. And it further pleaded that, if the said ordinance did authorize the appellant to locate and construct its said connecting track, passing -from Ninth street to Avenue N, on a curvature of not less than three degrees, such authority was subject to the limitation that such location should be madé_ within a reasonable time after the passage of said ordinance, and that appellant did not at any time prior to September 27, 1910, change or attempt to change the location of its line connecting its track on Avenue N with its track on Ninth street, as the same existed continuously from the time of the passage of said ordinance of March. 8, 1889, until the year 1896, and that appellant’s continued use of said old location was and amounted to a selection of its location under the provisions of said ordinance, thus pleading two inconsistent defenses.

The cause being submitted to the court without a jury, judgment was rendered by the court in favor of the appellee, city of Galveston, refusing the injunction prayed for by appellant. At the request of appellant the trial court filed his findings of fact and con-elusions of law. Among such findings and conclusions we find the following:

“On August 26, 1891, plaintiff entered into an agreement with Edward and Loretta Schultz wherein and whereby plaintiff purchased and acquired the right, by deed, from Edward and Loretta Schultz, to construct; operate, and maintain plaintiff’s tracks on Ninth street, and the right to construct, operate, and maintain its track over and across the sidewalk abutting lot No. 7 in the northeast quarter of outlot No. 24, in the city of Galveston, Tex., said deed containing said agreement and conveyance, and being duly of record in Book 92, pages 488 and 439, of the Deed Records of Galveston county, Tex. In said deed, which was prepared ■by plaintiff through its general counsel, Hon. Walter Gresham, who was also at said time either president or manager of plaintiff, there is the following recital: ‘That whereas, the Galveston & Western Railway Company is desirous of constructing a permanent railroad, with both narrow and broad gauge tracks upon and along Ninth street, in the city and county of Galveston, state aforesaid, and across the sidewalk of said street abutting upon lot No. 7 in the N. E. quarter of outlot No. 24.’
“At or about the date of said deed, and during the year 1891, plaintiff moved its track on Ninth street from the center of such street further west and upon the sidewalk. That such movement of the track was made without any further authority from the city than such as might have been claimed under the ordinance of March 8, 1889. That while the full extent of the movement of that track along Ninth street is .not reflected by the evidence, it yet appears that it was made along the sidewalk and east, side of lot No. 7 of the northeast block of outlot No. 24, in the city and county of Galveston, Tex., and that it was made at the beginning of the curve connecting the plaintiff’s railroad on Ninth street and Avenue N, .that such movement of the track was made for the purpose of lightening that curve, and also to avoid' encroachment of the gulf, and that it was further made with a view to a permanent location of the plaintiff’s railroad and its curve at Ninth street and N. In making such change in location of its track and curve at Ninth and N plaintiff was acting under the ordinance of March 8, 1889, and the authority therein conferred, and had no other authority or permission for so doing. This finding is confirmed by the contention of the plaintiff in written argument upon the submission of this cause in words, as follows: ‘In the year 1891 the line bn Ninth street opposite the Schultz lot was moved from the center of the street on to the sidewalk to lighten the beginning of the curve at that point. True, the Galveston & Western Railway made only a slight change in a small portion of its track; nevertheless some change was made, and the company, it occurs to us, thereby indicated an unequivocal acceptance of the right granted in section 2 of the ordinance of March 8, 1889.’
“Section 2 of the ordinance referred to in the foregoing quoted argument of plaintiff is the section of such ordinance reciting that, ‘The right is hereby granted to said railway company to curve from Ninth street into Avenue N * * * upon any degree of curvature no! less than three degrees which said railway company may determine upon.’ While it is apparent that-the quoted argument is directed to the question of acceptance of the ordinance by plaintiff, yet.it unmistakably indicates that in making such change in its curve at Ninth and N plaintiff was also making a binding; election and selection of a new location of its track and, change in its curve under the power conferred under the said section 2 and other provisions of said ordinance' of March 8, 1889. Previous to such change in 1891' plaintiff’s track, had been located .in. and occupied the center of Ninth street for many years, and by moving the location of its track and changing its curve at Ninth and N in 1891 plaintiff exhausted its power to make yet another and different location of its curve between Ninth street and Avenue N, and, never having received any additional power or authority from the city of Galveston since the passage of said ordinance of March 8, 1889, plaintiff has no power or authority, and has never obtained the consent of the city of Galveston, to make the proposed relocation of the curve between Ninth street and Avenue N. * * *
“The proposed relocation of the connection between the road on Ninth street and Avenue N is entirely different, and begins at a point far north of the point selected in 1891 and crosses the streets and alleys at different points from the connection of the curve, the beginning of which was started in Í891, and, as must be inferred from the evidence, was completed some time thereafter and before 1896; the evidence being undisputed that the plaintiff did operate its trains along Ninth street around the curve into Avenue N after 189l up to the year 1896.
“Conclusions of Law.
“Under said ordinance of March 8, 1889, granted by defendant to the plaintiff, defendant authorized plaintiff to make a change in its existing curve from Ninth street into Avenue N as expressed in section 2 of said ordinance. Under this 'assent of the city plaintiff in 1891 made a change in its curve at Ninth street and Avenue N, as heretofore stated in the findings of fact, and thereby exhausted the power or right of plaintiff to make any further change in its curve between Ninth street and Avenue N without further assent and authority from the defendant, which further authority or assent has never been granted by or obtained from the defendant. Said ordinance of March 8, 1889, does not give a continuing assent or authority to plaintiff to change its curve at Ninth and N as often as plaintiff -might determine desirable or necessary, but admits only of one change, and, when such election and selection of a new location of and for _^uch curve at Ninth and N was made by plaintiff in 1891, no further power or right or assent to any further or different location of such curve can be predicated upon the ordinance of March 8, 1889. Grants and rights and assents such as are reflected in the ordinance of March 8, 1889, being most strongly and strictly construed against the grantee, the plaintiff, and in favor of the grantor, the defendant. Galveston Wharf Company v. Santa Fe, 81 Tex. 494, 17 S. W. 57.
“Plaintiff in this suit seeking by injunction to restrain the defendant from interfering with plaintiff in making a proposed relocation of a curve connecting its track on Avenue N with its track on Ninth street upon a different location from that occupied by the curve selected, constructed and used in 1891 and crossing streets and alleys in said city at different points from those crossed by the curve in 1891, it must be held that the plaintiff is without any right or authority and without the assent of the city of Galveston to make any such proposed relocation, and the injunction is denied.”

Appellant by its first assignment of error insists that the trial court erred in not finding and holding that from the charter rights and powers granted to appellant’s predecessors by the Legislature, to wit, to own, construct, maintain, equip, and operate a continuous line of railroad along Ninth street, thence into and along Avenue N, etc., to which appellee, the city of Galveston, assented, there was an implied right to relocate its line of connection between said Ninth street and Avenue N on and across other streets whenever it became necessary to do so to avoid the sea wall and to preserve the continuity of its line of railroad.

Appellant’s predecessors were authorized and empowered by its charter to own, construct, maintain, equip, and operate a continuous line of railroad through' the streets of Galveston in 1875, which rights passed to appellant by succession. In the year 1875 appellant’s predecessor, the Galveston, Brazos & Colorado Narrow Gauge Railway Company, located and built a railroad in and along Ninth street to its intersection with Avenue N, thence curving into and extending westwardly along Avenue N, etc. By virtue of such charter powers said railway company had the right to locate and construct its railroad on any of the streets of Galveston. It availed itself of such power, and did select its route, and did locate, construct, and operate its railroad along Ninth' street and Avenue N. At that time said railway company had no right to change its selected route after it had constructed and located its railroad, without the consent of the Legislature. We hardly think that it will be seriously contended that the Legislature intended by the words of the charter granted to the Galveston, Brazos & Colorado Narrow Gauge Railway Company to confer upon said company the power to build and construct its railroad in and along any of the streets of the city of Galveston and to confer upon said company the right to change its railroad from street to street whenever in its judgment the necessities of its railroad required such change, especially in view of the passage of article 6497, Revised Statutes of 1911, hereinafter referred to.

In 1876 the Legislature passed an act (now article 6497, Revised Statutes of 1911) which provides that no railroad shall be constructed upon or across any street, alley, square, or highway of any incorporated city or town without the assent of said city. In 1SS1 the city of Galveston, by an ordinance adopted in 1881, granted the Texas & Mexican Railway Company, the successor of the first company, the right to occupy Ninth street and Avenue N with th'e railroad theretofore constructed by the said first company. After the connection of said railroad had been destroyed by the storm of 1886, to wit, on the 8th day of March, 1889, the city of Galveston by its governing body enacted an ordinance granting the company then owning said railroad the right to connect its line on Ninth street with its line on Avenue N by a curve from Ninth street into Avenue N, upon any degree of curvature not less than three degrees which said railway company might determine upon. We find nothing in the charter of said railway company, nor in either of the ordinances above mentioned, that justifies or supports the contention of appellant that under such charter and ordinances it has the implied right to construct and operate its connecting line upon its proposed route at any time necessity calls for such relocation and construction, nor do we find anything in either of said ordinances authorizing such continuous rights, either expressed or implied, as contended for by appellant.

If appellant at this time has the right to relocate and construct its said connecting line upon its proposed route, it has such right only by virtue of the express provisions of said ordinance of March, 1889, and not by implication. We overrule the first assignment.

It is insisted by the second assignment that the pleadings of the defendant, city of Galveston, do not raise the issue, nor did defendant set up in its answer as a ground of defense to appellant’s cause of action, that the right granted under the ordinance of March 8, 1889, was exercised and exhausted by plaintiff in 1891 by moving its track from the center of Ninth street on to the sidewalk adjacent to the lots owned by Edward Schultz, and wife, and that therefore there is no basis for the judgment rendered by the trial court. Appellant’s contention in support of the foregoing proposition is that it affirmatively appears from the face of defendant’s sworn pleadings that appellant did not at any time prior to the year 1903 change or attempt to change the line of connection from Ninth street into Avenue N, as the same had existed from the time of the passage of the ordinance of March 8, 1889, continuously until the year 1903, and that therefore the court erred in finding and holding that plaintiff prior to the year 1903 changed the degree of curvature of its line from Ninth street into Avenue N, and thereby exercised and exhausted that right.

In answering appellant’s fourth amended petition, among other things, defendant pleaded as follows:

“That, if by said ordinance there was granted to plaintiff the right of selection which it claims, the defendant alleges that the plaintiff did thereafter and prior to July 31, 1903, select a line for the connection between its track on Ninth street and its track on Avenue N other and different than the line now selected by plaintiff and described in said petition as its ‘proposed relocation’; wherefore the right of selection, if any; was exhausted by the exercise made by plaintiff of the rights granted to it and by the selection which it did make of a location for such connection.”

In answering appellant’s trial petition defendant pleaded as follows:

“That, if by said ordinance there was granted to plaintiff the right of selection which it claims, the defendant alleges that the plaintiff did thereafter and prior to July 31, 1903, select a line for the connection between its track on Ninth street and its track on Avenue N other and different than the line now selected by plaintiff and described in said petition as its ‘proposed relocation’; wherefore the right of selection, if any, was exhausted by the exercise made by plaintiff of the rights granted to it and by the selection which it did make of a location for such connection.”

After these pleas were filed appellant filed what it termed its supplemental trial amendment. Thereafter defendant, in answering said supplemental trial amendment, pleaded as follows:

“And further says that neither the plaintiff nor the Galveston, La Porte & Houston Railway Company, nor the receiver therefor, nor Collis P. Huntington, nor - the Southern Pacific Railway Company, nor the Galveston, Harrisburg & San Antonio Railway Company, nor the plaintiff herein at any time prior to July 31, 1903, changed or attempted to change the line, or any part of the line, of plaintiff’s railroad in the city of Galveston as the same existed from March 8, 1889, continuously to the destruction of said connection in 1896, except as such connection was restored, and said line changed by the line of connecting track built by J. M. O’Rourke & Co., as alleged in said petition.”

It is insisted by appellant that this last plea was inconsistent with the pleas found in appellee’s amended and supplemental answers, above quoted, and, as the same is the last plea filed by appellee, it is, in effect, a confession that no change was made by appellant in its curvature track at the intersection of Ninth street and Avenue N after the passage of said ordinance.

We decline to follow appellant in such contention. It is apparent.from the pleadings of defendant as a whole that it considered the main issue in the case at the last trial to be whether appellant had exhausted its rights given by said ordinance by the change made by it in its said curvature track after the passage thereof. We think it plainly apparent from defendant’s pleadings as a whole that it was attempting to allege as defenses: First, that appellant had made a change in its said connecting line after the passage of said ordinance of March 8, 1889, and had thereby exercised and exhausted the rights given thereby; and, second, that if no such change was made, then appellant had exercised and exhausted such right by continuing to use the old location for a long time, and thereby selecting said old location as its right under said ordinance, and that it cannot now relocate its line on its proposed route.

The two allegations are to some extent inconsistent, but under article 1902, Vernon’s Sayles’ Statutes, the defendant may plead as many several matters as he may think necessary to his defense, and it is only required that he shall file them in due order of pleading. A defendant is allowed to plead as many-inconsistent matters of defense as he pleases to reduce to writing, just so he files them in due order of pleading. Weldon v. Texas Meat Co., 65 Tex. 487; H. E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877; Fowler v. Devenport, 21 Tex. 633; Cranfill v. Hayden, 22 Tex. Civ. App. 656, 55 S. W. 811.

In H. E. & W. T. Ry. Co. v. De Walt, supra, it is said:

“A defendant has the right to plead inconsistent defenses, and, where in one part of an answer he denies or otherwise puts in issue a fact, arid in another part alleges its existence, the answer cannot be taken to be an admission of such fact.”

It is apparent from defendant’s amended answer, its first supplemental answer, and its supplemental reply to appellant’s trial amendment, wh'en taken together, that its main defense was that appellant had relocated and changed its said connecting track after the passage of the ordinance of March 8, 1889, and that it had thereby exercised and exhausted all rights conferred upon it by said ordinance. While defendant was unfortunate in not pleading more definitely and with undoubted clearness, we think it would be a perversion of defendant’s pleadings as a whole to hold that by such pleadings it intended to or had abandoned its allegation that appellant had relocated and constructed its said connecting track at the intersection of Ninth street and Avenue N, after the passage of said ordinance of March 8, 1889, or that by its supplemental trial answer it had confessed or admitted that no such relocation and construction had been accomplished. We conclude that defendant’s pleadings as a whole were sufficient to raise the issue as to whether appellant had made such relocation of its said connecting track after the passage of the ordinance, and therefore overrule the second assignment.

It is insisted by appellant’s third, fourth, and fifth assignments: First, that the trial court erred in holding that the moving of appellant’s said connecting track from the center of Ninth street onto the sidewalk on the west side of said street in 1891 was an exercise and exhaustion of the rights granted by said ordinance of March 8, 1889, to relocate and construct its said connecting track; second, that the trial court erred in holding that the right to change the line of connection from Ninth street into Avenue N was exercised and exhausted prior to the time appellant selected the proposed route, which is alleged to have been selected in or about the year 1902; and, third, that the trial court erred in holding that appellant has not the continued right under the said ordinance of March 8, 1889, to change and relocate its said connecting line upon the proposed route within the area of a three-degree curve.

We have already said, and here repeat, that if appellant still has the right to relocate and construct its said connecting line on its proposed route, such right is by virtue of the provisions of said ordinance of March 8, 1889, and that this right depends upon the fact as to whether appellant had after the passage of the ordinance changed the location of its said line by removing it from the center of Ninth street and establishing it on or near the sidewalk on the west side of said street, and whether such removal and establishment was an exercise and exhaustion of the rights granted by said ordinance. That appellant did remove its said line from the center of Ninth street and reconstruct it on or near the sidewalk on the west of said street on or about the 26th day of August, 1891, and that it remained there and was operated by appellant from that time to the year 1896, is undisputed. Col. Walter Gresham, of counsel for appellant, testified that in 1891 there was a change made in the line on Ninth street; that the track was thrown west in Ninth street, that is, moved west; that this move was from the center of Ninth street on to the sidewalk; that the purpose of moving the track a little to the west was to ease off the curve, but that the main purpose was to avoid the encroachment of the gulf at that point; that this change was near the property of Mr. Schultz, and at the point where said track curves from Ninth street into Avenue N.

Appellant requested the court to find as follows:

“In June and July, 1889, there was both a narrow and standard gauge track from Ninth street into Avenue N, which continued up to ‘1896 without any change, except such as was made in 1891, when the track on Ninth street was moved from the middle of that street on to the sidewalk opposite the property owned by Edward Schultz and wife. In making the change in 1891, by moving the track from the center of Ninth street onto the sidewalk opposite the lot owned by Edward Schultz and wife, no property was bought by plaintiff, nor were any damages paid to any person other than to said Edward Schultz and wife.”
“From the time of the passage of the ordinance of March 8, 1889, until plaintiff selected the proposed relocation for its connection in 1902, there was no change made in the curve from Ninth street into Avenue N, except such as was made at the time plaintiff moved its track from the center of Ninth street on to the sidewalk opposite the lot owned by Edward Schultz and wife.”

It is clear therefore that a change in the location was made of said connecting line in 1891. This presents the question: Did such change, relocation, and reconstruction exhaust appellant’s right to make further changes by virtue of the provisions of said ordinance of March 8, 1889, or is the right granted by said ordinance a continuous right which authorizes appellant to relocate and reconstruct its said line at any degree of curvature from Ninth street into Avenue N, not less than three degrees, whenever in its judgment the necessities of its railroad requires such relocation?

It is vigorously contended by appellant that the grant to it of the right to curve its track from Ninth street into Avenue N, upon any degree of curvature not less than three degrees, was the grant óf a “right of way,” as that term is usually understood, when speaking of a “right of way” of railroads, and that appellant has the right at any and all times to shift its said track from one portion of its said “right of way” just as it could do if such “right of way” was not within the streets of an incorporated city, and therefore the removal of its said track on Avenue N in 1891, from one part of its “right of way” to another part thereof, did not exhaust its right of relocation granted by said ordinance.

We ara unable to agree with the appellant’s propositions. The assent or authority of an incorporated city for a railroad1 company to construct and operate its railroad in and upon its streets, is not the grant of a “right of way” such as is obtained along its line outside of such city, but is more properly called a passway easement, or franchise only. Appellant has no such right as it contends for under said assignments 3, 4, and 5.

The trial court found, under the undisputed facts, that appellant had relocated its said connecting track in 1891, after the passage of said ordinance of March 8, 1889, and that such relocation was a full exercise and exhaustion of appellant’s right under said ordinance to make another location for its said line. We are not disposed to disagree with the finding of the trial court on such issues. We.therefore overrule assignments 3, 4, and 5.

The contentions presented by appellant’s remaining assignments have been ably discussed, correctly decided, and settled against it by the opinion of this court upon a former appeal of this case written by Justice Reese deceased, formerly a member of this court, which is reported in the 155 S. W. 273, and we see no reason for a rehearsal of the reasons then given for a refusal to sustain such contentions or to further discuss the questions therein decided, and we therefore content ourselves with a reaffirmance of the questions so decided.

This disposes of all of appellants’ assignments. We find no error in the judgment rendered in the trial court, and therefore the same is affirmed.

Affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    CONTINENTAL & COMMERCIAL NAT. BANK OF CHICAGO v. MEISTER et al.
    (No. 5681.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 17, 1916.)
    1. Peedges <&wkey;58(l) — Notes — Rights on Holdeb.
    Though plaintiff, as a bona fide purchaser, held defendant’s notes as collateral security, there can be no recovery against the defendants, the consideration having failed, and the notes having been secured by fraud, until plaintiff establishes that the collection of such notes is necessary to enforce the claim for which the notes were pledged.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 186-189; Dec. Dig. <i&wkey;58(l).]
    2. Teiax, <&wkey;141 — Province on Juey — Submission on Issue.
    Where the evidence on an issue is undisputed, the question need not be submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. <&wkey;141J
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Action by the Continental & Commercial National Bank of Chicago against George Meister and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    E. F. Smith, of Snyder, for appellant. Barber & Johnson, of San Marcos, for appel-lees.
   MOURSUND, J.

The Continental & Commercial National Bank of Chicago sued George Meister, C. H. Ulbricht, and Peter Pe-terosky upon three promissory notes for $100 each, payable to the order of Fox River Distilling Company, alleging that it became the legal owner and holder of said notes before maturity thereof and without notice of any defense that the makers thereof might have against the original payee. The defendants pleaded failure of consideration, and by cross-action sought to cancel four additional notes for $100 each executed at the same time and as a part of the same transaction, wherein the three notes sued on by plaintiff were given. It was alleged that the four notes were in the possession of plaintiff’s attorney at San Marcos, Tex. Defendants pleaded that all of the notes had been obtained by fraud. Defendants denied that plaintiff is a holder for value, but alleged further that plaintiff contends it acquired said notes from the Fox River Distilling Company as collateral security for certain indebtedness alleged by it to be due and owing to it by said company, and with reference to this contention upon the part of plaintiff defendants charged that:

If such facts are found to be true, “yet still the plaintiff is not entitled to recover in this ease, because plaintiff holds other security for its debt, if any, largely more than sufficient to make it whole and to pay to it any and all amounts which may be justly due or owing to it by said distilling company, without requiring or permitting the collection of any of the notes executed by these defendants.”

Plaintiff denied all the allegations contained in the answer and cross-action. The jury in answer to special issues submitted found the consideration for the notes had wholly failed, and that the plaintiff at the time it received the notes had no knowledge of such failure of consideration or of fraud or any defense that the makers might have against the original payee. The court entered judgment that plaintiff take nothing by reason of this suit, and that it is enjoined from disposing of the four notes not yet due, and that they be canceled.

The findings of the jury are not challenged, but each side contends that judgment should have been rendered in its favor. In support of the judgment of the court appel: lees submit the following counter proposition to appellant’s assignment of error:

“Where the maker of a note has a good de-1 fense thereto against the original payee and suit is 'brought thereon by one. holding same as collateral security only, then such holder must affirmatively prove the amount of its debt, and show affirmatively that he will lose that debt unless permitted to collect the note sued upon. In other words, the equity of the innocent holder of the paper will prevail over the valid defense of the maker only so far as absolutely necessary to prevent the holder from sustaining loss,_ and, he being in possession of all the facts, it is incumbent upon him to make proof thereof. If he shows only that he is a bona fide holder of the paper as collateral security, then he has failed to establish any right to recover against the maker who has a complete defense to the paper as between the original parties thereto.”

In support of the proposition the following cases are cited: Wright v. Hardie, 88 Tex. 653, 32 S. W. 885; Harrington v. Claflin, 91 Tex. 294, 42 8. W. 1055; Iowa City Bank v. Friar, 167 S. W. 261; Wharton v. Bank, 153 S. W. 699; Bank v. McCrory (Mo. App.) 177 S. W. 1058. We have examined the cases, and conclude that the proposition submitted by appellee is correct. An examination of the facts discloses that plaintiff failed to make out a case entitling it to collect the notes from the defendants. The notes were received by plaintiff in substitution for other notes which the distilling company had pledged as collateral security for its debt to plaintiff, which other notes had not been paid at maturity. Plaintiff held as such collateral security notes “to a considerable amount, and the notes signed by defendants herein were a part of this collateral which the bank held as security to the entire indebtedness.” The bank collected only a small part of its indebtedness. The amount of the net proceeds of the notes signed by defendants when collected was to be indorsed on the note of the distilling company to the bank. The above is the substance of the testimony relating to the issue. It shows that the notes were collateral security for a debt in excess of the aggregate amount of such notes, but shows that a small part of said debt had been paid, without showing what balance remained due by the distilling company. If it could be inferred that the amount still due exceeded the amount sued for by plaintiff herein, the fact remains that there was other collateral, and no proof was made that such collateral was not sufficient to insure the payment of the distilling company’s debt. It appears further that attorney for plaintiff sold-five barrels of whisky shipped under the order given by defendants and remitted the net proceeds to plaintiff. The amount of such net proceeds is not shown, but whatever it was, the same should have been applied as a credit upon the notes sued on and the debt of the distilling company to plaintiff correspondingly reduced.

As the evidence was undisputed on these points, the court was not required to submit issues relating thereto, and no request was made that any such issues be submitted. As soon as it was found that the consideration had wholly failed, defendants were entitled to a judgment, there being no evidence upon which the court could find that it was necessary for plaintiff to collect the notes from defendants in order to collect its debt against the distilling company.

The judgment is affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    LOEB v. TEXAS & N. O. R. Co.
    (No. 33.)

    (Court of Civil Appeals of Texas. Beaumont.
    March 21, 1916.
    On Motion for Rehearing, May 25, 1916.)
    1. Appeal and Error <&wkey;263(l) — Presentation op Grounds op Review in Court Below — Bills op Exception — Necessity.
    Under Rev. St. 1911, arts. 2058-2060, and art. 2061, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061), declaring that when either party is dissatisfied with any ruling he may except thereto, and that rulings in the giving, refusing, or qualifying of instructions shall be deemed approved unless excepted to, assignments of error complaining of instructions given, cannot be considered where, though plaintiff in error filed elaborate written objections to the instructions when they were submitted in accordance with article 1971, Vernon’s Sayles’ Ann. Civ. St. 1914, no bills of exceptions were taken.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1516, 1520, 1522, 1523, 1525, 1529-1532; Dec. Dig. &wkey;263(l)J
    2. Appeal and Error <&wkey;263(3) — Review-Presentation op Grounds op Review in Court Below.
    Assignments of error, complaining of the refusal of requested charges, cannot be reviewed, where no bills of exception were taken.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1518, 1525; Dec. Dig. 263(3).]
    3. Exceptions, Bill op &wkey;>39(2) — Filing-Time of.
    While under Acts 32d Leg. c. 119, § 7 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073), fixing the time for filing the transcript, statements of fact and bills of exception, the transcript and statements of fact may be filed at any time within 90 days after the adjournment of the district court, bills of exception must be filed within the time fixed by the court, and cannot be filed thereafter, though it be within 90 days after adjournment; the statute not providing that bills of exception may then be filed.
    [Ed. Note.- — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 55, 56; Dec. Dig. <&wkey; 39(2).]
    On Motion for Rehearing.
    4. Appeal and Error <&wkey;263(l) — Errors Reviewable — Fundamental Errors.
    Where not presented by bills of exception, errors in the charge, though they be fundamental, cannot, under Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061), be considered on appeal unless jurisdictional; the statute specifically requiring bills of exception.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516, 1520, 1522, 1523, 1525, 1529-1532; Dec. Dig. &wkey;263(l).]
    Error from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by Herman Loeb against the Texas & New Orleans Railroad Company. There was a judgment far defendant, and plaintiff brings error.
    Affirmed.
    Jofin S. Patterson, of Austin, Wm. Thompson, of Dallas, and Blount & Strong and June C. Harris, all of Nacogdoches, for plaintiff in error. Baker, Botts, Parker & Garwood and John T. Garrison, all of Houston, and S. M. King, of Nacogdoches, for defendant in error.

       Application for writ of error pending in Supreme Court.

   CONLEY, C. J.

This suit was instituted by the plaintiff in error, Herman Loeb, against defendant in error, Texas & New Orleans Railroad Company, to recover $25,135.-91 as damages to 614 bales of cotton alleged to have been destroyed on March 29,1909, on the compress platform in Nacogdoches, Tex., together with interest thereon, through the negligence of the railroad company. The defendant in error entered general and special exceptions to the plaintiff’s pleadings, and especially denied all of the acts of negligence alleged, and specially denied that said cotton was burned by the defendant, and pleaded that the plaintiff was guilty of contributory negligence, which was the proximate cause of the injury and damage done to the cotton, in that plaintiff permitted said cotton to be and remain upon the compress platform without any covering; that the shed of the compress was old and worn; that loose lint cotton was permitted to be handled' around and about said compress; that he permitted grease to accumulate about the compress; that the compress was not provided with a watchman or with water, etc., all of which caused and contributed to the loss. Plaintiff in error filed a supplemental petition, and specifically denied all allegations of contributory negligence. The case was, by the court, submitted to the jury on special issues, which were answered by the jury in favor of the defendant in error, and, upon motion duly made, judgment was then rendered accordingly. Writ of error was duly perfected from said judgment to this court, and the case is now here for review.

In plaintiff in error’s first assignment of error he contends that the court erred in the form and manner in which it submitted to the jury special issue No. 1, and more particularly in the form and manner in which it instructed the jury as to the law by which they should be governed in answering said special issue No. 1, said special issue No. 1 and the law applicable thereto, as submitted by the court, being as follows, to wit:

“Did the defendant, Texas & New Orleans Railroad Company’s engine No. 641 set out the fire which burned the plaintiff’s cotton in the compress? Answer this question ‘Yes’ or ‘No.’
“In passing on and answering the above special issue, you are instructed that the burden of proof is on the plaintiff to establish by a preponderance of the evidence that the fire was set out by defendant’s engine No. 641, and unless the plaintiff has established said fact to your satisfaction, by a preponderance of the evidence, you will answer said special issue No. 1, ‘No.’
“Should you answer special issue No. 1, ‘No,’ you need not answer the hereinafter special issues at all, but should you answer special issue No. 1, ‘Yes,’ then you will answer further, and answer the hereinafter special issues.” ■

Defendant in error objects to the consideration of this assignment, for the reason that no bill of exceptions was taken in the lower court by plaintiff in error to said charge. An examination of the record discloses that after the court had prepared its main charge, which contained the objectionable feature complained of, said charge was submitted to counsel for plaintiff in error for inspection and examination, in accordance with article 1971, Yernon’s Sayles’ Civil Statutes ; that counsel thereupon presented elaborate written objections to the said charge, setting up 14 different exceptions thereto, among which is found the objection covered by this assignment. These objections, after being signed by counsel for plaintiff in error, were presented to the court, and, as shown by the record, have noted thereon, at the bottom, the following words:

“Noted: These exceptions were presented to me before the main charge was read to the jury.
“L. D. Guinn, Judge Presiding.”

This is all the information which the record contains, affecting this matter. There is no affirmative judgment overruling the exceptions or objections thus filed, nor is there any notation of an exception to such rulings of the court on the part of counsel for plaintiff in error, nor is there any bill of exception in the record to such ruling. To ascertain how many of the exceptions to the main charge were sustained by the court, or how many were overruled, or whether or not the main charge was modified in any way, in accordance with the exceptions, and the objections thus filed, it will be necessary for us to check the 14 stated exceptions, and to also refer to the special charges requested by the plaintiff in error, and which were by the court refused, and by this process of elimination to eventually arrive at what was actually done by the court with these exceptions. After this task had been accomplished, were we inclined to enter into it, we are still in the dark as to whether the action of the court was approved or disapproved by counsel, except in so far as we can determine that (matter by ex parte statements dn the briefs and by comparison of the main charge with the special requested instructions refused. On the question of the necessity of reserving bills of exception to the action of the court in giving or refusing charges, it was said in the case of Railway Co. v. Wadsack, 166 S. W. 43:

“The thirty-third Legislature adopted some radical amendments to our practice statutes. Article 1971 of the Revised Civil Statutes was amended so as to read as follows: ‘The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and to present objections thereto, which objections shall in every, instance be presented .to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.’ Acts of 1913, page 113. * * * acj above referred to also contains the following as an amendment to article 2061 of the Revised Oivü Statutes of 1911: ‘The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing article.’
“This article is a part of chapter 19, tit. 37. It evidently refers to the articles which precede it in that chapter, articles 2058, 2059, and 2060. Those articles are as follows:
“ ‘Art. 2058. Whenever in the progress of a cause either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made, or announced, and at his request time shall be given to embody such exception in a written bill.
“ ‘Art. 2059. No particular form _ of words shall be required in a bill of exceptions; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of .the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible.
“ ‘Art. 2060. Where the statement of facts contains all the evidence requisite to explain the bill of exceptions, it shall not be necessary to set out such evidence in the bill of exceptions ; but it shall be sufficient to refer to the same as it appears in the statement of facts.’ _
_ “It was the manifest purpose of the Legislature, in adopting these different amendments,to so reform the practice in our judicial procedure as to reduce the number of reversals on appeal for purely technical errors. Heretofore the ruling of the court in giving and refusing charges was regarded as excepted to in every instance, without any express reservations by bill or otherwise. The effect of the amendment to article 2061 is to place the rulings of the court in giving or refusing charges in the same category with other rulings not appearing of record as to the formalities required for their consideration on appeal. Appellate courts can now no more review the action of the trial court in giving or refusing charges than they can .the rulings admitting or excluding testimony without proper bills of exception. It also follows that bills of exception 'relating to the giving or refusing of charges must conform to the requirements provided by statute for bills of exception generally. * * * Under the new statute, or the amendment to the old, when an objection to the charge is called to the attention of the trial judge before he delivers his instructions to the jury, he is required to make a ruling. He must either. sustain the objection in whole or in part, and modify his charge accordingly, or he must overrule the objection, and read his charge to the jury as prepared, notwithstanding such objection. It Ss this ruling which the appellate court is to review, and which, like rulings on the admission and exclusion of testimony, must be considered with reference to the particular objections urged at the time. No other objection, however tenable, can be now considered, if the statute is obeyed. '* * * Article 2058 says that: ‘Either party dissatisfied with any ruling, opinion, or other action of the court, must except thereto at the time same is made, or announced, and at his request time shall be given to embody such exception in a written bill.’ When we consider in the same connection article 2061 as amended and appearing in the same chapter, there will be little room for the contention that a bill of exceptions in the ordinary form could be dispensed with. * * * To say that it [the charge] thereby becomes subject to revision for any errors urged for the first time on appeal, or in the motion for'a' new trial, is to annul a material provision of the new act, which says that all objections not'presented to the-trial judge before the charge is read to the jury shall be considered as waived. How, then, shall the appellate court be advised of the ruling on the objection presented, or that any such ruling was in fact made, if not by a bill of exception or some form of certificate by the trial judge? Such a ruling does not otherwise appear of record, and, unless presented in some authentic manner, cannot be considered.”

This case so completely covers the cause now under consideration that it is decisive of the point. We have but one duty to perform, and that is to observe the law as it is written, and to confine our deliberations in the review of eases to those errors which are presented in accordance with its requirements. The objection to our consideration of this assignment is well taken, and it is sustained.

The third assignment of error is based upon the refusal of the court to give plaintiff in error’s special requested charge No. 2, which special charge is as follows:

“Gentlemen of the Jury: Did the fire which, damaged and destroyed plaintiffs cotton, on the 29th of March, 1909, on the compress platform in Nacogdoches, Tex., originate from defendant’s engine No. 641? In answering the above question, you are instructed that the burden of proof is on the plaintiff to establish this issue by a preponderance of the evidence. Unless he has done so, he cannot recover.
“By preponderance of the evidence is meant that the evidence, after a consideration of all of the evidence, is; in the judgment of the jurors, entitled to the greatest weight.
“You are the exclusive judges of the facts proven, of the credibility of the witnesses, and of the weight to be given their testimony, but you are bound to take the law from the court, which is hereby given you, and in the special charges, and be governed thereby. You should answer the above question ‘Yes’ or ‘No.’ ”

Inasmuch as there is no bill of exception in the record to the action of the court in refusing to give said charge, we are not permitted, as hereinbefore stated, to review the same. National Novelty Import Co. v. Griffin et al., 168 S. W. 85; Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Fogleman, 172 S. W. 558; Capps v. Johnson, 174 S. W. 294.

Plaintiff in error’s second assignment is an attack upon the court’s main charge in submitting special issue No. 1, more specifically set out under the first assignment of error. What we have said about the first and third assignments of error disposes of this assignment, and it is therefore, not considered.

Assignments of error Nos. 4, 5, 6, 7, 8, and 9 attack the rulings of the court in the admission of certain evidence complained about. Defendant in error excepts to the consideration of these assignments, among other reasons, because no bills of exception were taken to the evidence complained about, and filed'within the time prescribed by law. An examination of the record shows that, at the time the evidence in the trial of the ease complained about was offered, objection was urged thereto by the plaintiff in error, and exception noted to the rulings of the court in permitting such evidence to go to the jury. Tie record further shows that when the motion for new trial was overruled, the court entered the following order, fixing the time in which statement of facts and bills of exception should be prepared and filed by plaintiff in error:

“To which action of the court in overruling said motion for a new trial, the plaintiff, in open court excepted, and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas, at Galveston, Tex., and 90 days is hereby granted and allowed to plaintiff within which to prepare and file statement of facts and bills of exception.”

This order bears date of 17th day of March, 1914. The court adjourned on March 26, 1914. The bills of exception covering the court’s rulings to the admissions of evidence complained of, as disclosed by the record, were not filed and approved by the court until the 24th day of June, 1914, 99 days after the entry of the order aforesaid, and 9 days subsequent to the time fixed and allowed by said order. Acts 32d Leg. c. 119, § 7, providing and fixing the time for filing the transcript and bills of exception, authorizes the transcript to be filed any time within 90 days from the adjournment of the court, but this statute does not make the same provision as to bills of exception, which are still under the law to be filed within time of extension, as fixed by the order of the court. In the case of Unknown Heirs of Criswell v. Robbins, 152 S. W. 210, discussing this matter, the court says:

“All that has been said about the extension of time has- been with a view to the bills of exceptions which are embodied in the statement of facts, for under the provisions of Acts 32d Leg. c. 119, § 7, it is provided ‘that any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within time allowed by law for filing the same.’ What purpose the Legislature had in view in passing such a clause, which practically sets aside all of the other provisions as to the time in which statements of fact shall be filed and renders the question of extension a mere abstraction, is utterly inconceivable. But there it is, and under its provisions the statement of facts, although filed beyond the time legally given by the court, must be held to have been filed in time. But that provision did not lend any aid to the bills of exception embodied in the statement of facts, because they are not mentioned in the sweeping provision as to statements of facts. The bill of exceptions is still under the law as to extensions of time, as is apparent from the language of the law of 1911, which was in effect when this cause was tried on June 15, 1911. It follows that; although under the law of 1911 we are compelled to consider the statement of facts, the. bills of exceptions cannot be considered because filed out of time.”

The statute here discussed by the court in reference to the filing of bills of exception has, in no manner, been changed or modified since the rendition of that decision, and what has there been said applies with equal force at the present time. The bills of exception, not having been*filed within time provided by law, this court cannot consider them.

' The judgment of the lower court is affirmed ; and -it is so ordered.

On Motion for Rehearing.

In his motion for rehearing plaintiff in error contends that the error complained of under the several assignments of error, affecting the court’s charge, and which we refused to consider, is fundamental in its nature, and apparent upon the record, and should therefore be considered without bills of exception or assignments of error. The statute of 1913 relating to the manner of preserving exceptions to the court’s charge for review in this court is mandatory. Under that act, errors in the charge, whether fundamental or otherwise (unless they are jurisdictional in their nature or for some other reason render the judgment void), are waived and approved, unless excepted to in the manner prescribed. Needham v. Cooney, 173 S. W. 985; McKenzie v. Imperial Irr. Co., 166 S. W. 495.

The motion for rehearing is overruled.
      <£=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BURRIS.
    (No. 5673.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 10, 1916.)
    1. Justices oe the Peace <&wkey;159(10) — Appeal Boisrn — “Filed.”
    Under Rev. St. 1911, art. 2393, providing that appeal from a justice court shall be deemed perfected when the appeal bond has been filed with the justice, the appeal is perfected when the bond is presented to the justice and he prom-ises_ to approve and file it, and his mere failure to indorse approval and file it does not affect its validity.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 557-561, 570-572: Dec! Dig. &wkey;159(10).
    For other definitions, see Words and Phrases, First and Second Series, File.]
    2. Justices oe the Peace <&wkey;159(10) — Appeal Bond — Filing.
    Where a justice received and promised to approve and file an appeal bond, the appeal was perfected under Rev. St. 1911, art. 2393, whether the bond was in proper form or not, since the justice could have required one in proper form,' and, if he loses the bond, the appeal is nevertheless valid.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 557-561, 570-572; Dec. Dig. &wkey;159(10).]
    3. Justices oe the Peace <&wkey;159(12) — Appeal Bond — Substitution.
    Where the justice lost, the original appeal bond filed with him, and a new bond identical with the original was' executed, filed with, and approved by him, though not substituted as required by statute, it should have been recognized by the county court in the absence of objection by the appellee, or, if it was defective, appellant should have been allowed to file a new and sufficient bond.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 573-577: Dec. Dig. &wkey;159(12).]
    Appeal from Wilson County Court; E. D. Mayes, Judge.

      Action by S. H. Bnrris against the Galveston, Harrisburg & San Antonio Railway Company. From an order dismissing the appeal to the county court for want of actual approval and filing by the justice of an appeal bond, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, P. E. Johnson, of Stockdale, and W. B. Teagarden, of San Antonio, for appellant. King & West, of Floresville, for appellee.
   FLY, C. J.

Appellee filed suit in the justice’s court for $200, and recovered judgment for $200, with interest at 6 per cent, from December 1, 1914. Upon appeal to the county court the cause was dismissed because an appeal bond was not actually approved and filed by the justice of the peace.

It was proved and found by the county judge that within the time required by law a supersedeas bond was sent to the justice of the peace who tried the cause by appellant to be filed and approved by him, and that within the ten days from time of the trial the justice of the peace told counsel for appellant that the bond had been received, was satisfactory, and would be approved, but it was doubtful whether he did approve and file the bond, but he lost it, and as soon as appellant learned of its loss another bond identical in all respects with the original was sent to the justice of the peace, who filed and approved it and sent it to the county court. The bond was ample in every respect. Appellant did not know that the original bond had been lost until the papers from the justice’s court had been filed in the county court. The justice of the peace charged in his bill of costs for filing and approving the appeal bond.

The statute provides in regard to appeal bonds in justices’ courts:

“When such bond has been filed with the justice the appeal shall be held to he thereby perfected.” R. S. Stats, art. 2393.

The statute is to the same effect as amended by Acts 34th Leg. c. 113, which went into effect on June 22, 1915, the day before the bond was presented to the justice of the peace. In every instance the expression is “filed with the justice,” and not “filed by him.”

There can be no doubt that when a valid appeal bond is presented by a party to the justice of the peace which is satisfactory to him, and which he promises to approve and file, the appeal is perfected. So it was held by the Court of Appeals in Jones v. Orange Wells, 3 Willson, Civ. Cas. Ct. App. §§ 94, 95. It is the duty of the justice of the peace to either approve or reject an appeal bond when presented to him, but the mere failure to indorse an approval on an appeal bond will not destroy it. The approval is a mere clerical act, and a failure to indorse it on the appeal bond does not affect its validity. Burdett v. Marshall, 3 Tex. 24; Insurance Co. v. Wagley, 36 S. W. 997. As said in the cited case of Jones v. Wells:

“When appellants had delivered the bond to the justice, they had done all that the law required them to do to entitle them to the appeal.”

In this case there was an approval of the appeal bond, and appellant should not be held responsible for the failure of the justice of the peace to file and write “Approved” on it. If the justice of the peace lost the bond, as he said he did, appellant’s interests should not be jeopardized by such conduct on the part of the officer. The bond, if not substituted as directed by the statute, should have been recognized by the county judge in the absence of any attack upon it by appellee, and, if it was in any manner defective, appellant should have been permitted to file another bond. The bond is identical with the original, and should be recognized by the court, or appellant allowed to file another bond. Even if the appeal bond was not prepared as the law directs, it perfected the appeal, and the court could have compelled the execution of a bond that did comply with the statute. It has been held that defects in amount and number of sureties may be cured by filing a new bond. Turner King v. Hopkins, 42 Tex. 48; Nones v. McGregor, 35 S. W. 1083.

Whatever the justice of the peace may have sworn as to his dissatisfaction with the bond, because signed by only one surety, there was evidence conflicting with his statement, and the court found that the justice of the peace told the attorney of appellant that the “bond was satisfactory and would be approved.” The court also found that a bond in another case identical with the one in this case was sent to the justice of the peace at the same time, and was approved by him. The court also found that the bond was sufficient. He also found:

“That, had said appeal bond been properly filed and approved by said justice of the peace, defendant, under the facts and circumstances, would in this court have been entitled to substitute said bond and amend it by adding another surety thereon, or at its option to substitute a new bond for the lost bond so as to secure to defendant the right of trial in this court de novo.” '

We have been greatly impressed with the fairness with which all the facts were found by the county judge; the only error being in not finding that the acts of the justice of the peace, to all intents and purposes, amounted to an approval and a filing of the appeal bond.

The judgment is reversed, and the cause remanded.
      <&wkey;Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes