text:
    DUNBAR et al. v. TEXAS IRR. CO.
    (No. 6005.)
    (Court of Civil Appeals of Texas. Galveston.
    June 25, 1912.
    Rehearing Denied May 3, 1917.)
    1. Waters and Water Courses &wkey;>258— Irrigation — Lien for Water.
    Sayles’ Ann. Civ. St. 1897, art. 3130, pro-riding that eveiT person, corporation, or association of persons which has heretofore constructed, or which may hereafter construct, any ditch, canal, dam, lake, or reservoir for the purpose of irrigation, and who' shall lease or rent the water from said ditch, canal, dam, lake, or reservoir to any person or association of persons or corporation owning any lands subject to irrigation from any such ditch, canal, lake, dam, or reservoir, such person, corporation, or association of persons o'wning such ditch, canal, lake, dam, or reservoir shall have a preference lien superior to every other lien, upon the crop or crops raised upon the land thus irrigated under such lease or contract, gives a preferred lien to an irrigation company furnishing water to one entitled to compel it to furnish water upon the crops raised under such irrigation and against all persons asserting a lien of any kind against the crop.
    2. Landlord and Tenant <&wkey;248(l) — Irrigation — Lien eor Water.
    Such lien is superior to the landlord’s lien given by Rev. St. 1879, ai-t. 8107.
    [Ed. Note. — For other cases, see Landlord and Tenant, Gent. Dig. §§ 1003, 1005 — 1008, 1017.]
    3. Mandamus &wkey;133 — Irrigation—Duty to Furnish Water.
    Since Sayles’ Ann. Civ. St. 1897, art. 3125, provides that all persons holding a possessory right to land adjoining an irrigation plant can compel the furnishing of water to irrigate crops, the duty to furnish water is statutory and can be enforced by mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 26SJ
    4. Waters and Water Courses <&wkey;258 — Irrigation — Lien for Water — “Owner.”
    Under Sayles’ Ann. C'iv. St. 1897, art. 3130, the lien exists in favor of the irrigation company, though it furnishes the water under contract with the tenant, since the word “owner,” though it primarily means the owner of the fee, includes also a person having a possessory right to the land.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]
    5. Constitutional Law <&wkey;106 — Landlord and Tenant &wkey;>241 — Lien for Rent.
    Since the landlord’s lien is given by statute, the Legislature may restrict it as it deems best for the public interest or entirely abolish it, and no vested right of the landlord is invaded by a statute authorizing a tenant to create a lien upon a crop superior to any lien in favor of the landlord.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 186, 212, 238-245, 252-257, 259; Landlord and Tenant, Cent. Dig. §§ 977, 978.]
    Appeal from District Court, Matagorda County; Wells Thompson, Judge.
    Suit by the Texas Irrigation Company against J." Harvey ■ and the Bay City Rice Milling Company, wherein D. N. Dunbar intervened. Judgment for plaintiff against defendant and intervener and for intervener over against defendant Harvey, and intervener and defendant Milling Company appeal.
    Affirmed.
    Linn, Conger & Austin, of Bay City, for appellants. Gaines & Corbett, of Bay City, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee against J. I-Iarvey and the Bay City Rice Milling Company to recover the sum of $566.72, together with interest and attorney’s fees, alleged to be due as water rents for water furnished the defendant Harvey by plaintiff to irrigate a rice crop grown by him during the season of 1909 upon a tract of 80.96 acres of land on the D. N. Dunbar farm in Matagorda county. It was alleged that plaintiff had a first lien upon the rice crop grown upon said land to secure the payment of said water rents, and that 231 sacks of said rice had been wrongfully converted by the defendant Bay City Rice Milling Company, and judgment was asked against said defendant for the value of said rice. The defendants answered and set up that D. N. Dunbar was the owner of the land on which the crop was raised; that Harvey was a tenant of said D. N. Dunbar and rented the land -from him under a verbal rent contract for the year 1909, for a share of the crop, viz. three-tenths thereof, payable as harvested ; and further that the said D. N. Dunbar, the landlord of said Harvey, had during the said year made advances to the said tenant to enable him to plant, grow, and harvest the crop raised, amounting to $587; that the tenant turned over to his said landlord, Dunbar, 231 sacks of rice, of the value of $1.70 per sack, in part payment of the sum due for advances; and that the defendant Bay City Rice Milling Company received the said rice from said Dunbar, stored it in his name, and for his account, and sold it for him on his order, and thereafter paid him the proceeds or such sale, less storage and commission for sale. D. N. Dunbar, the landlord, intervened and alleged that he was the owner of the land in fee simple; that J. Harvey was his tenant for the year 1909, under a parol cropping contract, by which the inter-vener, as consideration for the land and seed, was to receive three-tenths of the crops; and. further, that as landlord during said year and beginning on January 10, 1909, up to September 30, 1909, he had furnished advances to his said tenant, to enable him to plant, grow and harvest his crop, consisting of money, teams, tools, feed, and supplies, amounting to the sum of $587.80; that the tenant only made a crop of 330 sacks; that out of same as harvested he paid intervener 99 sacks for his rent, or share of the crop; that the remaining 231 sacks, of the value of $1.70 per sack, were delivered to him at the railroad station by the tenant as part payment for the advances so made; that he had and held the landlord’s lien upon said crop; and that such lien was superior and paramount to any lien held by the plaintiff. The cause was tried by the court below without a jury, and judgment was rendered in favor of plaintiff against the defendant Harvey for the sum of $663, being the amount of the water rents due by him to plaintiff with interest and attorney’s fees as provided in the rental contract, and against' the defendant the Bay City Rice-Milling Company and the intervener D. N. Dunbar for the sum of $392.70, the value of said 231 sacks of rice with interest thereon from November 15, 1909. Judgment was also rendered in favor of the intervener against the defendant Harvey for the value of the supplies furnished him by the inter-vener. From this judgment, the defendant Bay City Rice Milling Company and the in-tervener D. N. Dunbar prosecutes this appeal.

The case was tried in the court below upon an agreed statement of facts, from which we make the following excerpts:

“By section 2 of the statement of facts it is agreed that D. N. Dunbar was, and ever. since has been, the owner of the land in fee simple.
“By section 3 it is agreed that said Dunbar about January 1, 1909, rented the 80 acres of land to defendant Harvey for the year 1909, by verbal contract under which intervener, Dunbar, for the furnishing of land and seed to plant it, was to have three-tenths of the crop raised; that the tenant Harvey raised a crop of 330 sacks and delivered 99 sacks to Dunbar for the rent as same was harvested.
“By section 4 it is agreed that the landlord, Dunbar, during said year, beginning on January 10, 1909, and ending on September 30, 1909, made and furnished advances to his said tenant, amounting to $587.80, to enable him to plant, cultivate, and harvest the crop, which advances consisted of stock, feed, cash, harness, tools, and supplies, and by the account of advances itemized in said article it is shown that the landlord, Dunbar, had advanced to his tenant $267 prior to the making of the water contract.
“By section 5 it is agreed that the tenant hauled the balance of the crop, amounting to 231 sacks, to the railroad station on September 30, 1909, and on October 15, 1909, turned same over to his landlord, Dunbar, in part payment of the amount due for advances and assigned to him the bill of lading.
“By section 6 it is agreed that afterwards the landlord, Dunbar, delivered the said 231 sacks of rice by rail to the defendant Bay City Rice Milling Company, who sold it for his account at the price of $1.70 per sack.
“By section 7 it is agreed that the landlord, Dunbar, applied the proceeds of the sale to' the partial payment of his debt for advances.
“By section 12 it is agreed that no contract of any nature existed between the landlord, Dunbar, and the plaintiff (appellee) for the irrigation of the land cultivated by the defendant Harvey, and. that said Dunbar was in no manner a party "to the contract between the tenant Harvey and the plaintiff sued on herein, and that the landlord’s lien provided for by statute has never been waived or released.
“By sections 9, 10, and ll it is agreed that the defendant J. Harvey, on April 20, 1909, entered into a water contract with plaintiff company, wherein he agreed to pay. a water rental of $7 per acre for the irrigation of the land, amounting to $566.70, and that subdivision 9 of said contract created a mortage on all rice grown on the land to secure the payment of the sums due, and for attorney’s fees, in case suit was brought on the contract; that said mortgage has been duly filed on Miay 4, 1900, as a chattel mortgage; and that neither the statutory nor the chattel mortgage lien of the plaintiff has ever been waived or released.”

Under an appropriate assignment of error, appellant first assails the judgment of the court below upon the ground that article 3130 of the statute (Sayles’ Civil Statutes) is so vague and indefinite that no valid lien is created thereby. The proposition presented under this assignment is as follows:

“A statutory lien on personal property, to be valid and effective as such, must be complete and specific in its terms, as to the amount secured, as against whom the lien exists, and as to the particular service or product for the value of which the lien is given, failing in these matters the act is void for uncertainty and indefiniteness.”

Article 3130 of the statute is in the following language: *

“Every person, corporation or association of persons which has heretofore constructed or which may hereafter construct any ditch, canal, dam, lake or reservoir for the purpose of irrigation, and who shall lease or rent the water from said ditch, canal, dam, lake or reservoir to any person or association of persons or corporation owning any lands subject to irrigation from any such ditch, canal, lake, - dam or reservoir, such person, corporation or association of persons owning such ditch, canal, lake, dam or reservoir shall have a preference lien superior to every other lien, upon the crop or crops raised upon the land thus irrigated under such lease or contract.”

While the intention of the Legislature might have been expressed in clearer and more accurate language, we think, when the irrigation act as a whole is considered and the general purpose and intent of the Legislature in the passage of the act is borne in mind, the meaning of the article above quoted is plain. The amount secured by the lien is clearly the amount due for the rent of the water with which the crop was irrigated. The lien is given to the corporation or person who constructs or owns an irrigation ditch, canal, dam, lake, or reservoir, and who leases or rents water to irrigate a crop upon land subject to irrigation from said ditc-h, canal, lake, dam, or reservoir, and is given upon the crop so irrigated, and no other conclusion can be drawn from the language of the article than that the Legislature intended to give the lien to secure the irrigation company in the amount contracted to be paid for irrigating the land on which the crop is grown. There can be no doubt as against whom the lien exists. It certainly exists against the owner of the crop with whom the contract for water is made, and by the express terms of the article it is a “preference lien superior to any other lien,” and, if the contract to furnish the water is made with one having a right under the statute to compel tlie irrigation, company to furnish the water, the lien given by the statute to secure the company compensation for tlie water furnished to such person exists against all persons asserting a lien of any kind against the crop irrigated by the water so furnished.

Under the second assignment of error, it is contended that the landlord’s lien given by article 3107 of the statute (Rev. St. 1879) is superior to the lien given by the article above quoted. We cannot so construe the statute. Under the common law, a landlord had a lien to secure his rents, and in the early legislation of this state such lien was expressly given by statute and was given to secure advances made and supplies furnished by the landlord as well as the rents. This lien as given by the statute was made a preference lien. But the power of the Legislature to subordinate the landlord’s lien to other hens cannot be doubted, and it seems to us words could not more clearly express the intention of the Legislature to make the landlord’s lien subordinate to the lien given by the irrigation statute than the declaration that the irrigation company’s lien is' a preference lien superior to every other lien upon the crop or crops raised upon the land thus irrigated under such lease or contract. If the Legislature had not intended to make the irrigation lien superior to the landlord’s lien, they would have added to the above-quoted portion of the article the clause, “except the landlord’s lien given by article 3107 of the Revised Statutes.” There being no such words of limitation, we must believe that the Legislature meant what they said, and that the irrigation lien is superior to any other lien, including the landlord’s lien.

There is a sound reason for making the irrigation lien superior to the landlord’s lien. No man is' compelled by law to rent his land. If the person desiring to rent is irresponsible or undesirable, or can give no security for the rent of the land, the owner can refuse to rent to him; but such is not the case with tlie person or corporation owning an irrigation plant. The statute provides (article 3125) that all persons who own or hold a possessory right to land adjoining an irrigation plant shall be entitled to be supplied with water from such plant, and, if such person fang to agree upon a price for the water necessary to irrigate his land, the irrigation company shall nevertheless, if it has any water not contracted to others, furnish the necessary water to such person at such price as may be reasonable and just. This obligation upon the irrigation company to so furnish water is a statutory duty imposed upon it, in favor of that portion of the public holding lands contiguous to its plant, which can be enforced by mandamus. Having imposed this duty upon the irrigation company, it was reasonable and just that such company should be given a preference lien superior even to that of the landlord to secure its reasonable compensation for the water it is thus obliged to furnish.

Under the third assignment of error, it is contended that the preference lien given by this statute is only given when the water contract is made with the owner of the land, and that a tenant is not the owner of the land, and therefore no lien is created when the contract to supply water is made only with the tenant.

The primary meaning of the word “owner,” as applied to land, is one who owns the fee and who has the right to dispose of the property, but the term also includes a person having a possessory right to the land, or the person lawfully occupying and cultivating it, and this is the sense in which it is used in the article before quoted. 29 Cyc. 1549; Turner v. Cross, 83 Tex. 227, 18 S. W. 578, 15 L. R. A. 262. As we have seen, this statute expressly gives the tenant the right to compel the irrigation company to furnish him water, and the Legislature certainly intended that the lien given the company should protect it in all contracts which the statute obligated it to make, and this evident purpose and intent of the act would be disregarded if the term “owner of the land,” as used in article 3130, is given its narrow or restricted meaning. That the word “owner” as here used does not mean the legal owner of the fee-simple title to the land is also apparent from the fact that the lien is not given upon the land, but upon the crop, and the “owner of the land,” as the term is here used, means such owner as has the ownership of the crop to be irrigated, the title to which is in the tenant and not in the landlord.

There is no constitutional provision protecting landlords in the lien given by the statute, and, as we have before said, it is in the power of the Legislature to restrict this lien in such manner as it deems best for the public interest, or to entirely abolish such common-law or statutory lien, and no vested right of the landowner is invaded by a statute which authorizes a tenant to create a lien upon a crop grown by him upon rented premises superior to any lien in favor of the landlord.

The constitutionality of the irrigation statute was upheld by this court and the Supreme Court in the case of Borden v. Trespalacios Irrigation Co., 82 S. W. 461, and Id., 98 Tex. 494, 86 S. W. 11, 197 Am. St. Rep. 640, and none of the constitutional objections urged by appellant to the act can be sustained.

We think none of appellant’s assignments presents any error, and that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      citesFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    TEXAS BANK & TRUST CO. OF BEAUMONT v. SMITH et al. BEAUMONT IRRIGATING CO. v. McDONALD et al.
    (No. 5949.)
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1912.
    Rehearing Denied April 5, 1917.)
    1. Waters and Water Courses <&wkey;258 — Irrigation — Lien for Water — “Owner.”
    Under Sayles’ Ann. Civ. St. 1897, art. S130, providing that every person, corporation, or association of persons which has heretofore constructed or which may hereafter construct any ditch, canal, dam, lake, or reservoir for the purpose of irrigation, and who shall lease or rent the water from said ditch, canal, dam, lake, or reservoir to any person or association of persons or corporations owning any lands subject to irrigation from any such ditch, canal, lake, dam, or reservoir, such person, corporation, or association of persons owning such ditch, canal, lake, dam, or reservoir shall have a preference lien superior to every other lien, upon the crop or- crops raised upon the land thus irrigated under such lease or contract, exists in favor of the irrigation company, though it furnishes the water under contract with the tenant, since the word “owner,” though it primarily means the owner of the fee, includes also a person^ having a possessory right to the land.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]
    2. Landlord and Tenant &wkey;>248(l) — Irrigation — Lien for Water.
    Such lien is superior to the landlord’s lien given by Rev. St. 1879, art. 3107.
    [Ed. Note. — For other cases, see Landlord and Tenant, Gent. Dig. §§ 1003, 1005-1008, 1017.]
    3. Chattel Mortgages &wkey;>138(l) — Irrigation — Lien for Water.
    Such lien is superior to the lien of a bank under a mortgage given to secure a loan of money for the purpose of purchasing seed with which to plant the land.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228, 229, 231-236.]
    Appeal and Error from District Court, Jefferson County; L. B. Hightower, Jr., Judge.
    Suit by the Texas Bank & Trust Company of Beaumont against George W. Smith and others, and by the Beaumont Irrigating Company against Sadie C. McDonald, George W. Smith, and others. The cases were consolidated, and R. W. Flournoy and others intervened. From the decree rendered, the Bank appeals and the Irrigation Company brings error.
    Affirmed in part, and reversed and rendered in part.
    See, also, 192 S. W. 533.
    Carlton, Townes & Townes, of Houston, and R. E. Hardwieke, of Beaumont, for Texas Bank & Trust Co. Lipscomb & Williams, of Beaumont, for Beaumont Irr. Co. Geo. D. Anderson, of Beaumont, for Sadie C. McDonald and others.
   McMEANS, J.

During the year 1909, George W. Smith had possession under leases of certain parts of sections No. 16 and 13, H. T. J & B. R. R. surveys in Jefferson county, which for the year 1909 he and R. A. Davidson were cultivating in rice with the agreement that Smith should furnish the land, seed, and water, and that Davidson should do whatever else was necessary to make the crop, and they should divide it equally. Smith’s farm consisted of the following parcels of land on section 16, which were leased to him by the respective owners and for which he agreed to pay money rent, viz.: 80 acres belonging to Sadie C. McDonald; 120 acres owned by R. W. Flournoy; 80 acres owned by H. Heard and Thomas Ross.; 120 acres belonging to J. F. Cooper; and 80 acres owned by H. Harding; also, 80.8 acres owned by E. L. Bacon on section 13 — -making in all 560.8 acres. 1-Ie had in cultivation in rice on this farm 423 acres on section 16 and 80.8 acres on section 13. On May 26, 1909, the Texas Bank & Trust Company lent Smith certain money to enable him to comply with his part of the contract with Davidson to furnish seed rice, etc., and agreed to make other advances thereafter, and on the date mentioned the bank took from Smith a mortgage on his one-half of the crop that should be grown on section 16, which mortgage was duly filed for registration May 29, 1909. On July 19, 1909, Smith signed a contract with the Beaumont Irrigating Company, whereby the latter agreed to furnish water to the former at a stipulated price per acre to irrigate the lands cultivated by himself and Davidson. There is testimony in the record that justifies the finding that this contract was really made between Smith and the irrigating company on May 12, 1909, but not reduced to writing and signed by Smith until July 19th; but in the view we take it is immaterial whether this contract was made before or after the execution of the mortgage to the bank. The landowners knew at the time they leased to Smith that he intended planting and cultivating the land in rice, and the bank knew this at the time it took the mortgage from Smith. Rice cannot be successfully grown without water, and on the land in question could not be grown without irrigation, and the only water accessible to the Smith farm was that in the canals of the irrigating company.

On October 28, 1909, default having been made in the payment of rent, Sadie C. McDonald filed suit in the district court of Jefferson county, Fifty-Eighth judicial district, against Smith, to recover judgment for the rent due her and prayed for foreclosure of her landlord’s lien upon the rice crop grown on her land, and at her instance a receiver was appointed to take charge of the rice on hand. Afterwards, the Beaumont Irrigating Company filed suit in the district court of Jefferson county, Sixtieth judicial district, praying judgment for the amount due, under its water contract with Smith, and .asking a foreclosure of its lien upon the entire crop. This case and the case then pending in the Fifty-Eighth district court were consolidated, the same receiver having been appointed in both, and the receiver’s powers were enlarged so as to authorize him to take charge of the entire crop, so far as the same could be located, which he did. The other landlords and claimants against the rice, including the Texas Bank & Trust Company, intervened in one or the other of the respective suits, or in the consolidated suit. No question is made of the amount found by the court to be due the various landowners by Smith for rent, nor the amount of Smith’s debt to the bank, which was secured by the mortgage, nor as to the amount due the irrigating company for water rates, and the judgment establishing Smith’s liability to each of such creditors is not complained of. Upon trial by the court, a jury having been waived, judgment was rendered against Smith establishing the debt of each claimant as alleged, and declaring a first lien extending to the entire crop existed in favor of the various landowners and their assignees, a second lien likewise extending to the entire crop in favor of the Beaumont Irrigating Company, and a third lien extending to Smith’s half of the crop only, in favor of the Texas Bank & Trust Company. To this judgment both the bank and the irrigating company excepted, and bring this case before us for revision and correction; the former by appeal, and the latter by writ of error.

The principal, and we may say the only important, question presented for our determination by the Beaumont Irrigating Company, is whether the lien of the landlords for rent is superior to its lien for water rates, and the important questions presented by the Texas Bank & Trust Company are: (1) Whether the irrigating company had any lien upon the crop at all; and (2) if so, Was its lien for water rates superior to the mortgage lien of the bank?

We will first dispose of the contention of the bank that no lien existed under the facts of this case in favor of the irrigating company. This contention is based upon the language of article 3130, Sayles’ Civil Statutes, which reads as follows:

“Every person, corporation or association of persons which has heretofore constructed or which may hereafter construct any ditch, canal, dam, lake or reservoir for the purpose of irrigation, and who shall lease or rent the water from said ditch, canal, dam, lake or reservoir to any person or association of persons or corporation owning any lands subject to irrigation from any such ditch, canal, lake, dam or reservoir, such person, corporation or association of persons owning such ditch, canal, lake, dam or reservoir shall have a preference lien, superior to every other lien, upon the crop or crops raised upon the land thus irrigated under such lease or contract.”

'The evidence shows without contradiction that Smith was the lessee and not th,e owner of the land irrigated by the irrigating company, and the bank argues that the statutory lien in favor of the company did not exist unless the contract for irrigation is made by, or the water for irrigation is furnished to, the lan'downer.

This question recently arose in this court in the case of Dunbar v. Texas Irrigation Co., 195 S. W. 614, and was decided adversely to the bank’s contention. Upon this point we copy the following from the opinion in that case:

“Under the third assignment of error, it is contended that the preference lion given by this statute is only given when the water contract is made with the owner of the land, and that a tenant is not the owner of the land, and therefore no lien is created when the contract to supply water is made only with the tenant.
“The primary meaning of the word ‘owner’ as applied to land is one who owns the fee and who has the right to dispose of the property; but the term also includes a person having a pos-sessory right to the land, or the person lawfully occupying and cultivating it,. and this is the sense in which it is used in the article before quoted. 29 Cyc. 1549; Turner v. Cross, 83 Tex. 227, 18 S. W. 578, 15 L. R. A. 262.
“As we have seen, this statute expressly gives the tenant the right to compel the irrigation company to furnish him water, and the Legislature certainly intended that the lien given the company should protect it in all contracts which the statute obligated it to make, and this evident purpose rand intent of the act would be disregarded if the term ‘owner of the land,’ as used in article 3130,. is given its narrow or restricted meaning.
“That the word owner, as here used, does not mean the legal owner of the fee-simple title to the land; is also apparent from the .fact that the lien is not given upon the land, but upon the crop, and the ‘owner of the land,’ as the term is here used, means such owner as has the ownership of the crop to be irrigated, the title to which is in the tenant and not in the landlord.”

We come now to the question of priority of liens as between the irrigating company and the landlords. This question was also presented to and passed upon by this court in the case referred to, and, in accordance with the decision in that case, we uphold the contention of the irrigating company that its lien for water rates is superior to that of the landlords for rent of the land. We copy from the opinion:

“Under the second assignment of error, it is contended that the landlord’s lien given by article 3107 of the statute [Rev. St. 1879] is superior to the lien given by the article above quoted. We cannot so construe the statute. Under the common law, a landlord had a lien to secure his rents, and in the early legislation of this state such lien was expressly given by statute and was given to secure advances made and supplies furnished by the landlord as well as the rents. This lien as given by the statute was made a preference lien. But the power of the Legislature to subordinate the landlord’s lien to other liens cannot be doubted, and it seems to ns words could not more clearly express the intention of the Legislature to make the landlord’s lien subordinate to the lien given by the irrigation statute than the declaration that the irrigation company lien is a ‘preference lien superior to every- other lien upon the crop or crops raised upon the land thus irrigated under such lease or contract.’ If the Legislature had not intended to make the irrigation lien superior to the landlord’s lien, they would have added to the above-quoted portion of the article the clause, ‘except the landlord’s lien given by article 3107 of the Revised Statutes.’ There being no such words of limitation, we must believe that the Legislature meant what they said, and that the irrigation lien is superior to any other lien, including the landlord’s lien.
“There is a sound reason for making the irrigation lien superior to the landlord’s lien. No man is compelled by law to rent his land. If the person desiring to rent is irresponsible or undesirable or can give no security for the rent of the land; the owner can refuse to rent to him; but such is not the case with the person or corporation owning an irrigation plant. The statute provides (article 3125) that all persons who own or hold a possessory right to land adjoining an irrigation plant shall be entitled to be supplied with water from such plant, and, if such person fails to agree upon a price for the water necessary to irrigate his land, the irrigation company shall nevertheless, if it has any water not contracted to others, furnish the necessary water to such person at such price as may be reasonable and just. This obligation upon the irrigation company to so furnish water is a statutory duty imposed upon it, in favor of that portion of the public holding lands contiguous to its plant, which can be enforced by mandamus. Having imposed this duty upon the irrigation company, it was reasonable and just that such company should be given a preference lion superior even to that of the landlords to secure its reasonable compensation for the water it is thus obliged to furnish.”

It follows from what we hare said that the lien of the irrigating company is superior to the mortgage lien of the bank. We think that the judgment of the court below postponing the mortgage lien of the bank to the liens of the irrigating company and the landlords should be affirmed, and that the judgment postponing the lien of the irrigating company to the liens of the landlords should be reversed, and judgment is here rendered establishing the lien of the irrigating company as a first lien on the rice and superior to all other liens, and it has been so ordered. In all other respects, the judgment of the court below is undisturbed.

Affirmed in part. Reversed and rendered in part.
      ^oxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MILLER v. CHICAGO PORTRAIT CO.
    (No. 5909.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 9, 1917.
    Rehearing Denied June 6, 1917.)
    1. Damages i&wkey;78(3) — Contracts—Liquidated Damages.
    Where a contract not to engage in a rival business in a certain locality provides for the payment of a stipulated sum on a breach, the amount is regarded as stipulated damages and not as a penalty.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § ICO.]
    2. Injunction <&wkey;61(2) — Restraining Breach of Contract^Stipulation of Parties — Intention of Parties.
    Whether a contract stipulating that, in case of any violation, the party so violating it acknowledges his indebtedness to the other in a specified sum, limits the •remedy of the party injured to an action at law, or whether he is entitled to injunctive relief, depends on the intention of the parties deducible from the contract and the surrounding circumstances.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 121-123.]
    3. Injunction <&wkey;61(2) — Restraining Breach of Contract — Engaging In Competing Business.
    Under a contract wherein an employé agreed with employer that he would not, for one year, for any other firm solicit for enlarging photographs, selling frames, etc., it was clear that the $1,000 liquidated damages provided for was to give all the relief that could be obtained, and a count of equity would not enjoin employé from engaging in such business within the state; there being no evidence of trade secrets connected with the business or that damages were inadequate, and courts not favoring contracts which would drive employé out of state to seek occupation in a business with which he is bettor acquainted than any other, or put him in another business for which he is not suited.
    [Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 121-123.]
    Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.
    Suit by the Chicago Portrait Company against C. I. Miller. From a decree for plaintiff, defendant appeals.
    Reversed and remanded.
    J. F. Carl, P. H. Swearingen, Jr., and Geo. G. Clifton, all of San Antonio, for appellant. John T. Evans, of Chicago, Ill., and Norton & Brown, of San Antonio, for appellee.
   FLY, C. J.

This is a suit by appellee to restrain appellant from engaging in the same business in which appellee is engaged or in, a competing business in the state of Texas for a period of one year from January 16, 1917. The business of appellee is that of enlarging photographs into portraits finished in oil, crayon, and pastel, and in selling frames and other merchandise in connection with said business. It was alleged that appellee, on or about January 1, 1916, entered into a contract with appellant whereby the latter agreed to perform certain stipulated duties, and continued to perform such duties until January 16, 1917, and engaged in the same business in competition with appellee in violation of his agreement as follows:

“Second party agrees, as a special consideration for the obligation assumed by first party herein and the commissions to be paid to him under this agreement, that he will not for a period of one year from the date of the termination of his employment hereunder, without the written consent of first party so to do, (a) engage in the same business as that conducted by him for first party or engage in any competing business in the territory or any parts thereof in which second party was employed for the year last preceding the termination of his employment hereunder; (b) employ directly or indirectly, or aid, assist, encourage, advise or direct any other person, firm or corporation in employing in any territory or business for said 'period of one year immediately succeeding the termination of his employment hereunder any person or persons at any time employed by first party, unless such party shall have been out of the employ of the first party for six months; (c) knowingly, intentionally or willfully aid, assist, encourage, advise or direct, directly or indirectly, any person or persons who may be employed by first party for the year next succeeding the termination of the second party’s employment hereunder, to quit or abandon such employment by the company during said period, for the purpose of entering into any other business or employment whatever.”

The court, upon a hearing, granted a temporary writ of injunction as prayed for.

It was agreed that the contract was duly executed by the parties, and that it’ had been breached by appellant as to the stipulations in the paragraph hereinbefore copied, and that he is insolvent.

The only questions to be solved in this case are as to whether a contract not to enter into the same business for a year as that in which appellant was engaged is valid and binding, and, if so, if the provision for liquidated damages for a breach does not take the case out of the jurisdiction of a court of equity, and thus prevent the issuance of a writ of injunction.

The authorities seem to establish beyond question that where a contract is made not to engage in a rival business in a certain locality and provision is made for the payment of a stipulated sum on a breach, such amount is treated as stipulated damages, rather than as a penalty. However, the weight of authority seems to be that, although liquidated damages are provided for in such contracts, such provision does not oust equity jurisdiction unless it appears from the contract -that it was the intention of the xiarties thereto that the damages should be the only remedy, and that no equitable remedy was contemplated. Wilkinson v. Colley, 164 Pa. 35, 30 Atl. 286, 26 L. R. A. 114; Harris v. Theus, 149 Ala. 133, 43 South. 131, 10 L. R. A. (N. S.) 204, 123 Am. St. Rep. 17; Ropes v. Upton, 125 Mass. 258; Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. St. Rep. 464; McCurry v. Gibson, 108 Ala. 451, 18 South. 806, 54 Am. St. Rep. 177; Heinz v. Roberts, 135 Iowa, 748, 110 N. W. 1035.

But as said by the New York Court of Appeals in the cited case of Diamond Match Co. v. Roeber:

“It is, of course, competent for parties to a covenant to agree that a fixed sum shall be paid in case of a breach by the party in default, and that this should be the exclusive remedy. * * * It is a question of intention, to be deduced from the whole instrument and the circumstances ; and if it appear that the performance of the covenant was intended, and not merely the payment of damages in case of a breach, the covenant will be enforced.”

In the case of Wills v. Forester, 140 Mo. App. 321, 124 S. W. 1090, in which the question under consideration is fully discussed, the court said:

“The fact that the damages are liquidated does not of itself change the rule. It is a ques-" tion of the real intention of the parties to be deduced from the whole instrument .and the sur-, rounding circumstances, and if it appear from "these that the performance of the contract was" intended, and not merely the payment.,of; damages in case of its breach, the agreement will then be enforced by specific performance.”

The contract herein provides:

“The parties hereto having considered the damages which might or will accrue to the first party by reason of the violation of any of the provisions of this section by second party, and the difficulty or practical impossibility of arriving b¡y computation or legal proof at the exact amount of such damage, to first party, and having considered what would be a fair and reasonable amount of such damages for violation by second party of the provisions a, b or c, of this section, as hereinbefore set out, shall be fixed at the sum of one thousand ($1,000.00), as liquidated damages, which the said second party and his sureties agree to pay for such violation of any or all of said provisions on demand, and the first party shall have the right to set off said amount against any amounts due or to become due from first party to second party or stock owned by second party in the company, and any bond given to secure this contract shall include the stipulated damages under this section.”

It is clear that it was the intention of the parties that the $1,000 .was to give all the relief that could, be obtained from a breach of the contract, and that it was never contemplated that a court of equity should interpose with a writ of injunction. It appears that the liquidated damages were deemed sufficient to meet every breach of the contract, and we would judge from the evidence which fails to show any damages whatever, that full compensation can be obtained from the $1,000 for any possible breach of the contract. No actual damages were claimed or proven. There was no evidence of trade secrets connected with inducing people to have their photographs magnified into portraits and placed in expensive frames. Any good canvasser could .do all that was necessary to gain the desired end.

As said in the case of Gossard v. Crosby, 132 Iowa, 155, 109 N. W. 483, 6 L. R. A. (N. S.) 1115:

“Even where there is an express negative covenant, the authorities all agree that an injunction will not be granted save in those exceptional cases where the promised service 'is of a special, unique, unusual and extraordinary, or intellectual character which gives it peculiar value, the loss of which cannot be reasonably "or adequately compensated in damages in an action at law.”

In the case of Osius v. Hinchman, 150 Mich. 603, 114 N. W. 402, 16 L. R. A. (N. S.) 393, it was held in a similar case to this:

“Complainant, having failed to show that he has in reality suffered any loss, or will suffer any loss by reason of the acts of defendant, or that he is in any way actually prejudiced .by such acts, or that the enforcement of the agreement was necessary to his protection, is not entitled to relief.”

In the case of Simms v. Burnette, 55 Fla. 702, 46 South. 90, 16 L. R. A. (N. S.) 389, 127 Am. St. Rep. 201, 15 Ann. Cas. 690, as in this, there was no proof of any trade secrets or any high intellectual attainments necessary to sell portraits, and it was held that no injunction should be granted. See, also, Columbia College v. Tunberg, 64 Wash. 19, 116 Pac. 280, and Kinney v. Scarbrough Co., 138 Ga. 77, 74 S. E. 772, 40 L. R. A. (N. S.) 473.

Courts will not favor contracts that would drive a man out of Tesas to seek occupation in a business, with which he is perhaps better acquainted than any other, or put him in another business for which he is not trained or suited. This is a different case from the sale of a business induced by a contract not to engage in a similar business in a named locality in a specified time. The contract in this case is aimed at the right to obtain employment in a similar business. It is an attempt to restrain the right to earn a living. As said in an Ontario case, Allen Mfg. Co. v. Murphy, 23 Ont. L. Rep. 467, cited in note to Kinney v. Scarbrough Co. (Ga.) 40 L. R. A. (N. S.) 473:

“Bestraints which may fairly be regarded as entirely reasonable when imposed in connection with the sale of a business or good will, or with the transfer of patent rights or of a trade secret, or with the dissolution of a partnership, should not be accepted in all cases as necessarily or even approximately applicable to restraints imposed upon employes to whom the only consideration for their covenant is employment and receipt of wages or remuneration for a more or less certain number of years.”

The judgment is reversed, and the cause remanded.
      cte^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. MOSEL et al.
    (No. 5841.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1917.
    Rehearing Denied June 6, 1917.)
    1. Bailroads <&wkey;72(8) — Location of Depots —Enforcement of Conteacts.
    Until the public interest requires the removal of a depot, the railway company may be restrained from removing it in violation of a covenant.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 177.]
    2. Bailboads <&wkey;72(3) — Location of Depots —Enforcement of Conteacts.
    When the public interest requires the removal of a railway depot, it can be removed notwithstanding a covenant with private individuals not to remove it.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 171.]
    3. Appeal and Ereob &wkey;>1010(l) — Findings —Conclusiveness.
    A finding that a covenant by a railroad company in consideration of a conveyance of land to it to maintain a depot thereon meant a passenger depot will not be disturbed where it appears that there was a passenger depot on the tract conveyed at the time of the conveyance, and when the persons claiming the benefit of the covenant purchased their lots of the covenantee, that their property was used for mercantile, retail and wholesale establishments and residences, all of which were benefited by passengers brought into the vicinity while it was not shown that freight handled would benefit the contiguous property.
    [Ed. Note. — For other .cases, see Appeal and Error, Cent. Dig. §§ 3979-3981, 4024.].
    4. Bailboads <&wkey;72(5) — Location of Depot-Estoppel — Acceptance of Deed.
    Where a railway company accepted and registered a deed conveying the land on which a depot was erected, and containing a covenant on its part to maintain its depot on such land, thereby inducing purchasers to buy contiguous lands of its grantor upon the faith of the recitals in the deed, it was estopped to deny that it was bound by the covenant, even though it had in fact previously obtained the full title through another instrument.
    •[Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 174.]
    5. Bailboads <&wkey;72'(3) — Location of Depots —Covenants,
    A grantor of land could burden it with a covenant requiring the maintenance of a railroad depot thereon for the benefit of any land in the vicinity, whether owned by him or not.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 171.]
    6. Bailboads &wkey;>72(5) — Location of Depots —Covenants.
    Even though a covenant in a deed requiring the maintenance of a railway depot on the land conveyed was not for the benefit of land previously conveyed by the grantor to other parties, a judgment restraining the removal of the depot could not he reversed where one of the plaintiffs seeking to restrain its removal purchased land that was owned by the common grantor at the time of the covenant, and was therefore entitled to the benefit of the covenant.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 174.]
    7. Appeal and Eebob <&wkey;1001(l) — Conclusiveness of Yebdict — Bestbaining Bemoval of Depots.
    In a suit, to restrain the removal of a railway depot in violation of a covenant in the deed under which the railway company obtained title to the land on which the depot was erected, a jury finding that the removal was not more to the interests of the citizens of the town would not be disturbed where, though the evidence showed that the biggest portion of the town was nearer the site of the proposed new depot, it was not clear that the removal was beneficial, and there was evidence of inconveniences from the proposed new site, and no evidence that the present site was inconvenient or objectionable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933.]
    8. Appeal and Eirror c&wkey;ll70(10) — Bevebsal —Technical Ebbobs.
    Where the covenant relied upon required a depot to be maintained upon a tract of 17 acres, and the act sought to 'be restrained was the removal of the depot from such tract to another block several hundred feet away, the submission of an issue as to whether the new depot as located would be more beneficial than a depot located at the most advantageous part of the old depot property did not amount to such a denial of the rights of the railway company as was reasonably calculated to cause the rendition of an improper judgment within rule 62a for Courts of Civil Appeals (149 S. W. x), prohibiting reversals except for errors amounting to such a denial of appellant’s rights.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4544.]
    9. Bailboads &wkey;>72(8) — Location of Depots —Powers of Baileoad Commission.
    While the Bailroad Commission has authority to enforce the law. as to the removal of railway depots, it is not its duty to enforce contracts of railroad companies with private individuals as to the maintenance of depots.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 177.]
    10. RAILROADS &wkey;>72(8) — ENJOINING REMOVAL op Depot — Concltjsiveness.
    A judgment restraining a railway company from removing a depot from a tract of land in violation of a covenant in the deed under which it obtained title to such land will not prevent the removal of such depot in obedience to an order of the Railroad Commission when the public benefit requires such removal and the Railroad Commission orders it.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 177.]
    Appeal from District Court, Kerr County! R. H. Burney, Judge.
    Suit by Herman Mosel and others against ■the San Antonio & Aransas Pass Railway Company. Prom a judgment in favor of plaintiffs, defendant appeals.
    Affirmed.
    See, also, 180 S. W. 1138.
    Lee Wallace, of Kerrville, and Boyle & Storey, of San Antonio, for appellant. J. R. Burnett and H. C. Geddie, both of Kerr-ville, for appellees.
   SWEARINGEN, J.

This is a suit instituted by Herman Mosel, Henry Welge, and the West Texas Supply Company, appellees, to permanently restrain the San Antonio & Aransas Pass Railway Company, I-I. Rem-schel, and Charles Schreiner from moving the passenger depot of the railway company from its present location in the town of Kerr-ville, Tex., to another place in Kerrville about 600 yards distant. .

The cause was tried with a jury, which found in answer to a single special instruction that the removal of the passenger depot to the new location was not more to the interest of the majority of the citizens of Kerrville -than to maintain it on the 17.4-acre tract on which it was at the time this suit was instituted. Judgment was rendered by the court dismissing from the suit I-I. Remschel and Charles Schreiner and against appellant railway company for costs and permanently restraining the railway company from moving its passenger depot at Kerrville from off its depot grounds described as the 17.4 acres of land acquired by deed from diaries Schreiner, dated 1892.

The cause of action alleged against the railway company is that it made a restrictive covenant by the terms of which it bound itself in consideration of the legal title to the 17.4-acre tract to maintain its Kerrville passenger depot on that tract; that this covenant was expressed in the deed conveying the title from Charles Schreiner to the company, which deed was executed in 1892 and duly registered in the county containing the land; that at the time this covenant was made Charles Schreiner owned some of the land contiguous to the depot, but now owned by appellees; that Charles Schreiner had indicated by a recorded plat a subdivision of acreage into lots, blocks, streets, and alleys, and subsequently subdivided a second tract into lots, blocks, and streets and alleys; that the covenant to maintain the depot on the 17.4-acre tract placed a restriction upon the 17.4-acre tract for the benefit of all the land embraced in the two subdivisions of acreage tracts, and that the servitude upon the 17.4-aere tract for the benefit of the lots embraced in the two subdivisions ran with the lands and inured to the benefit of the subsequent purchasers of the lots in said subdivisions; that appellees purchased some of the lots in the subdivisions mentioned with notice of and in reliance upop the covenant expressed in the deed, and were at the time of the trial of this cause the owners of the said lots. It was further alleged that appellant was about to breach the covenant and remove the depot, which would entail a great loss to the appellees; that the public good did not require the removal of the said depot.

Appellant, in defense, by general demurrer, contended that appellees could not invoke specific performance; denied the covenant; pleaded that appellees had no privity of contract or of estate; that such a covenant, which was denied, was void because contrary to public policy because made by a quasi public corporation; that only the railway commission of Texas had jurisdiction of questions of removing railway depots. Appellant further pleaded that possession and title to the 17.4 acres were vested in appellant about 1887 by law and gift, and that there was no consideration for the servitude expressed in the deed of 1892, and that some of the lots owned by appellees were purchased long prior to the covenant expressed in the deed, and denied that the covenant was for the benefit of the lots purchased by appellees after the making of the said covenant.

The evidence is that Charles Schreiner did own all the property contiguous to the railway depot at Kerrville, now owned by ap-pellees, and did make and record a plat by which the land was divided into two subdivisions with reference to a passenger depot on the 17.4-acre tract; that the covenant to maintain a depot on the said tract was expressed in the deed from Charles Schreiner and was recorded by the railway company; that the appellees bought some of the lots now owned by them upon the faith of the covenant that the depot would be maintained on the 17.4-acre tract. And there is also evidence to sustain the conclusion that the public benefit did not require the removal of the passenger depot from the 17.4-acre tract.

Appellant’s proposition germane to the first assignment complaining of overruling the general demurrer, is:

“Where a tribunal is created by law_, with jurisdiction and authority to require railroads to provide and maintain depots and other facilities to adequately serve the public, and. to enlarge or change the same when the public interests require it, a railroad company cannot be perpetually enjoined from removing its passenger depot from a particular location in a city or town, nor will a contract be specifically enforced to require the maintenance of a passenger depot at a particular location in a city or town, since such a decree would deprive such tribunal of the powers and authority to require railway companies to provide depot facilities at such places and in such manner as will from time to time, best serve the public interest.”

Until it appears from the evidence that the public interest requires the removal of the depot and consequent breach of the covenant not to remove, the parties to this suit have the right through the courts to restrain the railway company from removing the depot in violation of its covenant. Mosel v. S. A. & A. P. Ry. Co., 177 S. W. 1048; 7 R. C. L. pp. 1114-1120, §§ 30 to 35; Sprague v. Kimball, 213 Mass. 380, 100 N. E. 622, 45 L. R. A. (N. S.) 962, and note, Ann. Cas. 1914A, 431; Korn v. Campbell, 192 N. Y. 499, 85 N. E. 687, 37 L. R. A. (N. S.) 1, and note pages 12-37, 127 Am. St. Rep. 925; Godley v. Weisman, 133 Minn. 1, 157 N. W. 711, 158 N. W. 333, L. R. A. 1917A, 333; Doerr v. Cobb, 146 Mo. App. 342, 123 S. W. 547.

It may be added, though not relevant to a ruling on demurrer, that there is sufficient evidence to sustain the jury’s verdict that the public interest did not require the removal of the depot in this instance. However, as stated by Chief Justice Ply, in disposing of this ease upon a former appeal, whenever it is made to appear that the public interest requires a removal of the depot, it can be removed, notwithstanding the covenant with private individuals not to remove it.

The first assignment is overruled, and, for the reasons above expressed, the second, third, fourth, twelfth, seventeenth, twenty-eighth, and twenty-ninth assignments are also overruled.

The proposition presented under the fifth assignment and relevant to the twenty-first is:

“Where the law authorizes a railroad company to maintain separate freight and passenger depots at a station and authorizes the Railroad Commission of Texas to require railway companies to erect and maintain separate freight and passenger depots, a contract requiring a railroad company to maintain a depot at a particular place cannot be construed to mean ‘passenger depot.’ ”

It appears from the pleadings and from the evidence that a passenger depot was on the 17.4-acre tract when the restrictive covenant was made and when the appellees purchased their lots. It further appears that the property claimed to be entitled to the benefit of the restrictive covenant is used for mercantile, retail, and wholesale establishments and residences, all of which are benefited by passengers brought into the vicinity. It is not shown that freight handled would benefit the contiguous property; hence, in the absence of evidence clearly showing that the covenant related solely to a freight depot, the finding of the trial court, by implication, that the words of the deed, viz. “maintenance by said railway company of a depot,” means the same kind of a depot as was established when the covenant was made, will not be disturbed.

Both the last-mentioned assignments are overruled.

The proposition submitted under the sixth and seventh assignments is :

“Where a. party joins in an agreement made with a railroad company to secure the construction thereof into a county seat, to furnish said railway company free depot grounds and right of way, and such railway company under such agreement constructs its line of railway into such county seat and locates its depots upon ground belonging to such party and records the agreement so entered into, its title to such depot grounds free of limitations or restrictions is established, and the party to such agreement cannot by a subsequent conveyance attach covenants to or impose conditions upon the railway company’s title to such land.”

The agreement referred to in the above proposition, coupled with entry into possession of the depot grounds at Kerrville, vested in the railway company the right to possession, but it may well be doubted that the agreement of itself vested the legal title to the land in the railway company. The legal title passed from Charles Schreiner to the company by the deed of 1S92, which deed contained the restrictive covenant. Eurther-more, the fact that the company duly registered deed as a muniment of its title, thereby giving notice that it had made the covenant as part consideration for the title, and thereby induced purchasers to buy contiguous lands of the grantor in the deed, thus recorded, upon the faith of the recitals in that deed, estops the railway company to deny that it is bound by that covenant, even though it had in fact previously obtained the full title through another instrument. S. A. & A. P. Ry. Co. v. Mosel, 180 S. W. 1139, § 5.

The sixth and seventh assignments are overruled.

By the eighth assignment it is contended that Charles Schreiner had parted with the title to the property owned at the time of the filing of this suit by appellees Welge and Mosel before 1892, the date when the covenant was published by registry of the deed, and for that reason appellant contends that it appears, as a matter of law, that the covenant was never made for the benefit of the property of Welge and Mosel. We think, as a matter of law, Charles Schreiner could, by covenant, burden the depot tract sold by him to the railway company for the benefit of any land in the vicinity of the depot, whether owned by him or not. It may be true that the lots belonging to Welge and Mosel were sold by Charles Schreiner prior to 1S92, but they were a part of the depot subdivisions owned and made by Schreiner, and the trial court evidently found that the covenant was to benefit all the land in the general scheme of the subdivisions, and was intended for the benefit of these particular lots of the Schreiner depot subdivisions, and in the absence of any contrary evidence we do not feel disposed to disturb that finding.

The following statement of the evidence from the brief of appellees is in accord with the record, and is pertinent:

“Appellant built its road into Kerrville in 1S87 and duly designated its depot grounds on the Hays survey, having been placed in possession by Charles Schreinei*, who acquired title to this survey in 1883. In 1884 Schreiner subdivided a part of the Hays survey into blocks and lots from the Guadalupe river to Jefferson street, about two blocks from the railroad track; and on the west side where the public buildings and principal business houses were then and are now located. A plat of this addition was duly recorded and a certified copy was read in evidence. About the time the railroad was completed to Kerrville Schreiner platted a second addition extending from Jefferson street to the depot grounds and opened Schreiner street fronting the depot and depot grounds. This addition includes blocks 51 and 52 on the Hays and block 10 on the Cage survey, fronting Schreiner street, and several lots opposite the depot, and a certified copy of this addition was read in evidence.
“The plat of this depot addition was not recorded till 1895, but the record shows that it was platted prior to August 2, 1888, when Schreiner conveyed two lots of block 52 fronting Schreiner street, and in each year afterwards made conveyances of lots until February 9, 1904, when he conveyed to Charles Morris block 10 and all the deeds describe the lots as part of Schreiner’s addition. When the Welges, in February, 1891, bought from Robinson two lots fronting the depot, there was a storehouse on the lots, arid Schreiner’s addition had then been platted. Schreiner conveyed these two lots to Robinson September 1, 1888, and the deed describes them as part of Schreiner’s addition. At and before the date of the deed from Schreiner to appellant, November 19, 1892, Schreiner was occupying block 10 for business purposes, and he continued such occupancy until he conveyed this block to Morris February 9, 1894. The deed conveying to Schreiner part of the Gage survey, including block 10, is not in the record, but when Welge bought the Robinson lots and store in January, 1891, Schreiner’s place of business was on block 10, and it was there when the witness visited Kerrville before that time. The W. T. Supply Company bought this block in 1913 from the vendees of Morris. This block immediately adjoins the depot grounds on its southern boundary and abuts on North street, on which is located the railroad track. The depot grounds run nearly north and south, 1,900 feet long and 400 feet wide, and the southern boundary is on the division line of the Hays and Cage surveys.
“Appellant’s brief states that Schreiner had prior to November 19, 1892, the date of his deed to appellant, conveyed all the lots of blocks 51 and 52 except one lot in block 51 conveyed to Remschel, June 29, 1893, but he also held the legal title to the two lots in block 52 fronting Schreiner street, which he had conveyed to Mar-tindalo, he having released the vendor’s lien retained in the deed September 13, 1893.
“Appellee Mosel acquired his lots opposite the depot in 1904, and Welge his residence lots in 1891, and the supply company acquired its lots in 1912 and 1913, all holding through regular transfers from Schreiner. The evidence shows without dispute that appellees bought and improved their lots on account of their proximity to the depot, that they paid value, and that the removal of the depot would diminish the value of their property, which was used for business purposes, except the lots occupied by Mosel and Welge and their families. The supply company bought block 10 and lots adjoining in block 52 from Morris for business pui'poses and relying on appellant’s covenant to .maintain the depot on the depot grounds.”

EVen if the court was in error in its construction of the effect of the covenant, we could not reverse the judgment in so far as it restrained the removal of the depot; for the other appellee, the supply company, bought land that was owned by Schreiner at the time of .the covenant, and was entitled to the benefit of the restrictive covenant.

The eighth assignment is overruled, and, for the same reasons, the ninth, tenth, eleventh, thirteenth, nineteenth, twenty-second, and twenty-third are overruled.-

The proposition raised by the fourteenth, fifteenth, twentieth, and twenty-fourth assignments is that the undisputed evidence shows that the contemplated removal of the depot would be beneficial to the interests of a majority of the citizens.

It is stated in the opinion in this case, on the appeal from an order granting a temporary injunction, that the burden of showing that the removal was beneficial to the majority rested upon the railway company. S. A. & A. P. Ry. Co. v. Mosel, 180 S. W. 1138; Taylor v. Railway, 54 Fla. 635, 45 South. 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep. 155, 14 Ann. Cas. 472.

The evidence does show that “the biggest portion of the town is down” nearer the site of the proposed new depot. But it is not clear that the nearer proximity to the biggest portion of the town is more beneficial to the majority of the citizens than the present site. The jury found that the removal was not more to the interests of the majority of the citizens of Kerrville, and there was testimony of some inconveniences from the contemplated site, and no evidence that the present site was inconvenient or objectionable. We cannot say there was no evidence to support the jury’s verdict, though reasonable minds might easily form a different conclusion from the meager evidence.

We overrule the assignments.

The sixteenth assignment complains of the form of the special issue submitted to the jury. The proposition is:

“Where the issue joined by the pleadings and proof is whether or not a new depot constructed by a railroad company is more beneficial to the inhabitants of a town by reason of its location than its old depot, it is error to submit the issue to the jury as to whether such new depot as located is more beneficial than would be a depot located at the most advantageous part of the property known as the ‘old depot ground.’ ”

The covenant relied upon by appellees required the depot to be maintained upon the 17.4-acre tract described in the deed through which appellant claims. The act sought to be restrained was the removal of the depot off from this tract to another block several hundred feet Uway. Unless the public interest required this removal, the-company had no right to breach its covenant. The form of the special instruction fairly submitted the question of whether the -public interest required the removal. The jury answered that the public interest did not require the removal sought to be restrained. We do not believe that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the ease. Rule 62a (149 S. W. x).

The question presented by the eighteenth, twenty-fifth, twenty-sixth, and twenty-seventh assignments is stated by appellant in the proposition under the twenty-sixth and twenty-seventh assignments, as follows:

“Where a Railroad Commission is created by the laws of a state and authorized and empowered to require railway companies to -remove their freight or passenger depots in any city or town from one location to another whenever the public interest or convenience will be best served by such change, a court of equity will not, by decree of specific performance or injunction, deprive such tribunal of the authority vested in it by law.”

This proposition has been determined adversely to appellant’s contention in paragraph 5, Mosel v. S. A. & A. P. Ry. Co., 177 S. W. 1051, wherein it was declared that:

“The Railroad Commission is the authority to enforce the law as to removal of depots, but it is not its duty to enforce the contracts of railroad companies with private parties.”

We do not doubt that should the public benefit require the removal and the Railroad Commission should order the removal, the present judgment in this case would not prevent obedience to the commission’s order."

The assignments are overruled.

The judgment of the trial court is affirmed.
      ©moFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (S^For other cases sée same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe's


author: HIGHTOWER, C. J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. DANIEL.
    (No. 200.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 17, 1917.
    Rehearing Denied June 6, 1917.)
    1. Carriers <&wkey;30G(l) — Receivership — Liability of Road foe Tort to Passenger.
    Where, while a railroad was in the hands of a receiver, a newsboy and a conductor on its train humiliated and injured plaintiff, a passenger, -by publicly charging him with stealing an overcoat, and, pending plaintiff’s suit, but before trial, the receiver was discharged, and the road’s properties ordered returned to it, but, during the receivership there were no earnings, and no betterments were made upon the road’s properties by the receiver, the road was not liable to plaintiff for the injury sustained by him while the road was operated by the receiver; the road not having assumed responsibility for any of the receiver’s acts, and the court which appointed the receiver having imposed no liability on the road at the termination of the receivership for liabilities incurred by the receiver.
    [Ed. Note. — For other cases, seo Carriers, Cent. Dig. § 1249.J
    2. Courts <&wkey;91(l) — Supreme Court — Court of Civil Appeals.
    It is the duty of the Court of Civil Appeals to follow the law as declared by the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313, 325.]
    Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.
    Suit by T. E. Daniel against the Beaumont, Sour Lake & Western Railway Company and Frank Andrews, as receiver. From a judgment against the railroad and for the receiver, the road appeals.
    Affirmed as to the receiver; reversed and remanded as to the railroad.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. Marshall & Harrison, of Liberty, for appellee.
   HIGHTOWER, C. J.

This was a suit brought by the appellee, .T. E. Daniel, plaintiff below, against the Beaumont, Sour Lake & Western Railway Company, and Frank Andrews, in his capacity as receiver of said railway company, to recover damages; the alleged ground of recovery being that while the properties of said railway company were in the hands of and being operated by said Frank Andrews, in his capacity as receiver of said railway company, appointed by the federal court for the Southern district of Texas, a newsboy on one of- the trains so operated, and.also a conductor on said train, greatly humiliated and injured plaintiff in his feelings, etc., while a passenger on said train by publicly charging him with stealing an overcoat. On the trial below, which was had with a jury, a verdict was returned in favor of appellee against the defendant Beaumont, Sour Lake & Western Railway Company under a general charge of the court, and judgment was entered upon such verdict in favor of appellee, against said railway company, in the sum of $2,500. As to the defendant Frank Andrews, sued in his capacity as receiver, judgment was entered to the effect that appellee take nothing, it having been made to appear that the said Andrews had been duly discharged as such receiver by order of said federal court during the pend-ency of the suit and before the trial of this cause. This is the second appeal of this case to this court. The result of the first appeal will be found reported in 186 S. W. 383, and the issues involved are practically the same on this appeal. Upon the entry of the verdict and judgment now appealed from, the Beaumont, Sour Lake & Western Railway Company, appellant here, filed its motion for new trial, which was overruled, and the judgment is now properly before this court for consideration.

The first assignment of error found in appellant’s-brief is as follows:

“The trial court erred in overruling and in not granting defendant’s motion for a new trial,. in response to the ground urged in paragraph 1 of said motion, ■ which reads as follows: ‘The petition states no cause of action against this defendant, in that it appears upon the face of the pleadings that the transactions complained' of occurred during the period of time when defendant company was not in control and was not operating its properties, the same being in control of and being operated by a receiver; and there being no allegations which in any wise indicate liability on this defendant’s part for. any acts or omissions of the receiver or any of his servants or agents.’ ”

The second assignment of error is to the effect that the court erred in overruling appellant’s motion for new trial, for the reason that the evidence was wholly insufficient to fix liability upon appellant, in that it wholly fails to show that appellant in any manner became liable for the acts or omissions of said receiver, Andrews, or any of his servants or agents; and the third assignment of error is to the effect that the court erred in refusing to give to the jury appellant’s requested peremptory instruction for a verdict in its favor, for the reason that the undisputed evidence shows that the transactions complained of occurred during said receivership, when appellant had no control of its properties, and no control over any of the persons engaged in operating same, and because there was no evidence from which liability of the defendant company for acts or omissions of the receiver, his servants, or agents, could arise, and therefore there could be no recovery against appellant. There are other assignments of error complaining of other matters, which it is not necessary to here mention; the most material one, perhaps, being that appellee’s counsel made improper remarks, etc., during his argument to the jury.

Without discussing the first assignment of error, which challenges the sufficiency of appellee’s petition to show any cause of action against appellant, we have concluded that appellant’s second and third assignments of error, which raise practically the same proposition, must be sustained. The record shows, without dispute, that, at the time of the conduct on the part of the conductor and newsboy complained of, appellant’s railroad and all of its properties were in me hands of said Frank Andrews, in his capacity as receiver, duly appointed by the Circuit Court of the United States for the Southern District of Texas, and further that all of the employes operating said railroad and properties were in the employ of said Frank Andrews as such receiver, and were under his control and management, and none of them were under the control of or employed by appellant. It further appears from the record that while this suit was pending', but before the trial below, the said Frank Andrews, as receiver, was duly discharged by order of said court appointing him, and that the properties in his hands, as receiver, were ordered returned to the appellant by said court, and such properties were, in fact, delivered by said receiver to appellant, in accordance with the order of said federal court. We do not find in the record this order of the federal court, and therefore we are not apprised of any of its provisions, other than as it relates to the discharge of said receiver and the return of said properties to appellant. Ap-pellee, in so far as the record here discloses, made no attempt whatever to show that' there were any earnings during the time appellant’s properties were under the control of and operated by said receiver, which were expended in the way of betterments of appellant’s properties; but, on the contrary, appellant proved, without contradiction, that there were no earnings by the receiver while-operating appellant’s properties, and that, in fact, there was not sufficient money realized by the receiver in his operation of said properties to pay operating expenses, and that there were no betterments whatever made upon appellant’s properties while in his hands as receiver. This being true, we hold, in accordance with vfhat we conceive to be the established law of this state, that there was no liability shown on the part of appellant for the injury which resulted to appellee.

In the case of M., K. & T. Ry. Co. v. Wood, 52 S. W. 94, it was held, in effect, that liability of a railway company for injury done while its road was being operated by a receiver appointed by a federal court, can exist only' upon such railway’s assumption of responsibility for the acts of such receiver, or upon a liability imposed upon such railway company by decree of such federal court upon the termination of such receivership, or upon the theory of betterments to said properties during such receivership. This holding was in line with the holding of the Supreme Court of this state in the case of Railway Co. v. Johnson, 76 Tex. 421, 13 S. W. 463, 18 Am. St. Rep. 60. To the same effect is the holding in the case of M., K. & T. Ry. Co. v. McFadden, also a decision by the Supreme Court'of this state, reported in 89 Tex. 138, 33 S. W. 853. See, also, Dillingham v. Kelly, 8 Tex. Civ. App. 113, 27 S. W. 806; also, Kirby Lumber Co. v. Cunningham, 154 S. W. 288.

We do not understand that there was any attempt made ' by appellee below to show that appellant had in any manner assumed responsibility for any acts of said receiver or his agents, for liabilities incurred during his receivership, and, as before stated, there is nothing in the record showing that said federal court imposed any liability on appellant at the termination of said receivership for any liability that might have been incurred by the receiver while appellant's properties wex-e in his hands. Therefore, in the absence of any proof of betterments during the receiver’s operation of appellant’s properties, and in the absence of a showing of any assumption of liability by appellant, for any act of said receiver, and in the absence of proof of any liability being imposed by order of the federal court at the termination of such receivership, we hold there can be no liability against appellant for the acts of the conductor and newsboy complained of by appellee, and the trial court should have given appellant’s peremptory instruction to return a verdict in its favor, and, not having done so, should have granted appellant’s motion for new trial.

Appellee, in support of the judgment herein, cites the case of M., K. & T. Ry. Co. v. Chilton, 7 Tex. Civ. App. 183, 27 S. W. 272, an opinion by one of our Courts of Civil Appeals, speaking through Chief Justice Light-foot. In that case, it was held that where the receiver of a railroad company is discharged, and the property returned to the company, under a consent decree, subject to all claims and liabilities then existing against the receiver, the company would be liable for negligent injuries inflicted during the receivership, in the absence of showing of bet-terments, etc. We cannot see that the holding in this case is at all in conflict with the conclusion we have reached here, because, in the case cited by appellee, the consent decree was equivalent to, and was in fact, an assumption of liability by the railroad company on account of injuries inflicted while its properties were in the hands of the receiver.

Appellee also cites, in support of the judgment herein, the case of M., K. & T. Ry. Co. v. McFadden, reported in 32 S. W. 18. The opinion in that case was by one of the Courts of Civil Appeals, speaking through Chief Justice Tarlton, and, among other things, it was said in.-that opinion that under the act of March 19, 1889, authorizing a judgment against one to whom a receiver has delivered property held by him as receiver in a cause of action arising under the receivership, it is not necessary to show betterments made by the receiver in excess of damages claimed by one who was injured during the operation of such properties by the receiver. It is sufficient to say, however, that the Supreme Court of this state granted a writ of error to the Court of Civil Appeals rendering the opinion in the case cited by appellee, and reversed that holding by the Court of Civil Appeals, as will be seen from the opinion of the Supreme Court in Railway Co. v. McFadden, 89 Tex. 138, 33 S. W. 853, supra.

We deem it unnecessary to further discuss this question, or to oite more authorities in support of the conclusion we have reached, because we think that the law applicable to the assignments under discussion has been thoroughly settled by the Supreme Court of this state, and it is the duty of this court to follow the law as declared by our Supreme Court. The judgment of the trial court, in so far as the same awards a recovery in favor of appellee against appellant Beaumont, Sour Lake & Western Railway Company is reversed, and the cause as to appellant remanded; but in so far as the judgment of the trial court is in favor of the defendant Frank Andrews, as receiver, etc., the same will be affirmed.

Affirmed in part, and reversed and remanded in part.
      (iK=3lfor oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes