text:
    RICHTER v. GRANITE MFG. CO. et al.
    (No. 2392.)
    (Supreme Court of Texas.
    March 3, 1915.)
    Waters and Water Courses <&wkey;156 — Riparian Rights — Deeds—'Validity oe Reservation.
    Since riparian rights exist only by reason of ownership of riparian property, a deed granting all of grantor’s riparian property, but reserving an equal undivided one-half interest in the water power included within the land described and necessary ground to utilize the same, is void, because so vague as to amount of land reserved that its exercise would be inconsistent with the grant.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 174-183; Dee. Dig. &wkey;>156.]
    Certified Question from Court of Civil Appeals of Third Supreme Judicial District.
    Action by Herman Richter against the Granite Manufacturing Company and others.. From a judgment for defendants, plaintiff appeals. Questions certified to the Supreme Court from the Court of' Civil Appeals. Questions answered.
    Edwin H. Yeiser, of Austin, and T. E. Hammond, of Burnet, for appellant. Ike D. White and T. B. Cochran, both of Austin, and Dayton Moses, of Burnet, for appellees.
   PHILLIPS, J.

Tile certificate of tlie honorable Court of Civil Appeals to the accompanying question propounded for determination by this court is as follows:

“This suit was instituted by the appellant, against the appellees in the district court of j Burnet county, Tex., on the 9th day of August,1 1909. The appellant sought to establish his, property rights in and to the water power at ¡ the lower falls on the Colorado river at Marble | Ealls, in Burnet county, Tex., as riparian owner to a part of the R. G. Blanton survey, which' abuts on the river at that point, and also his' rights by virtue of certain files made by him on ' the waters of the river at that point on the 10th day of April, 1909, and 31st day of May, 1909, ■ alleging that the appellees had entered upon and dispossessed him of his property rights, and were constructing a large dam at the point men-; tioned, which would have the effect to submerge; and destroy all of his property rights, and pray- j ed that his rights be established; that he have his writ of possession; that appellees be en-, joined from interfering with him; and, if the j court should find that he was not entitled to this ; relief, then that he recover damages for the conversion of his rights as riparian owner. The appellee the Colorado Tower Company resisted appellant’s action, contending that the appellant ¡ had no riparian rights; that he owned no land i riparian.to the river; that it owned all of the! land on both sides of the river at the point above mentioned, and that it was entitled to all of' the water power and property rights at that' point by virtue of certain files made by different persons of which it was the owner, and that the work being done by it was being done by virtue of these rights. The other appellees adopted its answer in addition to filing disclaimers. The case was reached for trial on the 9th day of January, 1911, and, a jury being waived by all parties, the matters of fact, as well as of law, were submitted to the court, and the court, after having heard the pleadings, evidence, and argument of counsel, rendered judgment on the 11th day of January, 1011, that appellant take nothing, and that the appellees go hence without day and recover their costs.
“The case is now pending in the Court of Civil Appeals, and among other material questions involved is the one herein certified. On the 29th day of January, 1883, the state of Texas, by patent issued on that day, granted to ' William It. Baker, assignee of R. G. Blanton, j what was known as the R. G. Blanton survey ! of land on the Colorado river in Burnet county, containing Í29 acres. On the 30th day of January, 1883, William R. Baker conveyed the same tract of land to Herman Richter, and on the 29th day of November, 1884, Herman Richter executed to W. H. Roper a deed, which reads as follows:
“ ‘Herman Richter to W. H. Roper. Deed.
“ ‘The State of Texas, County of Burnet.
“ ‘Know all men by these presents that I, Herman Richter, of the county and state aforesaid, for and in consideration of the sum of ($30.00) fifty dollars to me in hand paid by W. H. Roper, the receipt of which is hereby acknowledged and confessed, and in further consideration of the sum of one hundred dollars to be hereafter paid to me as is evidenced by the promissory note of the said Roper bearing date herewith, payable to me or by my order on or before the 29th day of November, A. D. 1SS3, do grant, bargain, sell, convey, and have by these presents granted, bargained, sold and conveyed unto the said W. H. Roper, of Burnet county, state of Texas, the following piece, parcel, or tract of land, lying and being situated in the county of Burnet, in the state of Texas, about 16 miles south of Bur-net town, a part of the R. G. Blanton survey, on the south side of the Colorado river: Beginning at a stone mound the lower corner of survey No. 605, from which a cedar bears S. 40° E. 1 5 vrs., do.-brs. N. 36° W. 3 vrs.; thence down the Colorado river with its meanders S. 24° E. 1,050 vrs. to a stone mound, from which a cedar brs. S. 10° E. 5 vrs., do. brs. S. 5° W. 6 vrs.; thence S. 280 vrs. to Flat Rock creek; thence up the north bank of said creek 225 vrs.; thence across said creek to the opposite bank; thence, along said bank up the creek to intersection of the west boundary line of the said Blan-ton survey; thence north 2,158 vrs. to the place of beginning — containing ninety-five acres of land; hereby reserving to myself, my heirs, executors, administrators, or assigns an equal undivided one-half interest in and to the water power included within the above-described tract of land and necessary ground to utilize the same.
“ ‘To have and to hold the .premises above described together with all and singular the rights, members, hereditaments, and appurtenances incident or appertaining to the same unto the said W. H. Roper his heirs and assigns forever; and I do hereby bind myself, my heirs, executors, and administrators and legal representatives, to warrant and forever defend all and singular the title of and to the premises aforesaid unto the said Roper his heirs and assigns against the claim or claims of any and all persons whomsoever lawfully claiming or to claim the same or any part thereof.
“ ‘Witness my hand this the 29th day of November, 1884.
“ ‘[Signed] Herman Richter.’
“Appellee the Colorado River Power Company now owns the Roper title, and appellant, Richter, bases his alleged riparian rights upon the reservation contained in the deed copied above, and alleges that the Colorado River Power Company, by the construction of a dam across the Colorado river, has invaded his rights, and, if not prevented, will destroy the same.
“The Colorado River Power Company and the other appellees assert that the attempted reservation in the deed from Richter to Roper is void and of no effect, and therefore that Richter owns no part of the Blanton survey fronting on or touching the Colorado rivei', and that he has no riparian or other rights that will be affected by the construction of the dam referred to.
“The trial court filed no findings of fact, and we do not deem it necessary to make full findings in order to certify the construction of the foregoing deed to the Supreme Court for decision. If appellees’ contention is correct, and the reservation is void, then the case was properly decided, and it will not be necessary to pass upon any other question; hence it appears that the question certified is necessarily material.
“With the foregoing statement and explanation, the Court of Civil Appeals certifies to the Supreme Court for decision the following question : ‘Is the reservation in the foregoing deed of Herman Richter to W. H-. Roper valid, and does it reserve to or vest in Herman Richter such right or rights as can form the basis of a suit to protect such rights or recover damages for injury thereto?’”

We construe the reservation in Richter’s deed to Roper to mean an undivided one-half interest in the exclusive use for all power purposes of the waters of the river appurtenant to the land described in the deed, or in the exclusive right to appropriate the waters to those purposes, and so much of the land as might be “necessary to utilize” the power thus developed or be required for its development. As the riparian proprietor of the land before its sale, Richter had no rights of ownership in the waters of the river; he only had such rights in their use as inhered in his ownership of riparian land. Riparian rights subsist only for riparian owners, and those who' do not own riparian land cannot claim them. The rule is well expressed in Earnham on Waters, § 463, as follows:

“All persons on the margin of a flowing stream have by nature certain rights to use the water of the stream,'whether they exercise these rights or not, and they may begin to exercise them whenever they will. * * * The right does not depend upon appropriation or presumed grant from long acquiescence, but exists juri naturi as part of the land. * * * The right depends, not upon ownership of the soil under which the water flows, but upon lateral contact with the water. * * * The right attaches only to riparian land, and cannot be claimed for nonriparian land. This must, of necessity, be the rule, because it is necessary to have some limitation upon the right to use the water from a stream, so as to leave enough for the use of riparian owners further down, or it might be entirely consumed near the origin of the stream. The right to use the water is primarily based upon the ownership of land adjoining the stream, and persons whose land is not in contact with the stream are in no sense riparian owners, and are not entitled to any rights in the use of the water as private individuals. The only things that they can claim are the right of navigation and to share in the public right of fishery, gathering ice, or such other rights as the public are entitled to. That being the rule, the only method of determining who are and who are not riparian owners is by following the rule established by nature, and holding that that only is riparian land entitled to the benefits of the stream which is actually in contact with it.”

' In Gould on Waters, § 148, it is thus stated:

“All riparian rights depend upon the ownership of land which is contiguous to, and touches upon, the water; and, in the case of tide water's, at common law, upon the ownership of the land above and adjoining the edge of the water at ordinary high-water mark. They attach to the land, and an express mention in the deed that they are sold with it is surplusage. They do not attach to any lands, however near, which do not extend to the water; nor do they necessarily attach to a state grant of lands lying below the tidal high-water mark.”

Numerous cases are to like effect. Among them are Risien v. Brown, 73 Tex. 135, 10 S. W. 661; Lake Superior Land Co. v. Emerson, 38 Minn. 406, 38 N. W. 200, 8 Am. St. Rep. 679; Boehmer v. Big Rock Irrigation District, 117 Cal. 19, 48 Pac. 908; Stark v. Miller, 113 Mich. 465, 71 N. W. 876; Bank y. Asylum, 108 Ky. 357, 56 S. W. 525.

In Risien v. Brown, McAnelly, the owner of land bordering upon a creek conveyed it to another, expressing a reservation in the deed to this effect:

“I hereby reserve to myself the privilege of banking water up the said creek for the purpose of erecting machinery.”
With respect to the right thus attempted to be reserved, it was said:
“This could not have inured to the benefit of McAnelly, as it was a reservation of a right he could not exercise by reason of the fact that he was then divesting himself of all title to the land on the creek.”

In speaking of the nature of riparian rights, it is said in Lake Superior Land Co. v. Emerson:

“These rights all pertain to the use of abutting land in connection with the water, or of the water in connection with the land. The right to use beyond the low-water mark rests upon the title to the bank, and not to the bed of the water. Diedrich v. Northwestern Union Ry. Co., 42 Wis. 248, 24 Am. Rep. 399. It is a right peculiar to the owner of the land bordering on the lake or stream, and not possessed by others. Morrill v. St. Anthony Falls Water Power Co., 26 Minn. 222, 2 N. W. 842, 37 Am. Rep. 399, and cases cited. The owner of the abutting land has the right to enjoy, for the purposes of gain or pleasure, all the facilities which the location of his land with reference to the lake affords. Delaplaine v. Chicago & N. W. Ry. Co., 42 Wis. 214, 24 Am. Rep. 386. It exists jure naturae, because the land has, by nature, the advantage of being washed by the stream. Lyon v. Fishmongers’ Co., L. R. 1 App. Cas. 662. The right is incident to the land — belongs to it by nature. We have not found any case holding that it may be severed from the right to the abutting land, so as to become a right in gross; one person owning exclusively the shore, and another the riparian right incident to it, though owning no shore.”

We are of the opinion, therefore, that when Richter parted with the title to the land described in the deed to Roper, he equally divested himself of all -riparian rights in the waters of the river appurtenant to the land, and he could predicate no cause of action upon their lawful exercise by a subsequent owner of the land, to whom they inured in virtue of its ownership.

The attempted reservation from the grant of the land, expressed in the deed, of “necessary ground to utilize” the water power, is so vague and indefinite as to be incapable of enforcement. How much ground would be subject to appropriation out of the body of the land, as well as its location, under this clause, is a matter of purely speculative determination. The quantity of ground necessary to the utilization of the power would depend upon the methods and purposes of the use. Yet by the terms of this clause no limitation is placed upon either. Any and all purposes for which it might be “utilized” are left open to the adoption of the grantor, and he would be equally at liberty to pursue any and all proper methods to utilize the power for those purposes. Any quantity of land, located anywhere in the tract, necessary to the full utilization of the water for any one or more purposes, since there is no limitation to any particular use of the power or to any designated purpose for which it should be utilized, would thus he subject to appropriation without let or hindrance by its owner. To concede effect to this reservation is therefore to recognize a right in the grantor which is repugnant to the grant of the land, and it is accordingly void. McDaniel v. Puckett (Civ. App.) 68 S. W. 1007; Butcher v. Creel’s Heirs, 9 Grat. (Va.) 201; Thompson v. Gregory, 4 Johns. (N. Y.) 81, 4 Am. Dec. 255; Darling v. Crowell, 6 N. H. 421.

The certified question is answered in the negative.
      <§=^For,other .cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    ST. LOUIS, S. F. & T. RY. CO. v. WEST et al.
    (No. 8069.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 9, 1915.
    Rehearing Denied Feb. 20, 1915.)
    1. Appeal and Error <§=>1169 — Submission op Uncontroverted Issue — Beversal.
    For error in the submission of an uncontro-verted issue contrary to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, judgment will under some circumstances be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4531-4539; Dec. Dig. &wkey;> 1169.]
    2. Negligence <&wkey;136 — Taking Case prom Jury.
    Negligence is generally a question of fact, and becomes a question of law only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in the act in question, or when there is no room for ordinary minds to differ as to the conclusion from the evidence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. &wkey;136.]
    3. Bailroads <&wkey;357 — Injury to Person on Track — Negligence.
    A railroad is guilty of actionable negligence in failing to exercise ordinary care to discover ’and avoid injury to persons upon its tracks at such places and times as one of ordinary prudence might expect to find them, and whether such persons are trespassers or not is immaterial to its negligence, considered separately from the issue of contributory negligence.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 1235; Dec. Dig. &wkey;357.]
    4. Bailroads <&wkey;381 — Injuries to Person on Track — Contributory Negligence — Trespasser.
    A trespasser upon a railroad, excepting minors under the age of discretion and those mentally irresponsible, is guilty of contributory negligence as a matter of law which bars a recovery for injury by a train, in the absence of any showing that those in charge of the train discovered his peril in time to avoid injury and failed to do so, and in the absence of any justifying or excusing circumstances.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1285-1293; Dec. Dig. &wkey;381J
    5. Bailroads <&wkey;400 — Injuries to Person on Track — Negligence—Licensee.
    The act of going upon a railroad in pursuance of a lawful right to do so, at a public crossing, or where the railroad has expressly or impliedly licensed the act, is not negligence per se.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]
    6. Bailroads <&wkey;381 — Injuries to Person on Track — Contributory Negligence — Trespass.
    One going into an elevator shed and sitting so that both of his legs were inside the rail, and killed by defendant’s car shunted on its switch into the elevator, in the absence of evidence that any one had ever used the track in such manner, so that there was no possible support for the claim that he was using it with defendant’s knowledge and permission, was a trespasser, ■guilty of contributory negligence as a matter of law.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1285-1293; Dec. Dig. &wkey;381.]
    7. Bailroads <&wkey;381 — Injuries to Person on Track — Contributory Negligence.
    In such case deceased, even if not a trespasser and guilty of negligence’by reason of that fact, was guilty of contributory negligence as a matter of law barring a recovery, in the absence of any cjrcumstance justifying or excusing him from voluntarily exposing himself to the known danger of being struck by cars that might be switched into the shed.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1285-1293; Dec. Dig. &wkey;381.]
    8. Evidence &wkey;>595 — Inferences — Weight and Sufficiency.
    In an action for the death of one killed on defendant’s switching track, inferences that the trainmen, who did not testify, had told deceased when other cars were switched in earlier in the day that there would be no more switching that day, and that deceased relied on that assurance, and had never known cars to be switched without warning, and that the trainmen saw him before they shunted the car, amounted to no more than surmises or conjectures not to be given any probative force.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2444, 2445; Dec. Dig. &wkey;595J
    9. Bailroads <&wkey;390 — Injuries to Persons on Track — Discovered Peril.
    Evidence that, by the exercise of ordinary care, defendant’s trainmen could have seen deceased, a trespasser, before they shunted the cars and in time to avert the accident, would not establish a prima facie right of recovery on the issue of discovered peril, since an actual discovery of the peril of deceased when the cars were shunted was a necessary predicate to liability on that ground.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. &wkey;390.]
    10. Evidence &wkey;>77 — Failure to Call Witnesses — Inference.
    In the absence of some prima facie showing of defendant’s discovery of decedent’s peril, no inference in his favor could be drawn from defendant’s failure to introduce its trainmen as witnesses,, especially where it did not appear that their testimony was not as available to plaintiff as to defendant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. <&wkey;>77.]
    11. Trial <&wkey;284^-lNSTRUCTioNs — Approval.
    Where no exception was presented to a
    charge which affirmatively excluded a recovery upon the issue of discovered peril, plaintiff, within the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, will be held to have approved such instruction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. &wkey;284.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by Bettie West and others against the St. Louis, San Francisco & Texas Bail-way Company. Judgment for plaintiffs, and defendant appeals.
    Beversed, and judgment rendered for defendant.
    Lockett & Bowe, of Ft. Worth, for appellant. G. B. Lipscomb, McCart, Bowlin, Terrell & McCart, and Theodore Mack, all of Ft. Worth, for appellees.

       writ of error pending in Supreme Court.

   DUNKLIN, J.

The elevator of the Empire Grain Company, the scene of the accident hereinafter related, is situated in a suburb of the city of Ft. Worth, a short distance west of the main line of the St. Louis, San Francisco & Texas Railway Company, which, in that locality, runs practically north and south. The Arlington Heights boulevard runs east and west, and crosses the main line of the railway approximately 1,000 feet north of the elevator. A switch track runs through a shed on the east side of the elevator building. This track, which- has a gradual slope from north to south, leaves the main track about 300 feet north of the boulevard, which it crosses, and diverges from the main track in a southwesterly direction until it reaches the elevator. The switch track was constructed by the railway company at the instance and for the convenience of the grain company in unloading grain from cars, but with the express agreement that the track, when constructed, should be owned by the railway company exclusively, and should be maintained, operated, and controlled by it.

On or about October 1, 1910, an engineer and fireman of the railway company undertook to place two cars in the shed of the elevator. To accomplish this the cars were kicked or shunted from a point north of the boulevard, and permitted to roll down the switch track to the elevator with no one in charge to control them or to give warning of their approach. In passing into the shed of the elevator these cars ran over and killed George W. West. Mrs. Bettie West, his widow, and Mrs. Winnie Thompson, Ms daughter, joined by her husband, Jack Thompson, instituted tMs suit against the railway company to recover damages which they allege they have sustained by reason of his death.

A trial of the suit before a jury resulted in a verdict and judgment in favor of the plaintiffs for the sum of $10,000, one-half of which amount later was remitted by them. From that judgment the defendant has appealed.

Plaintiffs based their claim of defendant’s liability for the death upon allegations of negligence on the part of defendant’s employes: First, in shunting the cars' to the elevator in the manner indicated above, with no one in control of them; second, in failing to give prior warning to George W. West, who was walking upon the track at the time in ignorance of their approach; third, in the failure of said employes to avoid the accident by the use of means at their command, after they had discovered the perilous situation of West and his ignorance of the approach of the cars, in time to have averted the accident by the use of means then at their command.

The case was submitted to the jury by a general charge, and not upon special issues. The two specifications of negligence first mentioned were the only issues of defendant’s negligence submitted, and the jury were expressly told that, unless a verdict should be returned in plaintiff’s favor upon one or both' of those issues, then they could not recover. In other words, the charge, in effect, affirmatively excluded any right of recovery upon the issue of negligence last mentioned.

Among other defenses, the railway company pleaded specially that deceased was guilty of negligence proximately contributing to his injury, in that he was a trespasser upon the track, ands further, in that at the time of the accident he was asleep upon the track with portions of his body extending across one of the rails, and was run over by the cars while in that position.

For six or seven years prior to the accident deceased had-been employed at the plant of the Ft. Worth Furniture Company, situated a short distance immediately west of the elevator, serving in the capacities of watchman and team driver, and was familiar with the premises where the accident occurred. He resided within the city limits some distance east of the main line of the railway, and left his home between 10 ánd 11 o’clock on the morning of the accident, which was Sunday, telling his wife that he was going to the furniture company’s plant to do some work. Upon this trip he drove a small wagon, and carried with him a gun and ammunition, which he borrowed from his son-in-law the same morning for the expressed purpose of shooting pigeons that were in the habit of feeding on wasted grain around the elevator. The cars passed over Mm, severing both legs, and mutilating other portions of his body. He was 58 years oid, and in good health at the time of his death, but his hearing was slightly defective.

No witness testified that he saw the accident.

Otis Blair, 15. years old, who was introduced by plaintiffs, was the witness who saw the deceased last, prior to the accident. He testified in part as follows:

“I saw Mr. West before he was k-illed. He was sitting there by the chute leaning up against it, and his feet were out across the rails there. He was sitting in front of the chute like, and leaning back against the chute, which would be on the east side of the chute. He was sitting on the edge of the chute and leaning back. That would throw his body about half a foot from the ground; he was sitting on something about half a foot high. I did not measure it, I am just estimating the distance. ⅜ ⅜ ⅜ If a man had been up the boulevard and looking down the boulevard there would have been nothing to prevent him from seeing Mr. West sitting there; his body would be in the clear. I left him there and went home. After I left him I heard about him having been run over and killed. I heard that about a half an hour after I left. I was at home when I heard that. I never saw cars go down on the switch towards the elevator at all. ⅜ ⅜ ⅜ There was an engine switching there about an hour or so before. It was on the tracks, and I went right after they quit switching; we went down there, and the engine left, and we went there and came back home, and they came and switched some more. They had been switching there that morning. At that time my father’s house was right straight across from the elevator north, just on across the Arlington Heights boulevard on the north side. * * * After I left Mr. West I did not hear a train at all. I do not know anything about the cars that run over Mr. West. The switching I have testified about occurred that morning before I left Mr. West. I stayed there with him abput ten minutes. I was raking up some feed for little chickens. While I was there I did not see engine and cars passing- along there anywhere. * ⅝ ⅞ When I last saw Mr. West he was sitting right down there in that 18 inches of space. He was sitting on the ground, but he was sitting on this (5-ineh ledge there, and his back was leaning back against the surface — this sloping surface on the east side of the chute — and that nearest rail was under his legs at about the knees. All of his legs below the knees were over in the track. When he came around there and spoke to me his breath smelled like toddy that morning; I mean whisky toddy. I smelled whisky on his breath. He asked me if I had seen any pigeons around there, and I told him I had not, and he went there and sat down at that place as I have described to you. He pulled his hat over his eyes like any one would. I saw him pull his hat over his eyes and lean himself back against the sloping surface of that chute, and he said he was going to stay there until he got some pigeons, and I went on and left him. I did not see any pigeons there at that time. If there had been some, I would have seen them. I never saw him again alive. After I got home I had my dinner, and when I had gotten through eating my dinner some one came by and gave me the news that a man had been killed there, and I told papa I guessed that Mr. West got killed who was down there. The nest morning you could see a little of blood on the track. That blood was right where the train struck him on the end of the ties where he stopped. It was between where his body was lying and the chute. It was between where I saw his body lying after he was dead and the point where he was when I left him alive last time. Before I went down there the first time to get the wheat the engine and crew had been there-doing some switching. That was earlier in the morning. It is not a fact that Mr. West was already sleeping when I left there. He was not asleep when I left. When I left that gun was leaning- up against the side of the chute right by him. I was with him about ten minutes. I was standing to him about as close as a man would walk up to another. I know what a drunk man is. He did not appear to be a drunk man. I thought he was sober; I never saw him drunk before. He appeared like he was sober before. If I had not smelled whisky I would not have known that he was drinking or thought anything about it. I spoke about him pulling his hat down. The sun was shining on him; he was sitting in the sun, and the sun was shining on him. The pigeons would light on the track when he was sitting under there waiting. I had never hunted pigeons, but I had seen some one else. The pigeon shooters would ordinarily get all around the elevator there, just follow them up— It is not a fact that Mr. West was already sleeping when I left there; he was not asleep when I left. When I left that gun was leaning up against the side of the chute there right by him, sloping side right by him.”

That testimony was not contradicted by any witness.

J. A. Cameron, a witness for defendant testified:

“At the time I saw Mr. West there that Sunday he was rather intoxicated; he was staggering, and I could smell it on his breath. He was not unable to go about his work greasing his wagon, but he went right on with it. His staggering at that time was not to the extent of making him fall down. * * * ”

J. T. Woolery, a witness for defendant, testified:

“He was a man that I would call a drinking man. He was addicted to the use of intoxicating liquors; in other words, he used it to excess.”

According to other testimony, which was uneontradicted, the body of the deceased was found a few feet south of the place where Otis Blair said he sat when that witness left him to go home, and blood stains and fragments of flesh were found between that spot and the body. As noted already, the cars were moving south, and naturally would tend to drag or push the body in that direction. When picked up from the ‘track deceased was alive and conscious, but died very shortly thereafter without making any statement accounting for the accident.

None of defendant’s employés who were operating the train was called as a witness upon the trial, which occurred more than three years after the accident, and neither plaintiffs nor defendant offered any explanation for failure to procure such testimony.

As a predicate for the claim that defendant owed the duty to keep a lookout for pedestrians upon the switch where the accident occurred, plaintiffs alleged that long prior to the accident that part of the track had been used “as a place of resort and passway by the public, with defendant’s knowledge, and with the knowledge of defendant’s agents and servants in charge of said engine and train.” Several witnesses testified that persons working in that vicinity and others of the public had been in the habit of walking along the switch track, and that it was a common practice for boys to frequent the grounds around the elevator and the switch track for the purpose of shooting pigeons there congregating in quest of grain. But it was also shown beyond controversy that a road extended from the boulevard south to a point between the plants of the furnituw company and the elevator, which was approximately parallel with the switch track and a short distance from it. This road was extensively traveled by teams and vehicles and by employes working at those two plants. No evidence was introduced to show express permission of the railway company for use of the track by the public, and, according to the uneontradicted testimony of the manager of the grain company, that company did not authorize or acquiesce in such use of the switch.

Between the place of the accident and the place north of the boulevard where the cars were shunted and turned loose to run to the elevator, the view was unobstructed; and by experiments made before the trial it was shown without controversy that from the spot where the cars were turned loose the persons in charge of the engine could have seen the deceased sitting in the place where Otis Blair testified he last saw him prior to the accident, if they had expected that some one might be in that position and bad looked to discover his presence, if there. The only use made of the switch by appellant was the handling of cars for the Empire Grain Company, and, according to testimony of some of the witnesses, switching cars to the elevator on Sundays was unusual. According to the testimony of others, no whistle was ■ pounded nor other character of warning given at the time the cars were shunted across the boulevard towards the elevator, ‘ nor while they were approaching the elevator after being so shunted.

Appellant insists that it was conclusively shown, as a matter of law, that deceased was guilty of negligence proximately contributing to his injury, and upon that contention bases an assignment of error to the action of the trial court in refusing its request for an instructed verdict. Many decisions of our appellate courts are cited in support of this assignment, such as Roper v. Texas Central Ry., 55 Tex. Civ. App. 620, 119 S. W. 696; Hancock v. G., C. & S. F. Ry., 99 Tex. 613, 92 S. W. 458; Smith v. I. & G. N. Ry., 34 Tex. Civ. App. 209, 78 S. W. 557; T. & P. Ry. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; St. L. & S. W. Ry. v. Shiflet, 98 Tex. 326, 83 S. W. 677; Tex. Midland Ry. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137; M., K. & T. Ry. v. Malone, 102 Tex. 269, 115 S. W. 1158; Massey v. I. & G. N. Ry., 162 S. W. 371. All those cases were suits for damages for personal injuries to persons struck by trains on railway tracks, and in each case it was held, as a conclusion of law, that the person injured was guilty of negligence which contributed to his injury, and which barred a recovery, notwithstanding the negligence of the railway company in inflicting the injury. In some of those cases the conclusions of contributory negligence were based solely upon findings that the injured persons were trespassers, and in other cases upon findings that from all the facts no other reasonable conclusion could be deduced.

Appellees have cited a number of decisions of our higher courts in suits for damages for personal injuries inflicted under like circumstances, in each of which it was held that the issue of contributory negligence of the person injured was for the jury’s determination, and that the court could not say, as a conclusion of law, that such negligence had been established. Some of those cases are: G., C. & S. F. Ry. v. Matthews, 99 Tex. 160, 88 S. W. 192; R. G., S. M. & P. Ry. v. Martinez, 39 Tex. Civ. App. 460, 87 S. W. 853; Texas Midland Ry. v. Crowder, 25 Tex. Civ. App. 536, 64 S. W. 90; F. W. & D. C. Ry. v. Longino, 54 Tex. Civ. App. 87, 118 S. W. 198; F. W. & D. C. Ry. v. Broomhead, 140 S. W. 820. To which list may be added Thompson & Ford Lumber Co. v. Thomas, 147 S. W. 296.

article 1971 of 2 Vernon’s Sayles’ Tex. Civ. Statutes, the submission to a jury of issues which are not controverted is forbidden. And it is a familiar rule established by a long line of decisions of our appellate courts that, under some circumstances at least, a judgment will be reversed for the error in submitting to the jury issues of fact contrary to that statutory inhibition.

The test for determining when proof of negligence is uncontroverted, leaving that issue to be decided by the court, and not by the jury, is furnished by our Supreme Court in Choate v. S. A. & A. P. Ry., 90 Tex. 88, 37 S. W. 319 (local citation), and other decisions there cited, in the following language:

“Negligence, whether by the plaintiff or defendant, is generally a question of fact, and becomes a question of law to be decided by the court only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question. In other words, to authorize the court to take the question from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.”

It is well settled that a railroad com-comis guilty of actionable negligence in fail-failto exercise ordinary care to discover and avoid injuring persons upon the track at such places and upon such occasions as one of ordinary prudence would expect to find them; and whether such persons are tres-tresor rightfully upon the track makes no difference in the determination of the issue of the company’s negligence in that respect, considered separately and apart from issues of contributory negligence of the person in-inT. & P. Ry. v. Watkins, SS 88 20, 29 S. W. 232; M., K. & T. Ry. v. Malone, 102 Tex. 269, 115 S. W. 1158; St. L. & S. W. Ry. v. Shiflet, 98 Tex. 326, 83 S. W. 677.

It is also a general rule, subject to exceptions, that a trespasser upon a railroad is guilty of contributory negligence as a matter of law which bars a recovery for in-inby a train, in the absence of any show-showthat the persons in charge of the train discovered his peril in time to avoid injuring him, and were guilty of negligence in fail-failso to do. T. & P. Ry. v. Watkins, 88 Tex. 20, 29 S. W. 232; 2 Thompson, Com. Law of Negligence, § 1747. Minors under the age of discretion (I. & G. N. Ry. v. Garcia, 75 Tex. 583, 13 S. W. 223) and other persons who without fault of themselves are mentally ir-irfor exposing themselves to such dangers (H. & T. C. Ry. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632), are instances of excep-excepto that general rule. It is a further rule well established that the act of going upon a railroad in pursuance of a lawful right so to do, for instance, at a public cross-crossor when the railroad company has ex-exor impliedly licensed the act, is not negligence per se. G., C. & S. E. F. v. Mat-Mat99 Tex. 160, 88 S. W. 192, and au-authere cited.

In Railway v. Malone, supra, our Supreme Court held that Malone, who, while crossing a railway bridge, was struck by a passing train at night under circumstances negativing license to the public from the railway company to so use the bridge, was a trespasser, and therefore guilty of negligence as a matter of law which precluded a recovery for the injury.

In Texas Mid. Ry. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137, supra, our Supreme Court quoted with approval the following language used in G., C. & S. F. Ry. v. Matthews, 100 Tex. 68, 93 S. W. 1068:

“An implied permission, such as is claimed, to use a railroad track as a footpath, may relieve the person enjoying it of the imputation of being a trespasser, but it does not relieve the place of its inherent dangers, nor exempt the traveler from the duty to act with ordinary prudence. When he voluntarily chooses the dangerous pathway, instead of a safe one beside it, we can see no escape from the conclusion that he is guilty of negligence, if there be no justifying or excusing circumstances.”

We believe the qualifying language “if there be 'no justifying or excusing circumstances,” which concludes the foregoing quotation, suggests a solution of some, at least, of the supposed conflicts between some of the decisions referred to above, which cannot be solved upon any other theory. In keeping with the ever-varying circumstances of human experience the facts of different cases differ as the leaves of the forest, and in applying the law as announced in other decisions a substantial similarity of salient facts is all that may be expected.

Keeping in mind the general principles noted already and the qualification of the general rule last quoted, a close analysis of the controlling facts of the Byrd and other cases cited by appellant, and the salient facts of those cases relied on by appellees, which, upon a casual consideration, seemingly present an opposing view, will disclose conditions of such dissimilarity that the supposed conflicts disappear. Lack of time and a desire to avoid undue length of this opinion forbid any extended review of appellees’ authorities, but we shall refer briefly to some of them.

F. W. & D. C. Ry. Co. v. Longino, decision by this court reported in 54 Tex. Civ. App. 87, 118 S. W. 198, and decision by Supreme Court reported in 103 Tex. 250, 126 S. W. 8, and the case of F. W. & D. C. Ry. Co. v. Broomhead, 140 S. W. 820, by the Court of Civil Appeals for the Fourth District, and in which a writ of error was denied by our Supreme Court, are specially stressed by appellees as supporting the judgment.

In the first of those eases Longino was struck by a train while traveling on foot upon the railway track situated in North Ft. Worth. The evidence tended to show that there were other ways of travel by which he could have reached his destination, although not so convenient for him. But the evidence also tended to show the following circumstances in his favor: Noise of another train upon another track prevented him from hearing the approach of the train which injured him. The accident happened while he was running down the track, and he had gone only about 150 yards from the point where he had entered upon it. When he went upon the track a companion traveling with him looked and listened for a train in the direction the one which inflicted the injury came and discovered none. By reason of his injury plaintiff’s memory was so impaired that he could not recall going upon the track or anything happening thereafter, but from all the facts and circumstances in evidence the court indulged the inference that before going on the track he took the same precautions to discover whether a train was coming as did his companion, and neither saw nor heard one coming. Furthermore, there was evidence tending to show that the railway track had been commonly and habitually used by the public as a pathway for travel by pedestrians, with the knowledge and acquiescence of the defendant railway company, and a finding of those facts was by the trial court’s charge made one of the necessary conditions of a verdict in favor of Longino. Under the facts so found Longino was a licensee, and not a trespasser; neither could it be said that there was an absence of circumstances tending in other respects to rebut the prima facie showing of contributory negligence on his part in voluntarily exposing himself to the known danger of traveling upon the track.

The case of F. W. & D. C. Ry. Co. v. Broomhead, 140 S. W. 820, is distinguishable from the decisions cited by appellant in like manner as the Longino Case. As noted in the opinion in that case, the charge given the jury upon the trial, was in practically identical terms with the charge in the Longino Case, and the verdict of the jury, read in the light of the charge, shows a finding that Broomhead, who was struck by a train and killed while walking along the railway outside of the track proper, but near the end of the ties, was a licensee, and not a trespasser. And in approving the charge the Court of Civil Appeals expressly stated that it was supported by the facts. It thus appears that Broomhead was not a trespasser, and his act in traveling upon the track was not negligence per se. The court further held, in effect, that the jury’s further finding that Broomhead was not guilty of contributory negligence was supported by the evidence.

Other cases cited by appellees are also distinguishable from appellant’s authorities, by reason of the fact that the persons injured were also rightfully upon the track when injured. Some of those cases are Railway v. Matthews, 99 Tex. 160, 88 S. W. 192; Railway v. Martinez, 39 Tex. Civ. App. 460, 87 S. W. 853; Railway v. Smith, 87 Tex. 348, 28 S. W. 520; Railway v. Matula, 79 Tex. 577, 15 S. W. 573; Railway v. Wright, 62 Tex. 515.

We deem it proper to refer to another case not cited by appellees. It is Thompson & Ford Lumber Co. v. Thomas, 147 S. W. 296, which was decided by the Court of Civil Appeals for the First District, and in which a writ of error was denied by our Supreme Court. That decision is as cogent for appel-lees perhaps as any authority cited in their briefs, but it is not in conflict with decisions cited by appellant, since the opinion in that case shows express findings that Thomas, the person injured on the railway tract, was not a trespasser, and that the facts warranted a finding by the jury that he was not otherwise guilty of contributory negligence.

In Railway v. Shiflet, 98 Tex. at page 331, 83 S. W. at page 678, our Supreme Court said:

“We do not understand that, persons become licensees who, without the express or implied permission of a railroad company, habitually use its track as a convenience in passing from one point to another. There was no express permission shown in this case, nor do we think such permission <can be implied from the mere fact that persons were accustomed to use the track as a pathway without objection on part of the defendant company. That no benefit could accrue to it from such use is apparent. On the contrary, it is but reasonable to suppose that the presence of persons walking on the track would be calculated to interfere with the operation of the trains, and would therefore be objectionable. A railroad company has no practical means of preventing a use of this character. It would require a small army to picket a long line ■ of railroad to prevent trespasses upon it. Trespassers cannot be prosecuted for the wrong, for it is not a penal offense under our law. A license, whether express or implied, must proceed from the fact of some one having authority to grant it; and we think, in the absence of proof, it should not be presumed that the. servants of a railroad company, who operate its trains, have such authority. Therefore we are of the opinion that a license should not be implied from the mere fact that persons were accustomed to use the track as a passway, or from the further fact, that the conductor or engineer knew of such custom.”

In many other decisions which might be cited, some of which were by our Supreme Court, and others by our Courts of Civil Appeals, in which writs of error were denied by our Supreme Court, recoveries have been sustained for injuries to persons by trains on railway tracks, upon the theory that they were licensees, and in which cases apparently the only proof of such license consisted in the public use of the track in that manner. In at least a majority of these cases there is’ no specific reference to the question whether or not such use of the tracks was so notorious and at such places as to warrant a finding that it was known to, and acquiesced in by, some officer or agent of the railway company with authority from the company to give such consent; but it is quite apparent from the opinions that the proof upon that issue was considered sufficient to show such notice.

To say the least, the decision in Railway v. Shiflet, supra, would tend strongly to support a conclusion of law in the present case that George West was a trespasser on the switch track at the time of his injury; since the evidence relied on in the two cases to show a license to the public to use the tracks as walkways was substantially the same.

But whether or not that conclusion would be correct we do not determine, since, clearly, deceased must be held a trespasser, and therefore guilty of contributory negligence as a conclusion of law, for the reason that there was a total lack of evidence to show that any one at any time had ever used the track in the manner he was using it at the time of his injury; hence no possible support for the claim that he was so using the track with the knowledge and permission of the railway company, and was therefore a licensee. Railway v. Malone, 102 Tex. 269, 115 S. W. 1158; Smith v. Railway, 34 Tex. Civ. App. 209, 78 S. W. 557. Furthermore, in the absence of proof of a prior public use of the track in that manner, we gravely doubt the sufficiency of the evidence to support an affirmative finding by the jury on either of the two issues of negligence on the part of the railway company which were submitted in the court’s charge as a basis for a recovery. Railway v. Malone, supra; Smith v. Railway, supra.

We are of opinion further that, even though it should be held that George West was not a trespasser, and hence not guilty of negligence by reason of that fact, and even though it could be said that he, while duly sober, was walking or standing, and not sitting, upon or by the side of the track •when he was struck, nevertheless he must be held guilty of contributory negligence as a conclusion of law, which bars a recovery, since the record is barren of' any fact or circumstances which tend in any manner to justify or excuse him from voluntarily exposing himself to the known danger of being run over by cars that might be switched into the elevator shed. Railway v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137; S. & E. T. Ry. v. Dean, 76 Tex. 73, 13 S. W. 45; Holt v. Tex. Mid. Ry., 160 S. W. 327; Roper v. Ry., 55 Tex. Civ. App. 620, 119 S. W. 696; Bennett v. S. L. S. W. Ry., 36 Tex. Civ. App. 459, 82 S. W. 333; State v. Maine Cent. Ry., 76 Me. 357, 49 Am. Rep: 622; Hancock v. G., C. & S. F. Ry., 99 Tex. 613, 92 S. W. 456.

Appellees contend that the jury had the right to indulge certain inferences of fact, such as that the operatives of the train, who’ did not testify, had told deceased when other cars were switched in earlier in the day that there would be no more switching on that day, ¿nd that deceased relied on that assurance; that deceased had never known cars to be shunted down the track before without warning; and the further inference’ that the operatives saw West before they sent the cars down the track. The inferences suggested amount to no more than surmises or conjectures, and reasonably could not be given any probative force. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; Davis v. G., C. & S. F. Ry., 161 S. W. 932.

Appellees further ask that, in the event of a reversal of the judgment, the cause be remanded for another trial, at all events, upon the issue of negligence after the peril of deceased was discovered by those operating the train. Upon the last trial there was no basis for the submission of that issue, in that no evidence was introduced to show that those operatives saw the deceased at the time they sent the cars down the switch track. Appellees insist that there was evidence sufficient to sustain a finding that, by the exercise of ordinary care, those employes could and would have seen deceased before they shunted the ears and in time to avert the accident, and they contend that such evidence supported their plea of negligence after discovered peril. Such evidence, if any, did not establish even a prima facie right of recovery upon the issue last referred to, since an actual discovery of the peril of deceased at the time the cars were turned loose was an indispensable predicate for relief upon that issue. T. & P. Ry. v. Breadow, 90 Tex. 26, 36 S. W. 410; T. & P. Ry. v. Staggs, 90 Tex. 458, 39 S. W. 295.

In the absence of some prima facie showing of such discovery, no inference could be indulged in plaintiff’s favor from appellant’s failure to introduce said employes as witnesses, especially in the absence of any suggestion in the record that their testimony was not as available to plaintiffs as to the defendant, if available at all. T. & P. Ry. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049.

And as no exception was presented to the charge, which, in effect, affirmatively exchided a recovery upon that issue, appel-lees must be held to an approval of that instruction. 2 Vernon’s Say les’ Tex. Civ. Stats, art. 2061; Cleburns Street Ry. v. Barnes, 168 S. W. 991.

The total failure of plaintiffs to sustain the affirmative of that issue by evidence, with no suggestion of excuse for such failure, and their approval of the instruction of the court last mentioned, constitute essentially, an abandonment of the issue and negative any equitable basis for the contention that they should be given .another day in court for the purpose of litigating that issue.

For the reasons indicated, the assignment of error to the court’s refusal to give to the jury appellant’s requested peremptory instruction for a verdict in its favor is sustained.

The judgment of the trial court is reversed, and judgment is here rendered in favor of appellant.
      <g=wPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CABL, J.

text:
    BENAVIDES v. BENAVIDES.
    (No. 5406.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 17, 1915.)
    1. Courts <§=5163 — Jurisdiction — County Court.
    The county court may issue injunction in proper cases where the damages alleged' are within its jurisdiction, but, having no jurisdiction of a forcible detainer suit, or of trespass to try title, has no jurisdiction in an action for possession to enjoin a defendant from building a fence and cutting timber, and to order the removal of the fence already built, since the statute fixing the jurisdiction for trial of the title to or possession of land cannot be made nugatory simply because an injunction is prayed on the ground of irreparable injury.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410-411, 443, 479, 1294; Dec. Dig. <§=> 163.]
    2. Courts <§=>163 — Jurisdiction — Title — County Court.
    Jurisdiction of a forcible detainer suit is in the justice’s court, and not in the county court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410-411, 443, 479, 1294; Dec. Dig. <§=> 163.]
    3. Courts <§=>163 — Jurisdiction—Title.
    The district court, to the exclusion of the county court, has jurisdiction of an action of trespass to try title.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410-411, 443, 479, 1294; Dec. Dig. <§=> 163.]
    Appeal from County Court, Brooks County; J. A. Brooks, Judge.
    Action by Jesus G. Benavides against Duis G. Benavides. Judgment for plaintiff, and defendant appeals.
    Beversed and dismissed.
    T. Wesley Hook, of Kingsville, for appellant. Jno. C. North, of Falfurrias, for appel-lee.
   CABL, J.

This suit was brought in the county court of Brooks county, for injunction and for damages, by Jesus G. Benavides against his brother Luis G. Benavides. The plaintiff alleged that he owned or controlled 150 acres of land out of “La Encatada” grant, which he, with others, fenced in 1910 and had lived upon continuously since that date; that 90 acres comprised the farm, and a fence was around his residence, and on a part of the land was standing timber; that defendant had no right to any part of said premises; and without the plaintiff’s consent had entered upon said premises and was erecting a fence, running across his yard, cutting plaintiff’s farm off from the rest of his land; that defendant was cutting fence posts on said land out of the timber thereon situated, to plaintiff’s damage $250, and unless restrained by injunction would further damage plaintiff. The prayer was for an injunction restraining from fence building and timber cutting, and commanding the removal of the fence already built and for damages. The injunction was issued as prayed. In the amended petition plaintiff alleged that he owned in fee simple a certain 50 acres of said “La Eneatada” grant, on which he had certain improvements consisting of a house, well, outhouses, fences, etc.; that said 50 acres was within a larger inclosure containing 333% acres in addition to said 50 acres, said 333% acres belonging to his brother Simon Guzman Benavides and of which plaintiff had possession and control jointly with other heirs, and of which he had 30 to 60 acres under cultivation; that all of said land was inclosed under a good fence erected by plaintiff and other persons since 1910, during which time plaintiff had used and enjoyed it, the whereabouts of the said Simon Guzman Benavides being unknown; that plaintiff was entitled to the use and possession of said land, and defendant had no interest in the same. It was further alleged that Luis Benavides had entered upon said land and was erecting a fence, cutting posts, etc., and other allegations and prayer as before. The defendant denied that the plaintiff owned 50 acres of said land, or that Simon G. Benavides owned 333% acres of which plaintiff had possession, and claimed that he, defendant, owned a one-third interest of said 333%-acre tract. He also denied that he was running a fence so as to separate plaintiff’s house from his barn and outhouses, or that his fence run across any of • plaintiff's land. He also alleged that plaintiff was attempting to hold a little field in one part of the 333% acres and another little field in another part of said tract of 333% acres.

The prayer upon which the injunction was granted is as follows:

“Wherefore, premises considered, plaintiff prays the court for a writ of injunction, restraining the defendant from erecting said fence and from cutting said timber upon said premises, and requiring defendant to take down said fence now erected, and restraining him from selling, drawing away, or interfering with such timber as has already been cut and still remains upon said premises, and from entering upon and do any act or thing in connection with said land and premises and said timber, except to remove that part of said fence now erected; that said defendant be cited to appear and answer this petition; that plaintiff have judgment that said injunction be made perpetual, and for his damage aforesaid and costs of suit, and for such other and further relief in law and in equity to which he may show himself entitled, and will ever pray.”

While this is called a suit for injunction and for damages, it is unquestionably an action for the recovery of the possession of the land. On the trial of the cause no evidence whatever was introduced to prove the cause for damages, and that phase of the case was completely abandoned. The question of title to the land, as between these heirs of Domingo Benavides, was directly involved in the suit; in fact the plaintiff pleaded his rights under Simon Guzman Benavides, one of the heirs, who had gone away and had not been heard from. And the parties to this suit are brothers, each claiming to inherit from or hold under Simon’s title.

The county court may issue injunctions in proper cases where the damages alleged are within the jurisdiction of that court. De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882; Johnson v. Clemmons, 158 S. W. 797; McCall v. Page, 155 S. W, 655. But these same cases hold that the county court would not have authority to issue an injunction where it would not have jurisdiction to try a case involving the amount sought to be restrained. As said in the McCall Case, supra:

“And it is clear that, as the county court has no power or authority to try title to real estate, it could not grant an injunction to restrain the sale of a homestead, no matter if it wás the separate estate of the wife or not. In order to try the issue as to the perpetuation of the injunction, it was necessary to try the question of homestead and the separate character of the estate. County courts have no authority to try such matters.”

This suit sought to have the fence removed ; in other words, sought to regain possession of the land. And from the viewpoint of a forcible detainer suit, the justice’s court would have jurisdiction. If it be looked at as a trespass to try title suit, which it seems is, in substance, clearly involved, the district court would alone have jurisdiction. The case must necessarily be tried upon one of these theories, since title to the land or right to the possession is involved in either event. This being true, the county court never acquired jurisdiction, and it matters not that the damage alleged was within the jurisdiction of the county court. We need not comment upon the fact that no effort was made to prove any damages. The real issue was either one of forcible entry and detainer or of trespass to try title, on either of which issues the county court was without power to try the cause. Where the right to possession of land, or the matter of title, are the real issues in a case, the statutes fixing the jurisdiction for the trial of such causes may not be set aside and rendered nugatory- simply because an injunction is prayed for on the ground that an irreparable injury is about to be inflicted. Having no jurisdiction of the subject-matter of the suit, the county court had no power to grant the injunction. '

The judgment of the trial court is reversed, the injunction dissolved, and the cause dismissed.

Reversed and dismissed.
      <§=>l?or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    CAPPS v. JOHNSON.
    (No. 393.)
    (Court of Civil Appeals of Texas. El Paso
    Feb. 11, 1915.
    Rehearing Denied March 4, 1915.)
    Appeal and Error <§^499 — Assignments op Error — Instructions — Statutory Provisions.
    Assignments of errors to instructions and refusal of instructions, in the absence of bill of exceptions showing exceptions, in compliance with Acts 33d Leg. c. 59, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]
    Appeal from Beeves County Court; Ben Palmer, Special Judge.
    Action by B. F. Capps against F. W. Johnson. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Clay Cooke, of Pecos, for appellant. Buck & Starley, of Pecos, for appellee.
   HIGGINS, J.

Capps sued Johnson to recover a balance of $450 alleged to be due for drilling a well. Judgment was rendered in Johnson’s favor. This is the second appeal of this case; former opinion appearing in 160 S. W. 1097.

Certain assignments complain of the court’s general charge and the refusal of a special instruction. There is no bill of exception in the record showing compliance .with chapter 59, Act of 1913, p. 113, for which reason the assignments are overruled. Railway Co. v. Wadsack, 166 S. W. 42; Insurance Co. v. Rhoderick, 164 S. W. 1067; Heath v. Huffhines, 168 S. W. 974. Objection, upon trial, was made to certain testimony of Johnson, and its admission is here assigned as error.

The evidence probably falls within and was admissible under the rule laid down in MeKelvey on Evidence (India Paper Edition) p. 220, § 132. In any event, its admission is not regarded as reversible error. Court of Civil Appeals rule 62a (149 S. W. x).

Affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    BUSBY v. SCHRANK.
    (No. 5412.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 10. 1915.
    Rehearing Denied March 10, 1915.)
    1. Judgment @==>217 — Finality — “Final Judgment.”
    A judgment to be “final” must dispose of all the parties and issues in the suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 394; Dec. Dig. @=>217.
    For other definitions, see Words and Phrases, First and Second'Series, Final Decree or Judgment.]
    2. Execution <§=>6 — Finality oe Judgment —Disposition oe Pasties.
    Where two persons are joined as parties in an action on a contract and on the answer of one he denies that he was a party to the contract, a judgment against the other alone is not a final judgment so as to authorize an execution ; the court’s instructions referring to defendant and defendants, and both defendants joining in a motion for new trial.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 5, 6; Dec. Dig. @=>6.]
    Appeal from Hidalgo County Court; W. H. Gossage, Judge.
    Action by John Sehrank against J. J. Busby. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John P. Gause, of Mercedes, and Alex C. Bullitt, of San Antonio, for appellant. Graham, Jones, West & Dancy, and J. C. George, all of Brownsville, for appellee.
   CARL, J.

Appellee, John Sehrank, instituted this suit in the county court of Hidal-go county to enjoin the issuance of an execution and levy thereunder, based on a certain judgment of the county court of that county in favor of Busby against Schrank; it being claimed1 that said original judgment was not a final judgment because it did not dispose of H. W. Bose, one of the defendants. In that suit appellant sued H. W. Rose and John Sehrank on a certain grubbing contract and alleged that he made the contract with the defendants. The petition was sworn to; and the defendants Bose and Sehrank, in a sworn joint answer, alleged:

“That the only contract of any kind or nature ever entered into between this plaintiff and the defendants, or either of them, was a certain contract in writing entered into and dated the 31st day of May, 1913, and duly signed by the defendant, John Sehrank, and the plaintiff.”

In a sworn replication to this answer J. J. Busby says:

“He (Busby) admits that the contract sued on is in writing of the same day and date set out therein, but denies that there ever was any modification to said contract.”

This entire replication refers to “the defendant,” using the singular number, and also sets out that Bose was the agent of Sehrank and made the contract for the clearing and pointed out to plaintiff what he wanted cleared. It is further pleaded that Sehrank, through Bose, his said agent, paid the appellant for part of the clearing done, but which, it is alleged, Bose afterwards claimed was not on the land of Sehrank.

In this condition of the pleading, Bose seems to have been treated as having been dismissed from the suit, not only by the parties, but by the court, in a part of the charges and in the judgment. Sehrank alleges in a cross-action that Busby has damaged him in the sum of $500 by failure to comply with the contract or by reason of the breach thereof.

There is no doubt that a judgment must dispose of all the parties and issues in the suit. It will be noted that the defendant Rose filed an answer with Sehrank, by the same attorney, and, while Busby in his supplemental petition practically admits that the suit is against Sehrank, he does not dismiss as to Bose. The court charged the jury on the theory that both Bose and Sehrank were defendants, for a part of the charge reads as follows:

“If you find that any land in excess of the land covered by the written contract was pointed out by defendants or either of them or for either of them to plaintiff as being land which plaintiff was to clear under the contract, then defendants would he liable for the contract price of such clearing regardless of the written contract; but, if you find that plaintiff by mistake or carelessness or neglect or failure on his own part did clear any land not contemplated in the contract, he could not recover from the defendants.”

In some places in the charge the word “defendant” is used in the singular number, but Rose and Schrank both joined in and filed a motion for a new trial. The verdict of the jury does not appear in these proceedings, but the judgment of the court, in part, reads:

“ ⅜ * ⅜ And thereupon came a jury of good and lawful men, who being duly impaneled and sworn upon their oaths do say that they find for the plaintiff and assess his damages at the sum of $824.50.”

Nowhere in the judgment is Rose mentioned ; neither is the cross-action of Schrank for $500 damages mentioned.

In our former opinion, we held to the view that Rose had been eliminated by the pleadings, at any rate to such an extent as to show that he was merely a formal party. Our attention was not then directed to the fact that he had joined in the motion for a new trial, nor to that part of the court’s charge above quoted.

Since Rose was a party to the suit in cause No. 430 in the county court of Hidal-go county, and no disposition whatever was made of him as such party,, although the court’s attention was directed to that fact by his joining in the motion for new trial, that judgment was not a “final judgment” because it did not dispose of all the parties.

This being true, our former opinion is hereby withdrawn, wherein we reversed and rendered judgment, and the judgment of the trial court is in all things affirmed.
      <g£=>For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, O. J.

text:
    WILSON v. DEARBORN, Sheriff.
    (No. 6581.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 20, 1915.)
    1. Sheriffs and Constables ⅞=88 — Levy of Execution — Duty.
    Where a sheriff received an execution, and specific land is pointed out to him, it is his duty to levy, regardless of what he might believe as to the title, since a levy on land could not subject him to damages.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 120-125, 195; Dec. Dig. <§=>88J ‘
    2. Mandamus <®=>14 — Levy oe Execution by Sheriff.
    Where a sheriff holding an execution failed to levy on the land specifically pointed out because he doubted defendant’s title, and thereupon notified the assignee of the execution, and was told to wait until he could look the matter up, and the assignor then took the papers away from him, mandamus should not issue, to compel a levy; the assignee not having notified him what to do.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 44-46; Dec. Dig. <§^14.]
    Application for mandamus by J. B. Wilson against H. B. Dearborn, Sheriff.
    Application denied.
    E. P. Anderson, of Waxahachie, for relator. J. L. Gammon, of Waxahachie, for respondent.
   RAINEY, O. J.

On February 2, 1915, J. B. Wilson presented to this court an application for the writ of mandamus commanding H. B. Dearborn, sheriff of Ellis county, Tex,, to levy, two executions for costs issued by this court in causes Nos. 6018 and 6706, both entitled 3. L. Holveek et al. v. George I-Iol-veck et al., decided by this court, alleging: That said executions had been placed in said sheriff’s hands, with directions to levy the same on certain land, which land was pointed out by a description in writing, showing the metes and bounds thereof. That said sheriff had failed and refused to make said levy, for the reason that the records showed the title to the land to be in another than the defendants in execution, and demanded an indemnity bond.

On said February 2, 1915, this court caused an order to be issued commanding the said I-I. B. Dearborn, sheriff as aforesaid, to appear before this court on February 12, 1915, and show cause why he had not levied said two executions, and on said day the said Dearborn did appear in obedience to said command and made answer in part as follows:

“(1) That he is not guilty of refusing to execute either of the executions mentioned in said motion, namely, one in cause No. 6018, J. L. Holveck et al. v. George Holveck et al., the other in cause No. 6706, J. L. Holveck et al. v. George Holveck et al., or either of said executions; that said executions were delivered to him on or about the 8th day of January, 1915, by E. P. Anderson, together with description of certain property, to wit, a part of block 162, in the town of Waxahachie, Tex., and a part of block 34 in the town of Waxahachie, Tex., particularly described in Exhibit A, hereto attached, with request to levy upon the same as the property of defendants in said execution; that each of said executions, which are on file in the court, bore the following indorsement, purporting to bei executed by Geo. W. Blair, clerk of the Court of Civil Appeals: ‘For value received, I assign the within execution to J. B. Wilson. [Signed] Geo. W. Blair, Clerk of the Gt. of Civil Appeals’ — which indorsement and signature were and are in the handwriting of the said E. P. Anderson.
“(2) Your respondent made inquiry as to the ownership and possession of said property of R. G. Phillips and others, and was, by them, reliably informed that both, the legal title and possession thereof was and had been for a long time in parties other than the said defendants in said executions, whereupon your respondent, desiring to perform his duty faithfully and intelligently forthwith addressed a letter to the honorable clerk of this court, making inquiry as to the genuineness of these executions, and as to his duty in the premises, and on, to wit, the 14th day of January, called upon the said clerk in person for answer to his letter, and was by him advised to consult with the purported plaintiff in execution, J. B. Wilson ; that he received a reply to said letter, from the clerk, on, to wit, the 14th day of January, 1915, which is hereto attached, and marked Exhibit B; that on said date he personally inquired of J. B. Wilson, the purported plaintiff in execution, if he desired said executions levied upon this property, to which the said J. B. 'Wilson replied that he loaned Capt. Anderson $24 to pay some expenses in this litigation, and requested your respondent to wait until he could look into the matter before making a levy, and that, when he had looked into the matter, he would notify your respondent whether or not he should make the levy; that on, to wit, or about the 16th or 18th day of January, 1916, and before the said Wilson, plaintiff in said execution, had advised your respondent, Capt. Anderson came to re: spondent’s office and demanded the papers forthwith, and they were delivered to him; that said J. B. Wilson has not as yet advised your respondent that' he desired levy made of said executions, or either of them, and your respondent is not advised by information or by said J. B. Wilson of his decision of such matter.
“(8) Tour respondent liad no intention, and has no intention of refusing to execute the mandates of your honorable court in any particular.”

The said sheriff testified to the conversation he had with J. B. Wilson stated in his answer and to the delivery of the executions to E. P. Anderson, attorney for Wilson, as stated, and that Wilson had not instructed him what to do in regard to a levy, and, since the delivery of said executions to E. P. Anderson, lie was not authorized to act in the premises. This testimony of the sheriff was not contradicted, and, taken as true, shows no reason for the issuance of the writ of mandamus.

We think, however, when the sheriff received the executions and was directed to levy on the land, that there was no occasion for him to concern himself about the title to the land pointed out to levy on. It was none of his business whether the land was owned and possessed by another, and that the levy would involve litigation. The levy of an execution on land would not subject him to a suit for damages, and, when he received the executions and the land pointed out to him, he should have levied same; but after Wilson had promised to investigate and notify him what to do and Wilson not having done so, and the executions having been taken out of his hands as stated, the mandamus will not issue.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    TEXAS & P. RY. CO. v. GRAHAM & PRICE.
    (No. 389.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 11, 1915.
    Rehearing Denied March 11, 1915.)
    1. Appeal and Eeeoe <§=>1051 — Hakmless Eeeoe — Eekoneous Admission op Evidence.
    Error in permitting a witness to testify to a fact established by agreement of the parties is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <§=> 1051.]
    2. Caeeiebs <§=228 — Delay in Teanspobtation of Live Stock — Evidence—Admissibility.
    Where, in an action against a carrier of live stock for delay in transportation, there was evidence that part of the cattle were sold at Ft. Worth and the balance at Kansas City, evidence of the condition of the cattle at Ft. Worth, if properly handled, was admissible as to the cattle sold there.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <§=>228.)
    3. Evidence <§=341 — Public Documents— Ceetipied Copies.
    Where public documents are admissible if produced, bnt cannot, without inconvenience to the public interest, be removed from their place of custody, certified copies or copies verified by some person who has seen the original are admissible, but copies not so shown to be correct are inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1289-1292; Dec. Dig. <§=3341.]
    4. Evidence <§=>150 — Public Documents — Expebiments.
    A party seeking to introduce in evidence public documents showing the results of experiments must show that the conditions under which the experiments were made were similar to the conditions involved in the case.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 439; Dec. Dig. <§=>150.]
    5. Appeal and Eeeoe <§=>499 — Questions Reviewable — Giving and Refusal of In-stbuctions.
    An assignment of error to the giving and refusing of charges will be overruled where there are no bills of exception in the record as provided by Revised Statutes as amended in 1913 (Acts 33d Leg. c. 59).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dee. Dig. <§=> 499.]
    Appeal from District Court, Ector County; S. J. Isaacks, Judge.
    Action by Grabam & Price against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Jno. B. Howard, of Pecos, and Geo. Thompson and R. S. Shapard, both of Dallas, for appellant. Frank Judkins, of Odessa, for appellee.
   HARPER, C. J.

Appellee instituted this suit against appellant for $1,920 damages to a shipment of cattle, alleged to have been occasioned by unreasonable delays between the point of shipment, Odessa, and Ft. Worth, Tex., in part, and Kansas City, in part; that by reason of the failure to unload and feed said cattle, they were reduced in value,. in that they shrunk in weight, and, by reason of their appearance, brought less upon the market when sold; that the company knew that they were being shipped to market, etc.

Appellant answered, specifically denying negligence upon its part in the shipment; that the only delay of any consequence was caused by an accident to one of its engines, not caused through any fault or negligence upon the part of its agents, servants, or employes; that the bill of lading upon which the cattle were shipped limited liability to its own line — not a through shipment.

Tried before jury, and verdict and judgment for $1,750, from which this appeal is taken.

The first assignment charges that the court erred in permitting witness to testify to the shrinkage of the cattle between Odessa and Ft. Worth because of the delay. The witness having qualified to give an opinion, such opinion was admissible, at least, as to the cattle sold at Ft. Worth. The witness testified that “the shrinkage would be something like 40 pounds, and the parties agreed that the shrinkage upon the bunch sold at Ft. Worth was 49 pounds each” ;■ so, if error, it was harmless.

The second assigns error in the court permitting witness Price to testify that, if the cattle had had a proper fill at Ft. Worth, “I venture to say that there would not have been ten pounds difference in their weight compared to their weight at point of shipment.” The reason given for the objection is that the cattle were not sold at Ft. Worth, and the test being their weight at Kansas City, and it not being shown that their condition in Ft. Worth affected their shrinkage at Kansas City, the testimony was not admissible. Some of the cattle were sold in Ft. Worth, and, as to those, the testimony was admissible.

The third charges error in refusing to allow the defendant to introduce in evidence United' States government report of tests made of the shrinkage of other cattle under similar circumstances, issued in the form of a printed bulletin. The principle, as gathered from the authorities, is that wherever documents of a public nature would themselves be evidence if produced, and which could not, without inconvenience to the public interest, be removed from their place of custody, certified copies or copies verified, by some person who has seen the original are admissible, and in the absence of such proof of correct copies are not admissible. Smithers v. Lowrence, 100 Tex. 77, 93 S. W. 1064.

And it would seem that in this case, the evidence sought to be introduced being in the nature of experiments, the party seeking to introduce must also show that the material facts show that similar conditions existed. Riggs v. Railway Co., 216 Mo. 304, 115 S. W. 969. And, there being no evidence here that the pamphlets were authentic, nor that the conditions and facts under which the experiments were made were similar, the bulletin was not admissible.

The fourth, fifth, and sixth assign error in charges given and refused by the court. There being no bills of exception in the record, as provided by Revised Statutes of 1911, as amended 1913, they are overruled. St. Louis S. W. Ry. Co. v. Wadsack, 166 S. W. 42.

The seventh is that the evidence does not substantiate the amount for which the verdict was rendered.

It is agreed that the- 320 head of cattle shipped weighed 290,200’ pounds at the point of shipment; that 22 head were sold at Ft. Worth at a shrinkage of 49 pounds per head, and 298 were sold at Kansas City at a loss- of 71 pounds- per" head. The testimony, uncontradicted, is- that, if the cattle had had a reasonable run. to Ft. Worth, not more than 26 hours; the loss on account of shrinkage would not have been more than 10 per cent. This, with other testimony, sufficiently established that the loss was occasioned by the unreasonable delays. The further testimony, also uncontradicted, is that, by reason of their appearance as a result of the shrinkage, the loss was 50 cents per 100 pounds in the price which they would command upon the market.

• This evidence- would sustain, a much larger verdict than that rendered.

There being no error in the record, the judgment must be affirmed; and it is so ordered.

Affirmed.
      <§=3For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes