author: HIGHTOWER, C. J.

text:
    CITY OF ORANGE v. RECTOR et al.
    (No. 406.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 4, 1918.)
    1. Municipal Gorporations &wkey;>38 — Extending Dimits fob Special Bueposes — Con-STEUCTION OF STEAM RAILROADS.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 783a, providing that cities on navigable streams and under special charters may extend their limits for the purpose of acquiring land for improvements of navigation, does not authorize a city upon passage of an ordinance thereunder to construct a steam railroad along a street included in such extended limits.
    2. Municipal Corporations &wkey;>671(7)— Streets — Construction op Railroads— Injunction.
    The owners of residence property abutting a street have the right to enjoin the city from constructing a steam railroad thereon without lawful authority, upon showing special damages to property and personal discomfiture, whether plaintiffs owned the fee to the street or not.
    3. Eminent Domain &wkey;>119(2) — “Taking” Private Property — Compensation—Use op Street.
    The construction of a steam railroad upon a street or highway, the fee of which is owned by abutting owners, constitutes a taking of private property for public use which Const, art. 1, § 17, provides cannot be done without making adequate compensation.
    [Ed. Note. — For other definitions; see Words and Phrases, Ifirst and Second Series, Taking.]
    4. Pleading <&wkey;428(3) — Petition — Conclusion — Sufficiency.
    Pleading a conclusion that petitioners for injunction were owners of the fee in a street in the absence of special exception thereto or general denial held to warrant introduction of evidence of ownership of fee.
    Appeal from District Court, Orange County; W. T. Davis, Judge.
    Action by B. Rector and others against the City of Orange. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    J. B. Bisland, of Orange, for appellant. Smith & Crawford, B. F. Pye, and John Hancock, all of Beaumont, for appellees.
   HIGHTOWER, C. J.

This appeal is from an order made by Hon. W. T. Davis, judge of the First judicial district of this state, at chambers, temporarily enjoining the city of Orange, Tex., from building and constructing a steam railroad in what is designated in the record in this case as Alabama street, which lies just south of and outside of the corporate limits of the city of Orange.

The action was commenced by B. Rector, Chas. Harris, F. M. Hinton, George Niñee, A. D. Williams, and Harry Watson, who, as plaintiffs, presented to said Hon. W. T. Davis, judge of said district court, at chambers, on May 9, 1918, their petition, wherein said plaintiffs complained of the city of Orange, B. F. Hewson, its mayor, Felix Weil, John W. Hart, E. V. Folsom, and Hugh Cox, ah dermen of said city, the purpose of the action being to enjoin the city of Orange from constructing a steam railroad in said Alabama street.

Upon presentation to said judge of said petition a temporary restraining order was by him granted, and the prayer for temporary injunction was set for hearing at a later date. Thereafter, on May 14th, the matter came up for hearing on the prayer for temporary injunction, and the plaintiffs, ap-pellees here, filed their amended original petition, in which they alleged, substantially, that they were resident citizens of Orange county, Tex., and that the city of Orange was a municipal corporation duly chartered and organized and operating under a special charter, and that the said Hewson was the mayor of said city, and the other defendants above named were the aldermen, respectively, thereof; that each of said plaintiffs owned property abutting on said Alabama street, some of which property was described by lot and block number, and some of it by metes and bounds, and all of which was described to be a part of the Gilmer First Cove addition to the city of Orange. It was further alleged that said Alabama street is a narrow street, 40 feet in width, and that all that portion of said street, as well as the property of the plaintiffs concerned in this proceeding, lies south of the corporate limits of said city of Orange and entirely without said limits, and that said addition was laid out by A. Gilmer according to a plat or map, and that said lots and tracts of land owned by the plaintiffs and abutting on said Alabama street were conveyed to them by and through the said Gilmer, who had subdivided said addition, as said property was shown and described on said plat or map, and that in making said conveyances said Alabama street was clearly shown by said map or plat, and was recognized by the said Gilmer in making such conveyances, and that said lots were 'conveyed as abutting said street, and in such manner and under such conditions as made said street an appurtenance to said lots, and “as conveyed to said owners of said lots, a property in fee to said street, and an easement in said street.” It was further alleged by the plaintiffs that said Alabama street had never been dedicated for public use, and had never been recognized or adopted by any public authority or worked, or any public supervision or control exercised over same by any officer or public official, and that no permission or authority had ever been given to the defendants or any of them to build a railroad in or upon said street; and it was further alleged that said Alabama street is owned individually and privately by the plaintiffs and others situated like them having property abutting thereon. It was further alleged that until recent years the Gil-mer subdivision in question was vacant property, but afforded pleasant and convenient sites for suburban homes, and that plaintiffs selected their property here concerned, as did others, for homes, by reason of its pleasant and suitable location for such purposes, and that practically the only value said property has is for residence purposes, and that the building of a steam railroad such as the city of Orange contemplated building would add no value to the property of the plaintiffs for any purpose, but, on the contrary, would practically destroy the only value such property has or will have. It was further alleged that the city of Orange was threatening to construct a railroad for terminal and other purposes along said Alabama street for its full length, which was alleged to be about 1,000 feet, and that it was the intention of said city to connect said railroad, when so constructed, with all the leading railroads entering the city of Orange, and that it was the intention of said city, when said railroad should be so constructed along said Alabama street, to operate innumerable and heavy freight trains on said track, both by day and by night, and that it would be necessary, in constructing said railroad, to change the grade of said Alabama street, and that the trains would be operáted over said road, if permitted to be constructed, both by day and by night, and that plaintiffs would be greatly vexed and harassed by the noise and vibration caused by the operation of such heavy traffic along said narrow street, and in close proximity to their residences, and that their homes would be threatened with destruction by fire, which might escape from the engines propelling said trains of cars, and that soot, smoke, and cinders would envelop their homes, and that the lives of their children would be seriously endangered by trains passing along said street in front of the residences of the plaintiffs, and that the pleasant views around their respective residences would be almost completely destroyed if said railroad should be constructed and operated in said Alabama street. It was further alleged that the city of Orange was without any authority whatever to construct a steam railroad in or upon said Alabama street in front of the property of the plaintiffs, and that they nor either of them had ever consented to the construction of said railroad by said city of Orange, nor had said city of Orange ever legally acquired, by gift, purchase, or condemnation, any part of said Alabama street, and that the operation by said city of a railroad in and upon said Alabama street, such as said city was threatening and contemplating, would constitute a great and irreparable injury and damage to the plaintiffs, and would constitute a public nuisance.

There were other allegations in the petition charging, substantially, that it was unnecessary for the city of Orange to construct said railroad along said Alabama street, and that, if it was necessary or desired by the ' city that a railroad should be constructed, then the same could be constructed over another and different route, which would obviate the necessity of damaging plaintiffs, and at the same time the city would be afforded the use of a railroad, if it so desired. There were other allegations in the petition which we deem it unnecessary to here mention.

The prayer was that a temporary injunction be granted restraining and enjoining said defendants from constructing said railroad or laying tracks therefor, or assembling material on said Alabama street for such construction, or proceeding in any way to do any of such things on, over, or across any part of said Alabama street, and that on a final trial plaintiffs have judgment perpetuating such injunction and for such other and further relief as the facts and the law might justly entitle them to have.

On the day set for the hearing of the application for injunction the defendants filed their answer, which consisted of a general demurrer and special denials of certain of the allegations contained in the plaintiffs’ petition. There were no special exceptions nor a general denial in the answer. The special denials might be substantially stated as follows:

(1) That the construction of the railroad contemplated by the city of Orange along Alabama street would not damage or cause any depreciation in the value of the property of any of the plaintiffs, but, on the contrary, that the construction of such railroad would enhance the value of the property of the plaintiffs.

(2) That the residences of the plaintiffs would not be injured by the construction or operation of such railroad.

(3) That it was not contemplated that such railroad, when constructed, would be used as a switch track, and that, in fact, it would not be used for such purposes, but only as a terminal for the purpose of transporting trains from the different railroads entering the city of Orange, and that there would be no such noise from the passage of such trains along said Alabama street as would be reasonably calculated to disturb the plaintiffs.

(4) That plaintiffs’ premises would not be endangered by fire on account of the operation of trains along said Alabama street, for the reason that the engines propelling such trains would be oil burners, and that no sparks would escape therefrom.

It was further substantially alleged in the answer that the city of Orange had issued bonds in the sum of $150,000 for the purpose of constructing public slips, docks, wharves, etc., and a tract of land consisting of 85 acres had been donated to said city, which tract of land lies south of said city, and that the same was donated and conveyed to the city for the purpose of enabling the city to construct wharves, docks, etc., on the Sabine river, a navigable stream, upon which said city is situated, and that the city of Orange had expended in improving said 85 acres of land about $140,000, and that it had constructed and dug on said land a slip extending from the Sabine river into said land to a distance of 3,000 feet, of a width of 278 feet, and a depth of 25 feet, and -that the city had constructed and built along the south bank of said slip a wharf 6,000 feet in length, and had also constructed and built a steel warehouse of 6,000 feet in length, and that, unless said slip, docks, and wharves can be connected by a transfer or terminal track with trunk lines of the different railroads leading into the city of Orange, such slip, docks, and wharves would be useless, and of no use to said city or any one else; and it was further alleged in the answer that the board of city commissioners of the city of Orange, in the exercise of a discretion allowed them by law, had determined that the proposed line of railroad along Alabama street would be the best and most practicable route for said track, and that it could be laid with less cost along that route than on any other route; that to reach said slip and docks by any other route the entire route would pass over private property, and would necessitate curves and reverse curves -that would make the operation of cars on said track very impracticable; and it was further answered that, if the plaintiffs should be granted the relief sought by them, great and irreparable injury would be worked upon the citizens of Orange and said city, etc. There were other allegations in the answer which we consider immaterial and unnecessary further to mention.

At the hearing there was practically no evidence introduced, the judge acting almost entirely upon the pleadings as they then stood, the substance of which we have set out above. It was agreed, however, by the parties that Alabama street, above mentioned, lies wholly outside of the corporate limits of the city of Orange as defined by its charter, but that said street does lie within an extension of the city limits of said city as made by an ordinance duly passed by said-city, and as authorized by chapter 25 of the Acts of the Thirty-Third Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 783a, 783b).

The appellant, city of Orange, in claiming a right to build and construct in and upon Alabama street a steam railroad, over the protest of the plaintiffs in this case, must rely upon article 783a, Vernon’s Sayles’ Texas Civil Statutes, because, without invoking the provisions of that article, there could be no semblance of any right whatever in the city of Orange to build a steam railroad along Alabama street, in disregard of and over the protest of property owners and residents on that street, since it is admitted that said street and the property in question abutting thereon lies wholly and entirely beyond the corporate limits of said city, as fixed by its charter.

Article 783a, referred to, reads as follows:

“Art. 783a. Cities on ’Nkwigable Streams and under Special Charters Maty Extend Limits; _ May Acquire Land for Improvement of Navigation, etc. — That from and after the passage of this act the right, power and authority is hereby given to the city council of all cities situated along or upon navigable streams in the state of Texas, and acting under special charters, to extend the limits of said city for the limited purposes named in this act, so as to include in said city the said navigable streams and the land lying on both sides thereof for a distance of twenty-five hundred (2,500) feet from the thread of said stream to a distance of twenty (20) miles or less in an air line from the ordinary boundaries of said city, either above or below the boundaries of said city, or both, by the passage of an ordinance extending the boundaries of said city to include the territory aforesaid, being a strip five thousand feet wide and twenty miles, more or less, in length, or so much thereof as the city council may consider advisable to add to the limits of said city; and from and after the passage of said ordinance the city council of said city shall have the right, power and authority to secure land within the territory so added to said city by purchase, condemnation or gift for the improvement of the navigation of said navigable stream or waters, either by the United States or by said city; or by any navigation or other improvement district, and for the purpose of establishing_ and maintaining wharves, docks, railway terminals, side tracks, warehouses or any other facilities or aids whatsoever to either navigation or wharves; and for these purposes the corporate limits of said cities shall, upon passage of said ordinance, be extended from the existing limits so as to include all the 'land added- to said city by said ordinance, provided that said city shall have no right to tax the property over which such boundaries are so extended, unless such property be within the line and within the limits of the general city boundaries or limits; and provided further, that after the passage of said ordinance adding said territory to said city, said city shall have and exercise within said limits the fullest and most complete power of regulation of navigation and of wharfage and of wharfage rates, and of all facilities, conveniences and aids to wharfage * * * consistent with the Constitution of this state, and shall further have authority by current ordinances or otherwise, to police the navigation of said waters and the use of said wharves and facilities and aids to wharf-age and navigation, provided in all condemnation proceedings under this act the same procedure shall apply that now applies in condemnation of land by cities for the purchases of streets.”

We do not understand counsel for appellants to contend that the city of Orange would have any authority to construct a railroad over Alabama street, as it contemplates doing, but for the language of the article above quoted, but it does seem to be his contention that when the city of Orange passed an ordinance extending its city limits for navigation purposes so as to include the 85-acre tract of land donated to it for such purposes, and lying south of the city, and which extension included Alabama street, then the city had the legal right to at once construct said railroad track along said Alabama street, provided the city authorities, in the exercise of a sound discretion, selected that route for the railroad. There is no allegation in the answer that the city had ever acquired any part of Alabama street by purchase, condemnation, or gift, and there is no contention that the city of Orange has any authority whatever over Alabama street or other property outside of the ordinary limits of said city, other than as would pertain to the enforcement of the use of such street and property for navigation or wharf-age purposes or in aid thereof; and since the article above quoted clearly contemplates that cities situated as is the city of Orange can only extend their ordinary limits for the limited purposes therein mentioned, and since it clearly appears that property, to be acquired for such purposes by such cities, must be acquired either by gift, purchase, or condemnation before the city would have the right to the use of the same, we cannot understand just how it can be contended by counsel for the appellants here that the city of Orange has ever acquired the legal right from any source whatever to construct a steam railroad along Alabama street, in the face of the sworn allegations in the plaintiffs* petition that no portion of said street had ever been acquired by said city, nor any right to occupy the same by the construction of a railroad, either by gift, purchase, or condemnation, and if our construction of the article above quoted be correct, the city of Orange can have no legal authority whatever to build a railroad on said Alabama street, but would be-a trespasser there in every sense of the word should it attempt to do so-.

The city of Orange would have no more authority to build a railroad over said street than would be possessed by any railroad company, and surely it cannot be successfully contended that a railroad company would be authorized to build and construct a railroad on such street, over the protest of abutting property owners, and if a railroad company should attempt to do so, its act would be clearly unauthorized and illegal, and if serious damage to property owners abutting on said street should be threatened thereby, we think that a court of equity would be authorized to enjoin the construction of such railroad on the ground that it would be a public nuisance, and that this would be so whether the abutting owners owned the fee in such street or not.

Mr. Lewis, a standard writer on Eminent Domain, says:

“If a railroad of any kind is laid and operated in a street without lawful authority, it is a public nuisance, and an abutting owner who suffers special damages therefrom may, according to the weight of authority, enjoin its operation and compel its removal. It is immaterial on what the want of authority depends. It may be the lack of any valid or sufficient legislative or municipal grant, or the expiration of the franchise, or the fact that it is for private use. So the construction of a railroad without authority may be prevented. If the abutter’s easements of light, air, and access are interfered with, or the ratable or salable value of the abutting property diminished, then there is a special damage within the rule.”

See Lewis on Eminent Domain (3d Ed.j art. 909. Many authorities are cited by the author in support of the text just quoted, but we deem it unnecessary to discuss them severally here, and think that there can be no- question hut what the rule laid down by the author is supported by the great weight of American authority, and that it is a sound and salutary rule. Therefore, since it is admitted that Alabama street,, along which the city of Orange would construct the railroad in this instance, lies entirely beyond the city limits of said city, and since the pleadings in this case and the evidence, such as there was, leave no doubt that the city of Orange has never acquired the right to occupy said Alabama street by the construction of a steam railroad therein, either by gift, purchase, or condemnation, and since it is without dispute that the plaintiffs are the owners of residence property abutting upon said street, and in front of which the city of Orange was threatening the construction of such railroad and since the petition of plaintiffs clearly shows that they would suffer special damages, not only to their property abutting on said street, but also much personal discomfiture and inconvenience, we think that the district judge was authorized to temporarily enjoin the construction of such railroad on said street, as he did, until such time as said city might acquire, by some legal means, the right to enter upon said street and construct such railroad, and we think that this must be so without regard to the question of any ownership in the plaintiffs .of the fee in said street.

In what we have said in this connection we are not unmindful of the practically unbroken line of decisions in this state to the effect that, where a railroad company lawfully acquires from a city authority to construct a railroad in or over a street or streets of the city having control and supervision thereof, such railroad cannot be enjoined, except, perhaps, in an extraordinary case, from laying its track in such streets, in pursuance of the authority granted by such city, although it may be over the protest of the property owners whose property abuts on such streets, unless such property owners also own the fee title to the street, in which last-named instance compensation would have to be first made to the property owner before the railroad company would be permitted to enter. But this is because the railroad company, having permission properly given by the city, would not be in the attitude of a trespasser upon the street so entered, but would be there with legal authority, that is, a franchise granted by the city over the streets subject to its supervision and jurisdiction, and since such an entry by tbe railroad company, in tbe absence of a taking of tbe property belonging in fee to the abutting property owners, would be with lawful authority, then the abutting property owner would have no right, under the rule adopted in this state, to enjoin the railroad company from building the railroad, .even though a damaging to the property of the abutting owner may be done by such construction. But in this ease the city of Orange, if we construe article 783a, above quoted, correctly, would be a naked trespasser were it to construct a railroad in Alabama street, and the plaintiffs showing by their petition that they would be specially damaged by the construction of such a railroad, both in their property rights and otherwise, the district judge was, in our opinion, authorized to grant the injunction, regardless of whether the plaintiffs in this case owned or claimed any title in fee to said street.

But it is contended by the appellees that the district judge was authorized to grant said injunction, as he did, for the reason that plaintiffs alleged in their sworn petition in this case that they were not only abutting property owners on said Alabama street, but that they also owned the fee in said street as well, and that they were entitled to be protected as against the threatened unlawful act on the part of the city of Grange, as tire owners of the fee in said street, and advance the proposition that the construction of a steam railroad in a street or highway in ■which abutting owners also own the fee in the street would amount to a taking of the property of such property owner, and that such could not be done until such property owner and owner of the. fee in the street should be first compensated for such taking, and invoke article 1, § 17, of the Constitution of this state, in support of their proposition. No useful purpose would be served by entering into a discussion of the protection which is afforded property owners by said article of our Constitution. Suffice it to say that it is well settled by the decisions of the Supreme Court of this state construing that article of our Constitution that the contraction of a steam railroad upon a street or highway, the fee of which is owned by abutting property owners, constitutes a “taking” of the property, as the word “taking” is used in the Constitution, and that such cannot be done until the owner has been first compensated or a deposit of money has been made for his benefit. For a full and very thorough consideration of this point see McCammon & Lang Lbr. Co. v. Trinity & Brazos Valley Railway Co., 104 Tex. 8, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870.

The only question that we are concerned with in this connection is whether the petition of plaintiffs in this case alleged ownership in fee to Alabama street.

As we have stated above, the language of the petition on that point is as follows:

“And said lots were conveyed by and under said A. Gilmer, who subdivided said addition, to these plaintiffs by conveyances recognizing said street and in accordance with said subdivision, and said lots were conveyed as abutting said street and in such manner and under such conditions as made said street an appurtenance to said lots and as conveyed, to said owners of said lots, a property in fee to said street and an easement in said street.”

Appellants have filed no brief, formal or informal, in this court, and were not required to do so under the rules governing appeals from orders of this character, but counsel for appellants suggested during oral argument before us that' the allegation just quoted was nothing more than an argument or conclusion on the part of the pleader, and that it wqs not a specific statement of facts showing that plaintiffs or any of them owned the fee to amy portion of Alabama street; while, on the other hand, it is contended by appellees that a fair and proper construction of the language just quoted leads to the inevitable conclusion that it was clearly the intention of the pleader to allege title in fee to said street to be in the plaintiffs, aind that the allegations, in view of the state of the pleadings, were sufficient as a pleading to the effect that plaintiffs were the owners in fee of Alabama street opposite their several residences, as well as the owners of an easement therein.

As stated in the beginning, there were no special exceptions presented by the answer for appellants, but only a general demurrer, and we have had some difficulty in determining whether the allegations just quoted were sufficient in these circumstances as a plea of ownership in fee to Alabama street on the part of the plaintiffs, or any of them, when tested solely by a general demurrer, and after a full consideration of the question we have reached the conclusion that the allegation in this connection cannot be said to be a specific and clear statement showing ownership in fee in Alabama street in any of the plaintiffs, but that nevertheless it was the intention of the pleader to allege ownership in fee in said street in the plaintiffs, but that such allegations in that connection were more in the nature of a conclusion on the part of the pleader than a statement of the facts, and that, had the point been raised by special exception on the part of appellants, plaintiffs ought to have been required to allege the facts .more specifically upon which said plea of ownership in the fee of said street was based.'

Now, the question is this: What effect should be given to these general allegations as to the ownership of the fee in the street, in the absence of a special exception challenging them?

It is not necessary to state that the general demurrer admits the' truth of the allegations thus generally made, because we understand the rule to tie that a general demurrer, In cases of this character, can only be construed to mean that the pleader admits the truth of such facts as are properly and well pleaded, but nevertheless, if enough has been stated by the plaintiffs on this point to make it reasonably appear that ownership in fee to Alabama street was claimed by them, then, in the absence of a special exception, they ought to have been permitted to introduce evidence in support of their allegations, though general, that they were the owners in fee to Alabama street, and such proof, if made, would have been conclusive upon that point, in so far as the question of pleading is concerned, and in view of the pleadings as thus made, and in view of the fact that there was no general denial interposed by the appellants, but only a special denial of certain allegations contained in the plaintiffs’ petition, we think that the court was authorized and did very probably construe the language of the petition as alleging a fee-simple title in plaintiffs to Alabama street in front of their premises, and that, since there was no denial of that fact by the answer of the defendants, the judge below was authorized to grant the injunction in this case upon the theory that the plaintiffs were the owners of the fee in Alabama street abutting their several properties, and that the plaintiffs in this case were protected against the threatened act of the city of Orange, which under the Constitution of this state would amount to a taking of the property of the plaintiffs, without first making compensation therefor, or depositing money for their benefit.

Appellants’ counsel, in argument before this court, stated that he considered that the opinion of this court in the case of City Commissioners of the City of Port Arthur v. Pant, reported in 193 S. W. 334, was decisive of the questions at issue on this appeal, and that, if this court adhered to the law as laid down by it in that case, then the judgment in this case should be reversed.

We cannot agree with this contention, and after a careful consideration of the opinion in the Pant Case, supra, we have concluded that neither of the two vital questions presented in this case were in that case, or that either of the questions here was there discussed at all.' In the Pant Case there was no pretense that the plaintiffs, by their petition, claimed any. ownership in the fee to the street, and the case on that point was decided as if it had been admitted that the plaintiffs had no fee ownership in the street; and the other question in that case was simply whether an abuse of discretion was shown on the part of the city commissioners of the city of Port Arthur (that city being under the commission form of government) in constructing or determining to construct a certain ditch for drainage purposes in one of the streets of that city. There was no question whatever that the property there in question was wholly within the city of Port Arthur for all purposes, and there was no question about the right of the city, within a reasonable exercise of its authority, to do whatever was necessary amd proper for the drainage, etc., of the city. In short, as we have just stated, the Pant Case has no application whatever to either of the vital questions upon which we have decided this ease, and we dismiss the contention without further comment.

Prom what we have said it follows that this court is of the opinion that the district judge was not in error in granting the temporary injunction appealed from, and the judgment is therefore affirmed.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    ESSER v. KNEUPPER et al.
    (No. 6034.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1918.
    On Motion for Rehearing, June 19, 1918.)
    1. Appeal and Error <&wkey;931(l) — Findings —Review.
    Trial court having found for defendant, court on appeal will resolve all conflicts in the findings of fact in defendant’s favor.
    2. Adverse Possession &wkey;>60(2) — Agreement Between Landowners.
    Where, in fencing their land, defendants procured permission from adjoining landowner to make an offset in their fence for a short distance so as to inclose a parcel which was con-cededly his land, adjustment to be made later, held, there was no adverse possession under 10-years statute as to such parcel, where no further agreement was made which) would give notice that such land was being claimed.
    3. Adverse Possession &wkey;>66(l) — Pences.
    Where an adjoining landowner at the time that defendants erected a fence inclosing their land knew that they claimed all the land inclosed except a parcel of his land which was included by an offset in the fence, defendant’s holding, except' as to the parcel included by offset, would be adverse, although the fence, had it been run in a straight line, would not mark true boundary.
    4. Adverse Possession &wkey;>112 — Trespass to Try Title <&wkey;47(l) — Burden oe Proof —Judgment.
    In suit for certain land described by metes and bounds and inclosed by defendant’s fence, the burden was on defendant to show what portion he was entitled to, and, where he showed title only to part, the court erred in refusing judgment for plaintiff for the remainder because it was not described in the pleadings or evidence so that a description thereof could be made in the judgment.
    5. Adverse Possession <&wkey;85(3) — Adverse Claim — Evidence.
    In suit by plaintiff, adjoining landowner, to recover land inclosed within defendants’ fence, evidence held to warrant a finding that defendants claimed to the fence except for a short distance where the fence departed from the line originally adopted.
    6. Adverse Possession &wkey;>36 — Character of Holding.
    That the land claimed by plaintiff was contained in an inclosure containing land owned by both defendant and his father, and that the inclosure was jointly used by both, would not prevent defendant from acquiring title by adverse possession, where the land was claimed by* him and not by his father, the use of the land by the father in such case being in subordination to that of the son.
    Appeal from District Court, Kendall County; It. H. Burney, Judge.
    Suit by Paul Esser against Henry Kneup-per and another. Judgment for defendant named, and plaintiff appeals.
    .Reversed.
    W. C. Linden and Joe H. H. Graham, both of San Antonio, for appellant. W. A. Wurz-bach, of San Antonio, and W. P. Hays, of Boerne, for appellee.
   MOURSUND, J.

This is a suit by Paul Esser against Peter Kneupper and Henry Kneupper to recover approximately 97 acres of land, described by metes and bounds, in plaintiff’s second trial amendment, alleging that said land is a part of survey No. 798, B. E. M. & I. Company, in Kendall county, and inclosed within the fence of defendants. Peter Kneupper disclaimed, and Henry Kneup-per answered by plea of not guilty and pleas of title by limitation under the five and ten year statutes. Judgment was rendered that plaintiff take nothing by his suit.

We shall not undertake to copy all of the findings of fact filed by the trial court, as they are lengthy, and many are not attacked.

By agreement, questions as to title were eliminated, and the questions to be decided were: Is the land in controversy a part of survey 798, owned by plaintiff, or a part of survey 796, owned by Henry Kneupper? And, if it is a part of plaintiff’s survey, did Henry Kneupper show title to the land sued for under the 10-year statute of limitation? The trial court found in favor of plaintiff as to the first question and im favor of Henry Kneupper as to the second.

The findings of fact relating to the second question, in so far as they are material, are as follows:

“(6) I find that in the year 1902 the defendants fenced with a four wire fence all of survey No. 796, Mark Hodgson, including all the lands in controversy in this suit, and a few hundred acres of land owned by Peter Kneupper; that ever since said date, and especially since 1904, the defendant Henry Kneupper has had peaceable, continuous, and adverse and exclusive possession of all the land in controversy, using and enjoying the same, and grazing various kinds of stock thereon, either in person or through his father acting for him, but said Henry Kneupper did not reside on the same, and has continuously kept the fences in repair; that at the time it was fenced, in- 1902, the defendant Henry Kneupper was a minor.
“(7) I find that at the time the land was so fenced by the defendants, or some time just prior thereto, Peter Kneupper obtained permission from one Marion (T. M.) Gourley, who then owned said survey 798, in order to avoid a deep ravine on the north line of said, fence, to run the fence a bit north of where defendants claimed the north line of said survey No. 796 to be, which was permitted, an offset was made in the fence for a short distance, and thus was made to include a small parcel of land (about one acre) that the said Peter Kneupper admitted was part of survey 798, or the said Gour-ley’s land; at the time of this arrangement, which was verbal, the said Peter Kneupper told said Gourley that, in exchange for the said small parcel of land, he would give him, Marion Gour-ley, a half interest in said line of fence when he got ready to fence his said survey 798, or, if this was satisfactory, they would buy the land or move the fence as he (Gourley) might prefer.
“(8) I find that said Marion Gourley, in July, 1904, sold and conveyed said survey No. 798 to S. D. Givens, one of the plaintiff’s predecessors in title.
“(9) I further find that, so far as the evidence shows, no other or further agreement or understanding about said line of fence was ever had by the defendants, or either of them, with the said Marion (T. M.) Gourley or any one else, neither does the evidence show when survey No. 798 was fenced, but I find that it was under fence in 1912, and that Guss Ross, plaintiff’s vendor in the deed from him to plaintiff of date February 17, 1912, recites that he conveys to the plaintiff a half interest in said fence (is on his south line 798); that no statement, promise, or agreement of any sort was made by Henry Kneupper to any one about permission to place said part of the fence on survey 798.
“(10) I find that neither the pleadings of the plaintiff nor defendant, nor any evidence or plat offered on the trial' of this case, describes the small parcel or strip (about one acre) of land which Peter Kneupper got permission in 1902 from T. M. (Marion) Gourley to inclose when constructing the fence along what he and Henry Kneupper claimed was the north line of survey No. 796, so that the same could be specifically described in any judgment entered in the case.”

By appropriate assignments appellant attacks the findings above set out, and the conclusion of law based thereon. As the court found in favor of Henry Kneupper, we will, of course, resolve all conflicts in his favor. It appears that when Peter Kneupper, acting for his son, Henry, decided to fence survey No. 796, he undertook to place the north fence on a straight line between two rock-piles, which he regarded as marking the northwest and northeast corners of survey No. 796, the pile of rocks which he took to mark the northwest corner being situated in the west line of survey No. 798, and described by reference to a Spanish Oak tree which bears S., 45° E., 20 varas therefrom. He stated, in answer to a question by the court, that he claimed from the rock pile where he built the fence across to the other rock pile; meaning, as is shown by the way the fence runs, the rock pile with the Spanish Oak bearing tree. He constructed the fence for a distance of 1,177 varas on a straight line running S., 89° 30' E., as shown by the field notes of the land inclosed by Kneupper’s fence sued for by plaintiff. He then constructed the remainder of the north-fence according to the following courses and distances: North, 60° 30'E., 26 varas; north, 20° E., 51 varas; north, 72° 30' E„ 28 varas; north, 82f° E., 127 viaras; S., 71° E.,- 64 varas, to the E. line of survey No. 798 ; S., at 49 varas, a stone mound from which a Spanish oak bears S., 45° E., 20 varas. The last call, which is a part of the east fence instead of the north fence, is given only to show the location of the stone mound with reference to the location of the fence. The straight line was departed from in building the fence because of the extreme difficulty of continuing the fence on a straight line on account of a creek or gully, and Kneupper encroached upon land which he recognized as belonging to Gourley, plaintiff’s remote predecessor in title. Before doing this he made the agreement with Gourley set out in the court’s seventh finding of fact. The ninth finding, in so far as it states that no other or further agreement was ever had by the defendants or either of them with Gour-ley or any one else, is supported by the evidence.

It therefore appears that while Gourley was given to understand that Kneupper claimed the land south of the straight line running S., 80° 30' E., he did not claim the. land north of such line; and, as no further agreement was made such as would put Gourley on notice that said land was being claimed, it seems clear, and we so find, that as to said land there has been no adverse possession for such time as is necessary to establish limitation under the 10-year statute. It appears from the deed by Ross to plaintiff that Ross claimed a half interest in the fence, but it does not appear upon what he based his claim, or that Gourley ever made such a claim, or undertook to make any verbal sale of the small parcel of land in consideration of a half interest in the fence.

As to the land lying south of a line run from the beginning corner of the fence S., 89° 30', to the west line of survey No. 798, the claim of Kneupper was adverse, as Gourley was bound to have known, taking Kneupper’s testimony as true. The court finds that Henry Kneupper made no promise or agreement concerning permission to place the fence on what was recognized as Gourley’s land, and that is true, but we regard it as immaterial. The agreement was made in his behalf by his father and in his presence. His father held possession of the land for him while he was a minor, and such possession as to the parcel inclosed under the agreement was permissive. Henry Kneupper failed to show adverse possession thereof for the statutory period.

It appears from the tenth finding that, the court was probably moved to deny plaintiff said parcel of land solely on the ground that it was not described in the pleadings or the evidence so that a description thereof could be made in the judgment. We do not believe that fact would justify a judgment against plaintiff as to such parcel. The burden was upon defendant to show what portion of the land he was entitled to by virtue of the statute of limitation. The court erred in rendering judgment that plaintiff take nothing by his suit, as defendant failed to show title by limitation to such parcel.

In addition to the contention made by appellant that Henry Kneupper’s possession as to all the land in controversy was permissive, which has been discussed above, he contends that, even though the possession was not permissive, the claim on which limitation is based did not extend to the land in controversy, but only to the true boundary line of No. 796, and therefore no claim to any part of No. 798. The evidence supports a finding that the Kneuppers believed the true line to extend from the rock pile on the west, at which they began the fence, to the rock pile on the east, designated by reference to the Spanish Oak bearing tree; that they undertook to fence this line, and that Gourley knew they were claiming to the fence except at the place hereinbefore mentioned. The claim of ownership was up to the fence as located, and, even though the claim of title resulted because of a mistake as to the line, nevertheless there was testimony showing a clear intention to claim the land as far as it would have been inclosed had the fence been completed on the course used in building the first 1,177 varas.

Appellant’s claim is based upon variances in the Kneuppers’ testimony upon the two trials of the case, but upon this trial they testified that they claimed to the fence, except as to the small parcel recognized as Gourley’s, and a consideration of their testimony as a whole shows that such was their claim, although upon cross-examination on the former trial Peter Kneupper testified that they claimed no part of No. 798, but only 796, and Henry Kneupper stated that he had always claimed just the land called for in his deed from Elbel, but at the same time said he claimed the fence to be the north line of No. 796.

The court was authorized to find that they claimed all land lying south of the 1,177 varas of fence and a line projected from the said part of the fence to the east line of the survey on the course used in constructing said fence. The facts in the case of Shaw v. Windham, 155 S. W. 636, relied on by appellants, were very different, taking into consideration the testimony believed by the respective courts.

The further contention is made that the possession was not adverse for the reason that the land in controversy is contained in an inclosure containing land owned by Peter Kneupper as well as that of Henry Kneupper, and such inclosure was jointly used by both of them for grazing purposes. The land in controversy was claimed by Henry Kneupper and not by Peter Kneupper. It was inclosed under the belief that it was a part of Henry Kneupper’s survey, with the exception of the small parcel recognized to be a part of Gourley’s survey. The use of such land by Peter Kneupper was in subordination to Henry Kneupper. The possession and use were sufficient under the statute to vest title by limitation in Henry Kneupper. Watkins v. Cates, 24 Tex. Civ. App. 384, 59 S. W. 1123; Parker v. Newberry, 83 Tex. 428, 18 S. W. 815; Glover v. Pfeuffer, 163 S. W. 984.

The judgment of the trial court is reversed in so far as- it affects plaintiff and Henry Kneupper, and this court, proceeding to enter such judgment as should have been entered by the trial court, adjudges that plaintiff recover of defendant Henry Kneupper ■the small parcel of land out of the tract in controversy which lies north of the continuation of the line described in the field notes of the land in controversy as running S., 89° 30' E., 1,177 varas, and that as to the remainder of the land in controversy plaintiff shall take nothing by his suit. It is further adjudged that Henry Kneupper be allowed 30 days from the date this judgment is certified to the trial court for observance, in which he may withdraw his fence situated on the parcel of land awarded to plaintiff, and place same on the line of the land herein awarded him. All costs incurred in the trial court, except those incident to making Peter Kneupper a party to the suit, are adjudged against Henry Kneupper, as well as the costs of appeal. The judgment, in so far as it relates to Peter Kneupper, is not involved in this appeal, and will not be disturbed.

On Motion for Rehearing.

In the original opinion the statement was made that the pile of rocks which Peter Kneupper took to mark the northwest corner of survey No. 796 was situated in the west line of survey 798, and described by reference to a Spanish Oak tree which bears S., 45° E., 20 varas therefrom. This mistake was one made in writing, and not by reason of any belief -that the rock pile described by the bearing tree was the one taken by Kneupper as being the northwest comer of survey No. 796; for it was fully understood from the field notes of the land sued for, which had to be carefully examined in drawing the judgment, that such rock mound was in the east line of survey 798, and the intention was to state that it was taken by Kneupper to be the northeast corner of survey No. 796. The fact is that we were mistaken in assuming that it was the mound referred to by Kneupper as the one he took to be the northeast corner of No. 796. The testimony of both of the Kneuppers shows frequent reference to a map or plat not contained in the statement of facts, and many of such references were not accompanied with explanations such as would make the testimony clear to a person who did not see the witness point to the map while testifying. Peter Kneupper testified concerning two rock piles, and, in answer to a question by the court, stated he claimed from the rock pile where he built the fence across to the other rock pile. The rock pile, with the bearing tree, is located about on a line with the fence; and, overlooking the fact disclosed by the field notes, there being no map or plat, that the east lines of surveys 798 and 796 do not connect, it was assumed that Kneup-per referred to said mound as one of the two between which he undertook to erect his fence. This error caused us to infer that the fence ran south from the point where it intersects the east line of survey No. 798.

Appellants contend, further, that we erred ini stating that the fence was begun at the place taken to be the northwest corner, and erected for a distance of 1,177 varas before it became necessary to make the offset into what was recognized to he Gourley’s land. They contend that the Kneuppers began on the east, at the rock pile pointed out by John Kneupper as the northeast corner of No. 796, and worked towards the west. This contention is supported by the testimony of Peter Kneupper, but Henry Kneupper stated that they started “on the northwest corner of survey No. 796,” and, taking his testimony as a whole, we understood it as supporting the conclusion announced by us. Of course, if there is a conflict, it must be decided in favor of the trial court’s findings. Upon a reconsideration of Henry Kneupper’s testimony as a whole, we find it confusing, and conclude we should adopt appellant’s contention as true, that the Kneuppers began the fence at the mound pointed out by John Kneupper, and situated about 514 varas east of the east line of survey No. 798. The fence was then constructed on a straight line west for 462 varas. Peter Kneupper testified it was run on a straight line and Polk testified to the distance. At such point, 462 vajras west, the fence bends north, and from the testimony of Peter Kneupper it is apparent that this point is the beginning point of the bdnd into what he recognized to be Gourley’s land, which bend was made for the purpose of getting around the ravine. Polk ran west from a point 8 varas south of the beginning point of the fence, and found that the fence bent slightly north,' so that when he reached a point 1,83S varas from; the beginning he was 30 varas south of the fence line. This corresponds to the field notes of the land in controversy, which shows that the fence, after running around the ravine, was continued on a straight line for 1,177 varas on a course running one-half degree north of west. It therefore appears, also, that for a distance of about 1,639 varas out of 1,838 the fence indicated the adoption of a definite line, and that only for a short distance was there any departure from such line, and that was made for the purpose of running around a deep ravine, and Gourley’s consent was obtained before such bend was made. Appellants assume that we' attached great, if not controlling, importance to the fact that the fence was begun on the west and the agreement made with Gourley after 1,177 varas thereof had been erected. We regard it as immaterial whether the agreement was made before or after the 1,177 varas of fence was erected. Peter Kneupper testified that Gourley asked him if he was going to fence, and he told Gourley he wanted to have everything right; to get an engineer and take Gourley along; and at that time Gourley’s daughter-in-law was ill, and Gourley told him to fix the fence at Kneupper’s expense and he would pay Kneuqiper afterwards. He also testified that he started to go straight through in building the fence, and saw he could not do it, so he went to Gourley, and got his permission to run on Gourley’s land in order to get around the deep ravine. He also testified that all of the fence is straight except that around the ravine. All of this testimony must be taken as true in deference to the coulrt’s findings. As Gourley knew that Kneupper intended to fence his land, and was informed after about 460 varas had been built that Kneupper found it advisable to depart from the line adopted by him, and go on Gourley’s land in order to get around a ravine, and knew that afterwards the straight line was resumed, he certainly knew that the Kneuppers claimed the land south of such straight line, and that they only recognized his ownership as to that lying north of su;ch line.

We are unable to find any statement in the original opinion which we consider sufficient to justify the statement in the argument in the motion for rehearing to the effect that, “according to this court’s opinion, Kneupper bound himself toi hold for Gourley and his assignees every foot of Gourley’s land that he might take by the fence which he was thereafter to build.” We certainly had no intention of holding that Kneupper made any agreement binding himself to hold for Gourley any land except that inclosed by reason of running around the ravine, and we had no intention of holding that permission to run around the ravine would as a matter of law show that all land in fact belonging to Gour-ley inclosed after making such agreement would be held permissively and not adversely.

We conclude that the facts, as corrected, show that the court was authorized to find that the possession of the Kneuppers was adverse as to all land lying south of the line upon which the 1,177 varas of fence was erected. It is deemed unnecessary to further discuss the other questions in the case.

The motion for rehearing is overruled.
      @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    FERGUSON v. JOHNSON.
    (No. 1368.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 5, 1918.)
    1.Sales i@==>446(1) — Breach of Warranty— Instruction.
    In suit for breach of warranty of quality of carload of millet seed, where there was no evidence as to what extent particular seed delivered by defendant was responsible for trash found in entire car, charge that verdict should be for defendant unless jury should find he agreed to sell entire carload of seed, as alleged by plaintiff, and denied, was proper.
    2. Appeal and Error <©=>882(12) — Invited Error — Request for Instruction.
    Where an erroneous instruction, conflicting with another, was given at appellant’s request, appellant cannot complain.
    3. Sales <@=>261(6) — “Express Warranty”— Description.
    The description of millet seed contracted to be sold as “good, merchantable seed” is not properly an “express warranty,” which is collateral to the contract, while a description of the quality of the goods is regarded as a part of the contract itself.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Express Warranty.]
    4. Sales <@=>288(2) — Express Warranty — Discharge by Acceptance.
    An express warranty, being collateral to the agreement of sale, is not discharged by delivery and acceptance under the contract of sale, though the acceptance is made after inspection.
    5. Sales <@=>179(4) — Description—Remedies of Buyer.
    If goods tendered in discharge of contract of sale, merely descriptive of quality, did not meet requirements, they may be rejected and seller sued for breach of contract, but where goods are accepted after inspection or opportunity, in absence of fraud, or defect not discoverable by inspection, contract is discharged.
    6. Sales <@=>179(4) — Remedies of Buyer-Acceptance.
    Where goods are ordered by particular description, and accepted without opportunity for inspection, it is prevented by fraud, or it would not disclose any defect, the purchaser has practically the same rights as in case of a strict breach of warranty.
    7. Sales <@=>176(4) — Sale by Description —Opportunity to Inspect.
    A fair opportunity to inspect the property delivered under a contract of sale by particular description, in the absence of fraud, is regarded as the equivalent of inspection.
    8. Appeal and Error <@=>1026 — Reversal — Harmless Error.
    Where no harm probably resulted from erroneous rulings, they do not require reversal.
    Appeal from Hale County Court; Chas. Clements, Judge.
    Suit by Joe Lee Ferguson against B. M. Johnson. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Graham & Graham and Fred O. Pearce, all of Plainview, for appellant. Y. W. Holmes and W. W. Kirk, both of Plainview, for ap-pellee.
   BOYCE, J.

This suit was brought by Joe Lee Ferguson, appellant, against B. M. Johnson, appellee, to recover damages for an alleged breach of warranty of ,the quality of a carload of millet seed alleged to have been sold by Johnson to Ferguson. It was alleged that Johnson agreed to sell and deliver to Ferguson at a specified time and place one carload of good, merchantable millet seed; that a car of said seed was delivered and paid for, but on examination proved to contain a large quantity of trash .and other seeds, thus not complying with the contract. Recovery of the difference between the value of the seed as delivered and such seed as contracted fool was sought. The defendant denied that he contracted or sold to Ferguson a carload of seed, but claimed that he agreed to sell him what seed he had on hand, and that two other persons also sold Ferguson seed, and that all of these sales together made the car, defendant’s seed constituting about one-sixth thereof. Johnson’s version of the contract was that he simply sold Ferguson the millet seed he had on hand, it being understood that “the seed would come straight from the thrasher,” and that he had nothing to do with the sale of the seed by the other parties. He claimed that his seed filled the contract, though there were “some weed seed in the millet seed delivered.” Evidence was offered in support of the issues thus made between the plaintiff and the defendant. We think the charge sufficiently presents the issues made as stated, and overrule the first and second assignments.

If the pleadings were sufficient to have sustained a recovery by plaintiff, on the theory that, if it should be found by the jury that the defendant agreed to furnish the plaintiff any quantity of good, merchantable millet seed, and the seed furnished were not of such quality, although it should be found that the contract for quantity was as claimed by defendant, the evidence was not in such condition as to warrant the submission of such issue to the jury, because the evidence as to the condition of the seed and damage thereto on account of such condition applies to the whole car, and there is no evidence from which it might' be determined to what extent the particular seed delivered by defendant was responsible for the trash and foreign matter found in the entire car. So that there was no error in the charge given, to the effect that the verdict should be for the defendant unless the jury should find that the defendant agreed to sell the carload of seed as alleged by plaintiff, and we overrule the assignment complaining of this part of the main charge. Fundamental error is suggested, in that there is a conflict between this charge of the court and a special charge given at plaintiff’s request, which specifically authorized the recovery on a finding that the defendant agreed to furnish any quantity of good, merchantable seed, and the seed furnished were not of such quality. This charge, under the circumstances, was erroneous; and, as it was given at the appellant’s request and the error and conflict thus invited, he cannot complain. I. & G. N. Ry. Co. v. Parish, 18 Tex. Civ. App. 130, 43 S. W. 1066.

Ferguson accepted and paid for the seed without inspection, though the evidence is sufficient to warrant the conclusion that . he had a fair opportunity of inspection. No | claim of failure of the seed to meet the quality provided for in the contract was made until some time afterward, when it was reported from Dallas, to which place the seed had been shipped, that they were not of such quality. The court, in this connection, instructed the jury that the plaintiff could not recover if it should be found that at the time of the delivery of the seed the plaintiff had a reasonable and fair opportunity to inspect the same before acceptance. The appellant complains of this charge, on the ground that if his theory that the contract provided for the sale and delivery of good, merchantable millet seed is correct this would constitute an express warranty that would survive acceptance and a breach of which would support recovery, although the seed had been accepted after inspection or a reasonable opportunity to inspect. We do not think this description of the quality of the .millet seed contracted to be sold is properly an express warranty. Parks v. O’Conner, 70 Tex. 377, 8 S. W. 104; Jones v. George, 61 Tex. 350, 48 Am. Rep. 280; Seay v. Diller, 16 S. W. 642; Florida Club v. Hope Lumber Co., 18 Tex. Civ. App. 161, 44 S. W. 13; notes to 35 L. R. A. (N. S.) 265-270; notes to 25 L. R. A. (N. S.) 161. An express warranty is collateral to the contract, while a description of the quality of the goods contracted to be sold, “is regarded as a part of the contract of sale itself, and not as a warranty or agreement collateral to it.” Dutchess Co. v. Harding, 49 N. Y. 321. In Parks v. O’Conner, supra, where the contract provided for the sale of a certain number of cattle of certain classes, “all to be good, merchantable cattle,” it was held that “these words are descriptive of the cattle to be delivered, but can hardly be held to imply a warranty in its technical sense.” Likewise, in the case of Florida Athletic Club v. Hope Lumber Co., supra, it was in effect held that a contract which provided for the sale of a quantity of lumber to be “No. 1, mill-run, Texas pine, of first-class quality, free from knots and shakes that would impair its strength or durability,” did not import an express warranty. All the authorities agreed that there is much confusion and conflict in the numerous decisions on this subject and particularly as to the rights of purchasers accepting goods under such contracts upon, Subsequent discovery of the fact that they do not come up to the quality contracted for.

The authorities do agree that an express warranty, being collateral to the agreement, is not discharged by delivery and acceptance under the contract, although such acceptance is made after inspection. In such cases the goods may be accepted and suit brought for breach of the! warranty of! quality. But there is much conflict and confusion as to whether a particular description of the quality is to be construed as a warranty, and, even if it is not, as to what are the rights of the purchaser upon a discovery subsequent to acceptance that the quality does not conform to the specifications of the contract. Our Supreme Court seems to have recognized a rule which may be stated as follows: A contract merely descriptive of the quality of the goods to be delivered imposes, of course, an obligation on the seller to deliver goods of that description. If the goods tendered in discharge of the contract do not meet its requirements, they may be rejected and the seller sued for breach of his contract to sell and deliver the goods of the specific quality. Ordinarily, however, where the goods are accepted after inspection or opportunity to inspect, and in the absence of fraud, the contract is discharged, and the purchaser may not thereafter assert that the goods do not fulfill its terms.

There are some exceptions to this rule— where there is no opportunity of inspection, where inspection is prevented by fraud, or where the inspection would not disclose Ore defect, and perhaps others not necessary to here mention. In such exceptional cases the right of the purchaser, “when rescission has become impracticable, are practically the same as on breach of warranty.” Jones v. George, 61 Tex. 350, 48 Am. Rep. 280; Parks v. O’Conner, supra. The latter case is authority establishing both the rule stated and the exceptions. In that case it appeared that the defendant, upon being sued for the purchase price of cattle delivered under the contract hereinbefore stated, attempted to reduce the recovery: First, because the second herd of cattle delivered was not in accordance with the terms of the contract, this defect being an apparent one (Parks v. O’Conner, supra, p. 106); and, second, because the cattle were infected by a disease not discoverable by inspection, and that by reason of this disease many of them died. Parks v. O’Conner, supra, p. 108. The two defenses were discussed separately by the court. As to the first, it was .held that:

“When a purchaser, under an executory contract for the sale and delivery of personal property, inspects the same before delivery, he is es-topped to set up that it is not such as the seller has agreed to deliver so far as all visible defects are concerned.”

As to the second defense, the rule we have stated was applied. When we consider the two assignments which the court was considering in 'discussing the latter question, and remember that in the cases where the exception applies the remedy of the purchaser is the same as if the suit was on breach of warranty, the concluding language of the opinion, used in concluding the discussion of this pilase of the case, which the court, in the case of Ellis v. Riddick, 34 Tex. Civ. App. 256, 78 S. W. 719, considered as confusing, does not appear to us to render uncertain the actual announcement of the law as it was intended to be made in the opinion in that case. We think a distinction may be made between the contract in . the case of Parks v. O’Conner, supra, and those construed in the cases of Ellis v. Riddick, 34 Tex. Civ. App. 256, 78 S. W. 719, and other cases cited by appellant, but, if not, we should follow the decision of the Supreme Court, as the contract there considered in its description of the quality of the property agreed to be sold is practically identical with that under consideration. No good purpose would be subserved by pursuing an investigation of the authorities further, as the Supreme Court, in the case of Parks v. O’Conner, supra, which was followed in Seay v. Diller, supra, seems to have settled the rule as we have stated it, which rule is regarded by many authorities as being sound in reason and principle. Mechem on Sales, § 1391; Jones v. McEwan, 91 Ky. 373, 16 S. W. 81, 12 L. R. A. 399. A fair opportunity to inspect the property delivered under the contract of sale is, in the absence of fraud, regarded as the equivalent of inspection. Fay Fruit Co. v. Talerico, 26 Tex. Civ. App. 491, 63 S. W. 657; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 101 Pac. 233, 35 L. R. A. (N. S.) 277; Jones v. McEwan, supra. We conclude, therefore, that there was no error in the instruction complained of by this assignment.

The record does not show that harm probably resulted from the rulings complained of by the sixth and seventh assignments, and, even if they were erroneous, which we do not hold, they would not require a reversal of the case.

Affirmed.

HUFF, C. J., not sitting, being absent in Austin, sitting with Committee of Judges.
      (g3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J. BOYCE, J.

text:
    POST et al. v. EMBRY.
    (No. 1274.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 22, 1918.
    On Motion for Rehearing, June 29, 1918.)
    1. Public Lands <S==>175(7) — Overlapping Surveys — Priority of Right.
    Where a section of school land was patented before the occupant of an overlapping section of school land had acquired any right and the field notes of the patented section embraced within its calls the overlap, the patentee’s right was superior to that of a subsequent purchaser of the other section.
    On Motion for Rehearing.
    2. Boundaries <&=>37(5) — Agreed Bines — Evidence.
    In an action to determine title to an overlap of two sections of school land, evidence held not sufficient to establish a boundary line by agreement.
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Suit by H. H. Embry against C. W. Post and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered, and rehearing denied.

      Jno. P. Marrs, of Quanah, and Beall & Douthit, of Sweetwater, for appellants. W. H. Bledsoe and R. A. Sowder, both of Lubbock, for appellee.
   BOYCE, J.

This suit was brought by H. H. Embry, appellee, against C. W. Post, to recover 480 acres of land in Lynn county, described as the west three-quarters of section 16, block J. The defendant disclaimed except in so far as the location of said land might conflict with surveys 1265 and 1274, block 8, owned by defendant, and as to such land as might be in conflict claimed the superior title. Pending the trial C. W. Post died, and appellants, being his heirs, were made parties defendant. The issues developed on the trial and brought forward on this appeal were: First, whether upon proper location of said respective surveys there was any conflict; second, whether in such event the plaintiff or defendants had the superior right to the land in conflict. The following disposition was made in the lower court of these issues: The jury found as a matter of fact that there was a conflict between a part of the west three-quarters of section 16 and sections 1265 and 1274; second, the plaintiff admitted that as to that part of the conflict with section 1265 the defendants had the superior right and took nothing as to said part, but the court determined that the plaintiff’s right was superior to that part of sections 16 and 1274 in conflict, and entered judgment accordingly.

Since we dispose of the case by our holding on the questions raised by the second issue, it will not be necessary to refer to the assignments presented in connection with the first, nor make any statement in connection therewith except to say that the controversy was not as to the correct location of sections 1265 and 1274, as the facts as to their location seem undisputed, and the judgment itself in disposing of that part of 1265 which lay to the north of 1274 is based on these facts. The controversy as to the conflict arose out of appellants’ contention that plaintiff’s alleged location of section 16, so that it was thereby placed in conflict with 12Q5 and 1274, was incorrect. So that in disposing of the case we will assume that a partial conflict between the west three-quarters of section 16 and section 1274 does exist, and that 16 should be located according to plaintiff’s contention and the judgment of the court, and 1274 according to appellants’ contention and the corners as established by surveyors Twitchell and Marhoff.

Sections 16 and 1274 were both surveyed by the same surveyor, as full 640-acre square sections. Section 16 was the prior survey, being surveyed according to statement in its field notes on April 5, 1878, ’while section 1274 was surveyed May 15, 1878. Neither of the surveys can be located by original corners of their own; it being necessary, in order to locate the surveys on the ground, to connect back by course and distance calls through connecting surveys to distant corners. Both surveys belong to the public school fund of the state and were sold as such. Survey 1274 was patented on March 17, 1902, the patent describing it by the original field notes. The official maps on file in the land office at this time did not show any conflict with section 16. The map adopted in the land office in July, 1902, does, however, show a partial conflict between section 16 on the east and 1274 on the west, and from the fact that the part of the land in conflict embraced within the boundaries of section 16, as shown on this map, is inclosed in dotted lines, we suppose that it was the assumption of the land office that 1274 would be superior as to the land in conflict. The exact extent of the conflict is not shown, though from the scale of the map it appears to include approximately the east one-third of said section 16. The west three-quarters of said section was awarded to R. E. Penny, through whom Em-bry claims, on February 26, 1903. Application was made to purchase the entire section, but only the west three-quarters was awarded on account of the conflict with section 1274. Not enough was allowed for the conflict, however, as it developed on the trial that it involved a little more than the east one-third of section 16. It thus appears that plaintiff and defendants have both bought from the state the same land, it being embraced within the boundaries of each of the two surveys sold separately. Both sales were for the benefit of the same fund. The plaintiff is the junior purchaser of the senior survey, and the defendants are the senior purchasers of the junior survey. The question for our decision is, Who should prevail under these facts?

We have been referred to no authority which we think are directly in point on this question. There are many authorities which hold that the inception of title relates back to the survey or the location, where the location preceded the survey, and in case of conflict the holder of the senior survey should prevail, though the grant from the state to the junior survey is prior in point of time. In all of these decisions, so far as we have examined them, it appears that the original locations were made for different interests. The reason and justice of these holdings in such a case are clear. While the locator prior to the patent may not have acquired title to the land, yet he has acquired a right to purchase upon compliance with certain conditions. By his location and survey the the particular land subject to his right is segregated from the public domain, and a public record made of the segregation. The patent then is a consummation of the locator’s right to the grant, and the locator and those holding under him should be protected in his rights from the time, of the notice to the public through the public records of the segregation of the particular lands for the purpose of subjecting them to the right of purchase by the locator. This case is distinguishable from the facts in any of these cases, in that the right under either location is vested in the public free school fund. Ap-pellees rely particularly on the cases of Ellwood v. Stallcup, 57 Tex. Civ. App. 843, 122 S. W. 900, and Elwood v. Copeland, 61 Tex. Civ. App. 238, 129 S. W. 146, as supporting the judgment. In the first case the conflict was between a survey Ideated for the benefit of the public school fund and a county school land survey. The public school survey was prior in location, but the county school survey was patented to the county before the public school survey was sold. It was held that the purchaser of the public school survey acquired the better title. We do not think the case supports the appellee’s contention; rather, in the emphasis which the court places upon the fact that the ownership of the surveys was different, one being in the public free schools of the entire state and the other being in the county for the benefit of the schools of the particular county, there may appear an inference that if the ownership had been identical the conclusion would have been different. The facts are not set out in Elwood v. Copeland, 57 Tex. Civ. App. 343, 129 S. W. 146, with sufficient fullness to permit us to say definitely that the two surveys in conflict were not both public school surveys, though we infer that the junior survey (section 163) was not a public school survey. If this inference is correct, it would be clear that the prior survey of section 4, being the survey in conflict with said section 163, for- the benefit of the public school fund, segregated it from the public domain, and prevented its subsequent diversion by- the state to other purposes. Section 2, art. 7, of the Constitution, provides that:

“All the alternate sections of land reserved by the state out of grants heretofore made or that may be hereafter made to railroads, etc. * * * shall constitute a perpetual public school fund.”

Upon the segregation of the land by survey the right of the school fund attaches, and the state becomes trustee to dispose of it for the benefit of such fund without the power to divert it to other purposes. Either survey in this case would be effective to prevent a location of the land for the benefit of any other person or fund; but, as they both locate it for the benefit of the public schools, it would not seem important whether it is sold as a part of the one or the other survey.. Appellee’s right had not attached in the land prior to its sale to appellants’ grantors; and, unless there is something in the law that requires the sale of the land only as a part of the first survey and makes invalid its sale as a part of any other, it ought to'be the law that the one first acquiring the right to the land should hold it over those acquiring rights subsequently. There does not appear to be any express provision of statutory law that limits the power of the land commissioner to sell the land only as a part of the first survey, and there are some decisions that recognize the right of the land commissioner to make sales on field notes other than those of the original survey. In Millar v. Ward, 124 S. W. 440, the suit was between the purchasers of two school surveys, sections 12 and 38, in the same block. Section 12 was sold first. Prior to its sale a survey was made, which was supposed to be in accordance with the original location, corners put in, and it was patented on the corrected field notes in accordance therewith. It was later demonstrated that the corrected field notes of section 12, upon which it was patented, embraced some land not included within its original field notes if correctly surveyed, hut a part of section 38, as originally surveyed. The subsequent purchaser of section 38 claimed that he was entitled to have the two surveys “adjudicated, as being as they were in fact located by the original survey- or.” This claim was denied, and the law was thus announced by the court:

“We are not cited to any statute which restricted the power of the state or commissioner of the general land office, in regard to school lands, to the granting- of a particular section as the same was actually made by the surveyor who originally made and platted the same. Such a provision would be inadvisable, if not impracticable. * * * There is no mistake as to what land was patented for No. 12, and the land so patented, all of which represented school land, which no other person had any right or interest in at the time, was placed beyond the reach of subsequent applicants, upon the well-settled principle that only the state has the right to inquire into matter affecting' the patent which do not involve the power of the officer to grant the patent.”

In support of the proposition of law announced by the court in the concluding clause of the above quotation, see Frontroy v. Atkinson, 45 Tex. Civ. App. 324, 100 S. W. 1024, and authorities there cited.

It was held, even prior to express legislation granting the authority, that the land commissioner might “correct errors in surveys after the field notes have been returned into the general land office.” Smith v. McGaughey, 87 Tex. 61, 26 S. W. 1074. True, no corrected field notes were filed here, hut the original field notes of section 1274, upon which the land was patented, were sufficient to embrace the land in controversy. When, prior to the sale of section 16 it was discovered that sections 1274 and 16 were in conflict, the Land Commissioner, by the adoption of the official map of the county, recognized the superiority of the right of the patentee of section 1274 to this land. This was nothing but common justice. The school fund to which the land belonged had been paid for it, and no one else except the school fund and its patentee at that time had any interest in it. There was no necessity for the filing of corrected field notes of section 1274, but the correction should have been In the field notes of section 16. The purchaser of section 16 had actual notice that there was a conflict between said section and section 1274, and that the land office was recognizing the superiority of the claimant of section 1274 to the land in conflict, though perhaps both he and the Land Commissioner were mistaken as to the extent of the conflict. We think, therefore, that since 1274 was patented at a time when the appellee had acquired no right to the land and the field notes of said patent embraced within its calls the land in controversy, the paten-tee’s rights ought to be superior to one subsequently purchasing such land as a part of section 16. The land is as effectively appropriated by patent on the original field notes as it would have been by patent on corrected field notes, and we think the holding in the case of Millar v. Ward, supra, thus supports our conclusion.

The judgment will be reversed and rendered in accordance with these conclusions.

HUFF, C. J., not sitting, being absent in Austin, sitting with committee of judges.

On Motion for Rehearing.

BOYCE, J.

On motion for rehearing appellee contends that the record discloses that the boundary line between appellants’ and appellee’s land was established by survey on the part of the owners of sections 1274 and 1265, followed by the building of a fence thereon, which was recognized as the boundary line for many years, and which thus constituted a boundary line by agreement. The evidence referred to in support of this contention is to the effect that Lofton, the agent for the Llano Live Stock Company, under whom appellant claims, in the year 1903 had a survey made for the east lines of section 16 and other surveys in block J to the north and south of it, and that he soon thereafter built a fence along such line. It seems that section 16, and we assume also the lands to the east of it, was in the pasture of the said Llano Live Stock Company. It does not appear just what, if any, lands were owned by the said Live Stock Company, nor whether said fence was erected as a dividing fence between different pastures of the said company, or as a division fence between the pasture of said company and other persons. Appellee testified that Lofton subsequently gave him permission to tie his fence onto this fence, supposed to have been built on the east line of section 16. The line referred to was evidently run for the east line of section 16, with its full complement of 640 acres. The appellee and those under whom he holds only bought from the state the west three-quarters of section 16, so that in no event could it be said that this fence was supposed to be on the boundary line of appel-lee’s land. There was no pleading of establishment of the boundary line by agreement or estoppel, though this perhaps was not necessary to a raising of the question. Eddie v. Tinnin, 7 Tex. Civ. App. 371, 26 S. W. 732. The court submitted no such issue to the jury, and the case does not seem to have been tried as if any such issue was in it, and we do not think that the evidence is sufficient to raise an issue of establishment of the boundary by agreement or acquiescence.

Other propositions presented in the motion for rehearing have already been disposed of by our former opinion. We do not regard our holding as being in conflict with the cases of State v. Post, 106 Tex. 468, 169 S. W. 407; Id., 169 S. W. 405; Id., 106 Tex. 500, 171 S. W. 707. Those cases simply held that a resurvey could not be made to embrace land not embraced in the original, field notes or location. The field notes of section 1274 do embrace the land in controversy, though it may be also included within the field notes of section 16.

The motion for rehearing is overruled.

HUFF, C. J., not sitting, being absent in Austin, serving on committee of judges.
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