author: BROOKE, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. SCHEPPELMAN.
    (No. 335.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 1, 1918.
    Rehearing Denied April 17, 1918.)
    1. Municipal Corporations &wkey;»809(l) — Streets — Defects — Permits for Excavations.
    Where a railway terminal company was granted a permit by a city to construct a sewer, the company owed to the public a duty to see that the refilling was tamped in a safe and proper manner, in compliance with an ordinance to leave the street or sidewalk in as good order or condition as before excavation.
    2. Master and Servant <&wkey;315 — Injury to Third Persons — Independent Contractors.
    That a sewer is constructed by an independent contractor does not relieve the principal of responsibility for defects in- a street causing injury to pedestrians in refilling excavations, where such principal contractor retained authority to decide as to the manner of refilling.
    3. Municipal Corporations <&wkey;809(l) — Defects in Streets — Sewer Construction-Liability of Person Causing Defect.
    A railway terminal company, which has constructed a sewer under a city street, was not relieved from liability for personal injuries sustained by a subsidence of the refilling, because the city. had taken over the sewer system after completion, the condition in the sidewalk not being brought about by any defect in the sewer itself, but by the negligent failure -of the railway company to restore the surface after laying the sewer pipe.
    4. Municipal Corporations <&wkey;819(l) — Defect in Sidewalk — Sewer Construction-Evidence.
    In an action by a pedestrian for personal injuries due to a sidewalk made defective by sewer construction, evidence held to show that the construction company did not leave the street and sidewalk in good condition.
    5. Municipal Corporations <&wkey;819(l) — Sewer Construction — Personal Injuries — Evidence.
    In an action for personal injuries to a pedestrian due to a sidewalk made defective by defendant’s construction of a sewer, evidence that the sidewalk was perfectly level before the construction of the sewer, and that a part of the sidewalk buckled up and another part sank after the sewer was constructed, causing the sidewalk to slope down, justified a finding that the dangerous condition of the sidewalk did not exist prior to the construction of the sewer.
    6. Husband and Wife &wkey;114 — Separate Property — Statute — Retroactive Effect.
    Acts 34th Leg. c. 54, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4021a), providing that all property or moneys received as compensation for personal injuries sustained by a wife shall be her separate property, does not affect actions filed prior to the passage thereof.
    7. Damages <®=o221 — Special Issues.
    In an action for personal injuries due to a sidewalk made defective by sewer construction, a special issue, “What sum of money, if paid now, will, in your judgment, fairly and reasonably compensate plaintiff for the injuries, if any,” sustained by reason of her fall, as shown by the pleadings and evidence in the case, was not erroneous.
    8. Evidence <&wkey;380 — Photographs—Authentication.
    . In an action for injuries due to a fall caused by a defective sidewalk, the testimony of the injured party that a photograph offered in evidence was a correct picture of the scene of the accident was sufficient to render it admissible.
    Appeal from District Court, Harris County ; J. D. Harvey, Judge.
    Action by F. Scheppelman against the Houston Belt & Terminal Railway Company. Prom a judgment for plaintiff and a denial of new trial, defendant appealed to the Court of Appeals for the First 'Supreme Judicial District. On transfer to the Ninth Supreme Judicial District.
    Affirmed.

      Andrews, Streetman, Burns & Logue and W. L. Cools, all of Houston, for appellant. Carothers & Brown and Geo. L. Charlton, all of Houston, for appellee.
   BROOKE, J.

Appellee sued the Houston Belt & Terminal Railway Company, claiming damages on account of personal injuries to Ms wife, Mrs. Kate Scheppelman, the injuries haying been caused by a fall. It is alleged that the Houston Belt & Terminal Railway Company is liable to plaintiff for said injuries thus sustained, because at tire point where plaintiff’s wife fell the sidewalk was in a defective condition, due to the defendant’s negligence.

The negligence alleged was, in substance, that the defendant constructed, or caused tb be constructed, a sewer at the corner of Preston avenue and La Branch street, in the city of Houston, and negligently and carelessly failed "to properly fill up, pack, and ram down tight the earth taken from under said sidewalk, and from adjacent thereto, and so negligently and carelessly refilled the excavations that the earth under said sidewalk and adjacent thereto gradually sank until it caused the said sidewalk to sink in one place and buckle up in another, and caused one portion of said walk to be raised several inches higher than the adjoining portion of said walk, and caused same to project several inches above the surface, so as to make it very dangerous for pedestrians crossing the said street and using said walk, and especially to persons using said sidewalk to cross from the northeast side of Preston avenue to the southwest side of Preston avenue, the said projection having a tendency to trip pedestrians and throw them on the said concrete pavement. It was alleged that the work of construction was done either' by the defendant directly or through the Hedges Construction Company, a contractor. In addition to the averment of negligence, as aforesaid, the violation of the city ordinance was also specified with reference to the matter of refilling the excavation and packing the earth. Damages in the amount of $20,000 were claimed in the petition.

The defendant answered with a general demurrer and general denial, and averments that it should not be held liable on account of any of the matters and things set out in plaintiff’s petition, since the work of construction was done by the Hedges Construction Company, a corporation, under a contract of date August 25, 1908, the terms of which constituted said Hedges Construction Company an independent contractor, and as such said Hedges Construction Company completed the work of construction, and controlled all of the details thereof. Defendant further alleged that there should be no recovery against it, since prior to the accident in question, which was alleged to have occurred on November 20, 1912, the city of Houston had taken over the said sewer constructed by Hedges Construction Company under the contract mentioned, and the defendant had surrendered any and all control, and any and all connection with, and any and all rights in, said sewer to the city of Houston; which arrangement was consummated in the year 1909, more than three years prior to the accident in question. Defendant further alleged contributory negligence on the part of Mrs. ‘Scheppelman.

The cause was tried on November 14, 1916, and submitted to the jury by special issues. Upon the jury’s verdict, in response to the issues propounded, the court entered judgment against the defendant and in favor of the plaintiff, E. Scheppelman, in the sum of $7,-500, with interest and costs of court.

On December 5, 1916, the amended motion for new trial was overruled, the defendant excepted to the action of the court in overruling same, and filed its supersedeas bond. The case was appealed to the Court of Civil Appeals for the First Supreme Judicial District of Texas at Galveston, and has been transferred to this court, and is now before us for consideration.

By the first assignment of error it is claimed that the court erred to the prejudice of defendant in failing and refusing, upon defendant’s request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because the evidence is wholly insufficient to raise the issue of any duty owing by the defendant to the plaintiff or plaintiff’s wife with reference to any of the matters and things set out in plaintiff’s petition. Under this assignment are submitted many propositions and counter propositions. Among others, it is urged by appellee that, when the appellant made an excavation in a public street and under and adjacent to a public sidewalk, it owed to the plaintiff and his wife, and to the public generally, the duty to use proper precautions to see that the excavation was properly refilled and tamped, so that there would be no such subsidence of the surface as would create an obstruction or pitfall dangerous to pedestrians.

It seems that this sewer was constructed along Preston avenue, from St. Emanuel street to the Austin street sewer, between the sidewalk and the curb, and that the sewer ditch was an open excavation; that is, an open ditch was excavated, the pipe was put at the bottom of the excavation, and then the excavation was refilled. At the place where Mrs. Scheppelman fell the ditch was originally 10 or 12 feet deep. At the time this excavation was made there was an ordinance of the city of Houston in force requiring any person or corporation who dug, or caused to be dug, any ditch, or made any opening in, over, or across any street or sidewalk, for the purpose of laying down gas or other pipes, to fill up, pack, and ram down tight the earth taken therefrom, ancl leave such street or sidewalk in as good order or condition as the same was before such excavation was made. The appellant secured from the city council permission to dig the ditch and lay the sewer pipe, and it is urged that it owed to the plaintiff and his wife, and to the public at large, the duty to comply with the ordinance which was enacted to safeguard the public. The permit to put in this sewer was given by the city council to the Houston Belt & Terminal Railway Company. The evidence showed that water tamping was the usual and customary way of tamping the refilling of excavations in public streets, and was the safest and most approved method of tamping, and it is undisputed that the ditch was not water tamped. The testimony showed that the plans and specifications for every foot of the sewer that was laid was filed with the Hedges Construction Company, and the^specifications instructed the Hedges Construction Company as to how the work should be done. The contract between the Houston Belt & Terminal Railway Company and the Hedges Construction Company contained the following provision:

“If necessary to water tamp the refilling of the above sewer, this is to be done at the expense of the company, the contractor to be allowed cost of work plus ten per cent.”

There was no testimony showing that there was any other method of tamping as efficient as water tamping, and no testimony going to show that any other system of tamping would leave the street or sidewalk in as good condition as it was before the excavation was made.

The jury found that the Houston Belt & Terminal Railway Company retained control and supervision of the work. STom the record it appears that the appellant’s engineer was on the ground while the refilling of this excavation was being done, and that such refilling was done under the direction of defendant and its engineer, and the jury found that as the work progressed the appellant and its engineer dictated as to how the refilling was to be done. The jury also found that the sewer was not constructed by the Hedges Construction Company for the appellant under an independent contract between them, whereby the Hedges Construction Company undertook and had direct charge of and performed all the details of the construction work, and that the Houston Belt & Terminal Railway Company, during the performance thereof, did not have only such charge and supervision of the work by its engineer as to insure the completion of same according to the plans and specifications thereof,'and the record shows that these findings are not attacked in this court, and we may say that they are sustained by the evidence. The plans and specifications were not introduced in evidence or accounted for in any way. Appellant’s engineer testified that he prepared these plans and specifications, and this record shows that the Hedges Construction Company was to furnish merely the material and labor necessary to construct the sewer, for which they were to be paid so much per lineal foot for the sewer pipe, and so much per cubic yard for the excavation, but that the work was to be done according to the specifications of the Houston Belt & Terminal Railway Company, and that they were to be made as required by the railway company’s chief engineer. As above stated, the tamping was clearly to be left to the railway company, and it was provided that, if the railway company decided that water tamping was necessary, the construction company should be allowed the cost of the work, plus 10 per cent, additional.

Under the plans and specifications, the jury were justified in finding that the railway company was to maintain control and supervision of the work and direct how it should be done. This record shows that the dirt was not tamped down at all in the excavation, but, as in the language of one of the witnesses, “We piled the dirt on an average of a foot above the level where there was any trafile— I mean foot trafile or vehicle traffic — during the construction work.”

We have stated above that the permit to construct the sewer was given to the Houston Belt & Terminal Railway Company, and not the Hedges Construction Company,' and, in our opinion, the railway company owed to the public a duty to see that the refilling was tamped in a safe and proper manner, and in compliance with the ordinance, before it accepted same; and appellant could not escape liability for failing to do so, by showing that it employed the Hedges Construction Company to furnish the labor and material ‘for the job.

In our opinion, even if it should be conceded thát the Hedges Construction Company was an independent contractor in the performance of this work, and the Houston Belt & Terminal Railway Company Was not responsible for any defect in the work of the construction company, the evidence is still ample to justify a finding of negligence on the part of the railway company, because the undisputed evidence shows that it was left to the railway company to decide whether the refilling should be water tamped, and that the railway company did not specify water tamping, although that was the usual and customary method of tamping a job of this kind, and the only safe way to get good results.

It was alleged that the sewer in question became the property of the city of Houston, and constituted a part of its sewer system after it was completed; but, in our opinion, that would not alter the appellant’s liability to the plaintiff and his wife and to the public at large for such injuries as might thereafter be sustained by reason of appellant’s failure to take proper steps to tamp the refilling above the sewer, and make it safe for pedestrians using the sidewalk. The sewer that was taken over by the city was located several feet beneath the surface of the street. The condition of the sidewalk was not brought about by any defect in the sewer itself or by its becoming out of repair. It was brought about by the negligent failure of the railway company to properly tamp the refilling and restore the surface of the street after the sewer pipe had been laid, and grew out of the railway company’s failure to provide against such subsidence of the surface as would injuriously affect a public sidewalk and endanger the lives and limbs of pedestrians.

Prom this record there is no evidence that the city attempted to relieve the railway company of any obligations which it owed to the public in connection with the construction of this sewer, even if it should be held that it had power to do so. The record shows that the railway company had secured an ordinance granting it a franchise to construct a sewer from its terminal properties to Buffalo Bayou, and that this ordinance contained an obligation on the'part of the railway company to construct the aforesaid sewer; that $15,000 was paid to the city for the privilege of being relieved of this obligation to carry the storm water from the terminal properties direct to the bayo.u, and for the privileges of being permitted to connect its properties with the new Austin street storm sewer instead, and that the railroad sewer, ■ when constructed, was •to become a part of the city sewer system, and be thereafter maintained by the city. There was no testimony that the city undertook to relieve the railway company of liability for such damages as might be sustained by the city of Houston on account of the negligent failure of the railway company to properly refill and tamp the ditch which was excavated for the purpose of laying said sewer, or that the city assumed or in any way became responsible for the negligent manner in which said ditch had been refilled and tamped. A close inspection of the record will justify the conclusion reached by this court, that' the first assignment of error must be overruled.

The second assignment of error challenges the action of the lower court in failing and refusing, upon defendant’s request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because the evidence .is wholly insufficient to raise the issue of any breach of duty on the part of the defendant toward the plaintiff or plaintiff’s wife, with reference to any of the matters and things set out in plaintiff’s petition.

Appellee urged, by counter proposition, that the evidence clearly shows that the appellant breached its duty to the appellee and his wife, and to the public at large, by failing to see that the excavation was properly filled, and that the earth taken therefrom was packed, tamped, and rammed down tight, and by failing to require the Hedges Construction Comirany to properly tamp the refilling. Axjpellant’s engineer, Mr. Gavin, testified, among other things, that, where a ditch was refilled at a point where there was traffic, it was customary to tamp the refilling so that there would be practically no settlement at all. He testified as to what was actually done as follows:

“We generally rounded up over the top of the sewer anywhere from six inches to two feet’ higher than the original surface; that provides for any settlement that may take place. We filled it higher than the original surface where there was any traffic over it. If you will allow me to explain that wherever we had construction work, if it was an open ditch we built a bridge across it with timbers and foot railing if it was street traffic — that is, vehicle traffic— we protected it the same way and built railing around to keep the traffic off. On most of our street crossings we put timbers across there to take care of it during construction. I suppose we piled the dirt on an average of a foot above the level where there was any traffic; I mean foot traffic or vehicle traffic, either one.”

When asked specifically about the crossing in question, be testified:

“I would not say as to whether we packed and tamped in front of the De George Hotel, because all street crossings were the same, and I would not testify to any certain one during that construction because I looked after all of them, and I would not specify the De George Hotel above any other one.”

Therefore, in our opinion, the evidence shows that the Houston Belt & Terminal Railway Company did not comply with its duty to Mrs. Scheppelman and the public at large, in that it did not fill up, pack, and ram down tight the earth taken from the excavation, and leave the sidewalk and street in as good condition and order as the same was before the excavation was made, thereby failing to comply with the express provisions of the ordinance regulating such excavations, the evidence showing clearly that the appellant breached its duty to appellee and his wife by failing to require the construction company to water tamp the refilling of the excavation. A careful examination of the record leaves us of the opinion that this assignment of error must be also overruled.

. The third assignment of error complains that the court erred to the prejudice of defendant in failing and refusing, upon defendant’s request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because the evidence is wholly insufficient to raise the issue that any alleged breach of duty on the part of the defendant was the proximate cause in law of any alleged injuries sustained by plaintiff’s wife. We are of opinion that the evidence justified a finding that the condition of the sidewalk was brought about by the appellant’s negligent failure to see that the excavation was properly refilled and tamped, and that the condition of the sidewalk directly and proximately caused the injury to Mrs. Scheppel-man. The evidence is ample to sustain a finding that the appellant retained such control and supervision over the work as would render . it responsible to the plaintiff and his wife and to the public at large, even though the work was actually done by the Hedges Construction Company. Without further consideration, we are of opinion that this assignment must be overruled.

What has been said also.applies to the fourth assignment of error, to the effect that the sewer in question was constructed under an independent contract with the defendant by Hedges Construction Company, and that the defendant retained no control over, and had no such supervision over, said work as to create or give rise to a legal responsibility for the condition thereof, such as is involved in this action.

The fifth assignment of error is as follows:

“The court erred, to the prejudice of the defendant, in failing and refusing, upon defendant’s request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because, under the undisputed testimony, the relation of the defendant to said sewer and to the street in question, and the condition thereof complained of, was not such, at any time as to create a legal responsibility therefor attributable to the defendant in this action.”

Without going into the matter in detail, we are of opinion that this assignment must be overruled.

The sixth assignment complains that it appears from the testimony that the city of Houston had taken over the sewer in question long prior to the accident in question, and thereby became solely responsible for the condition of the said street and sidewalk in question, and because, further, it wholly fails to appear that at the time the city took over said sewer, and made same a part of the city sewer system, said sidewalk at the point of the accident in question was defective substantially in the manner alleged in plaintiff’s petition.

It is urged by the appellee that the fact that the sewer, when completed, became the property of the city of Houston, and constituted part of ’its sewer system, did not alter appellant’s liability to the plaintiff and his wife, and to the public at large for such injuries as might thereafter be sustained by reason of appellant’s failure to take proper steps to tamp the refilling above the sewer and make it safe for pedestrians using the sidewalk; and also that there was no evidence that the city attempted to relieve, the railway company from any obligation which it owed to the public in connection with the construction of this sewer, even if it should be held that the city had. power to do so; and, further, that one who causes an obstruction or pitfall in a street cannot escape liability because the city has control over the street, and he had no authority to remove same, especially where he makes no attempt to remove the obstruction or pitfall or to' secure permission from the city to do so. In this record there is no evidence that the Houston Belt & Terminal Railway Company made any effort to repair the damage it had done to Preston avenue and the sidewalks thereon, or that it sought to obtain from the city council permission to do so. In White v. City of San Antonio, 25 S. W. 1131, it is held that where a city permits a ditch dug by a railway company across a street to remain unguarded, if either-be liable for injury received by falling into it, both are liable. The assignment is overruled. '•!

By the seventh assignment of error it is claimed that the court erred, to the prejudice of the defendant, in failing and refusing, upon defendant’s request, to instruct the jury peremptorily in behalf of the defendant, it appearing that plaintiff is not entitled to recover, because it wholly fails to appear from any evidence in the record that the condition of the sidewalk which is claimed to have caused the fall of plaintiff’s wife did not exist prior to the construction of the sewer in question.

In our opinion the evidence is amply sufficient to justify a finding that the condition of the sidewalk which caused the fall of plaintiff’s wife did not exist prior'to the. construction of the sewer in question. The testimony showed that the sidewalk was perfectly level before the construction of the sewer. It showed that the street or sidewalk leading from the curb to the main sidewalk was level before the ,sewer was built, and that a part of the sidewalk buckled up and the other part sank, one block sinking one way and one block sinking the other; that after the sewer was constructed the sidewalk began to slope down. Without going into the matter and quoting from the testimony of the witnesses, we overrule this assignment.

The eighth assignment complains that the plaintiff is not entitled to recover in his own name-any of the damages alleged and shown to have been sustained, and appellant cites the General Laws of Texas 1915, c. 54, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4621a), in which it is provided:

“All property or moneys received as compensation for personal injuries, sustained by the wife shall be her separate property, except such actual and necessary expenses as may have accumulated against the husband for hospital fees, medical bills, and all other expenses incident to the' collection of said compensation.”

This law was passed after the accident and after suit was filed. Mrs. Scheppelman was injured on November 20, 1912, and suit was filed some time during 1913. The assignment is overruled.

The ninth assignment complains that the court erred, to the prejudice of the defendant, in overruling its amended motion for new trial, and in not granting same, in response to the ground urged as follows: The affirmative answer oí the jury to. special issue No. 4, propounded hy the court in the main charge, is unsupported by the evidence, which said issue reads as follows:

“If .you have answered that the sidewalk was caused to sink in one place and buckle up in another, and one portion thereof was caused to be raised higher than the adjoining portions, then you will answer this question: Was such condition in the sidewalk the proximate cause of plaintiff’s injuries?' Answer, Yes or No.”

We will not go into the evidence Seriatum, hut deem it sufficient to say that the jury’s finding that the condition of the sidewalk, in so far as it affected the fall of Mrs. Schep-pelman, was different from the condition existing prior to the construction of the sewer along’ Preston' avenue, was amply sustained hy the evidence. The assignment is therefore overruled.

What has been said above also applies to the tenth assignment of error.

The ’eleventh assignment [complains that the trial court erred to the prejudice of the defendant in special issue No. 11, which reads as follows:

“What sum of money, if paid now, will, in your judgment, fairly and reasonably compensate plaintiff for the injuries, if any, sustained by his wife, Kate Scheppelman, by reason of her fall, as shown by the pleadings and the evidence in this case? Answer by stating the sum of money.”

A careful examination leads us to believe that there is no error in this action of the court, and same is overruled.

The twelfth assignment challenges the action of the trial court, as being error to the prejudice of defendant, in admitting in evidence the photograph offered by the plaintiff and referred to in the testimony of the witness George L. Charlton, the ground of objection being that the proof of the accuracy of the work was not sufficient, and that it would require something more than Mr. Charlton’s testimony to admit the photographs in evidence, the photographer himself not being present as a witness. It was decided in the case of Accousi v. G. A. Stowers Furniture Co., 87 S. W. 861, that in an action for injuries the testimony of the injured party that a photograph offered in evidence was a correct picture of the scene of the accident was sufficient to render it admissible. This was done in the instant case. The assignment is overruled.

The following authorities are applicable to this case: Kampmann v. Rothwell, 107 S. W. 120; Southern Express Co. v. Texarkana Water Co., 54 Ark. 131, 15 S. W. 361; Dillon v. Washington Gas Light Co., 1 MacArthur (8 D. C.) 626; White v. City of San Antonio, 25 S. W. 1131; Gray v. Pullen, 5 Best & S. 970; Ames v. Gannon, 77 N. J. Law, 385, 72 Atl. 27; Ry. Co. v. Brown, 11 Tex. Civ. App. 503, 33 S. W. 146; Dublin v. Taylor, 92 Tex. 535, 50 S. W. 120; H. & G. N. Ry. Co. v. Meador, 50 Tex. 77; Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 156, 81 S. W. 282, 1 L. R. A. (N. S.) 198; Paris Gas & Light Co. v. McHam, 2 Willson, Civ. Cas. Ct. App. § 651; Drennon v. Patton Worsham Drug Co., 109 S. W. 218; Johnson v. Friel, 50 N. Y. 679; Elzig v. Bales, 135 Iowa, 208, 112 N. W. 540.

A careful review of the entire record leaves us of the opinion that the court guarded the rights of appellant carefully, and that the record shows that no error has been committed that would justify a reversal of. the same.

The judgment of the trial court is affirmed.
      <ga^>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:
    ELLIS v. HOUSTON & T. C. RY. CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 20, 1918.)
    1. Eminent Domain <§=>191(1) — Condemnation Proceedings — Pleading.
    A petition to condemn land for use of a railroad company, alleging that the complainant herein desires to condemn said land and property for the purposes of constructing thereon its railway lines and tracks, depots, both freight and passenger, station buildings, machine shops, repair shops, side tracks, and connecting lines and tracks with other railway tracks, and for switches, turntables, toolhouses, reservoirs, for water supply, water tanks, and for additional terminal facilities of every kind and character, and for other lawful purposes necessary and incident to the building, operating, and maintaining of its said railroad and carrying out the purposes of its said corporation, is sufficient under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6506, prescribing the allegations which must be made, and authorizing condemnation proceedings in county court if the owner and company are unable to agree on damages; the right to condemn land for the purposes mentioned being given by article 6504.
    2. Courts <g=>21 — Jurisdiction in General.
    Allegations of jurisdictional facts relating to the subject-matter of the suit, contained in a petition, of themselves, confer jurisdiction to determine the controversy presented, and such jurisdiction will be retained by the court until the defendant alleges and proves that allegations were made for the fraudulent purpose of conferring jurisdiction.
    3. Eminent Domain <§=>172 — Condemnation Proceedings — Jurisdiction.
    Filing of application containing allegations of all facts necessary to confer upon the county court jurisdiction to determine the issues involved in the proposed condemnation immediately fixed jurisdiction.
    4. Eminent Domain <§=>273 — Restraining Condemnation Proceeding.
    Since by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6481-6534, the county court has exclusive original jurisdiction in condemnation proceedings, the district court will not, on the ground that the county court has no jurisdiction because the parties have not failed to agree as to damages as required by article 6506, and that the land is not subject to condemnation, enjoin condemnation proceedings after the county court has acquired jurisdiction by the filing of a sufficient petition, especially where plaintiff can be adequately compensated by damages, and the proof is ample to support a finding that the parties had been unable to agree as to damages.

      . 5. Eminent Domain <§=>273 — Enjoining Condemnation Pboceedings.
    Condemnation proceeding in a county court will not be enjoined on the ground that the property is not subject to condemnation, sinco it must be presumed that if the property is not subject to condemnation the county court will so find.
    6. Injunction <§=>7 — Restraining Action— Ebboneous Decision — Remedy. ’
    • Plaintiff’s remedy for an erroneous decision of the county court is by appeal, and not by suit to enjoin proceedings.
    7. Eminent Domain <§=>300 — Irreparable Injuby — Evidence.
    In suit to enjoin condemnation proceeding in county court, evidence held insufficient to show that plaintiff could not be adequately compensated by damages for temporary use of property if it was finally adjudged that right to condemn did not exist in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6518-6530, as to taking into consideration, not only the right of way, but also the adjacent property in estimating damages for temporary possession and use of right of way.
    8. Eminent Domain <§=>274(1) — Condemnation Pboceedings — Enjoining Possession.
    A showing that commissioners would be unable to assess damages adequate to compensate plaintiff for injury to his property by proposed condemnation was a necessary predicate for restraint of possession by defendant railway company.
    Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.
    ■Suit by James M. Ellis against the Houston & Texas Central Railway Company. Relief denied, and plaintiff appeals.
    Affirmed.
    McCart, Curtis & McCart, of Ft. Worth, for appellant. Thompson, Barwise & Wharton and A. J. Baskin, all of Ft. Worth, for appellee.
   DUNKLIN, J.

The Houston & Texas Central Railway Company filed with the county judge of Tarrant county a petition in writing seeking to condemn for the uses of the company a strip of land of 12.48 acres running across a part of a larger tract situated in said county and owned by James M. Ellis, a resident citizen of that county. That petition contained the following allegations:

“That the complainant herein desires to condemn said land and property for the purposes of constructing thereon its railway lines and tracks, depots, both freight and passenger, station buildings, machine shops, repair shops, side tracks, and connecting lines and tracks with other railway tracks, and for switches, turntables, toolhouses, reservoirs, for water supply, water tanks, and for additional terminal facilities of every kind and character, and for other lawful purposes necessary and incident to the building, operating, and maintaining of its said railroad and carrying out the purposes of its said corporation.”

The right of a railway company to condemn land for those uses is given by arti.cle 6504, V. S. Tex. Sts., hereinafter quoted. By article 6506 of the Statutes the company was authorized to institute condemnation proceedings in the county court by filing with the county judge of the county a petition for such condemnation, if the company and the owner of the property were unable to agree upon the resulting damages. That article also prescribes the allegations which must be made in such a petition. The petition so filed by the company contained the specific allegation of inability of the parties to agree on the amount of such damages, also all other allegations required by that statute. Upon the filing of that petition the county judge appointed three disinterested freeholders of the county as special commissioners to assess the damages which the owner of the land might sustain by reason of such condemnation. The commissioners, after being duly sworn as required by article 6509, appointed a day and place for the purpose of determining the amount of such damages, and at the same time issued notices to the parties interested, notifying them of the time and place so selected for such hearing, which notices were duly served, all in compliance with article 6509 to 6513, inclusive, of the Statutes.

Before the date set for such hearing, J. M. Ellis instituted this suit in the district court of Tarrant county to enjoin the commissioners from proceeding with said hear-; ing to assess damages and also against the railway company to enjoin it from taking any farther steps seeking to condemn said property for the purposes sought. Upon the filing of that petition the district judge ordered the issuance of notices and service thereof upon the commissioners and railway company commanding them to appear before him at a time fixed in the order, then and there to show cause why the temporary writ of injunction prayed for in the petition • should not be issued. Later the petition was heard and considered together with evidence introduced by all the parties, and upon such hearing plaintiff’s application for the writ was refused. From that order Ellis has appealed.

The grounds upon which Ellis based his prayer for relief may be briefly stated as follows:

First. That the county court had not acquired jurisdiction to assess such damages and decree the condemnation proposed in view of the fact that the railway company' and Ellis had not failed to agree upon the damages which might occur by reason of the taking of the strip of land sought to be condemned ; the contention being made that in the absence of such inability of the parties to agree upon the damages the county court could not acquire such jurisdiction, in view of the provisions of article 6506 of our Statutes.

Second. That prior to the filing of said application for condemnation of the property in controversy Ellis had dedicated the strip sought and the land adjacent thereto as a cemetery for use by the public for cemetery purposes and to be known as the South-side' Cemetery; that he had platted said land into burial lots and blocks, streets, and pass-ways and that said plat had been duly filed for record in the deed records of Tarrant county. Plaintiff further alleged that after filing said plat he proceeded to improve said property for cemetery purposes, and that bodies of deceased persons had been interred in some of the lots shown in said plat, one of which bodies was buried on the particular strip of land sought to be condemned in a lot which plaintiff had conveyed by regular deed of conveyance. It was further alleged that to use the strip of land sought to be condemned for the purposes alleged in the petition for condemnation will entirely destroy and render useless all the property so dedicated for cemetery purposes. He further alleged, in substance, that by reason of such prior dedication of the property as a cemetery it was not subject to condemnation, and for that additional reason the county court had no jurisdiction of the proposed condemnation proceedings.

Article 6504 is as follows:

“If any railroad corporation shall at any timé be unable to agree with the owner for the purchase of any real estate, or the material thereon, required for the purposes of its incorporation or the transaction of its business for its depots, station buildings, machine and repair shops, for the construction of reservoirs for the water supply, or for the right of way, or for new right of way for change or relocation of roadbed to shorten the line, or any part thereof or to reduce its grades, or any of them, which is hereby authorized and permitted, or for any other lawful puz-pose connected with or necessary to the building, operating, or running its road, such corporation may acquire such property in the manner provided in this chapter; provided, that the limitation in width prescribed in article 6484, shall not apply to real estate, or any interest therein, required for the purposes herein mentioned, other than right of way, and that real estate, or any interest therein, to be acquired for such other purposes or any of them need not adjoin or 'abut on the right of way; provided, further, that no change of the line through any city or town, or which will result in the abandonment of any station or depot, shall be made, except upon written order of the railroad commission of Texas, authorizing such change; and provided, further, that no railroad corporation shall have the right under this act to condemn any land for the purposes mentioned in this article situated more than two miles from the right of way of such railroad corporation.”

Other articles of chapter 8, title 115, of our Statutes, contain provisions for the assessment by the commissioners of damages caused by the condemnation proposed, .for a return to the county court of a report of such assessment, and articles 6527 to 6530, inclusive, prescribe the proceedings to be followed by the county court for the rendition of a final judgment of condemnation, including the determination of any opposition by the owner of the land to the decision of the commissioners, and article 6527 contains the specific provision that such a controversy “shall be tried and determined as in other civil causes in said court.” By article 6530 it is provided that after the commissioners have assessed the damages, and before the rendition of a final judgment by the county court, the plaintiff in the condemnation suit shall have the right to take possession of the property sought to be condemned by depositing in court the amount of damages assessed by the commissioners and by giving bond in a like amount to secure any additional damages that may be finally adjudged against such plaintiff. Subdivision 3 of that article is as follows:

“Should it be determined on final decision of the case that the right to condemn the property in question does not exist, the plaintiff shall sun*ender possession thereof, if he has taken possession pending litigation, and the court shall so adjudge and order a writ of possession for the property in favor of the defendant, and the court may also inquire what damages, if any, have been suffered by the defendant by reason of the temporary possession of the plaintiff, and order the same paid out of the award or other money deposited; provided, that in any case whore the award paid the defendant or appropriated by him exceeds the value of the property as determined by the final judgment, the court shall adjudge the excess to bo returned to the plaintiff. If the cause should be appealed from the decision of the county court, the appeal shall be governed by the same law as in other cases; except the judgment of the county court shall not be suspended thereby. The rules hereinbefore laid down for governing railroad corporations shall likewise apply to all persons and corporations having the right of eminent domain.”

As noted already the strip in controversy is a part of the land described in the plat of dedication. Appellant contends that the proof shows further and conclusively that there had been no failure, of himself and the railway company to agree on the amount of his damages. He insists that the proof also shows, as alleged in his petition, that, unless restrained from so doing, the railway company will, as authorized by article 6530, take possession of the strip of land desired as soon as the commissioners shall have made the assessment of damages, and will immediately proceed to subject it to the uses desired, and that the work that will be done and the improvements that will be constructed to accomplish such purposes will result in irreparable injury to the plaintiff, the public, and owners of other lots in the tract dedicated for cemetery purposes,, for which adequate compensation cannot be awarded. 1-Ie insists that an injunction will be necessary to prevent such irreparable injury by restraining, in advance, the statutory proceedings which, if followed, will lead to the infliction of such an injury.

It is insisted that, as the county court has no jurisdiction of the condemnation proceedings for each of the two reasons alleged and noted above, the proposed condemnation, if effected, will be null and void, and hence the district court has jurisdiction to enjoin the same in advance. Appellant has cited G., C. & S. F. Ry. v. F. W. & R. G. Ry., 86 Tex. 537, 26 S. W. 54, to support tiie proposition that tiie enforcement of a judgment of condemnation of land which is absolutely void may be enjoined by the district court. The same can be said of any other character of judgment. A judgment of the county court condemning property for uses by the railway company has no such special features as would distinguish it from other judgments, so far as that question may be involved. It is well settled that allegations of jurisdictional facts relating tó the subject-matter of the suit, contained in a petition, of themselves, confer jurisdiction to determine the controversy presented, and that such jurisdiction will be retained by the court until the defendant alleges and proves that those allegations were made for the fraudulent purpose of conferring jurisdiction. Hoffman v. C. B. & L. Ass’n, 85 tex. 409, 22 S. W. 154.

As the application filed by the railroad company in the county court contained allegations of all facts necessary to confer upon the county court jurisdiction to determine the issues involved in the proposed condemnation, the filing of the application immediately fixed jurisdiction. Furthermore, the good faith of those allegations was not attacked by Ellis, either by pleading or by proof.

Appellant’s contention that the proposed proceedings in the county court will be void for lack of jurisdictional facts, and that the district court had the right to determine in advance of the county court those jurisdictional issues, is predicated upon the assumption that the court of equity can restrain the exercise of a clear unconditional right to condemnation proceedings in another court expressly conferred by statutes the constitutionality of which is not even challenged, and we think it too clear for argument that a court of equity has no such power. As the county court acquired jurisdiction to determine the controversy, and as it had exclusive original jurisdiction to try and determine it, that court’s jurisdiction so to do could not be ousted by the district court. Furthermore, the proof introduced was ample to support a finding that prior to the institution of condemnation proceedings the railway company, through its representative, had attempted to reach an agreement with Ellis as to the damages he would sustain by reason of the condemnation proposed, but that the parties had been unable to reach an agreement upon that issue.

The proof showed also that only two lots shown on the plat of dedication had been conveyed, both of which were donated to H. F. Spellman, an undertaker, who had buried two bodies therein, apparently of indigents; that those lots were conveyed at appellant’s instance for the purpose of starting the use of the platted land for cemetery purposes; that appellant himself had selected the two lots to be so used, one of which was within the boundaries of the proposed railway right of way and the other in close proximity thereto; that such selections were made after the railway company had made a preliminary survey of the right of way and had marked the same within stakes; and that the entire ground platted and dedicated by appellant for a cemetery, with the exception of those two lots, is still owned by him individually, and not by a cemetery corporation. If under such a showing it can be said that the property sought to be condemned is not subject to condemnation it must be presumed that the county court will so decide. It cannot be presumed that its decision will be incorrect. In any event, appellant’s remedy for an erroneous decision by that court will be by appeal to a higher court in which is vested the power to correct the error.

If after the commissioners have made their report of damages assessed by them,, and before the rendition of a judgment by the county court of the issues involved in the condemnation proceedings, the railway company takes possession of the strip of land in controversy and subjects it to the uses proposed, as it will have the right to do under the terms and conditions prescribed in article 6530, and if it shall be finally adjudged that the right to condemn the property does not exist, and the railway company is required to surrender possession of the property so taken and to pay damages for such temporary taking, according to the provisions of subdivision 3 of that article, yet we are unable to perceive any reasonable basis for the contention that appellant cannot be adequately compensated in damages for such temporary possession and use of the right of way by the railway company; since in estimating such damages injury, not only 'to the right of way, but also to the property adjacent thereto, can properly be considered. Articles 6518 to 6530, inclusive. It is quite apparent that appellant’s entire interest in the property dedicated is a mere financial interest in the profits he expects to realize from the sale of proposed burial lots, and he shows no legal right to complain of any irreparable injury of which the public or the relatives of the two persons buried might possibly complain, if indeed they could have a valid claim for equitable relief in the nature of that sought by appellant. He is the grantor, and not in any sense a grantee in the proposed dedication. With the exception of the two lots in which the bodies of the two indigents were buried, appellant owns all the lots platted, and is suing in his own right and not for the use and benefit of the public or as its lawful representative. No cemetery corporation to take over the property has been chartered, and it is not owned by any such a corporation.

Appellant cites C., B. & Q. Ry. v. C., Ft. M. & D. M. Ry., 91 Iowa, 16, 58 N. W. 918, M. P. T. Ry. v. Field, 76 Ark. 239, 88 S. W. 897, and other decisions in support of his contention that, as the railway company will have the right to take charge of and subject to its uses the proposed right of way as soon as the damages have been assessed by the commissioners and before the county court can determine the issues whether or not the railway company has the right to condemn the property, an injunction will lie at all events to restrain such taking of possession until that issue is so determined. While as noted above it was alleged in effect that the railway company, if not restrained by a writ of. injunction, will take possession of and improve the proposed right of way as soon as the commissioners shall have assessed the damages, and that by reason thereof plaintiff will suffer irreparable injury to his property, and while the petition contains a prayer for general relief, yet the principal purpose of the suit was to enjoin the entire proceedings, including any assessment of damages by the commissioners, and there was no prayer in the alternative for restraint of possession by the railway company in the event the commissioners were not enjoined from assessing the damages. In any event, a necessary predicate to such alternative relief would be showing that the commissioners will be unable to assess damages that will be adequate compensation for the injury to plaintiff’s property by the proposed condemnation, and he has pointed out no such proof. On the contrary, to say the least, the facts were amply sufficient to support a finding by the trial court adverse to that contention.

Eor the reasons indicated the judgment of the trial court is affirmed.

The foregoing is filed as a substitute for our original opinion in the case likewise affirming the judgment of the trial court, but which is withdrawn; the foregoing being filed to meet some criticisms of expressions used in the former opinion which were not necessary to the main conclusion reached and which we have taken this method to eliminate. And the motion for rehearing is overruled.
      ®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    BLAIR v. COLORADO CANAL CO. et al.
    (No. 7510.)
    (Court of Civil Appeals of Texas. Galveston.
    March 14, 1918.)
    1.Waters and Water Courses <@=»254r — Supply of Water for Irrigation — Interest in Crop — Contract.
    Under the contract of B., owner of land, and C., a water company, whereby B. is to plant and cultivate a rice crop, and C. is to furnish the water to irrigate it, and after it is matured B. is to harvest and sack it, and a fifth of it, as soon as sacked, is to be the absolute property of C. and is to be delivered by B. to a public warehouse, C. is the owner of a fifth interest in the rice threshed and sacked, as distinguished from having a lien or claim for water furnished, though B. does not segregate C.’s share, but puts all the crop in a warehouse in his own name.
    2. Deposits in Court <@=>1 — Disposition under Judgment.
    Plaintiff owning as claimed a- fifth interest in rice, the other four-fifths being owned by defendant, and all of it being sold by their consent, and four-fifths of the proceeds paid to defendant, the other fifth passed into the registry of the court was properly adjudged to plaintiff.
    3. Appeal and Error <@=>1064(3) — Harmless Error — Oral Charge.
    Giving an oral peremptory instruction, instead of a written charge, was harmless, the evidence requiring the judgment rendered, and all complaints being reviewed as fully as though there had been a written charge.
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by the Colorado Canal Company against the Union Warehouse & Elevator Company, W. L. Blair being substituted as defendant. From an adverse judgment, defendant Blair appeals.
    Affirmed.
    J. W. Conger, of Bay City, for appellant., Krause & Wilson, of Bay City, for appellee..
   LANE, J.

This suit was originally instituted by the appellee Colorado Canal Company, hereinafter called the Canal Company, against the Union Warehouse & Elevator Company, hereinafter called Warehouse Company, to recover $820.10 alleged to be its one-fifth interest in the proceeds of a crop of rice which one W. L. Blair had placed in possession of said Warehouse Company for storage and sale for the joint account of the Canal Company and Blair. W. L. Blair was. thereafter made a party defendant by the-Warehouse Company, with averment that both Blair and the Canal Company had authorized it to sell said rice, and that as both parties were claiming the one-fifth of said proceeds in controversy, it was holding the same as a stakeholder only, subject to the orders of the court.

The Canal Company, among other things, alleged: That W. L. Blair in anticipation of the planting of rice on 240 acres of land lying contiguous to its canal, during the year-1912, did on the 2d day of May, 1912, enter into a written contract with it, whereby Blair was to plant to rice said 240 acres of land before the 1st day of June of that year, and obtain a sufficient stand to warrant the-watering of same. That he would properly cultivate all of said land and harvest and thresh all rice grown thereon. That by said contract the Canal Company agreed that it would use its best efforts to furnish to Blair sufficient water from its canal, which, together with the natural rainfall, would be sufficient to irrigate said rice crop of Blair. That said contract contained the following clauses:

' “Both parties understanding and considering the uncertainty and hazard of furnishing water for irrigation, it is specifically agreed that in the event of lightning, strikes, storms, fire, flood, accidents to machinery or canals, lack of water occasioned by low water or divergence of current in or by overflow of the Colorado river, which may cause hindrance or partial or complete suspension of operations, such hindrance or suspension shall constitute no breach of contract and first party shall not be liable to second party for any damages thereby occasioned.”
“The second party agrees to pay to the first party one-fifth of all the rice grown on the above-described land or such other land as he may cultivate under this contract, and to deliver the same to the first party at some public warehouse in Bay City, Texas, without cost of any kind whatsoever to the first party.
“The rice hereby agreed to be delivered to the first party is to be one-fifth in quality and quantity of the rice so grown; that is to say, every fifth sack of rice as it is taken from the separator and sacked shall be marked for the said first party and delivered to it as above set out. The one-fifth part of the rice so grown shall become the property of the said first party as soon as groWn, threshed and sacked, and the said first party shall have the right to ownership in the . same from such date.”
“Any person, storage or milling company, is hereby instructed to give to first party any information it may call for relative to any rice purchased from or held for account of second party.”

It is further alleged that said Canal Company furnished said water to irrigate the rice crop of Blair, as it had contracted to do, and that Blair had grown, harvested, and stored in the warehouse of said Warehouse Company 1,221 sacks of rice as he had agreed to do by the terms of said contract, which" said rice was owned four-fifths by Blair and one-fifth by the Canal Company under the terms of said contract; that by the agreement of both Blair and the Canal Company the Warehouse Company sold said rice, and of the proceeds of such sale the Warehouse Company, after deducting storage charges and commission for making such sale, paid to Blair four-fifths thereof, and deposited the other one-fifth thereof, to wit, the $820.10 now in controversy, in bank to await a settlement of the dispute between Blair and the Canal Company; that the said Blair had no interest whatever in said $820.10, but that the same was the property of the Canal Company, for which it sues.

The Warehouse Company answered, admitting that W. L. Blair had stored 1,221 sacks of rice in its warehouse for storage and sale; that it had sold said rice by the consent of both Blair and the Canal Company for its full market value of $4,194.80; that after deducting its charges for storage and sale it had paid four-fifths of the remainder .to W. L. Blair and the other one-fifth of such remainder was held by it until the court should determine to whom the same belonged.

The Warehouse Company further avers that it has been forced into this suit, in which it has no interest except as an innocent stakeholder, and prays for an attorney’s fee of $100, and costs of court incurred by it. It also prayed to have Blair made a party defendant, so that all parties claiming an interest in the said $820.10 would be before the court, to the end that their rights might be litigated and determined.

W. L. Blair being made a party defendant to the suit, in his several answers admitted the execution of the contract as alleged by the Canal Company; admitted that he had grown, harvested, and stored in the warehouse of the Warehouse Company 1,221 sacks of rice;, that said rice was grown upon said 240 acres of land watered, or partially watered, by the Canal Company. He further answered as follows:

“This defendant would further show to the court that by virtue of the failure and refusal of the plaintiff to comply with the terms of this said contract he declined to pay the one-fifth of the rice raised upon the said lands as water rent, covered by the terms of the said contract, and so notified said Colorado Canal Company by giving personal notice to its president, J. F. Holt, as well as to its general manager, Westoir Mayfield, and further refused to deliver the one-fifth of the said rice crop as provided in the terms of said contract to any public warehouse in Bay City, Matagorda county, Tex., as the property of, or for the use and benefit of, the said plaintiff Colorado Canal Company, as under, the contract provided and specified. But, on the contrary, this defendant stored each and every sack of rice raised by him upon the said land for the rice reason of 1912 with the Union Warehouse & Elevator Company at Bay City, Matagorda county, Tex., in his own name and to his own personal account, and informed" the said Union Warehouse & Elevator Company at the time he placed the said rice therein that he refused to recognize any right, title, or interest in the said rice crop or the rices placed in the said warehouse in the Colorado Canal Company, and that the said Union Warehouse & Eleva- ' tor Company received the said rice as the property of W. L. Blair, and that warehouse re ceipts were issued to him accordingly. But that thereafter said rices were sold, and the said Warehouse Company paid to this defendant four-fifths of the proceeds thereof, less warehouse charges and commissions, and retained one-fifth under the pretext of protection against loss on account of the pretended claim of tin plaintiff the Colorado Canal Company to a one-fifth interest therein, to wit, $820.10.
“This defendant would further show to the court that, as hereinbefore stated, no segrega-" tion from the general crop óf rice raised by him was ever made, and he has never at any time parted with the title thereto, but, on the contrary, says that he is entitled to retain the proceeds of said rice, to wit, $820.10, in compensation and partly to compensate this defendant for his loss by virtue of breach of contract on the part of the plaintiff, Colorado Canal Company.”

,I-Ie further averred that the Canal Company had failed to properly water his rice crop as' it had contracted to do, and that by reason of such failure he had suffered damages in the sum of $2,569.90, and concluded with the following prayer:

“Wherefore this defendant prays that the plaintiff Colorado Canal Company take nothing by its suit against the Union Warehouse & Elevator Company, or as against this defendant, and that this defendant, W. L. Blair, recover of and from the plaintiff Colorado Canal Company the said sum of $820.10, together with all costs in this behalf had and expended, for general relief, and for all such other and further relief to which he may be entitled, in law or in equity,” etc.

The Canal Company, as a defense to Blair’s cross-hill, denied all the allegations of Blair with reference thereto, and especially pleaded that if it had to any extent failed to furnish all water necessary to fully and sufficiently water Blair’s rice crop, the same' was, because of an unprecedented drouth, resulting in the drying up of the waters of the Colorado river from which its water supply for its canal was obtained, and that under such condition it was relieved from liability for damage occasioned by its failure to supply such water by the terms of its contract with Blair.

The trial court by proper decree allowed the Warehouse Company an attorney’s fee of $82 out of the $820.10 in controversy which it held in its possession as stakeholder, and upon order of the court the balance of said sum, to wit, $738.10, was deposited by the Warehouse Company in the registry of the court, and thereupon the Warehouse Company was dismissed from the suit. No complaint being made on appeal of this order, we shall not further mention said Warehouse Company in this opinion.

A jury was selected and sworn to try the issues between the Canal Company and W. L. Blair. After plaintiff Canal Company had introduced its evidence and rested its case, appellant Blair filed the following motion:

“Now comes the defendant W. L. Blair, without waiving his right to offer his testimony, and moves the court to instruct the jury to find that the plaintiff take nothing in this cause of action, and that the defendant W. L. Blair recover from the plaintiff the $820.10, the subject-matter of this suit and now on deposit with this court, deposited by the defendant Union Warehouse & Elevator Company, for the following good and sufficient reasons, to wit:
“(1) This is not a suit by plaintiff for the recovery of an indebtedness against the defendant Blair or for the foreclosure of any contract or statutory lien against any rices or other property to secure the payment of such indebtedness due the plaintiff by defendant Blair, but, on the contrary, is a suit against the defendant Union Warehouse & Elevator Company for conversion of $820.10, the property of plaintiff, stating that said aforesaid mentioned sum was the amount of rent due by the defendant W. L. Blair to plaintiff as water rental for the year 1912, and alleging that said sum of money was and is the property of plaintiff.
“(2) Because the undisputed evidence in this case shows (and that being the evidence of the plaintiff) that the plaintiff had a contract with the defendant W. L. Blair to furnish water for the irrigation of a certain 240 acres of land, described in said contract of writing to be grown to rice during the year 1912, retaining by the terms of said contract a first mortgage lien in addition to the statutory lien to secure the payment of its rents, and said contract further providing that the defendant W. L. Blair was to pay to the plaintiff as water rental one-fifth of all the rice grown on said land, and further providing that said one-fifth was to be equal in quality and quantity of the rice so grown, that is to say, every fifth sack of rice as it was taken from the separator and sacked should be marked for the said first party, and should be delivered to said first party at some public warehouse in Bay City, Tex., without cost to the plaintiff. The evidence further shows that there was no segregation of the one-fifth part of said crop so claimed by the plaintiff, nor was any part thereof ever marked or branded for the plaintiff, and the evidence further shows that the rices were placed in the warehouse of the Union Warhouse & Elevator Company to the account of the said W. L. Blair, and that the same there so remained until it was sold, and when said rices were sold by the Union Warehouse & Elevator Company, or this defendant, W. L. Blair, that the same were sold to the account of the said W. L. Blair, and the proceeds thereof paid to him, except the warehouse charges and commissions of sale, and the $S20.10, the subject-matter of this suit, the same being one-fifth of the proceeds of the sale of the said rice, was held by the said defendant Warehouse Company for its own protection, declining to recognize the title in either the plaintiff, or the defendant W. L. Blair until their controversy could be adjusted.
“This defendant would further show to the court that he here now abandons his cross-action against the plaintiff, Colorado Canal Company, for damages, and only asks for the recovery of the $820.10 as hereinabove set out.
“Wherefore, this defendant W. L. Blair prays the court that the jury be instructed to find that the plaintiff take nothing by his cause of action, and that he do have and recover of and from the said plaintiff, Colorado Canal Company, the said sum of $820.10, together with all costs in this behalf had and expended, and in duty bound will thus ever pray.”

The court permitted Blair to abandon Ms cross-action, and Ms plea setting up such damages was stricken out, but overruled his motion for an instructed verdict.

The court instructed a verdict in favor of the Canal Company against Blair for the said sum of $738.10 paid by the Warehouse Company into the registry of the court. The jury rendered a verdict in accordance with said instructions.

In the judgment rendered upon the verdict of the jury we find the following recitals:

“It is therefore considered by the court, so ordered, adjudged, and decreed, that so much of said motion of said defendant W. L. Blair, wherein he requests of the court an instruction to the jury that they find that plaintiff take nothing, and that he, the said defendant W. L. Blair, recover of the said plaintiff the said sum of $820.10, on deposit in the registry of this court, be, and the same is hereby overruled, to which action of the court the said defendant W. L. Blair then and there excepted, and thereon duly reserved his bill of exception.
“And thereupon the said defendant W. L. Blair, through his counsel, orally requested the court to permit him to file a trial amendment in this cause, which request the court granted, and then the said defendant W. L. Blair, on the 9th day of January, A. D. 1917, filed in said cause what is denominated his trial amendment, and the court, after having heard same read by said defendant, refused' to permit same to be filed, and ordered same stricken from the cause upon the ground that said trial amendment averred upon the same cause of action as was contained in his answer, which he, the said defendant W. L. Blair had abandoned in open court, and which had been theretofore in the progress of the trial voluntarily withdrawn and discontinued by the said defendant W. L. Blair, and to which action of the court the said defendant W. L. Blair, then and there excepted, and thereon duly preserved his bill of exception.
“And thereupon the said defendant W. L. Blair refused to amend his pleadings, and refused and declined to introduce any evidence in the cause, and the court thereupon instructed the jury to return a verdict for the plaintiff for the amount of money in the registry of the court, less the sum of $82 as attorney’s fees allowed the defendant Union Warehouse & Elevator Company.”

From this judgment W. L. Blair has appealed.

By his first and second assignments it is, in substance, insisted that the trial court erred in finding that the Canal Company owned the money deposited in court and in peremptorily instructing the jury to return a verdict in favor of the Canal Company for said money. The contention of appellant, W. L. Blair, is that the undisputed evidence shows that the Canal Company had contracted with appellant to furnish water for the proper irrigation of his crop of rice; that for such service appellant agreed to pay the Canal Company one-fifth of the rice grown and harvested on the land so watered when the same was grown, harvested, and sacked, and when the Canal Company’s one-fifth part thereof had been marked and segregated as the rice of said Canal Company; that the undisputed evidence further shows that no part of.said rice was ever segregated, marked, and set aside to the Canal Company, but, upon the contrary, all of said rice was placed by appellant in the warehouse of the Warehouse Company as appellant’s property. He further contends that as the Canal Company’s one-fifth part of the rice had not been segregated, marked, and delivered to it, it owned no interest in the rice or the proceeds of a sale of the same for which it could sue, but that if the Canal Company had any claim growing out of the contract with appellant, it was an account or debt only due by appellant to it for water rent. There is no merit in this contention. •'The undisputed evidence ¡shows that the contract between the Canal Company and appellant was, in. effect, that appellant was to plant and cultivate the crop of rice in question; that the Canal Company was to furnish the water to irrigate the same, and that after said rice had matured, appellant was to harvest and sack the same; that one-fifth of the rice so harvested and sacked, equal in quality to the other four-fifths thereof, should be the absolute property of the Canal Company and the other four-fifths the property of appellant; ánd that appellant was to deliver the one-fifth part of the rice belonging to the Canal Company to some public warehouse in Bay City. The undisputed evidence also shows that said rice crop was planted, cultivated, watered, harvested, and sacked as agreed upon by the parties, and that all the rice was delivered by appellant to the Union Warehouse & Elevator Company at Bay City, and that the same was placed in its warehouse, and that thereafter all the rice was sold by the Warehouse Company by the consent of both appellant and the Canal Company; that four-fifths of the proceeds of such sale was paid to appellant; and that the other one-fifth thereof was held by the Warehouse Company until paid into the registry of the court to abide the result of this suit. Under the terms of the contract between appellant and the Canal Company, the Canal Company was the owner of a specified undivided one-fifth part of the rice crop when the same was harvested, as distinguished from a lien. The two parties were joint owners of the rice, one owning one-fifth and the other four-fifths thereof. Texas Produce Exchange v. Sorrell, 168 S. W. 74; Sparks v. Ponder, 42 Tex. Civ. App. 431, 94 S. W. 428; Antone v. Miles, 47 Tex. Civ. App. 289, 105 S. W. 39.

The sale of the whole of the rice having been made by the consent of both parties claiming an interest therein, and appellant having been paid his four-fifths of the proceeds of such sale, the other one-fifth thereof passed into the registry of the court was the property of the Canal Company, in which appellant had no interest, and the trial court properly so adjudged.

What we have already said sufficiently disposes of the third assignment. It is therefore overruled.

The fourth assignment is as follows:

“The court erred in peremptorily instructing the jury in verbal charg-e over the objection of the defendant W. L. Blair, demanding that the court prepare a written charge of the jury in order that he might prepare and save his exceptions to the charge of the court.”

We have reached the conclusion that under the pleadings and evidence the trial court could have rendered no other judgment than the one which it did render; hence the verbal peremptory instruction for appellee, if error, was harmless error for which we will not reverse the judgment rendered.

Another reason for holding the verbal charge harmless is that we have considered all the complaints of appellant as fully as we could have done had the peremptory charge been in writing, and therefore no 'injury is shown to have been suffered by reason of the verbal charge complained of.

We find no error in the judgment of the trial court, and .the same is therefore af- . firmed.

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