author: GRAVES, J.

text:
    SMITH v. SOUTHERN SURETY CO.
    (No. 7308.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 9, 1917.
    Rehearing Denied March 8, 1917.)
    Master and Servant <&wkey;400 — Compensation Act — Action for Death Compensation — Legal Beneficiary.
    Under Compensation Act (Acts 1913, c. 179), pt. 1, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246i), providing that employés of a subscriber shall have no right of action against him, and that representatives and beneficiaries shall look for compensation to the Texas Em-ployés’ Association, etc., and section 8 (article 5246kk), providing that, where death results from injury, the association shall pay the “legal beneficiary” of the deceased employé, etc., and in view of part 1, § 9 (article 52467), a temporary administrator oí a deceased employé survived by legal beneficiaries entitled to compensation for his death cannot maintain an action for such compensation.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Walter T. Smith, temporary administrator, under Compensation Act, to recover compensation for the .death of Chas. A. Lewis, employé, against the Southern Surety Company, insurer. Judgment for insurer, and plaintiff appeals.
    Affirmed.
    ' Stewarts, of Galveston, for appellant. A. G. Moseley, of St. Louis, Mo., and Burgess, Burgess, Germany & Ghrestman, of Dallas, for appellee.
   GRAVES, J.

This is an action brought by Walter T. Smith, temporary administrator of the estate of Chas. A. Lewis, deceased, under an appointment by the county court of Galveston county, with power to institute such action.

The plaintiff’s decedent, Chas. A. Lewis, was on the 17th day of August, 1915, employed by the Standard American Dredging Company upon the dredge boat Houston, which was wrecked and sunk in Galveston Bay by a hurricane of that day. Capt. Chas. A. Lewis, together with 38 other employés upon the dredge boat at that time, was drowned. The Standard American Dredging Company, complying with the Compensation Law of Texas, carried and subscribed for employes’ compensation insurance, for the benefit of all its employés, in the Southern Surety Company.

The plaintiff qualified as administrator of Capt. Lewis’ estate and made claim against the Southern Surety Company for the compensation due the beneficiaries, and, being unable to secure its payment through the Industrial Accident Board, as appears in the petition, he brought suit against the Southern Surety Company for damages for breach of contract.

The defendant excepted to the petition upon the ground that there was no right of action in the administrator to maintain such an action, and the court, sustaining such exception, dismissed the petition, to which order of the court the plaintiff excepted and gave notice of appeal, and he now prosecutes such appeal upon the following assignment of error:

“The court erred in sustaining the exceptions of defendant, which are directed to the right of the plaintiff to maintain this cause of action in the capacity of an administrator, and in dismissing this suit for the reason that such right is specifically given to and vested in this plaintiff as the representative and administrator of the intestate decedent, Ohas. A. Lewis, by the statute of the state of Texas in such cases made and provided.”

The quoted assignment is the only one filed, and both litigants concede that the question there raised — that is, whether or not, under the Texas Compensation Act (chapter 179, Acts of 1913; Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), the administrator of a decedent, survived by legal beneficiaries entitled to distribution of the compensation provided for by law, can maintain an action for such compensation, is the sole question involved in this appeal. We here set out either verbatim or in substance what we regard as the relevant parts of said act:

Part 1, § 3, provides:

“The employes of a subscriber shall have no right of action against their employer for damages for personal injuries, and the representatives and beneficiaries of deceased employes shall have no right of action against such subscribing employers for damages for injuries resulting in death, but such employes and their representatives and beneficiaries shall look for compensation solely to the Texas Employes Insurance Association as the same is hereinafter provided for.”

Section 8, pt. 1, reads:

“If death should result from injury, the association hereinafter created, shall pay to the legal beneficiary of the deceased employe a weekly payment equal to sixty per cent, of his average weekly wages,” etc.

Section 3, pt. 1:

“ * * * Provided, that all compensation allowed under the succeeding sections herein shall he exempt from garnishment, attachment and all other suits or claims, as are current wages now exempted by law.”

Section 9, pt. 1, provides that, if deceased leaves no legal beneficiaries or creditors, the association shall pay all expenses incident to his last sickness, etc., but where deceased leaves no beneficiaries and leaves creditors, the association shall be liable to such creditors for an amount not exceeding the amount that would otherwise have been due beneficiaries, or so much "thereof as might be necessary to take care of the debt.

Looking, then, to all these relevant provisions of the act, as we must do for a proper determination of the meaning of any one considered doubtful from its own terms alone, we cannot agree to the construction placed by appellant upon said part 1, § 3. It seems to us that, under the very plain terms of the act, especially part 1, § 8, the benefits vest absolutely in the legal heirs of the deceased immediately upon his death, and not in his estate. If this be true, then it necessarily follows that the administrator of his estate cannot have any interest in the fund, and consequently cannot maintain an action to recover it. If the decedent had left no legal beneficiaries, but had left creditors, neither of which conditions existed here, then the compensation or fund would have belonged to such creditors, not to exceed the amount due them, but pnly in that event. Such, it seems to us, is not only the evident purpose of the Compensation Act, but its plainly expressed meaning in the sections referred to and quoted. Indeed, appellant concedes, both in his pleading in the trial court' and his brief in this court, “that such decedent was survived by legal beneficiaries, who are entitled to distribution of the compensation provided by law”; yet he insists that, nevertheless, the right to maintain an action for such compensation is still given to the administrator. But, as above stated, we think the conclusion that the absolute ownership of the fund vested at once, upon the decedent’s death, in his heirs, determines the case.

Appellant is temporary administrator of the estate of a deceased person. The claim upon which he sues is by the law creating it the specific property of legal beneficiaries living. The conclusion then is inevitable that the temporary administrator of a deceased person, whose right and interest in the fund provided in the policy terminated upon his death, could have no legal or remedial interest in the subject-matter of the suit as brought. In other words, plaintiff must hold a legal title to the cause of action. 30 Cyc. 21, 32 and 33; section 8, pt. 1, c. 179, Acts 1913; Vernon’s Sayles’ Statutes, ant. 4724; Rivera v. Railway Co., 149 S. W. 223; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Vernon’s Sayles’ Statutes, art. 3279; Angier v. Jones, 28 Tex. Civ. App. 402, 67 S. W. 449; Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 7 Sup. Ct. 757, 30 L. Ed. 825; Lumber Co. v. Hubbert, 112 Fed. 718, 50 C. C. A. 435.

From what has been said it follows that the learned judge who tried the case did not err in sustaining- the exception to plaintiff’s petition ¿nd in dismissing the cause, and that judgment will be in all things affirmed.

Affirmed.
      <5&wkey;For otb-r oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    FERGUSON et al. v. LEIGH, County Judge.
    (No. 7320.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1917.
    Rehearing Denied March 15, 1917.)
    1. Mandamus <&wkey;74(2) — Mandamus Against County Judge — Jurisdiction oe District Court.
    Where the county judge did not act as a court, but merely as county judge, in considering petition filed for election to determine whether a town should be incorporated for free school purposes only, and filed findings of fact, so that there was no question of fact involved at all in his decision, he refusing the petition on legal grounds, the parties aggrieved had the right to 'resort to mandamus against him, and the district court had jurisdiction of their petition therefor.
    [Ed. Note. — For other eases, see Mandamus, Cent. Dig. § 151.]
    2. Schools and School Districts <&wkey;25 — Incorporation op Independent School District-Statutes.
    In view of Rev. St. 1911, art. 2842, providing that the limits and boundaries of a common school district shall never be decreased until after its bonds and the interest shall have been fully paid, articles 2850, 2851, relative to the incorporation of any town or village for school purposes only, do not authorize the incorporation of independent school districts, except whore the territory embraced within the bounds of the proposed district contains a town or village of 200 inhabitants or over, and do not authorize the incorporation of an independent district including territory already embraced in a bonded common school district, the bonds of which are unpaid.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 43.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    Petition for mandamus by J. F. Ferguson and others against W. A. Leigh, County Judge of Walker County. From a judgment for respondent, petitioners appeal.
    Affirmed.
    Dean, Humphrey & Powell, of Huntsville, for appellants. Hill & Elkins, of Huntsville, for appellee.
   GRAVES, J.

This was a mandamus suit instituted in the district court of Walker-county by the appellants, as petitioners, against W. A. Leigh, county judge of Walker county, appellee, as respondent, in which the petitioners sought the writ of mandamus to uompel the said W. A. Leigh, as county judge -of Walker county, to order an election within certain territory described in the petition, to be known as Phelps independent school district, to determine whether said territory should be incorporated for free school purposes only, and also at the same time to order an election for trustees for such independent school district.

On the 30th day of- November, 1915, the petitioners presented their petition for such election to said W. A. Leigh, as county judge, and to said petition Ross Powell and George W. Hall, trustees of common school district No. 9 of Walker county, filed a contest, and said county judge, after consideration of the petition, declined to order the election, and thereupon, in due time, the petitioners instituted this action in the district court of Walker county in the form of an original petition for the writ of mandamus to compel the ordering of said election. Said district court, after hearing the case, refused the relief prayed for. The petitioners filed motion for new trial, which was by the court overruled, and exception was taken, and notice of appeal given to this court.

Upon request, the trial court made up and filed findings of fact and conclusions of law; no question is made in this court as to the correctness of these findings, nor of their being fully supported by the evidence; in fact, the case was submitted to the trial court largely upon an agreed statement of the evidence ; epitomizing for that purpose the findings of the trial judge, we find that said petitioners fully complied with the terms of the law' requiring the county judge to act in the manner requested of him, except in the following particulars, stated in the trial court’s findings in these words:

“I find that there is not within the territory described in said petition a town or village having 200 inhabitants or more, but there are within the entire territory described in said petition 370 inhabitants. Said district has within its boundaries the town of Phelps, which has from 9Ó to 100 inhabitants, and the said petition is signed by more than 20 qualified voters resident within said district.”
“The territory described in said petition includes about 16 square miles of the territory now embraced in common school district No. 9, and said common school district No. 9 has levied a fifteen cent tax and issued bonds to the amount of thirty-five hundred ($3,500.00) dollars, and has levied a maintenance tax of thirty-five cents on the one hundred dollars on the property embraced in said common school district No. 9, and said bonds are for the most part still outstanding.”

The trial court’s conclusions of law were thus stated:

“I conclude as a matter of law that it is not necessary that the town or village proper have 200 inhabitants in order to entitle it to incorporate for free school purposes only under the provisions of articles 2850 and 2851 of the Revised Civil Statutes of 1911, and that the territory described in the petition presented to the said W. A. Leigh, county judge, and in the petition herein, contains the requisite number of inhabitants, and that the petition was signed by the requisite number of qualified voters resident within said district for the time prescribed by law. I conclude that under article 2842 of the Revised Civil Statutes of 1911, the limits and boundaries of said common school district No. 9 cannot be decreased until after the bonds voted for the building of schoolhouses as set forth in the findings of fact herein, and the accrued interest thereon shall have been fully paid, and that therefore, the county judge properly refused to order the election on the petition presented to him, and that the writ of mandamus should be refused to petitioners herein, and it is so ordered.”

We will first consider appellee’s cross-assignment raising the question of the jurisdiction of the district court of Walker county, namely:

“The court erred in overruling appellee’s exception to the petition for writ of mandamus, to the effect that the court was without jurisdiction to hear said petition, because W. A. Leigh, county judge of Walker county, had taken jurisdiction of said petition, heard evidence, and had rendered judgment thereon.”

We overrule this assignment, and hold that said district court had jurisdiction. The general rule is that mandamus lies to compel performance by public officers of duties ministerial in their nature, and where the facts do not call for the exercise of discretion in their performance. The county judge, who was not acting as a court, but merely as county judge, in his consideration of the petition filed by these appellants for the election to determine whether the town of Phelps should incorporate for free school purposes only, filed findings of fact, and there is no question of fact at all involved in the decision of the county judge. He refused the petition on legal grounds, and in such case, we think, there is no question that the parties aggrieved have the right to resort to mandamus. Porter v. State, 78 Tex. 591, 14 S. W. 794; Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62, 2 Am. St. Rep. 505.

The appellants contend that the trial court’s first conclusion of law, holding it unnecessary that the' town or village proper have 200 inhabitants to entitle it to incorporate for free school purposes only is correct, but yet assail its judgment on the ground that the second conclusion holding that, under article 2842, Revised Civil Statutes of 1911, the limits and boundaries of said common school district No. 9 cannot be decreased until said outstanding bonds against it had been fully paid, was erroneous; while upon the other hand the appellee’s contention is the exact reverse.

The determination of the issues thus sharply joined will dispose of every question presented to this court; the two statutes involved and invoked by appellants are as follows:

“Art. 2850. At any time hereafter, it shall be lawful for any town or village which may desire to incorporate for school purposes only, to make application to the county judge for the organization of an independent school district, as provided for by the general statutes governing such cases, and for the election of a board of trustees, as provided in this title, and on receipt of such application it shall be the duty of the county judge to proceed as required in articles * * * and * * * of this chapter.
“Art. 2851. A town or village authorized to incorporate under this chapter, or having two hundred inhabitants or over, may form an incorporation for free school purposes only, which may include within its bounds a town or village incorporated for municipal purposes, the same not having assumed control of the public schools within its limits: Provided, that the territory so incorporated for free school .purposes shall not exceed an area of twenty-five square miles: Provided that said corporation shall be laid out in a square as near as is practicable with reference to the location of the school building; and when so desiring an election may be held under the provisions of this title and chapter; and if, at such election, a majority of the votes cast be in favor of the incorporation, it shall be the duty of the county judge to make return thereof, and cause a record of the result of such election to be made, the same as provided for by articles 1040 and 1041, Revised Statutes of Texas, upon which entry being made, such town or village shall be regarded as duly incorporated for the purpose of establishing and maintaining free .schools therein, and shall, upon, notice to the state board of education by the board of trustees hereinafter provided for, receive such pro rata share of the available school fund as its scholastic population may entitle it to. And provided also that all school incorpora-tions hereafter, formed under the provisions of this chapter shall have the right to levy and collect taxes and issue bonds for school purposes, the same as school incorporations heretofore formed. When a town or village is included in a corporation for free school purposes, and such town or village shall afterwards be incorporated for municipal purposes, it shall not thereby acquire a right to take the control of the schools within its limits out of the hands of the school corporation.”

Applying, now, to these statutes the said antagonistic contentions of the litigants here, we quote in full the second assignment of appellants, as follows:

“The court erred in its second conclusion of law,, holding that the territory embraced in common' school district No. 9 cannot be diminished until the bonds heretofore voted for school building purposes by sai(l common school district No. 9 shall have been fully paid, because the Legislature of the state of Texas has authorized and empowered a town or village to incorporate for free school purposes only, and the only limitation on such right is that the territory so incorporated shall not exceed an area of 25 square miles.”

Likewise the corresponding contrary proposition of appellee is thus fully stated:

“The court did not err in refusing the mandamus prayed for' by petitioners, because petitioners had no right to incorporate said territory into an independent school district, because there was not within said territory a town or village having two hundred inhabitants or more.”

We overrule this assignment of appellants, and at the same time sustain the quoted contrary proposition of appellee. We think appellants misconstrue articles 2850 and 2851 of the Revised Statutes, in contending that said articles authorize the incorporation of independent school districts ad libitum. Said articles do not authorize the incorporation of independent school districts, except where the territory embraced within the bounds of the proposed district contains a town or village of 200 inhabitants or over; nor do said articles authorize the incorporation of an independent district which is already bonded, and which bonds are unpaid. We think counsel for appellants err in their construction of these articles and in overlooking entirely article 2842, which, it seems to us, in plain and mandatory terms, prohibits the incorporation of any part of a district into a new district until the debts outstanding against said district are fully paid. This is manifestly the proper, construetion to be given to these articles, because under the Constitution, when a territory has voted bonds and levied a tax upon the property in that territory for the payment of the bonds, these bonds cannot be repudiated nor impaired by any subsequent act of the Legislature, nor of the people residing in the district. Moreover, the power of a given territory to levy taxes is limited, under the Constitution, and the effect of permitting the incorporation into a new district of territory already included in a district and incumbered with a bonded indebtedness would be to indirectly violate the terms of the Constitution either in repudiating, in effect, the bonds outstanding, or in levying more than the constitutional limit on that part of the territory proposed to be included in the new district.

Said article 2842, Revised Statutes of Texas, reads as follows:

“After said bonds shall have been issued and sold and said tax. shall have been levied sufficient to pay said bonds and the interest thereon as provided above, it shall not be lawful to hold an election in said district to determine whether or not said tax shall be discontinued or lowered, until said bonds, together with interest thereon, shall have been fully paid; nor shall the limits and boundaries of said common school districts ever be decreased until after said bonds, and the accrued interest thereon shall have been -fully paid.”

We think it all the more plain that the Legislature intended this inhibition contained in article 2842 to apply to the independent school districts provided for in articles 2S50 and 2851 because this same specific inhibition is contained in article 2815 of the same act, providing for the establishment of school districts by commissioners’ courts, and in general article 2856b of the same act, providing the manner in which “all independent school districts incorporated for free school purposes * * * may be changed or abolished,” etc.

It may be here noted that no such inhibition as is thus contained in the present law, which is the act passed in 1905 by the Twenty-Ninth Legislature “providing for a complete system of public free schools in Texas,” was contained in the act of 1893 construed as article 3938, Sayles’ Civil Statutes of 1897, by this court in State ex rel. Anderson v. Norwood, 24 Tex. Civ. App. 24, 57 S. W. 875, cited and relied upon by appellants here; that article provided for the subdivision of the county into school districts by the commissioners’ court, and the only inhibition was, “when such districts are once established they shall not be changed without the consent of a majority of the legal voters in all districts affected by such change” ; the court held that such inhibition was against changes by the commissioners’ court only, and did not .operate to prevent those made by the Legislature direct or through its properly delegated authority. A further marked difference between that case and the one at bar was that no question of outstanding and unpaid bonds was there raised or invoked, while here that is the crux of the situation.

While we have found more difficulty in reaching our other stated conclusion that the trial court erred in holding it not necessary that the town or village proper have 200 inhabitants in order to entitle it to incorporate for free school purposes only, under the provisions of said articles 2850 and 2851, we yet think that the proper construction, especially when the validating act of the same statute, article 2855, is read in connection with them. That act is as follows:

“Independent school districts heretofore organized which have not the required population in the town proper, but have such population in the whole independent district, shall be validated by this chapter.”

It seems to us clear that under the law providing for the incorporation of independent districts for school purposes only, in force prior to the enactment of this act in 1905, to wit, article 3994, Sayles’ Civil Statutes of 1S97, there could be no Incorporation of a town or village for school purposes only without the 200 inhabitants, and that the present statute merely amended that one without changing said requirement as to population; indeed, this question, while it may not have been necessary to the decision of that case, was passed upon' by the Court of Civil Appeals in Wilson v. Brown, 145 S. W. 641, in the following language:

“The statute requires that, before the county judge is authorized to order an election to determine whether or not a given territory shall be incorporated as an independent school district, satisfactory proof must be made to him that there is within that territory a town or village containing two hundred inhabitants.”

From the conclusions stated, it follows that the trial court did not err in refusing the writ of mandamus, and that judgment will be in all things affirmed.

Affirmed
      <fcjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    CITY OF GALVESTON et al. v. KENNER.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1917.
    Rehearing Denied March 15, 1917.)
    1. Mandamus &wkey;>154(2) — Petition — SUFFICIENCY.
    A petition by a landowner whose tenement was rented to different tenants to compel the municipality, which controlled the only waterworks system, to install separate meters and connections for the different tenants, is not subject to demurrer because it appeared that the building was furnished with water, and it was not shown that any of the tenants had applied for separate connections.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 297.]
    2. Waters and Water Courses <&wkey;202 — Municipal Waterworks — Regulations.
    A municipality which owns the only waterworks system in a city for supplying the inhabitants with water cannot adopt unreasonable regulations.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 276.]
    3. Waters and Watee Cottkses &wkey;>202 — Municipal Waterworks — Regulations.
    A municipality .which. controlled the only waterworks system in a city adopted a regulation providing that, if a house or building be occupied by several tenants, a water connection shall be made and water service furnished only upon the application of the owner, who shall pay for all the water furnished and supplied to such building, and in no case shall more than one service line and meter be installed in any one building. A property owner whose tenement was leased to different parties demanded that separate connections be furnished his tenants on the ground that the existing method prevented him from apportioning the cost between his tenants, or from depriving one tenant of water service without depriving the others; there being only one service pipe and meter. Held, that the regulation of the municipality was unreasonable and void, making a discrimination between lessors and lessees as to water service, and separate meters and connections should be furnished the several tenants.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 276.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Application by E. B. Kenner for a writ of mandamus against the City of Galveston and others. From a judgment granting the writ, defendants appeal.
    Affirmed.
    Mart H. Royston and P. A. Drouilhet, both of .Galveston, for appellants. Stewarts, of Galveston, for appellee.
   LANE, J.

This suit was instituted by relator, E. B. Kenntir, against the city of Galveston, Lewis Fisher, mayor and president of the board of commissioners of said city, and A. P. Norman, W. E. Shay, George Sealy, and H. O. Sappington, constituting the board of commissioners of said city, and for cause of action alleges:

“That Lewis Fisher, A. P. Norman, W. E. Shay, George Sealy, and H. O. Sappington are now, and have been continuously since about the month of May, 1913, mayor-president and commissioners, respectively, of the city of Galveston, duly elected, qualified, and acting as such, and as such constituting the board of commissioners of said city as provided by law, which said board of commissioners constitute the said municipal government of the said city of Galveston, and are charged with the control and supervision over the city and ah its departments, including the department of waterworks of the city of Galveston.
“That at all of the times herein mentioned the said board of commissioners maintained the only system of waterworks in the city of Galveston for the purpose of supplying the residents of said city with water for domestic and commercial uses, and that it has laid and is maintaining water pipes and water mains in the public streets of said city for such purposes.
“That this relator is the owner and in possession of certain lot of land with buildings thereon located and set upon lots Nos. 8 and 9 in block 505 in the city and county of Galveston, which lot of ground is improved with a building placed thereon for rental purposes, the lower front of such building being divided into four separate and distinct pieces of rental property, and the upper floor being divided and used for hotel purposes; that each of said four separate and distinct divisions of said building on the lower floor, and the upper floor which is used as hotel property is leased by this relator each to a separate and distinct tenant, which tenants each respectively operate the premises occupied by them separately and distinctly from each of the other tenants.
“That the city of Galveston owns and maintains water mains, through which water is supplied to the inhabitants of the city, one of which said mains is contiguous to the property of the relator aforesaid; that water from said mains is at present supplied to the building aforesaid through one main pipe connected with one meter, which meter is used for measuring water for the entire building of this relator, and each and all of the tenants of the leased premises therein.
“That this relator has demanded of the respondents herein that they provide to each of the separate and distinct leased premises and the tenants thereof water connection and service direct with the main of the waterworks operated by respondents, and that a meter be attached to each of such separate and distinct direct connections, and the respondents have wrongfully and unlawfully refused to furnish to this relator and to his respective tenants for use in said building such meters and connections with said water mains; that relator has -offered to pay all costs, charges and expenses of installing such separate connections and meters.
“That it is necessary to the proper use and enjoyment by this relator of his property and building aforesaid that such direct connection and separate mains be furnished by the respondents to each of the separate and distinct apartments of leased premises hereinbefore referred to for the reason that it is utterly impossible for this relator to apportion with any degree of accuracy among the tenants in such building .their proportion of the water used under the present plan, which provides but one meter for the entire building, and further prevents, this relator from cutting off from any 'one of such tenants the water aforesaid through said main without at the same time excluding from the use of said water other tenants in such building.
“That the water system maintained by the respondents herein is the only source of supply available to this relator, and he has no adequate remedy by which to obtain a supply of water for his premises, except by a writ of mandamus to require and compel the respondents to grant his request for the direct connection in separate meters for each of the apartments aforesaid, as hereinbefore set forth. . Separate service of meters and connections is furnished different tenants in one building in various instances, and failure to furnish same to petitioner and his tenants is a discrimination against petitioner and his tenants.
“Wherefore this relator prays that said respondents be cited to answer this petition and that he have judgment against them and each of them, compelling and requiring them and each of them to grant the application of this relator for such direct connection with the water mains, a separate meter for each of the apartments and leased premises aforesaid, and to furnish water through such direct connection and said meters to this relator and tenants of this relator in the building aforesaid; that the respondents and each of them be cited to show the cause why a peremptory writ of mandamus be not issued requiring respondents and each of them to grant the application of the relator herein.”

Respondent answered by special exceptions, alleging substantially:

“That it appears from the petition that the building is already supplied with water in each and every part thereof; that the petition does not stow that the action of the defendant is unreasonable or discriminating; that the petition fails to allege that any tenants of the premises described in said pettiion have ever applied for a water service to the defendants or to the city of Galveston. Respondent further answered that by its charter it was expressly authorized to provide, construct, establish, maintain, operate, and regulate in the city of Galveston a system of waterworks and * * * to adopt rules and regulations for the management of the waterworks .and to make and establish a schedule of water and sewer rates or both and prescribe the mode and manner of construction of the service pipes, alley laterals, and house connections with the water and sewer mains, * * * and that in pursuance thereof the board of commissioners of the city of Galveston have by ordinances made and adopted rules and regulations prescribing the mode and manner of making street and alley connections with water mains in the city of Galveston, and by said ordinance have provided that, if a house or building is occupied by several tenants, the connection shall be made and the water service furnished only upon the application of the owner thereof, who shall pay for all the water furnished and supplied to each house or building, and in no case shall more than one service line and meter be installed in any. one bouse or building; that said ordinance is necessary for the proper conduct of the business of supplying water to the inhabitants of the city of Galveston, and is reasonable in its terms and conditions, and that it applies alike to all persons similarly situated, and that the petitioner is not discriminated against in any manner, shape, or form; that long before the institution of this suit the plaintiff had made application for the installation of a water service to said building, and that said application was granted and said service installed, and since that date the city of Galveston has continued to furnish water to the occupants of the building described in plaintiff’s petition.
“That it appears from the petition that the sole reason for the application for separate and distinct meters for the various tenants is for the sole convenience of the relator, and would work a great hardship and additional expense upon the city of Galveston and would be granting to the relator special privileges not enjoyed by other persons similarly situated.”

The case was tried on the 1st day of February, 1916, and judgment was entered in favor of relator, directing that a writ of mandamus issue requiring defendants to supply a connection with the waterworks of the city of Galveston and a separate meter for each connection to the several portions of the premises.

By appellants’ first and second assignments it is insisted that the court erred in overruling appellants’ special exceptions to plaintiff’s petition: First, because it appears from said petition that the premises of plaintiff are already supplied with water in each and every part thereof; second, because said petition fails to allege that any tenant of any part of said premises has ever applied for a water service to the defendant, the city of Galveston.

The complaint of plaintiff, as set out in his petition, is not that no water is supplied for the premises, but that it is not supplied to the tenants, but to the owner of said premises only, and in a manner and in an effort to compel said owner to pay for all the water used on said premises, and in such an unreasonable manner that said tenants are unable to ascertain how much each of them uses so that each of them may be charged with and pay only for the water used by them, separately. This complaint is specifically set out in the petition. It is also alleged that the owner of said premises has demanded of respondents that they provide to each of the separate and distinct leased premises and the tenants thereof water connection and service direct with the main of the waterworks operated by respondents, and that a meter be attached to each of such separate and distinct connections, and that respondents had refused to make such connections, etc.

It is specially provided by the ordinance of .said city pleaded by respondents that, if a house or building is occupied by several tenants, the connection with the water main shall be made and the water service furnished only upon the application of the owner thereof.

We do not think the petition is subject to the exceptions urged to it, and- therefore the court did not err in overruling such exceptions.

By the third assignment it is insisted that the court erred in finding as a fact that the tapping of the one meter by which all the water furnished to the entire building in question must be measured, already in use, would not afford the relief desired, because the court further finds that plaintiff’s tenants all agree to pay pro rata of the water used. The contention under said assignment is that under such connection as shown the water used by each tenant could be accurately prorated among said tenants in accordance with the amounts used by each of them by tapping the one meter already in use and installing a separate meter in each tenement, and that plaintiff himself could, make such installment, and therefore respondents should not be required to install the separate meters demanded by plaintiff. Respondents further contend that before granting a mandamus a court should be convinced that no other remedy exists, and that, as the evidence conclusively shows that plaintiff could have tapped the one pipe leading from the water main into his premises, and with the same connect other pipes to carry the water to each separate compartment of said building supplied with meters, he is not entitled to the writ prayed for.

In City Water Co. v. State, 33 S. W. 259 (in which a writ of error was denied, 93 Tex. 681), it was held that a corporation organized to supply a city with water is a quasi public corporation subject to the rules of law applicable to such corporations.

In speaking of waterworks owned by a municipal corporation, in the case of City of Houston v. Lockwood, 144 S. W. 685 (in which a writ of error was denied, 106 Tex. 619), the court said:

“The fact that the waterworks in this instance are owned by a municipal corporation does not change * * * the rule.”

It was held in this case that such waterworks were under legal obligation to furnish water to the residents of such municipality who were in need of it.

In Farmer v. Mayor and City Council of Nashville, 127 Tenn. 509, 156 S. W. 189, 45 L. R. A. (N. S.) 240, it is held that water companies must supply water to the inhabitants of the city whose streets it occupies with its mains, but it may adopt reasonable regulations for conducting its business, which are binding upon its patrons, but that when such works are owned by a municipal corporation an ordinance prescribing regulations must be reasonable and adapted to the corporate purposes; that an ordinance enacted by a city authorized to furnish water to its inhabitants requiring all assessments for water consumed to be assessed against the owners of the property furnished with water, instead of the actual consumers, is unjust, unreasonable, and an arbitrary distinction between the inhabitants so as to be void.

As shown by the undisputed evidence, the city of Galveston owns the only waterworks system in said city for supplying the inhabitants with water, and that its mains are laid in the streets of said city, one of them adjacent to plaintiff’s property, and that it had made only one connection with said property and that there are several separate and distinct compartments to said building. It is also shown that the board of commissioners of said city put in force an ordinance by which it is provided, among other things, that if a house or building is occupied by several tenants the water connection shall be made and water service furnished only upon the application of the owner thereof, who shall pay for all the water furnished and supplied to such building, and in no case shall more than one service line and meter be installed in any one building.

The trial court held that such provisions are unreasonable and void. We think such holding of the court is supported by the authorities cited herein, as well as by the great weight of authority. State v. Butte City Water Co., 18 Mont. 199, 44 Pac. 966, 32 L. R. A. 697, 56 Am. St. Rep. 574.

If, then, it was the legal duty of respondents to give plaintiff water connection with its main, as we conclude it was, it was their duty to give such connection as is reasonably necessary to give good and proper service, and such as is usual in such cases, and in such manner as to enable the several consumers to ascertain the amount of water consumed by him, that he may pay for that amount and no more, and the courts should not requite the owners of such property to do that which the law requires of respondents.

What has been said disposes of all of appellants’ assignments.

Having concluded that the trial court correctly held that such regulatory provisions of the ordinance of said city, as relates to the issues presented by this appeal were unreasonable and void, and that it is a duty imposed by law, upon the respondents,- to make the connections demanded by plaintiff, we further conclude that the judgment rendered by the trial court should be affirmed; and it is so ordered.

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

      ifcoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIS, J.

text:
    DURHAM et al. v. HOUSTON OIL CO. OF TEXAS.
    (No. 81.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 8, 1917.
    Rehearing Denied March 7, 1917.)
    1. Adverse Possession <@=>66(1) — Constructive Possession — Possession by Lessee.
    H., through M., his lessee of a league of land, has constructive possession of all of it, for purpose of adverse possession, though at the date of lease M. was in possession of 43 acres of the league under a deed describing it as outside the league, and which till about that time he believed was outside the league, though M. did not, by improvement and cultivation, extend his possession outside the 43 acres.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 371-377.]
    2. Adverse Possession @=70 — Possession by Lessee.
    To put the 5-year statute of limitations in operation under a lease contract, the contract need not be recorded, nor in writing, nor delivered, if in writing, but it is enough if the relation of landlord and tenant under it is created and recognized and understood by its parties.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 394-414.]
    3. Adverse Possession @=>13 — Five-Year Statute.
    One has title under the five-year statute of limitations, having had of record a deed properly describing the land and having paid the taxes for 5 years, with a tenant on the land for such time under a lease contract covering the entire tract.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76.]
    4. Adverse Possession @=60(2) — Degree of Proof.
    Title under the 10-year statute of limitations is not shown by the mere fact that one entered and lived on land for 10 years under some kind of a trade with the original grantee, claiming the land for that time, as evidence that possession was adverse, and not by permission, must be clear and positive.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 283, 284.]
    Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    Action by the Houston Oil Company of Texas against Ralph Dunham and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    R. L. Durham, C. W. líowth, W. R. Blain, and E. B. Easterling, all of Beaumont, for appellants. H. O. Head, of Sherman, and Parker & Kennerly, of Houston, for appellee.
   DAVIS, J.

This suit was brought by the appellee, Houston Oil Company of Texas, against the appellants, Ralph Durham, C. W. Howth, W. S. Bruce, and L. G. Roberts, on May 18, A. D. 1914, in the district court of Hardin county, Tex., to recover possession of the A. W. Smith league in Hardin county This suit, as brought, was not as a statutory action of trespass to try title, but to protect plaintiff’s alleged continuous possession, under claim of right, for 13 years, to the land, against intrusion by defendants on April -20, 1914, without first having evicted plaintiff in any lawful manner, and prayed for a writ of injunction to restrain defendants from in any way trespassing upon the land, or cutting or removing timber therefrom, and from in any way interfering with plaintiff, or those holding under it. On March 9, A. D. 1914, Mary Stockholm, Oliver Keith, George Keith, William Gentz, and Henry Gentz intervened in said cause, making themselves parties defendants, and alleging in their plea of intervention, in substance, as follows: Inter-veners claim to be the owners of 640 acres out of the A. W. Smith league, which league is described in plaintiff’s petition, and that as owners of said 640 acres of land, they placed the defendants R. L. Durham,- C. W. Howth, L. G. Roberts, and W. S. Bruce in possession thereof, and interveners pray that they be permitted to defend this suit; and, answering, the defendants and interveners disclaim as to all of the A. W. Smith league, except 640 acres, and then set up as a cross-action their title to an undivided interest of 640 acres in the A. W. Smith league, under the 10-year statute of limitation, to be ran out so as to include the improvements placed thereon by George Keith, under whom defendants claim. These defendants further set up that S. G. Hanks and others were asserting some kind of a claim to the A. W. Smith league, and prayed that they be made parties to this suit. Thereafter, on June 29th, A. D. 1915, George Womack and others intervened in this suit, claiming the land in controversy against all parties to the suit. The defendants Ralph Durham, C. W. Howth, L. G. Roberts, and W. S. Bruce, and the intervening defendants Mary Stockholm, J. O. Roberts, William Gentz, George A. Gentz, Oliver Keith, and Mrs. Oliver Keith, Arthur Roberts, and Laura Harris, filed their amended answer, setting up by metes and bounds a description of the improvements made by George Keith, and pleaded the 10-year statute of limitation to an undivided 640 acres out of the A. W. Smith league, to be run out so as to include the described improvements, which limitation was claimed to have ripened into a title prior to January 1, A. D. 1S60, and prayed that partitioned be appointed to partition the land. Plaintiff filed its supplemental petition, setting up, in addition to the other pleas, the 5 and 10 year statutes of limitation. When the case came to trial, the interveners, George Womack et al., took a nonsuit, and the defendants and other interveners dismissed their suit against S. G. Hanks et al., and the case went to trial before a jury between the Houston Oil Company of Texas, as plaintiff, and Ralph Durham, C. W. Howth, L. G. Roberts, and W. S. Bruce, defendants, and Mary Stockholm, J. O. Roberts, William Gentz, George A. Gentz, Oliver Keith, and Mrs. Oliver Keith, Arthur Roberts, and Laura Harris, intervening defendants. The case was tried before a jury, and after plaintiff and defendants had introduced their testimony, the court instructed the jury to find a verdict for plaintiff, and which action of the court in so instructing a verdict for the plaintiff, is complained of by defendants, and they have brought the case to us for revision.

Appellants’ first, second, and third assignments of error are as follows:

“(1) The court erred in directing a verdict in this case, because there is no evidence to raise the issue of either three, five, or ten year limitation for any period of time whatsoever in favor of the plaintiff.
“(2) The court erred in instructing a verdict in this case in favor of the plaintiff, because the evidence raises the issue that W. R. Mitchell was not holding the land as tenant of and occupying the land for plaintiff prior to the 11th day of September, 1906.
“(3) The court erred in instructing a verdict in this case in favor of the plaintiff, because the evidence raises an issue that at the time of the execution of the lease on April 3, 1903, it was agreed and understood between W. R. Mitchell and the agents of the Houston Oil Company that it was not to become operative until the Houston Oil Company should give to W. R. Mitchell some legal evidence of their agreement to convey to him a portion of the land on which he was living, and the evidence is that the Houston Oil Company never did comply with this agreement until some time during the year 1910, at which time said lease contract was delivered by W. R. Mitchell to the Houston Oil Company.”

Appellants treat tbeir first, second, and third assignments of error together, and adopt their second assignment of error as a proposition.

Appellee, plaintiff below, upon the trial of the ease, introduced in evidence a deed to it, conveying the A. W. Smith league of land in Hardin county, Tex., dated July 31, A. D. 1901, which deed was filed for record August 17, A. D. 1901. It was admitted upon the trial of the case that plaintiff paid all taxes on the A. W. Smith league in Hardin county, Tex., regularly as they accrued, from 1901 down to the date of the trial.

Plaintiff also introduced in evidence upon the trial of the case, a lease from the Houston Oil Company of Texas to W. R. Mitchell and wife, covering the entire A. W. Smith league of land in Hardin county, Tex., dated April 3, 1903, and filed for record September 27, A. D. 1910. There was also introduced in evidence by plaintiff .upon the trial, a lease contract between the Houston Oil Company of Texas and W. R. Mitchell and wife, dated the 11th day of September, A. D. 1906, covering the A. W. Smith league in Hardin county, and filed for record September 14, 1906.

W. R. Mitchell testified as a witness in the case, among other things, as follows:

“I live upon the Smith league of land in Hardin county, and have for 13 years. At the time of the execution of the lease between the Houston Oil Company of Texas and myself, dated April 3, 1903, already introduced in evidence, I was living on the Smith league, cultivating part of it; and I have lived on that league continuously since that time, and cultivating some of the land every year since the execution of the lease as tenant of the Houston Oil Company of Texas, and I am still on the league as their tenant.”

This witness also testified further, as follows:

“At the time I executed the lease in 1903, I had bought a piece of land, and that was in conflict with the Smith league, but it was called at that time the Cglesbee survey. I was. on that land for some time before I entered into this lease with the Houston Oil Company. I dis-remember exactly how many acres the Oglesbee tract consisted of, but it seems to me like there was forty some odd acres. I think I bought the Oglesbee tract in 1902. At the time I made the deal for the place, a man by the name of Pickett lived in the house. It was an old settled place, and I think Mr. Oglesbee first settled it; I couldn’t really tell you how long he lived there. I was living in the country, but I don’t remember just how long he lived there, but it was some 8 or 10 years. Mr. Pickett had been there but a short while when I bought. Oglesbee had taken a lease contract and moved over to his camp, and Pickett just lived there while he was gone; and there was a clearing on the land when I went there of some 8 or 10 acres under fence. There was a house on the land. That was about 1 year before I signed this lease. My wife and I did not, in fact, deliver that lease to the Houston Oil Company until about the expiration of the lease. I entered into the lease of 1906 a good while before I delivered the other one to the Houston Oil Company. I still held the 1903 lease. I delivered the lease of 1906, but not the other at that time. It was a year afterward that I delivered it. I think I delivered the lease when we entered into an agreement before I got the deed and recorded it, but I did not deliver the lease until I went at the expiration of the time and demanded the deed. At the expiration of 5 years they were to convey to me this land, and then I was to deliver the lease. I cannot say positively whether I delivered that lease until they delivered the deed or not. In-1906 I made another lease, which was put on record, it is true; I think the 1903 lease was never put on record, until I got the deed in 1910. The agreement when I executed the 1903 lease was that it was to remain in my possession there; that I was not to deliver it until they delivered me some written evidence of title, or an agreement to convey me a certain portion of land. I don’t believe there was any other instrument showing my title to the land possessed until this deed in 1910. The 1906 lease was a separate lease altogether, and had no connection. I still retained possession of the first lease. They were to give me a written agreement to deed me a portion of the land before I surrendered my; possession of adverse claim. The Houston Oil Company found me in possession in 1903, and challenged my possession, and I agreed to hold it for them, provided they would give me some written evidence of their intention subsequently to convey a portion of the land to me. In 1910 I received the deed from the Houston Oil Company. I then had in cultir vation about 12 or 15 acres. At the time I made the agreement with Copley in 1903, we agreed, among other things, to change the lines of the land I was to get, and instead of taking the Oglesbee tract as it lay, I was to take a part of it and a part of the Smith outside those lines. All of the Oglesbee field was included in the field notes of the deed I got in 1910. After we changed the lines I included the Oglesbee field and all of my improvements. We made the agreement to change the line in 1903, the agreement with Mr. Copley, who represented the Houston Oil Company. We did not survey the land, but simply ran around it with a compass and marked it off, the way we wanted it to be. That was done in 1903. That was done in order to get the balance that' lay on the Smith outside the Oglesbee claim, and also .to get in tillable land ; more than had in the way the original tract lay; the original tract was right on the Smith league. The Oglesbee tract is on the Smith, not only the inclosure, but the entire tract. The original lease in 1903 was not executed in duplicate, and the company did not have a copy; I kept the only copy. I acknowledged it on April 3d before W. W. Dies, and my wife acknowledged it before Justice of Peace Halcomb. I was not to have any land until the expiration of 5 years. I held possession of the lease for 5 years, and later got a deed for the land. I held possession ever since for the oil company; been right there on that place- continuously since 1902. In 1910 I came down and made arrangements with the Houston Oil Company to send somebody up there to run the lines, but at that time I entered into the agreement with Mr. Copley. We agreed for the lines of the land to be changed, and when Mr. Cook surveyed it, I showed him where Mr. Copley had agreed to give me this land. My tract was not laid off, nor the lines placed originally; we just walked around it, and I showed Mr. Copley how I wanted the lines run out, and he agreed that the company would give it to me that way. We did not run definite lines, because we did not know just where they would go to; we didn’t measure the land off, just walked around it.”

Appellants contend that the appellee could not mature a limitation title under the 5-year statute of limitation under the lease dated April 3, A. D. 1903, for the reason that this lease, under a verbal contract, was not to be delivered until the Houston Oil Cpm-pany made W. R. Mitchell a deed, or gave him some written agreement to convey to him a certain portion of the land; that said lease was neither delivered nor recorded until some time in 1910, and was not therefore in effect; and for the further reason that at the time of the execution of this lease, dated April 3, 1903, W. R. Mitchell was then living upon and claiming 43 acres of the land by deed from C. B. Oglesbee and wife, describing same, and that after the execution of said lease, the said Mitchell did not, in any way extend his possession by improving or cultivating any land outside of the tract of land for which he had a deed, and that W. R. Mitchell continued to render and pay taxes upon this land until 1910, when the Houston Oil Company made him a deed.

Appellants contend that the law, as stated in the ease of Holland v. Nance, 102 Tex. 177, 114 S. W. 346, should control under the facts in this case. The deed from Ogles-bee and wife to W. R. Mitchell, dated December 3, 1901, describes the land therein conveyed, as follows:

“Beginning on south line of Duncan league; thence west to east line of the Peveto; thence south to corner M. Cottle survey; thence east to line of David Choate; thence north to northwest corner of David Choate; thence east to the west line of the A. W. Smith; thence north with said line of A. W. Smith to place of beginning.”

Thrus, it will be seen that the description in this deed locates the 43 acres of land therein conveyed adjoining the A. W. Smith league on the west, and not on the A. W. Smith league, and at the time of the execution of this deed, the grantee,- W. R. Mitchell, believed that the 43 acres purchased by him from Oglesbee was no part of the Smith league, but before or at the time of the execution of this lease discovered that he was upon the Smith league. We do not think that the rule, as laid down in the ease of Holland v. Nance, is applicable to the facts of this case.

The Court of Civil Appeals, in the case of Hanks v. Houston Oil Company of Texas, 173 S. W. 635, in passing upon this identical lease, the other facts in the case on the question of limitation under the lease being almost identical with the facts in this case, held that this lease, under the facts, would support the 5-year statute of limitation, and cited Bowles v. Brice, 66 Tex. 730, 2 S. W. 729; Collier v. Couts, 45 S. W. 485; Frazier v. Houston Oil Co., 161 S. W. 20; Parker v. Cockrell, 31 S. W. 221; Cook v. Coleman, 33 S. W. 756.

We do not understand that in order to put the 5-year statute of limitation in operation under a lease contract, the same must be recorded, or that the lease contract must be in writing, or, if written, must be delivered; but it will be sufficient if the relation as landlord and tenant under the lease contract is created and recognized and understood by the parties thereto.

We are of the opinion that the undisputed evidence shows title in appellee, by virtue of the 5-year statute of limitation, under the lease contract, dated September 11, A. D. 1906. Appellee had its deed of record properly describing the land, paid all the taxes thereon for more than 5 years, with a tenant upon the land under a lease contract covering the entire league, for more than 5 years prior to the filing of this suit.

We are also of the opinion that the undisputed evidence clearly shows title in ap-pellee under the 10-year statute of limitation.

We do not think that the testimony offered by defendants raised the issue of title in them under the 10-year statute of limitation because of the occupancy of George Keith. The testimony of Mrs. Mary Stockholm, a daughter of George ICeith, was of the only witness who testified to the conditions under which her father, George Keith, entered upon the A. W. Smith league of land, and his status in relation thereto. The substance of her testimony affirmatively shows that George Keith entered npon the A. W. Smith league, under some kind of a trade with the original grantee, A. W. Smith, the nature of which trade she did not know. Can it be claimed under, this state of facts that because it could be established that George Keith lived upon the land for 10 years under some kind of a trade prior to 1860, and claimed 640 acres of land for 10 consecutive years, he would complete a title in himself to 640 acres of land under the 10-year statute of limitation? We think not. Evidence to indicate that the possession was adverse; and not by permission, must be clear and positive. Callan v. Walters, 190 S. W. 829.

This disposes of all of appellants’ assignments of error, and we are of the opinion that the trial court did not err in directing the jury to find a verdict for the plaintiff, and the judgment of the lower court is therefore affirmed.
      CKxsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    DERMOTT TOWNSITE CO. et al. v. WOOTEN et al.
    (No. 8529.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 24, 1917.
    Rehearing Denied March 24, 1917.)
    1. Railroads <S=67(2) — Property—Bond fob Title — Reoovert—Right of.
    Where a railroad company which was the real party_ in interest was not entitled to demand specific performance of a contract for the conveyance of lands, it cannot recover on a bond for conveyance.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 158.]
    2. Railroads <&^G7(2) — Property — Bond foe Title — Findings—Materiality.
    Where a railroad company which was the real party in interest might claim lands under a contract for their conveyance, though not intended for townsite purposes, a finding in an action on a bond for conveyance to the effect that the company did not intend to use the lands for a townsite is immaterial.
    [Ed. Note. — For other cases, see Railroads, Cent.,Dig. § 158.]
    3. Railroads <§^72(3) — Property — Conveyance.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6537, provides that a railroad company shall have the right to purchase, hold, and use such real estate as may be necessary for the construction and use of its road, and to convey the same when no longer required for such use, while article 6538 declares that any railroad company shall have the light to take, hold, and use voluntary grants of real estate as shall be made to it in aid of the construction and use of its railway. Articles 5439-5441 authorize a railroad company to acquire lands for townsite purposes. Seld, that an agreement by a railroad company to construct sidings, switches, and depot, etc., near lands owned by a townsite company in consideration of a conveyance to it of lands, is valid and enforceable, though the railroad company did not intend to use the lands so acquired for a townsite; it being authorized to receive them as an aid for construction.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 171.]
    4. Trial <S^349(1) — Special Issues — Submission.
    The refusal of the court to submit a special issue unsupported by the evidence or pleadings is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 823.]

      5. RailRoads «=>67(2) —Property —Voluntary Grants. _
    _ Under Vernon’s Sayles’, Ann. Civ. St. 1914, art. 6538, providing that railroad companies may receive voluntary grants of land to aid in construction, it is not improper for a railroad company to receive such a grant, though it intended to hold the land for an enhanced price, and then dispose of it; hence in an action on a bond for conveyance of land to a railroad company, a special issue submitting the question whether the company in contracting for the land did so as a matter of speculation and not in aid of its construction, is erroneous as tending to mislead the jury.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 158.]
    Appeal from District Gourt, Mitchell County ; W. W. Beall, Judge.
    Action by H. O. Wooten and others against the Dermott Townsite Company and others. Prom a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Shepherd & Sandusky, of Colorado, Tex., for appellants. Yonge & Yonge, of Snyder, and Royall G. Smith and T. R. Smith, hoth of Colorado, Tex., for appellees.
   BUCK, J.

This is the second appeal of this ease, our opinion on the first appeal being found in 178 S. W. 598, to which we refer for a full statement of the pleadings. In that opinion, we held that the general demurrer to plaintiffs’ petition should not have been sustained, and the judgment of the court below was reversed and the cause remanded. Upon the second trial, the cause was submitted to the jury on special issues, and plaintiffs recovered judgment upon the bond given, and defendants appeal.

In response to the issues submitted the jury found: (1) That the error as to the number of the section in which the 150 acres to be conveyed was located was one of mutual mistake, not due to the negligence of either party, and that the section number intended was 399, instead of 398, as given in the bond; (2) that defendants L. E. Basse-ter and R. H. Booney were not partners in the Dermott Townsite enterprise at the time the bond in question was executed; (3) that plaintiffs did not contract for the 150 acres for the purpose of platting a townsite. Inasmuch as it appeared both by the pleadings and evidence that defendants were unable to comply with their contract to convey title to the 150 acres to plaintiffs, because they did not have such title at the time of the suit, plaintiffs, in a second count, prayed for recovery on the $2,000 bond given, and a judgment was given by the court for plaintiff Wooten, for the use and benefit of his co-plaintiff, the Roscoe, Snyder & Pacific Railway Company, for a reformation of the contract and bond as prayed for, and judgment in their favor against defendants Basseter and Booney as sureties for the full sum of $2,000, with interest from November 16, 1912, and a judgment in favor of Booney against his codefendant Basseter for the same amount, with costs of suit.

While appellants have presented in their brief five assignments, the main and practically the only question involved is the right of a railway corporation to enforce an exec-utory contract for the conveyance to it of real estate under the circumstances shown in this case.

It will be remembered, as is more fully shown in the opinion on the former appeal, that plaintiffs alleged their full compliance with the terms of their contract to construct sidings and such switches as should he necessary to transact its business, and a depot building on the railway company’s line adjacent to the townsite of Dermott. The evidence fully sustains this allegation of compliance with the terms of said contract on the part of the railway company. Therefore it follows that the railway company was entitled to a judgment of specific performance, and, in case such judgment should be ineffective because of failure of title to the land involved, to a recovery on the bond given it to guarantee the performance of defendants’ agreement to convey, unless the railway company is so restricted by its charter provisions or by statutory inhibition that it cannot acquire and hold title to lands under the circumstances stated. If so prevented by statute or charter provisions then the railway company is in no position to insist upon a recovery on the bond, for if the contract was void, the bond executed to secure it was void also. Edwards County v. Jennings et al., 89 Tex. 618, 35 S. W. 1053. Article 6537, Vernon’s Sayles’ Texas Civil Statutes, provides that a railroad company shall have the right to purchase, hold, and use such real estate as may be necessary for the construction and use of its railway, etc., and to convey the same when no longer required for such use. Article 6538 provides that such railway corporations shall have the right to take, hold, and use such'voluntary grants of real estate as shall be made to it “in aid of the construction and use of its railway,” etc. If the construction can reasonably be given to this contract on the part of defendants to convey, and on the part of plaintiffs to receive, the land in controversy, that such conveyance or donation was “in aid of the construction and use” of plaintiff railway, it would then become immaterial as to whether said railway company purposed at the time of said contract to use the land mentioned for townsite purposes, as provided in articles 5439 to 5441, inclusive, of Vernon’s Sayles’ Texas Civil Statutes. Hence the finding of the jury in answer to the special issue submitted by defendants that the plaintiffs did not contract for said 150 acres of land for the. purpose of platting the same into a town-site would be a finding upon an issue immaterial to the proper disposition of this ease, and hence such finding would not affect the correctness of the judgment rendered. Such a finding would not exclude nor be inconsistent with the finding that it was the purpose of the railway company and the defendants that the donation of land should be made in aid of the construction of the railway company's lines. Plaintiffs pleaded, in effect, though perhaps not in so many words, that such conveyance or donation was in aid of the construction of the railway company’s lines, in that such pleadings stated that it was a part of the contract between plaintiffs and. defendants that the plaintiff railway company should construct the sidings, switches, depot, etc., near to and adjacent to defendants’ townsite company, and that in consideration of and in part compensation for such construction on the part of the railway company the defendants agreed to convey the land in controversy. In the case of Township of Rock Creek in the County of Jefferson v. Strong, 96 U. S. 271, 24 L. Ed. 815, the Supreme Court in discussing a provision of a Kansas statute similar to the one here under consideration said:

“Like all expressions of legislative will, this provision of the act must receive a reasonable construction, and we cannot doubt that in the grant of power to aid in the construction of railroads or other works of internal improvement is included authority to assist in the construction of depots and side tracks of a railroad. Such constructions are constituents — essential parts of every railroad, without which it would be incomplete and incapable of serving the uses for which it is intended. The cost of building them is always, and properly, charged to construction account, and not to repairs or expenses of operation; and a mortgage of a railroad, without further description than such as is necessary to indentify it, covers its sidetracks and depots.”

In U. S. v. D. & R. G. Ry Co., 150 U. S. 1, 14 Sup. Ct. 11, 37 U. Ed. 975, the Supreme Court, in construing an act of Congress by which railroads were granted the right of way through public lands of the United States, and the use of timber growing thereon,' “necessary for the construction of the railroad,” held that the language quoted conferred the authority on the railroad to use such timber in the construction of station houses, water tanks, etc., necessary to efficient seryice on the part of such railroad. In this connection Justice Jackson, speaking for the court, says:

“In its ordinary acceptation and enlarged sense the term ‘railroad’ fairly includes all structures which are necessary and essential to its operation. As already stated, it was not the intention of Congress to aid in the mere construction of the roadbed, or roadway, but to aid in the construction of the railroad as such, which term has a far more extended signification than the mere track, or roadway. * “ * It is no forced interpretation to hold that the right to take timber was intended, to aid in the erection of structures without which the railroad would have been practically useless.” *

See, also, U. S. Trust Co. v. A. & P. R. Co., 8 N. M. 673,. 47 Pac. 725; State v. Commissioners, 56 Conn. 308, 15 Atl. 756; Wooten v. Dermott Town-Site Co., 178 S. W. 598, and cases there cited.

Hence we overrule appellants’ first, fourth, and fifth assignments.

In the second and third assignments, error is urged to the refusal of the court to submit certain tendered special instructions involving the question as to whether the plaintiffs, in contracting for the 150 acres of land, did so as a matter of speculation, and not in ai'd of its construction. Under the two assignments last mentioned, appellants cite no testimony requiring the submission of the special issues tendered and refused. In this state of the record, we cannot hold that there was error in the refusal of the court to submit such issues. The only statement under the third assignment purporting to set out facts or pleadings is a reference to the statement under the first assignment, which does not in our opinion show the propriety of the charge requested. Under the second assignment there is no statement.

The testimony of H. O. Wooten and other witnesses for plaintiffs supports the conclusion reached by the jury that the land was not specifically intended for townsite purposes, or to be 'directly used by the railway company in connection with its tracks, depot, etc.; but we do not understand that, in order for such a conveyance to be valid, it would be necessary that such purpose and intention be shown. If the proffered donation of the land was accepted by the railway company in consideration of its making the improvements pleaded and shown, and such improvements were properly a part of the “construction” of the railroad, as we think undoubtedly was the case, the fact that the railway company might have intended, at the time of the making of the contract, to sell the land so offered in the form of a bonus would not invalidate the contract between the railway company and the defendants. Or the fact that the railway company expected to hold the land for a limited time until its value should be .enhanced by the development of the town expected to be built at Dermott, and,'incidentally, to make a profit out of the sale thereof, would not exclude the idea that said land was contracted for “in aid of the construction and use of its railway,” as authorized by article 6538, supra. Hence we conclude that, in any event, the definition given in the tendered issue shown in the second assignment, to wit, “By the term ‘speculation’ is meant that the same was not for the purpose of carrying out any of the objects of the Roscoe, Snyder & Pacific Railway Company for which it was incorporated, but was taken or contracted for with a view to making a profit out of the probable future enhanced value thereof,” would have been misleading to the jury, and on that account irrespective of the failure of appellant to show evidence properly calling for the submission of an issue upon this point, the issue as tendered was misleading and properly refused.

All assignments are overruled, and the judgment is affirmed.
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author: CONNER, C. J.

text:
    GRAVES v. McCOLLUM & LEWIS.
    (No. 8504.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 20, 1917.)
    1. Venue <©=328 —Action by Buyee — Place oe Domicile. .
    Where plaintiffs purchased cattle m Tar-rant county, giving draft on a Comanche county hank in payment, their action for defendants false representations that the cattle were sound should be brought in Tarrant county, it not being claimed that defendants knew the falsity of their statements, and it was immaterial that the draft was payable in the other county, m view of Rev. St. 1911, art. 1830, providing, for bringing suit in county where defendant resides, except in certain specified cases including fraud.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 42.]
    2. Venue <©=331 — Place oe Domicile — Statute — Bueden of Peoof.
    Since Rev. St. 1911, art. 1830, provides for bringing suit in county where defendant resides, except in specified cases, .plaintiff has the burden of showing that his right to. sue in another county comes within the exception.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 46.]
    3. Venue <©=314 — General Rule — “Cause of
    For purposes of venue, the cause of action is composed of plaintiff’s primary right and defendants’ act or omission, and if both occur m one county, the entire cause arose there, and the fact that the measure of damages requires evidence of matter arising elsewhere is immaterial.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 21, 27.
    For other definitions, see Words and Phrases, First and Second Series, Cause of Action.]
    Appeal from District Court, Comanche County; J. H. Arnald, Judge.
    Action by McCollum & Lewis against Herbert Graves. Judgment for plaintiffs, and defendant appeals.
    Reversed, and cause transferred to district court of Tarrant county.
    Bryan, Stone & Wade and W. C. Blalock, all of Ft. Worth, for appellant. H. N. Good-son, of Comanche, for appellees.
   CONNER, C. J.

The material question presented upon this appeal is one of venue. The question arises from the following state of facts as substantially alleged and proven: The appellees, McCollum & Lewis, resident citizens of Comanche county, came to Ft. Worth and purchased from the appellant, Herbert Graves, who is a resident citizen of Tarrant County, Texas, 96 head of cattle, agreeing to give therefor the sum of $2,100. At the time of the purchase and sale referred to, Herbert Graves, or his salesman, falsely represented the cattle to be “safe cattle” and free from disease, and the appellees purchased upon the faith of those representations. It was found by the trial court that the cattle at the time of the sale were affected with Texas fever, from which some 31 of them later died in Comanche county, and for the purchase price of which appellees recovered judgment below. Prior to the sale appellees alleged, and there was evidence tending to so show, that axipellant was informed that payment for the cattle would he made by means of a check on a Comanche hank, and that upon completion of the sale, the appel-lees drew the contemplated check or customer’s draft, which was deposited by appellant in a Ft. Worth bank, and later in due course collected from the Comanche bank upon which it had been drawn. The trial court’s conclusion on the issue of venue, which had been duly presented by appellant,' is in the following language:

“I sustain the venue of this case in Comanche county because the contract for the purchase of the cattle in question was not consummated until the- payment of plaintiffs’ cheek, which took place at the office of the Farmers’ & Merchants’ National Bank in the county of Comanche and because the fraud in question took effect and operated in said Comanche county, Tex., where the money was paid by the bank on behalf of the plaintiffs for said cattle.”

While.there are some expressions in the case of Landa v. Hunt, 45 S. W. 860, which seem to support the trial court’s conclusion, we yet think that he was in error.. Our statute (article 1830), so far as necessary to quote, provides that:

“No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases, to wit. * * * 7. In all cases of fraud * * * in which cases suit may be instituted in the county in which the fraud was committed, * * or where the defendant has his domicile.”

It is thus seen that the general rule provided by the statute confers upon an inhabitant of this state the right to be sued in the county of his domicile, and that the right of a plaintiff, when it exists, to sue him elsewhere constitutes an exception to the general rule. The right of the appellees, therefore, to maintain suit in Comanche county being maintainable, if at all, by virtue of the exception above quoted, the burden was upon them under the appellant’s allegations to bring themselves clearly within the exception. Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S. W. 25; Cannel Coal Co. v. Luna, 144 S. W. 721; Pecos & N. T. Ry. Co. v. Thompson, 106 Tex. 456, 167 S. W. 801; Durango Land & Timber Co. v. Shaw, 165 S. W. 490.

It is undisputed in the evidence, and the court specifically found, that the statements and representations of the appellant, Graves, and of his agent, regarding the condition of the cattle, and the giving of the check by appellees, all took place at appellant’s stock pens in Ft. Worth and In Tarrant comity. There was no finding on the part of the court that at the time of the false representations alleged the appellant, Graves, or his agent, McDaniel, knew that the representations made by them as to the condition of the cattle were false, and, so knowing, made them with the fraudulent purpose of thus abstracting by means of a check, money belonging to appellees in the Comanche bank. Had it been so proven or found by the trial court, then it could doubtless be said that appellant was guilty of swindling under the terms of our Penal Code on that subject, and hence that there would have been such a fraud or crime within the contemplation of exception No. 7 under article 1S30, as would have authorized the maintenance of the suit in Comanche county. But in the absence of such proof'or findings, as it seems to us, it cannot be so said. The false representations were all made in Tarrant county, the sale there occurred, and the check was there delivered and accepted by appellant, and . appellant there delivered the cattle to appellees, and the sale seems to have been there entirely closed. Presumably, of course, appellant expected the check to be paid by the Comanche bank; but there is nothing in the evidence to show that the sale was conditional, or that appellant retained any right of control over the cattle after their delivery to appellees pending the collection of the check. When the check was paid as contemplated by the parties, the payment for the cattle related back in effect to the time of their delivery to appellees so as to then at least vest in them full title to the cattle from the moment of delivery. It is said in 40 Cye. p. 82, that:

“For the purposes of venue, as generally, the ‘cause of action’ may be regarded as composed of two elements, the primary right of plaintiff and the act or omission on the part of the defendant without which there would be no cause of action or right of recovery against him. If the elements are both found in one county, the entire cause arose there, and the fact that the measure of plaintiff’s damage requires evidence of a matter arising in another county is without effect in determining the place where the cause arose.”

Applying the principle thus stated, it would seem that in the case before us appellees’ “cause of action” was fixed by the oceurrenc-;s in Tarrant county, even before the payment by the Comanche bank of the check they drew thereon, and the fact of such payment was material, only in the determination of the extent of appellees’ damages. To illustrate, let it be supposed that in fact the check had not been paid, and that appellees’ money was still in the Comanche bank. Nevertheless, if appellant, by means of false and fraudulent representations induced them to purchase cattle which, without their knowledge, were diseased, and in the care of which, as shown by the evidence in this case, they expended certain sums of money in the effort to avoid loss, they certainly would have had the right to sue. Indeed, in the case before us, appellees sued for and recovered a number of items of expense such as indicated in addition to the value of the cattle which in fact died from disease. So that, on the whole, we conclude that the court erred in overruling appellant’s plea of privilege, and that in accordance with the statute so providing, the judgment should be reversed, and the venue of this cause now and here transferred to the district court of Tarrant county. See Henne & Meyer v. Moultrie, 97 Tex. 216, 77 S. W. 607; Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323; Cloyd v. Sacra, 175 S. W. 456.

Judgment reversed, and cause transferred to district court of Tarrant county.
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