author: RICE, J.

text:
    WITHERSPOON et al. v. STALEY et al.
    (Court of Civil Appeals of Texas. Austin.
    March 12, 1913.
    Rehearing Denied April 16, 1913.)
    1. Mines and Minerals (§§ 53, 58) — Oil and Gas Lease — Unilateral Contract — Mutuality-Option.
    The owner of certain oil land executed a written instrument by which, for $25 and certain royalties, he granted, etc., to S. all the oil, gas, and other minerals under the land, to hold for five years from the date of the instrument, and so long thereafter as oil, gas, and other minerals were found in paying quantities, provided if operations were not commenced with diligence within 60 days from October 30, 1910, the grant should immediately become void, except that S. might prevent such forfeiture from year to year by paying $25 every 60 days until the oil well was commenced, or until shipments from the mines had begun; that the grant was not intended as a mere franchise, but as a conveyance of the property described for the purposes mentioned. Held that, since the instrument did not bind S. to do anything, it was a mere unilateral contract, constituting nothing more than an option, which terminated on the failure of S. to perform the conditions.
    [Ed. Note. — Eor other cases, see .Mines and Minerals, Cent. Dig. §§ 147, 148, 168, 169; Dec. Dig. §§ 53, 58.]
    2. Mines and Minerals (§ 79) — Oil and Gas Lease — Eoreeiture — Payments — Receipt.
    Where the time within which an option to continue an oil and gas lease could be exercised by the payment of $25 to the landowner expired January 28, 1911, a deposit of such sum in a bank to the credit of the landowner on January 30th was ineffective to continue the lease, though a receipt for the previous payment, not in accordance with the terms of the lease, improperly recited that it continued the lease to January 30, 1911; and the landowner having refused to accept the credit the option was terminated.
    [Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. § 209; Dec. Dig. § 79.]
    3. Mines and Minerals (§ 79) — Oil and Gas Lease — Eoreeiture — Payment — Estoppel.
    Where an oil and gas lease could have been continued, by its terms, by a payment of $25 to the lessor on January 28, 1911, but the amount was not deposited to the landowner’s credit in a bank until January 30th, and, though the. landowner did not at once repudiate it, the iessee did nothing, except,' on January 30, 1911,' to haul pipe to the land, where it still remained, and on Eebruary 3d written notice was given the lessee of the landowner’s refusal to accept the payment, and declaring the contract forfeited, the landowner was not estopped by his delay to enforce such forfeiture.
    [Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. § 209; Dee. Dig. § 79.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by C. L. Witherspoon and others against W. H. Staley and others. Judgment for defendants, and complainants appeal.
    Reversed, with instructions to render judgment in favor of complainants.
    'See, also, 138 S. W. 1191.
    W. J. McKie and Callicutt & Call, all of Corsicana, for appellants. Richard Mays, of Corsicana, for appellees.

      H’or other oases see same topic and section. NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

This suit involves a contest between two rival claimants for the right to prospect for and develop oil, gas, coal, or other minerals underlying a tract of 245 acres of land out of the MeNeal survey in Navarro county, basing their respective claims thereto upon certain contracts between themselves and the owners thereof. It was alleged by appellant Witherspoon that on the 30th of October, 1910, Dr. Erank Hines, the owner of said land, leased to W. H. Staley, one of the appellees herein, the mineral rights thereunder, said contract reciting that said Hines, in consideration of $25 cash to him paid by said Staley, and certain other consideration thereinafter set forth to be performed by said Staley (among which were the delivery and payment to said Hines of one-eighth of the oil produced and four cents per ton for all coal mined and marketed, as well as the payment of $100 per year for the product of each gas well), granted, bargained, sold, and conveyed to said Staley, or his heirs and assigns, all the oil, gas, coal, and other minerals under said land, to have and to hold the same to said Staley, his heirs or assigns, for the term of 'five years from the date thereof, and as long thereafter as oil, gas, and other minerals were found in paying quantities therein, provided, in case operations for either the drilling of a well for oil, gas, mining, or other minerals was not commenced and prosecuted with due diligence within 60 days from date thereof, then said grant should immediately become null and void as to both parties; also providing that said Staley may prevent such forfeiture from year to year by paying to said Sines the sum, of $25 every 60 days until such well is commenced, or until shipments from such mines have begun, which payments could be made at the First National Bank of Corsicana, Tex., or payable directly to said Hines. Said contract further provided as follows:' “This grant is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purposes herein mentioned, and it is so understood by both parties to this agreement.” There were other provisions not deemed important, for which reason they are not recited; but the entire contract is set out and may be found in the ease of Witherspoon v. Staley, 138 S. W. 1191.

It was further alleged that said Staley did not commence operations thereunder within 60 days, but that on the 30th of November, 1910, he paid to said Hines $25, which ■ was • accepted by him, whereby the time for development was extended until the 27th or 28th of -January, 1911, but that no development or further payment was made' by said ■ Staley within such period; whereupon said Hines, on the 3d of February, 1911, declared said contract forfeited and forbade Staley’s entrance upon said land for the purpose of prospecting for or developing oil, gas, or other minerals thereon; and on the same day said Hines and wife made a somewhat similar contract with said appellant,' conveying such mineral rights under said land to him, and at the same time notifying Staley of what he had done, and likewise informing him that, in the event he should undertake to enter upon said land for the purpose of developing the same, he would claim as his own the entire fruits of his efforts, and further alleging that, notwithstanding such action upon the part of said Hines, said Staley, disregarding his (Wither-spoon’s) rights, proceeded to sink a well upon said land for the purpose of procuring oil, and would, if not restrained, succeed in so doing, and in draining the oil under an adjacent tract upon which appellant likewise had a lease and was operating a well, to his great damage. He further alleged that, notwithstanding it was the duty of said Hines to have prevented any attempted development of said land for oil or other minerals by said Staley, he had failed to do so, praying that a writ of injunction should issue against said Staley, preventing him from further prosecuting operations on said land under and by virtue of his alleged contract, and for a cancellation thereof, and praying the establishment of his own contract with Hines and wife, hereinbefore referred to.

Said Staley and one T. N. Barnsdall, who, it seems, was interested in the Staley contract, jointly answered, urging certain special exceptions, a general denial, and specially answered, asserting that their contract had not in fact expired, because the required payments had been made and work begun within due time; wherefore their contract was superior to that of appellant Wither-spoon, and should prevail.

Hines and wife, who were made parties defendant, likewise answered, setting up substantially the same facts as those relied upon by appellant Witherspoon, and prayed for similar relief. .

There was a jury trial, resulting in a verdict and judgment for appellees, from which this appeal is prosecuted.

Many interesting questions have been raised and ably discussed by counsel on both sides in their briefs, most of which, however, it will not be necessary- for us to notice, for the reason thát we have concluded that the trial court erred in not peremptorily instructing a verdict in behalf of appellants, on the ground that the contract relied upon by appellees did not convey any interest in the land, but conveyed merely an optional right to acquire an interest therein upon the performance of certain conditions, which were not complied with within thp time stipulated for their performance.

This contract was likewise a unilateral one, in that it did not bind or obligate the lessee to perform any of the conditions thereof, and was therefore lacking in mutuality. See Natl. Oil & Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 979; s. c., 67 S. W. 545; Forney v. Ward, 25 Tex. Civ. App. 443, 62 S. W. 109; Roberts v. McFadden, 32 Tex. Civ. App. 47, 74 S. W. 111; Hodges v. Brice, 32 Tex. Civ. App. 358, 74 S. W. 590; Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955; Huggins v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320; Steelsmith v. Gartlan, 45 W. Va. 27, 29 S. E. 978, 44 L. R. A. 107. See, also, Eclipse Oil Co. v. South Penn. Oil Co., 47 W. Va. 84, 34 S. E. 923; Harness v. Oil Co., 4 W. Va. 232, 38 S. E. 670; Cowan v. Iron Co., 83 Va. 547, 3 S. E. 120.

Bouvier (volume 2, p.’ 621) defines a unilateral contract as follows; “When the party to whom the engagement is made makes no express agreement upon his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance.”

Mr. Justice Gaines, in National Oil Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 980, held, in a case involving contracts very similar to the one in question, that the same were unilateral, and said that, “viewing the same in the light most favorable to the grantees, they did not pass any interest in the lands, but were mere contracts for an option by which they might acquire such an interest,” saying that ’a naked agreement by which one promises to convey to another an interest in land, in consideration of money to be paid or acts to be performed by such other, but which does not bind the other to pay or perform the consideration, as the case may be, cannot be enforced. In such case there is a want of mutuality in the agreement; the one party promises to do something; the other does not promise absolutely to do anything; hence there is no consideration to support a contract, and it is void.

In the case of Huggins v. Daley, supra, it was held, as shown by the syllabus, under a contract somewhat similar to the one under consideration, that the boring of a well within 90 days was a condition precedent to the continuance of an oil and gas lease, which, in consideration of $1, granted all the oil ¿nd gas in certain lands, with the privilege of operating therefor, for a period of 5 years, and as much longer as oil or gas is found in paying quantities, not exceeding 35 years from date, with a royalty of one-seventh part or share of the oil produced and saved, but with a proviso that a well shall be completed within 90 days, in default of which the lessee shall pay a forfeiture of 50 cents. The only substantial consideration consists of the prospective royalties. It is further stated in • said case that a lease of this character is not a grant of property in the oil or in the land, .but merely a grant of possession for ■ the purpose of searching for and procuring oil. The title is inchoate, and for the purpose of exploration only, and until the oil is found. If it is not found, no estate vests in the lessee. The only consideration which moved the lessor to grant a lease was the prospective royalties from oil and gas, which could come only if the lessee complied with the terms of his contract to bore a well; for, while the sum of $1' is technically valuable, it is only a nominal consideration. Where, under a lease contract, the lessee agrees to start a well in a certain period of time, it was held that the well was not commenced until the actual boring in the ground was commenced; and in said case, although the lessee began hauling lumber to and on the premises before the time expired, the lease was forfeited. See Forney v. Ward, 25 Tex. Civ. App. 443, 62 S. W. 109, and cases there cited.

In Hodges v. Brice, supra, it was held that, where it appeared on the face of the contract that the real consideration was the development of the property, and that the contract was only to remain in force as long as the parties complied with their 'mutual agreement, and no prospecting having been done within a year, the lease was void; the same being a mere option.

In the ease of Steelsmith v. Gartlan, supra, it was said that, a lease for oil purposes, providing certain royalties, with a stipulation that a well should be completed within one year, the failure to do so rendered the lease null and void, unless the lessee should pay 25 cents per acre from and after the date stipulated for the completion of the well when such payment should ..operate to extend the time for five years. No well was drilled, and the lessor, considering the lease forfeited, refused to accept the rent therefor. The court further said: “The lessee cannot be compelled to put down' another well; and, he not being bound, the lessor was not bound either. The only consideration left to the lessor was the prospective oil royalties and gas rentals, which the lessee was in position to entirely defeat. Contracts unperformed, optional as to one of the parties, are optional as to both. * * * Such leases are construed most strictly against the lessee and favorably to the lessor, * * * and the demise for the purpose of operating for oil and gas for the period of five years is dependent upon the discovery of oil and gas in the search provided for.”

“Such leases vest no present title in the lessee; and if at any time the lessee has the option to suspend operation the lease is no longer binding upon the lessor, because of want of mutuality. A lease should not be construed so as to enable the lessee to hold it merely for speculative purposes, without doing what he stipulated to do and what was clearly in the contemplation of the lessor when he entered into the agreement. The trend of decisions has been almost uniformly in favor of the lessor. Generally,” says the court, “it is the lessee who is favored, and after a substantial compliance with the terms of the contract equity will not regard a technical breach. But with mineral leases it is otherwise. This is due to the nature of the business of mining, and especially of oil mining, and to the temptation offered a shrewd operator to purchase at a nominal price the right to develop lands, the owner of which is ignorant of their real value, and to hold to them indefinitely, • neither working them himself, nor permitting another to do so.”

But it is contended on the part of appel-lee that the contract in the instant case materially differs from the one under consideration in National Oil & Pipe Line Co. v. Teel, 67 S. W. 545, in two particulars, to wit: In that case there was no limitation to the termination of the contract, whereas, in the present case, it is limited to a period of five years, and that in that case there was no such provision as there is in the present, declaring that “this grant is not intended as a mere franchise, but is intended as a conveyance of the property above described, for the purposes herein mentioned, and it is so understood by both parties to this agreement,” and that therefore this case can and should be, for these reasons, distinguished from that. It is true that in that case Mr. Chief Justice James does call attention to the fact that under that contract there was no limitation to the time when the grantee might perform, but as to this it was left optional with him when the performance, if ever, should take place, and seems to intimate that for this reason said contract should be held void. And appellee likewise insists that, since the parties have declared that the instrument in the present case was not intended as a franchise, but as a conveyance, this should have controlling effect in interpreting said contract. We are unable to agree with appellees in either of these contentions. We think it is immaterial that there was a limitation of five years, and cannot see how this could in any sense affect the principle involved, because, at last, the controlling question seems to be whether, under such contracts, first, the grantee is bound at all to do anything, and, if he is, •must he perform within the period prescribed? Or, in other words, does it appear from the whole instrument that it was intended merely' to convey an option, in contradistinction to the title to the minerals? And where it clearly • appears, as it does here, and in the numerous contracts construed by the courts whose decisions we have cited, that the chief and principal consideration moving the grantor to make the contract was the •development of the minerals underlying his 'land, and not the mere receipt of the nominal consideration, then the courts hold that the instrument was not intended to convey an interest in the estate, but only an option.

Nor do we think that the mere stipulation that the instrument in the present case was not intended as a franchise, but as a conveyance of the property, should affect the question, because we must look to the entire instrument to determine its meaning; and when this is done it is apparent that this declaration should not alter or change its legal effect. Besides, it is stated therein that it shall be intended as a conveyance of the property “for the purposes herein mentioned,” and the purposes therein mentioned clearly indicate that the chief consideration on the part of the grantor in making the instrument was the development of the minerals underlying the land upon certain •conditions, declaring a forfeiture if such •conditions were not complied with. But if this last clause could have the effect contended for it would result in rendering the instrument ambiguous, and therefore not enforceable.

It will be noted in the present case that the contract declared that, “in case operations for either the drilling of a well for oil, gas, mining, or other minerals is not commenced and prosecuted with due diligence within 60 days from this date, then this grant shall immediately become null and void as to both parties; provided that second party [Staley] may prevent such forfeiture from year to year by paying to the first party [Hines] the sum of $25 every 60 days until such well is commenced, or until shipments from such mines have begun,” etc. Under such provision Staley was not required to pay $25 within 60 days from September 30, 1910, nor was he obligated to do anything thereunder, for the reason that he had not so bound himself. This being true, no obligation rested upon Hines thereunder, unless Staley either commenced operations or prevented a forfeiture by the payment of $25 within the prescribed period, the same being accepted by Hines; and having failed to do either Hines had the right to declare the contract forfeited and enter into another with Witherspoon, as he and his .wife saw proper to do.

But it is contended on the part of appellees that no such forfeiture had occurred-, for the reason that he had not only tendered the money to *Hines within the prescribed period of time, but had also commenced operations as contemplated by said contract. We differ with appellee in this contention, and think that the uncontroverted evidence shows the contrary. There is no question but that no work whatever was commenced within the first 60 days after the execution of the contract, nor is it claimed that there was; but appellees insist that because the second payment was made on the 30th of November, 1910, of $25, which was received by appellant Hines, and a receipt executed by him therefor, reading as follows:

“Rental Receipt.

“Nov. 30, 1910.

“Received of W. H. Staley $25.00, twenty-five and —.- 100 dollars, being in full for the two months rental on my land of 245 acres, more or less, in Jno. McNeal survey, Navarro Co., Texas, from Nov. 30th, 1910, to Jany. 30, 1911. In accordance with the terms of lease to W. H. Staley, dated September 30, 1910. F. Hines.”

—the time within which to commence operations was extended until the 30th of January, 1911, on which day he deposited in the First National Bank of Corsicana, to the credit of Hines, the sum of $25, informing Hines thereof; and thereafter, on the same day, commenced operations by hauling a load of pipe upon the land, whereby his right had become vested under said contract.

We think the payment and acceptance of said $25 on the 30th of November, as above stated, had the effect of keeping the contract in life for another period of 60 days, but not, we think, as claimed by appellee, until the 30th of January, but until the 28th of January only. It is true the receipt given by Hines for said payment did undertake to so extend the time; 'but it is clear that it should not have such effect, for the reason that it is shown from the receipt itself that this recital could not operate so as to change the original contract, because it is recited therein that said receipt was given in accordance with the terms of such lease to Staley (which, it appears, that the parties did not have before them at the time). Besides, no consideration whatever is alleged or proven to have been given for such extra extension of time, and without which no such right, we think, could be asserted. There is no pretense that the third payment was made to the bank until the 30th of January, 1911. Unless the receipt had the effect of extending the time, then this payment was too late, and appellant Hines upon said date was not bound to accept the same. He declined to receive this payment, when notified by appellee that it had been deposited in the bank to his credit, and thereafter notified both the bank and appellee Staley of this fact, instructing the bank to take it out of his account and place it back to the credit of Staley, and Staley after-wards received this money himself from the bank.

There can be no estoppel against appellants, as asserted by appellees, for the reason, we think, that no act or conduct on the part of appellant Hines is shown that could have this effect. It is true that, when first informed that this money was left at tlie bank for him, be did not at once repudiate it. He merely said-nothing, according to the evidence of appellees; but this attempted payment on the 30th of January by deposit in the bank for his account came after the expiration of the time in which the contract permitted that it might be paid. Hence, in order to bind appellant Hines, he must either have received this money, or by some word or conduct of his must have induced appellee to have acted in his behalf to his injury or detriment, which is not shown. In fact, nothing was done by Staley between the 30th of January and the 3d of February, when written notice was given him by Hines of his refusal to accept said payment and declaring said contract forfeited, except the hauling, on the 30th of January, of one load of pipe to the land, and it is not shown whether this took place before or after Hines was informed of the deposit of the $25, and which said pipe was still on the land at the time of this trial. Besides this, if the evidence had shown such facts as constituted an estoppel on the part of appellant Hines, it could not have affected or changed the result, for the reason that appellees have pleaded no estoppel whatever as against him, and therefore could assert none.

Believing that appellee’s contract with Hines, for the reasons above stated, had become null and void prior to the deposit by appellee of the $25 in the First National Bank on the 30th of January, and it appearing that he had not commenced operations for the drilling of a well during the life of said contract, it was the duty of the trial court to have instructed a verdict in behalf of appellants. We therefore reverse said judgment and remand the case to the trial court, with instructions to render judgment for appellants, canceling, annulling, and setting aside said lease from Hines to Sta-ley, and perpetually enjoining and restraining said appellees, their agents, employes, and contractors, from going on the said Hines’ property for the purpose of developing oil or minerals, or any other purpose whatsoever; and, further, that they be likewise enjoined from interfering in any way with appellants in their effort to develop said property.

Reversed, with instructions to render.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. EL PASO & N. E. R. CO.
    (Court of Civil Appeals of Texas. El Paso.
    April 3, 1913.
    Rehearing Denied May 8, 1913.)
    1.Appeal and Error (§ 842) — Findings oe Fact — Conclusiveness.
    Where it is doubtful whether a grantor intended to convey the land or whether the deed was intended as a mere quitclaim, the question is one of fact, under the surrounding circumstances on which the finding of the trial court will be accepted on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. § 842.]
    2. Covenants (§ 42) — Covenant Against Incumbeances — Nature.
    A covenant against liens and incumbranc-es is distinct from a warranty of title and protects grantee against interests in third persons which, though consistent with the fee being in the grantor, will diminish the value of the estate conveyed.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 43; Dec. Dig. § 42.]
    3. Covenants (§ 96) — Covenant Against Incumbrances — Breach.
    A covenant against liens and incumbranc-es is breached upon the execution and delivery of a deed, if at all.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.]
    4. Covenants (§ 96) — Incumbrances — Breach.
    Where another than grantor had the title to a tract in fee, free from any easement or servitude in favor of any one else, his claim was an adverse claim of title, but was not an incumbrance upon the estate purported to be granted so as to operate as a breach of a covenant against incumbrances contained in the deed.
    TEd. Note. — For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.]
    5.Eminent Domain (§ 271) — Remedies oe Landowner.
    A landowner may waive his right to recover land wrongfully held by a railway company for right of way purposes and sue for damages resulting from the taking.
    [Ed. Note. — For other cases, see Eminent Do-.mairq Cent. Dig. §§ 725-736, 741; Dec. Dig. §
    6. Eminent Domain (§ 310) — Remedies oe Landowner — Effect of Election.
    A landowner, by waiving his right to recover land wrongfully taken for railroad right of way purposes and suing for damages, thereby legalizes the possession, and grants the easement as of the date of his election, so that upon the award of damages he is entitled to have them fixed as a lien upon the easement granted.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 826; Dec. Dig. § 310.]
    7. Covenants (§ 96) — Breach of Warranty.
    A grantor would not be estopped from claiming that the facts did not show a breach of his covenant against incumbrances.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Daniel W. Wiliams against the Texas & Pacific Railway Company, in which the El Paso & Northeastern Railroad Company was made a defendant. From a judgment against the first-named defendant, it appeals.
    Affirmed in part and reversed and rendered in part.
    Peyton F. Edwards, of El Paso, and W. L. Hall and Gresham & Freeman, all of Dallas, for appellant. Hawkins & Franklin, of El Paso, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

On September 21, 1897, George J. Gould entered into tins contract with Charles B. Eddy: “First. Said Gould agrees to procure to be sold and transferred to said Eddy, bis representatives or assigns, as soon as the legal formalities pertaining thereto will conveniently permit, so much of the roadbed and grading, right of way track and ■all other appurtenances, of what is known as the ‘Old White Oaks Railroad,’ as extends from the intersection of Rand and Main streets, at the crossing of Southern Pacific tracks in the city of El Paso, northeasterly to or towards the boundary line between Texas and the territory of New Mexico, free and clear from any and all liens and incum-brances, for the price or sum of fifty thousand dollars ($50,000). * * * Second. It is understood and agreed that said Eddy, his agents, representatives or assigns, may take possession of said line and appurtenances herein agreed to be sold, at once, upon the execution hereof, and retain and use the same until such time as default, if any, shall occur in making the payments, or any of them, herein above provided for. If for any reason it is found that said Gould cannot cause a free and clear title to be conveyed to said Eddy, said Gould is not to be held liable, personally, in damages for failing to convey and vest such title in said Eddy.”

At the time Gould was the president of the Texas & Pacific Railway Company, and Eddy was vice president and general manager of the El Paso & Northeastern Railroad Company, and in the execution of the contract the parties thereto acted in behalf of and for their respective companies, although upon its face the contract does not so disclose. Included in the premises contracted to be conveyed was a right of way through a tract of land in the city of El Paso known as the Cotton addition, being the same right of way condemned in this suit by the appellee. The contract was submitted to the board of directors of the Texas & Pacific Railway Company and by such board adopted and confirmed as the agreement and contract of the appellant. In accordance with such agreement, appellant, on November 16, 1897, conveyed to Eddy the premises so contracted to be conveyed, by deed reading as follows: “For and in consideration of one dollar and divers other good and valuable considerations by it received, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell, and quitclaim and convey unto the said Charles B. Eddy, his heirs and assigns, all of its right, title and interest in and to the following described property: So much of the roadbed grading and right of way, track and all other appurtenances formerly of and belonging to the Kansas City, El Paso & Mexican Railway Company of Texas, commonly known as the ‘Old White Oaks Road,’ as extends from the intersection of Rand and Main streets where Rand street crosses the Galveston, Harrisburg & San Antonio Railway Company tracks, known as the Southern Pacific tracks, on Main street in the city of El Paso, county of El Paso, state of Texas, running in a northeasterly direction to or towards the boundary line between Texas- and the territory of New Mexico, said property herein conveyed being more specifically described as follows: Commencing at the intersection of Rand and Main streets where Rand street crosses the Galveston, Harrisburg & San Antonio Railway Company tracks, known as the Southern Pacific tracks, on Main street, in the city of El Paso; thence running * * * to the end of the present track of the Kansas City, El Paso & Méxican Railway Company of Texas, commonly known as the ‘Old White Oaks Road,’ said point being about eight and 82/100 miles distant from the intersection of said road with the Galveston, Harrisburg & San Antonio Railway, commonly called the Southern Pacific road, in the city of El Paso; thence from the end of said track, course being south 77 degrees, 50 minutes west, to the boundary line between Texas and territory of New Mexico. To have and hold said property, with all its franchises, right of way, roadbeds, tracks, bridges, viaducts, culverts, switches, turnouts, sidings, ties and rails and all other superstructures, erections or fixtures of every sort appertaining to and belonging to so much of said property as is above specifically described, unto the said Charles B. Eddy, his heirs and assigns; and the Texas & Pacific Railway Company hereby covenants with the said Charles B. Eddy, his heirs and assigns, that said property above specifically described, is free of all valid liens and incumbrances, and hereby covenants that it will warrant and defend the possession and title of said property as against all valid liens and incumbrances; and further covenants that it will defend the possession and title of said property to the said Charles B. Eddy, his heirs and assigns, as against the legal claims of all persons claiming or to claim the same, or any part thereof, from, through or under it, the said Texas & Pacific Railway Company.”

In further performance of the agreement, appellant, on November 16, 1897, caused Charles F,. Satterlee, who held the legal title to the property in trust for it, to convey same to Eddy. The deed recites a consideration of $60,833.33, a part of which was evidenced by purchase-money notes, to secure payment of which a vendor’s lien was retained. The description of the property in this deed and the covenants of warranty were substantially the same as were contained in the deed of the Texas & Pacific Railway Company above described. The two deeds were made to Eddy as the agent, trustee, and representative of appellee. On February 15, 1898, Eddy, for a recited consideration of $1 and other valuable considerations, “transferred, assigned and quitclaimed” unto appellee the premises and property so conveyed to him by appellant and Satterlee.

Upon the date of the execution of the Gould-Eddy contract, the appellant was in possession of the premises and property contracted to be conveyed, and it then delivered full and complete possession thereof to appel-lee, and appellee since said date has remained in possession. When the premises and property were'conveyed by appellant to appellee, the latter did not know the former had no right to convey the right of way across the Cotton addition, and appellee had no actual knowledge of the adverse claim thereto of Frank B. Cotton. Appellee paid to appellant the sum of $60,833.33 in payment for the premises and property conveyed by the deeds above mentioned. Prior to the date of said contract and deeds, the Texas & Pacific Railway Company, or its predecessor in interest, the Kansas City, El Paso & Mexican Railway Company, had taken wrongful possession of the right of way strip across the Cotton addition, and appellant was holding the same as a trespasser; its line of railroad had theretofore been constructed thereon and the same had theretofore and was then being used as a common carrier of freight and passengers. Such right of way across said addition had been taken and was being held without the consent of and over the protest of Frank B. Cotton, the owner of the fee. Neither Cotton nor his successors in interest ever consented to such taking and use, and neither he nor they were ever paid anything for such taking and use or any damages to their abutting property caused thereby. It seems there had theretofore been an attempted condemnation proceeding by the Kansas City, El Paso & Mexican Railway Company, in which an award of $1,000 damages had been made, which Cotton had declined to receive. Evidently these proceedings were insufficient to vest an easement in the railway company; but for what reason it does not appear.

This suit was originally instituted on September 23, 1896, by Daniel W. Williams against the Texas & Pacific Railway Company, C. E. Satterlee, and other defendants, for the recovery of the Cotton addition; he having theretofore acquired the title thereto of Frank B. Cotton. Williams thereafter reconveyed to Cotton, and on January 12, 1901, the latter intervened, claiming title and making the El Paso & Northeastern Railroad Company a party defendant in the cause. Frank B. Cotton died testate on May 11, 1907, and his title to the premises passed to and became vested in Walter B. Grant and William C. Cotton as trustees and executors of his estate. The death of Frank B. Cotton was suggested, and Grant and William O. Cotton as such executors and trustees intervened, and on December 14, 1910, filed their first amended petition for recovery of title to and possession of the Cotton addition against all of the defendants. It was averred that the rental value of the land taken was $3,000 per annum, and that by the use thereof for a railroad and by maintaining a railroad bed thereon and cuts and other spoliations thereof, the rental value of the remainder of the tract had been damaged in the sum of $2,000 per annum, for which amount they prayed judgment against the Texas & Pacific Railway Company and the El Paso & Northeastern Railroad Company for the years they had so had possession of said land. No lien was claimed for such rents and damages to such rental value.

On May 15, 1911, the El Paso & Northeastern Railroad Company filed its first amended answer and disclaimed as to all of the premises in controversy except a portion of lot 5 in block 2 and its right of way, which right of way was a strip extending from the south line of Missouri street in a northeasterly direction across the Cotton addition to its eastern boundary line. In addition to its plea of not guilty as to this property, appel-lee, in bar of its recovery, pleaded the various statutes of limitation, and by way of cross-action prayed condemnation thereof for right of way purposes in event it was found by the court that Grant and Cotton were the owners of and entitled to the title and possession of same.

On May 22, 1911, the executors and trustees, Grant and William C. Cotton, filed their second amended petition, alleging that it had conveyed certain portions of the premises in controversy to the El Paso & Northeastern Railroad Company and prayed for recovery of title to and possession of the Cotton addition, except the portions so conveyed. In all other respects, this petition was identical with the first amended petition filed December 14, 1910, above noted.

On May 22, 1911, Grant and Cotton also filed their first supplemental petition, replying to the petition for condemnation, in which they alleged the property sought to be condemned by appellee was of the value of $60,000 and that the remainder of the tract would be damaged in the sum of $200,-000 by reason of such condemnation and user, and in the event condemnation was decreed they asked judgment against appellee for said amounts and that, whatever amount ■was recovered, the same be decreed to be a lien upon the property condemned. On the same date the Texas & Pacific Railway Company filed its second amended answer, disclaiming as to all of the lands sued for except certain portions thereof specifically described in its answer. On the same date the El Paso & Northeastern Railroad Company filed a cross-action against its codefend-ant, the Texas & Pacific Railway Company, alleging the execution of above-mentioned contract between Gould and Eddy; that in executing same the parties thereto represented appellant and appellee respectively; that pursuant thereto the two deeds above mentioned, dated November 16, 1897, were executed and delivered by appellant and Satter-lee to Eddy, and that Eddy thereafter conveyed same to appellee by the deed dated February 15, 1898; that in the event Grant and Cotton recovered its right of way across the Cotton addition, heretofore described, or if it was necessary for it to condemn the same, or if Grant and Cotton were adjudged to be entitled to damages by the condemnation which it sought in its answer above mentioned, then in such event all such damages so adjudged against appellee constituted a lien on the right of way so conveyed by the appellant and was a lien thereon at the time the same was by it conveyed and by the court would be adjudged to be a lien and incumbrance upon the property so conveyed, and appellee would be compelled to pay the damages so awarded to clear its right of way of such lien and incumbrance, and by reason of the covenants and warranties contained in said contract and deeds the Texas & Pacific Railway Company was liable over for any moneys it would be compelled to so pay out; and it accordingly prayed for judgment over against the appellant.

On June 19, 1911, the appellant filed a' second amended answer, the details of which it is unnecessary to state, except that it was a denial of any right of recovery over against it by appellee. Other supplemental pleadings and trial amendments were filed by the parties, but statement of their contents is not material to -a consideration of the questions presented by this appeal.

By disclaimers, dismissals of parties and severances, all issues were eliminated except those presented by the pleadings above detailed, whereupon the parties in open court admitted and agreed that Grant and Cotton, as executors of the estate of Frank B. Cotton, deceased, had title to and should recover all of the premises in controversy, except portions thereof specifically described in the decree, and upon such admission and agreement judgment was accordingly entered. Included in the part recovered by Grant and Cotton was the said right of way of appellee across the Cotton addition. Upon the cross-action of the appellee for condemnation of such right of way, the court adjudged it was entitled thereto and entered judgment of condemnation for right of way purposes. It was agreed and admitted by all parties that the damages to Grant and Cotton by reason of such condemnation was $45,000, the same being the value of the land actually taken and damages to the remainder of the tract, for which amount judgment in their favor was rendered against appellee, and it was further decreed that “there existed at the time when the said Texas & Pacific Railway Company first took possession of said property in the year 1897, and when said property was sold and conveyed by said Texas & Pacific Railway Company to Charles B. Eddy for the El Paso & Northeastern Railroad Company, to wit, the 16th day of November, 1897, and has ever since existed and now exists, a lien upon said property in favor of the testate Frank B. Cotton and the plaintiffs and interveners William C. Cotton and Walter B. Grant for the value of the property taken and damages to that not taken, which amount is by this judgment ascertained as $45,000, and said lien is declared to exist for the security of the payment of said sum of $45,000, which lien is now ordered adjudged and decreed by the court to be and the same is hereby foreclosed, on the right of way condemned as here before described, and the superstructures thereupon. And it is further ordered, adjudged, and decreed by the court that in ease of default of payment of said sum of $45,000 an order of sale be issued directing the sale of said property as under execution for the payment of' said sum of $45,000.” The appellee then and there in open court paid said sum of $45,000 to Grant and Cotton, and the cause proceeded to further trial upon the issue of whether or not the Texas & Pacific Railway Company was liable over to the El Paso & Northeastern Railroad Company for said sum of $45,-000, which issue upon hearing was resolved against the Texas & Pacific Railway Company. Accordingly, judgment was rendered in favor of the El Paso & Northeastern Railroad Company over against the Texas & Pacific Railway Company for the sum of $32,-142.85, the same being the proportionate amount of the incumbrance for which the court held the appellant to be liable. From this judgment against.it for said sum of $32,-142.85, the Texas & Pacific Railway Company has prosecuted this appeal.

The readily apparent issue involved is whether or not the adverse claim of Cotton was within the protecting scope of the covenants of warranty contained in the deed of appellant to Eddy. There is no merit in the contention that the conveyances were mere quitclaims. Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850; Pool v. Foster, 49 S. W. 923. In any event, it cannot be said the instrument was clearly a quitclaim, and in case it is doubtful whether the grantor intended to convey the premises or merely its right or chance of title, it became a question of fact to be determined in the light of the surrounding circumstances. Threadgill v. Bickerstaff, 87 Tex. 520, 29 S. W. 757; Harrison v. Boring, 44 Tex. 262; Breen v. Morehead, 126 S. W. 650. This issue of fact 'by the trial court was resolved against appellant, and the deed will be treated as a conveyance of the property therein described, rather than a quitclaim. The deed contains two distinct warranties; First, a covenant warranting against liens and incumbrances. This warranty is without restrictions. Second, a covenant warranting against adverse claims of title. This covenant was a limited one and warranted only against parties claiming “from, through, or under” the grantor. ' .

A covenant against liens and incumbrances is quite separate and distinct from a warranty of title, and is intended to protect the grantee against rights or interests in third persons, which, while consistent with the fee being in the grantor, yet diminish the value of the estate conveyed. 2 Devlin on Real Estate (3d Ed.) § 905; 1 Warvelle on Vendors (2d Ed.) § 426; 3 Washburn on Real Property (6th Ed.) § 2385; Bank v. Parisette, 68 Ohio St. 450, 67 N. E. 896; Sanford v. Wheelan, 12 Or. 301, 7 Pac. 324.

It is an engagement that the grantor’s title is unincumbered and is a covenant in prsesenti which is breached, if at all, upon execution and delivery of the deed. 2 Warvelle on Vendors (2d Ed.) § 971; 3 Washburn on Real Property (6th Ed.) § 2384; Fisk v. Cathcart, 3 Colo. App. 374, 33 Pac. 1004. If the adverse claim of Cotton to the strip of land occupied and used by appellee as a right of way constituted a lien or incumbrance upon the same, then, under the first warranty, liability attaches to the appellant; but if it was not of that character and would properly be regarded as an adverse claim of title against which an unrestricted warranty of title only would protect, then it is apparent that liability does not attach under the second covenant, since it was not a claim originating “from, through, or under” the grantor. As against Cotton, appellee’s possession and the prior possession of appellant was that of a trespasser.

Cotton had the title in fee to the disputed strip, charged with no easement, servitude, right, interest, or equity whatever in favor of either of such railway companies, and, to our minds, it is clear that his claim was an adverse claim of title and was in no wise or sense a mere lien or incumbrance upon the estate which appellant undertook to convey to appellee’s grantor and agent, Eddy. As a matter of fact, neither the fee nor an easement in the fee for right of way purposes passed by the deed to Eddy, and since nothing passed it is difficult to conceive of there being any lien or incumbrance against which the first covenant would protect. Manifestly there can he no lien or incumbrance when there is no estate to which the same can attach, and appellant owned no estate of any kind or character in the disputed strip and conveyed no estate. An adverse superior title is in no sense an incumbrance. See Buetell v. Courand, 9 Tex. Civ. App. 564, 29 S. W. 1146, in which it was remarked by Judge Williams that an adverse claim of title acquired by limitation is in no sense an incumbrance. In this respect it is radically different from a fee incumbered by a lien or an easement or other servitude. In such case the lien, easement, or servitude is consistent with the fee being in the grantor; there is no such consistency, however, in case of an adverse superior title to the fee. In other words, a covenant against liens or incum-brances necessarily implies that some estate is conveyed by the deed containing the same, and such a covenant would never be broken nor would liability thereon attach by reason of the successful assertion of an adverse claim of title; such an adverse claim being in no sense a mere lien or incumbrance consistent with the fee being in the grantor.

From the language of the covenants contained in the .deed evidently it was intended to give an unrestricted warranty against liens and incumbrances and that as against adverse claims of title the warranty should be limited and restricted. The claim of Cotton was an adverse claim of title, and to hold appellant liable therefor under the guise of a lien or incumbrance would be to defeat the manifest meaning of the language used and purpose of the grantor to limit its liability respecting such claims to such only as originated from, through, or under it. To so hold would be in plain contravention of the ordinary meaning of the covenants of warranty and in effect would absolutely destroy the restriction contained in the warranty of title and give to the same the effect of an unrestricted general warranty. If the claim of Cotton was not such a claimi as would properly be considered as an adverse claim of title rather than a lien or incumbrance, then there is no claim that would be so regarded ; and the effect of the warranty against liens and incumbrances would protect against an adverse claim of any character whatever. However, as we have seen, such a covenant is not of that character, but only “protects the grantee against rights or interest in third persons, which while consistent with the fee being in the grantor, yet diminish the value of the estate conveyed.” The Cotton claim was not an interest consistent with the fee being in the grantor, the Texas & Pacific Railway Company.

The question here would present no confusion, we apprehend, but for language used by the Supreme Court in Railway Co. v. Henderson, 86 Tex. 307, 24 S. W. 381. This was an action brought by a landowner against a railway company for damages. Eliminating the facts and issues in the case in no wise germane to the question here presented, the company had entered upon and appropriated land for right of way purposes, and, the parties being unable to agree as to the amount of damages, the question had been* submitted to arbitrators, who awarded the 'sum .of $2,250, which was paid. The damages were assessed by the arbitrators upon certain representations made by the company as to the proposed alignment and grade of the railroad to be constructed. A deed for the land was executed upon the faith of these representations, and after the award and after the payment of the sum awarded, but before the deed had passed from the landowner, he discovered the alignment and grade had been changed to his further damage and that the railroad was not being constructed as represented and contemplated when the damages were assessed and the deed executed. The delivery of the deed was a controverted issue, bub whether it had been delivered had no bearing upon the determination of the question decided. As actually constructed the railroad took more land than was originally contemplated, imposed additional burdens upon the land not taken, and deprived the owner of certain privileges promised and provided for in the deed. The landowner brought suit for damages caused by the taking and the manner of constructing the railroad, admitting a’ credit of the $2,250 previously awarded and paid. Misrepresentation and fraud was alleged as a ground for avoiding the award of the arbitrators and the effect of the deed. Among other items sought to be recovered were certain items of damage arising from a negligent and unskillful construction of the road. For these items it was held plaintiff had no lien upon the right of way; but that he did have such lien for the purchase price, whether the same was to be paid in money or in the construction of crossings or other things to the owner’s advantage. It is not so stated, but obviously the lien recognized was that of the equitable lien of the vendor to secure the purchase money. Howe v. Harding, 76 Tex. 17, 13 S. W. 41, 18 Am. St. Rep. 17; Railway Co. v. Lewton, 20 Ohio St. 401; Levy v. Tatum, 43 S. W. 941; Organ v. Railway Co., 51 Ark. 235, 11 S. W. 100; Railway Co. v. Harvey, 107 Pa. 319; Kittell v. Railway Co., 56 Vt. 96. After holding as above stated, the court used the following additional language: “If a railroad company, either with or without condemnation proceedings, take the land of any person for right of way or other use of its railroad, then the owner of the land will have a lien upon the land to secure the payment of all damages which the Constitution and the law requires to be paid before the right to use it vests, which would include all such damages as would naturally or necessarily flow from the taking and proper construction and operation of the road over the land, The value of the land and damages caused to the balance of the tract, and any other damages that might be with reasonable certainty known as the result of the proper construction and operation of the railroad, would be included.”

As applied to the facts in that case, the language quoted was undoubtedly correct. The company was not a trespasser upon the land; upon the contrary, it is apparent from a consideration of all the facts in the case that it had entered with the consent of the owner and had an easement in the fee, but had not paid all the damages to which the owner was rightfully entitled by reason of such grant of the easement, entry, and construction' of the railroad. • The value of the land taken and damages to the remainder of the tract are justly treated and regarded by the authorities as the purchase money of any such easement acquired by a railway company, and, since it is purchase money, the owner of the land taken has a lien upon such easement to secure its payment, whether the entry was made and possession taken by virtue of condemnation proceedings or deed from the landowner or his consent otherwise given. Rightly considered, the Henderson Case cannot be regarded as holding more than this, and it certainly was not intended to .be held that in the case of an unauthorized and tortious entry and possession by a railway company that the railway company acquired an easement in the fee and that the landowner was precluded from recovering title and possession and had only the right to assert his claim for damages which would be secured by a lien. In the Henderson Case the landowner was not asserting an adverse title and right of possession, but recognized the right of the railway company to an easement in the fee, and sued for the purchase price thereof by way of an action for damages. Here the landowner successfully asserts and recovers the fee, disputing any right in the company whatever. It is true that hére a lien in favor of the landowner was established and foreclosed; but this lien, as we regard it, was an incident to and by virtue of the condemnation proceedings to which appellee resorted by way of cross-action. '

No claim of damage which would be secured by lien was asserted by the executors except by supplemental petition, wherein, responding to the cross-action for condemnation, they alleged that if the land was condemned they would be damaged in the sum of $60,000 as the value of the land actually taken, and $200,000 to the remainder of the tract; and asked if such condemnation be granted that their damage be so assessed and lien fixed upon the right of way to secure its payment. And just in this connection it may be observed that if condemnation, for any reason, had been refused, the executors, as the owners of the land, would have recovered the land, and no damages would have been awarded for which they asserted or claimed any lien. If such had been the sole judgment rendered, could it have been seriously contended that such recovery of the land would have constituted a breach of the covenant against liens and incumbrances?

We think not, and that it is manifest no mere lien exists in favor of a landowner who sues for land wrongfully held by a railway company for right of way purposes. If he sees fit, he may waive his right to recover the land and sue for damages resulting from the taking. Railway Co. v. Benitos, 59 Tex. 326; Railway Co. v. Ortiz, 75 Tex. 602, 12 S. W. 1129.

In such case, the owner by such election legalizes the wrongful possession and grants the easement as of the date of such election, and upon the award of his damages he is entitled to have the same fixed as a lien upon the easement which he has so granted. Howe v. Harding, supra. In the case at bar the trial court erred in holding that the lien decreed to Cotton’s executors existed and was in esse when the Texas & Pacific Railway Company first took possession of the right of way and when it conveyed the same to Eddy. As we view it, the lien did not come into existence except by virtue of the condemnation proceedings instituted by the appellee and would never have existed unless condemnation had been had or the easement for right of way purposes in some other manner had lawfully passed from the owner of the land to the railway company. We therefore conclude: First. The claim of Cotton to the strip of land occupied by appellee for its right of way was an adverse claim of title, and in no sense an incumbrance or a mere right to compensation for damages the payment of which was secured by lien. Second. The .covenant against liens was not breached by the judgment of the court fixing a lien upon the right of way awarded by the condemnation to secure the payment of the damages assessed, because such lien did not exist and was not in esse when the deed containing the covenant was given, and because 'such lien came into existence only by virtue of condemnation proceedings instituted by appellee long subsequent to the making of the covenant, which proceedings were had to protect appellee in its possession against the successful assertion of an adverse claim .of title, and which lien would never have come into being and would never have been fixed upon the land had condemnation for any reason been denied.

It is most ingeniously argued by appellee’s counsel that what was undertaken to be conveyed by the deed was not the fee to the strip of land, but an easement therein for right of way purposes, together with the superstructures thereon; that this easement so conveyed was weighted with “a paramount right” of the owner to compensation for such easement, which paramount right to compensation was an incumbrance or lien upon the easement conveyed and was protected against by the first covenant. As is readily apparent, this conclusion is based upon the premise that appellant had title to such easement and that Cotton’s estate in fee was incumbered thereby. If the premise be correct that appellant had title to such easement and that same passed to appellee, undoubtedly Cotton had merely a lien upon the same to secure payment of his damages by reason of such taking, and the covenant against liens and incumbrances was broken, and appellee is entitled thereunder to protection ; but the premise is • clearly false, for, as we have seen, the railway companies were trespassers, and Cotton’s title was subject to no easement or servitude in .their favor. The premise being fklse, the conclusion falls with it.

The doctrine of estoppel is in no wise applicable. It may be conceded that appellant is estopped to deny it had title to the easement for right of way -purposes which it undertook to convey, but its liability herein is measured by the covenants of warranty contained in its deed. It is incumbent upon appellee to bring its claim within the scope of these covenants, and, of course, appellant would not be precluded by estoppel from contending that the facts adduced by appellee did not show a breach of its covenants.

Under the view entertained of the proper disposition to be made of this casé,' it becomes unnecessary to dispose of the remaining assignments, .which relate to the amount of the judgment.

The judgment and decree of the lower court is in all things affirmed, except in so far as concerns the judgment rendered in appellee’s favor, upon its cross-action against appellant for the sum of $32,142.85, with interest; in this respect, the judgment is reversed and here rendered, that appellee take nothing by such cross-action, and that appellant be discharged therefrom and go hence without day.


author: SPEER, J.

text:
    CONNER v. SKINNER et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 15, 1912.)
    1. Municipal' Coepoeations (§ 604) — 1Gen- ' bbal Law — Cities — Oedinances — Impounding oe Animals Running at Labge.
    By Say les’ Ann. Civ. St. 1897, art. 594, providing that towns and villages incorporated under articles 579-617 may exercise exclusive control of streets, alleys, and other public places within the corporate limits, and prevent any nuisance therein, such towns and villages may pass ordinances' for the impounding and sale of stock running at large within the corporate limits.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 152, 1335-1337; Dec. Dig. § 604; Animals, ■ Cent. Dig. § 152.]
    2. Municipal Coepoeations (§ 604) — Running at Labge — Impounding Ordinance —Constitutionality.
    A city ordinance, passed in' accordance with statutory authority providing for the impounding and sale of stock found running at large within the corporate limits, is not unconstitutional.
    [Ed. Note. — For other cases, see Municipal Corporations. Cent. Dig. §§ 152, 1335-1337; Dec. Dig-. § 604; Animals, Cent. Dig. § 152.]
    3. Municipal Coepoeations (§ 592) — Oedi-nance — Stock Running at Lae.ge — Penalty — Conflict with Genekal Law.
    Where -it did not appear that the general stock law was in force in a county containing a city having an ordinance providing for' the impounding and sale of stock running at large ■within, its limits, it was no objection to such ordinance that the penalties prescribed were different from those prescribed by the general law.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1311-1314; Dec. Dig. § 592.]
    4. Animals (§ 50) — Running “at ' Large” —Impounding.
    Where plaintiff’s cow, found running at large within the corporate limits of a city, was driven to a pen by a citizen and the town marshal notified, who thereupon took her away and complied with an ordinance regulating the sale of animals running at large, the cow was “running at large” within the ordinance, though she was confined at the time she was seized by the marshal.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.

    For other definitions, see Words and Phrases, vol. 1, pp. 604^-607.]
    5. Costs (§ 247) — Appeal.
    Plaintiff sued a city marshal in justice’s court for taking up and selling his cow alleged to have been found running at large in violation of a city ordinance, and, from a judgment in favor of the marshal, appealed to the county court, where he recovered judgment against the marshal and his bondsmen. Heidi, that plaintiff was entitled to recover costs in the county court on such appeal as a matter of right unless the trial court, for good cause to be stated in the record, adjudged otherwise.
    [Ed. Note. — -For other cases, see Costs, Cent. Dig. §§ 951, 953, 955, 957, 95S, 960; Dec. Dig. § 247.]
    Appeal from Eastland County Court; F. S. Bell, Special Judge.
    Action by E'arl Conner against J. R. Skinner and others. Judgment for plaintiff for less than the relief demanded, and he appeals.
    Affirmed in part, and reversed and rendered in part.
    D. G. Hunt and J. R. Frost, both of East-land, for appellant. Scott & Brelsford, of Eastland, for appellees.

      For otiier cases see same topic and section NUMBER in D.ec. Dig, & Am. Dig, Key-No. Series & Rep’r Indexes

      Por other eases see same topic and section NUMBKR in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

We rule against appellant on his contention that the ordinance of the city of Eastland, under which his cow was impounded and sold, was invalid.

By article 594, Sayles’ Texas Civil Statutes, towns and villages incorporated, as was the town, of Eastland, have power to “exercise exclusive control of the streets, alleys and other public places within the corporate limits” and to “prevent any nuisance within the limits of the corporation,” etc. In City of Waco v. Powell, 32 Tex. 258, it was held that similar language in a legislative act authorized the city of Waco to pass an ordinance providing for the impounding and sale of stock running at large within its corporate limits. This appears to be decisive of the contention that towns and villages incorporated under our general statutes (title 18, c. 11) have not the power to pass such an ordinance.

Indeed, in the case cited, it was further held that the ordinance was not for any reason unconstitutional. This contention is made in the present case, and on the authority of that case, and for reasons which we deem sound, we decline to hold the ordinance to be in violation of any of the provisions of our Constitution.

To the suggestion that the penalties of the ordinance are different from those prescribed by a general law, and that for this reason the ordinance is invalid, it is sufficient answer to say the record nowhere discloses that any general stock law is in force in Eastland county, and therefore, if the statutes cited were applicable to that county, some of which are not, yet there is nothing, as indicated, to show that the people of that county have ever availed themselves of the privilege of adopting the provisions of the general stock law so as to put the same in force in the town of Eastland; and, this being true, it cannot be seen how the ordinance is in conflict with a law not shown to exist.

It is next insisted that the judgment should be reversed and here rendered for appellant because under the undisputed evidence his cow was not running at large at the time she was seized and impounded by the town marshal. The fact appears to be that the cow was running at large within the corporate limits of the town when she was driven into a pen by a citizen, and the town marshal was notified and thereupon came and took her away and in other respects complied with the ordinance regulating the sale of such animals. It would be an extremely technical holding to decide that under such circumstances the animal was not running at large merely because an inhabitant of the town on whose premises she was trespassing had temporarily restrained her for the purpose of delivering her over to the town marshal. Such act was merely a preliminary act for the benefit of the marshal looking to impounding her under the ordinance. We think a reasonable and common sense interpretation of the ordinance requires us to hold that the animal was running at large within the meaning of such ordinance at the time she was seized and impounded by the town marshal.

The suit was originated in the justice’s court, where judgment was rendered outright against appellant. He appealed to the county court, where he recovered judgment against the marshal and his bondsmen for ?9.50; but the trial court, for some reason unexplained in the record, taxed appellant with all costs. This was error. Under the statute he was entitled to recover the costs of the county court unless the trial court, for good cause to be stated in the record should adjudge them otherwise. This he has not done. With respect to the costs of the county court, the judgment is reversed and here rendered for appellant, but in other respects it is affirmed.

Reversed and rendered as to costs of county court, but affirmed on the merits, with costs of appeal taxed against appellee.

CONNER, O. J., not sitting.


author: TALIAFERRO, J.

text:
    DANFORTH, ROOS & EPPSTEIN v. LEVIN.
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1913.
    Rehearing Denied May 7, 1913.)
    1. PARTNERSHIP (§ 5) — CONTRACT—RELATION of Partners.
    Where defendants agreed to enter a theatrical venture, defendants D. and R. agreeing to advance $10,000 in addition to paying $2,-750 to another for his interest, the three to share equally in the net profits, the defendants were partners and each liable to third persons for partnership obligations.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 15, 16; Dec. Dig. § 5.]
    2. Partnership (§ 87) — Obligation of Partners — Debts—Contribution.
    Where two of the partners of a firm, engaged in a theatrical venture, agreed to contribute $10,000, the three to share equally in the profits, and the third partner contracted debts for scenery, they were all equally liable therefor, in the absence of any allegation by the latter that any part of the $10,000 remained on hand out of which the debt could have been satisfied.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 135; Dec. Dig. § 87.)
    3. Partnership (§ 109) — Contribution Between Partners.
    The right of contribution between partners obtains only after a full settlement or accounting has been had which shows inequalities in the partners’ accounts.
    [Ed. Note. — -For other cases, see Partnership, Cent. Dig. §§ 156, 171, 187; Dec. Dig. § 109.]
    Appeal from District Court, Bexar County; A. W. Seeligson, Judge.
    Action by N. Levin against Danforth, Roos & Eppstein. Judgment for plaintiff against all the defendants and Judgment over in favor of Wm. Eppstein against his codefendants, and defendants appeal.
    Affirmed in part and reversed in part.
    McFarland & Lewright, of San Antonio, for appellants. T. H. Ridgeway, and Hicks, Hicks & Teagarden, all of San Antonio, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALIAFERRO, J.

N. Levin sued Wm. Epp-stein, Edward Roos, A. H. Danforth, and Bartley Cushing, as partners, in the district court of Bexar county, to recover the sum of $575, balance due him for material supplied and services rendered in making and painting certain scenery to be used upon the stage of a theater in San Antonio, of which the defendants were alleged to be lessees. Defendant Eppstein, by answer, denied under oath the partnership, and alleged that he was, at the time the said scenery was ordered, acting as the agent of Róos and Danforth, who were alone liable for the debt to plaintiff. He further alleged that said Roos and Dan-forth had specially agreed to pay the debt sued on and to hold him harmless against any claim by Levin or any other person, and he prayed that, if judgment be rendered against him for said debt, he have judgment over against Roos and Danforth. Roos and Danforth answered by a general denial as to the claim of Levin and the cross-action by Eppstein. Trial without a jury resulted in a judgment for Levin against Eppstein, Roos, and Danforth jointly and severally for the Whole of the debt and over against Roos and Danforth in favor of Eppstein in accordance with his prayer.

Conclusions of Fact.

Wattles and Eppstein were partners and lessees of the Orpheum Opera House, in San Antonio, Tex. They had differences and a dissolution of the partnership was desired. In some way not revealed by the record, this became known to Roos, who called Danforth into conference and told him they could “get in on” the management of the Orphettm on favorable terms. This was interesting to Danforth, and together they entered into negotiations which resulted in their paying $2,-750 to Wattles to get out, and making with Eppstein an agreement whereby, in consideration of their payment to Wattles of the $2,-750 and their further financing, the enterprise to the extent of $10,000, they should have two-thirds interest and Eppstein should have one-third interest in the ultimate profits. This seems to have been generally agreeable, and Roos and Danforth, after having paid Wattles, who disappeared, began and diligently proceeded to spend the $10,-000. It was a part of the agreement that a corporation should be formed by the three, and the stock divided equally between them. This, however, was not done, and the misunderstanding which grew out of that event became general and the partnership affairs were not harmonious. Eppstein, who expected to be manager, was not, but an outsider was employed for that post. Roos, however, managed some, as did Eppstein, and even Danforth looked in on the management. They needed scenery. Eppstein knew this and told Roos and Danforth, who admitted it and told Eppstein to get some. Eppstein told them that he had formerly had a con-tract with a competent person for some scenery which, if they approved, he would resume for their benefit. They said go ahead, and Eppstein did. The work on the scenery progressed. There were curtains, teasers, tormentors, wings, borders, palaces front and back, and drapery. All was needed quickly, and Mr. ‘ Eppstein impressed this upon Mr. Levin. Upon a time Eppstein escorted both Roos and Danforth- to the studio where this artistic work was progressing, and they were charmed by the beauty as well as the eheapness of the artist’s execution, which gave both Eppstein and the artist great pleasure; Eppstein, because his judgment was vindicated, and the artist, “because he was doing the work and was going to be paid for it.” No friction arose until Mr. Levin wanted his money. Then, Mr. Eppstein having paid him $25, gave him an order on Roos for $400, which order was repudiated and never paid. Several efforts were made to induce each of the parties to pay the money, but they were ineffectual. It was not shown that the whole, or what part, of the $10,000 for which Roos and Danforth pledged themselves had been expended, and no accounting between the partners was shown. Roos, Danforth, and Eppstein were to share equally in the profits. No profits were shown to have been made.

Conclusions of Law.

Roos, Danforth, and Eppstein were partners. The only limitation on their partnership obligations was that Roos and Dan-forth were obligated to provide $10,000 to finance the venture before any personal obligation could fall upon Eppstein.

There is no evidence which in any manner shows that Eppstein was the agent of Roos and Danforth. He had the right as a member of the firm to contract debts for the partnership, and up to the sum of $10,000 Roos and Danforth were obliged to pay such obligations. Eppstein did not plead nor did he prove that any part of the $10,000 remained on hand out of which this debt could have been satisfied, and it is immaterial whether the members of the firm had in mind from the beginning this expenditure for scenery. Eppstein’s right to sue appellants for money paid out by him on behalf of the partnership accounts rested wholly upon contract. Collyer on Part. § 284; Parsons on Part. § 286; Story on Part. § 221. In the absence of the express contract by Roos and Dan-forth to pay $10,000 in promoting the interests of the partnership, the law would have charged each partner separately and equally with the cost and expenses, and when the sum agreed to be advanced by them was legitimately expended in the promotion of the enterprise, their separate obligation ceased, and any other debt contracted by any one of the partners, for the firm account, became a firm debt equally the obligation of all. The burden was upon the member of the firm-seeking immunity from firm obligation to allege and prove facts which entitled him to such immunity. Eppstein, not having done this, was not entitled to have judgment over against his codefendants.

The right of contribution between partners has been recognized only after a full settlement or accounting has been had which shows the inequalities in their accounts. Merriwether v. Hardeman, 51 Tex. 436; Lockhart v. Lytle, 47 Tex. 452; Worley v. Smith, 26 Tex. Civ. App. 270, 63 S. W. 903; Long v. Garnett, 59 Tex. 229; O’Neill v. Brown, 61 Tex. 34; Hines v. Dean, 1 White & W. Civ. Cas. Ct. App. § 691.

That part of the judgment of the lower court wherein the plaintiff, Levin, is permitted to recover against Roos, Danforth, and Eppstein is affirmed. That portion which permits Eppstein to recover over against his codefendants Roos and Danforth is reversed and here rendered that he take nothing by his cross-action against said codefendants and that he pay all costs of this appeal.

Affirmed in part and reversed and rendered in part.


author: TALBOT, J.

text:
    KENNEDY v. GARRARD.
    (Court of Civil Appeals of Texas. Dallas.
    April 12, 1913.
    Rehearing Denied May 3, 1913.)
    1. Landlord and Tenant (§ 170) — !Landlord’s Liability — Nuisance.
    To make the landlord liable for damages for the maintenance of a nuisance on the premises, it must necessarily result from the ordinary use of the premises by the tenant, or for the purpose for which they were let; and the landlord is not responsible for a nuisance caused by the negligent use of the premises by the tenant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 685-690; Dec. Dig. § 170.]
    2. Nuisance (§ 35). — Measure or Liability.
    If a nuisance is permanent, so that the damage therefrom to adjacent property constantly and regularly occurs, the person injured may recover the resulting depreciation in the value of his property, both in the past and future at one time, and is not entitled, in addition, to have the nuisance enjoined.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 93-94%; Dec. Dig. § 35.]
    3. Nuisance (§ 35) — Action—Relief.
    If a nuisance to adjacent property was abatable, the person injured thereby would be entitled, in an action to abate the nuisance, to recover such damages as would fairly compensate him for having been deprived of the enjoyment of his property up to trial, and, in addition, to have the maintenance of the nuisance restrained.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 93-94% ; Dec. Dig. § 35.]
    4. Appeal and Error (§ 759) — Briefs—Nonconformity with Court Rules.
    Assignments of error which are not briefed according to the court rules are not entitled to consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    5. Trial (§ 260) — Instructions—Requests.
    ' Judgment will not be reversed for refusal of a special charge requested, which was sufficiently covered by the court’s general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    6. Nuisance (§ 33) — Action for Damages— Admission of Evidence.
    In a suit to restrain the maintenance of a livery stable as a nuisance, and to recover damages, evidence offered by plaintiff that defendant had contracted not to engage in the livery business in the town for five years, and that a suit ■was pending to enjoin Mm from doing so, was immaterial.
    [Ed. Note. — For other eases, see Nuisance, Gent. Dig. §§ 84-89; Dec. Dig. § 33.}
    Appeal from District Court, Delta County; R. L. Porter, Judge.
    Suit by T. T. Garrard against S. W. Kennedy. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Patteson & Patteson, of Cooper, and A. P. Park, of Paris, for appellant. B. B. Sturgeon .and Wright & Patrick, all of Paris, and Newman Phillips, of .Cooper, for appellee.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

Appellee sued appellant to recover damages for a depreciation in the value of his house and lot, situated in the .town of Cooper, Delta county, Tex., and occupied by himself arid family as a home, alleged to have resulted from the construction and use by appellant of a livery stable near appellee’s said home. The petition alleges, among other things, that the use of .the building erected by the defendant, Kennedy, for livery stable purposes has caused irreparable damage and injury to plaintiff’s premises, impaired the health of plaintiff and his family, destroyed the comfort, peace, and sanctity of his home, and will continue .to do so as long as said building is so used ns a livery stable; that said stable is a distance of only about 40 feet from plaintiff’s residence and on the east side thereof; that said stable cannot be operated without creating loud noises, foul stenches, and disagreeable and unwholesome odors, which have, and will in the future, during the existence and ordinary operation of said livery stable, destroy the comfortable enjoyment of his home; that plaintiff’s premises are only valuable as residence property; and that without said livery stable and the use of said building in the ordinary way as a livery stable they are worth the sum of $3,000, but with the structure and the use of the same in the ordinary way as a livery stable plaintiff’s said premises are entirely worthless. Plaintiff prayed, upon final hearing, for a mandatory injunction requiring the defendant to tear down said livery stable building, and that defendant be forever enjoined from •erecting thereon a similar structure; that defendant be forever enjoined from conducting -on any portion of said premises a livery stable or similar business, or in the alternative, if the defendant should be allowed to conduct said livery stable on said premises, that same be restrained in such manner as to protect plaintiff as .much as possible and mitigate his damages, etc.;. and that plaintiff recover damages in the sum of $3,000, costs of suit, and such other relief as he was entitled to have.

Defendant pleaded a general demurrer, general denial, and by way of cross-action prayed for damages in the sum of $1,000 for the wrongful suing out of the temporary injunction theretofore granted by the court. The case was tried by the court and a jury, and the trial resulted in a verdict and judgment in favor of plaintiff for the sum of $25 damages, and permanently enjoining and restraining the defendant from conducting a livery stable at the place described in the petition, and the defendant appealed.

The first assignment of error challenges the correctness of the court’s charge in permitting a recovery against the appellant, because he says the uncontradicted evidence shows that the livery stable in question was leased to and being conducted by appellant’s brother, J. D. Kennedy, and that in order to hold appellant liable as landlord the nuisance must necessarily result from the ordinary use of the premises for which they were let; that where the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care, or is negligent in the use, the tenant is alone responsible. A sufficient answer to this contention is that the. evidence was not uncontradicted on the issue, and that the effect of the charge was to permit plaintiff to recover only in the event the jury should find that the defendant himself conducted and maintained the stable in such manner as to constitute a nuisance. Had the defendant prepared and requested a charge more directly and specifically presenting the issue, we are inclined to think it should, under the evidence, have been given; but in the absence of such a requested charge the manner in which the question was submitted to the jury, as here complained of, furnishes no sufficient reason for a reversal of the ease.

Mr. Wood, in his work on Landlord and Tenant (volume 2, § 536), says the rule upon the subject may be stated, as a result of the authorities, to be: “That in order to charge the landlord the nuisance must necessarily result from the ordinary use of the premises by the tenant, or for the purpose for which they were let; and where the ill results flow from the improper or negligent or improper use of the premises by the tenant, or, in other words, when the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care, or uses the premises negligently, the tenant alone is chargeable for the damages arising therefrom.”

Appellant further contends, in effect, that by the pleadings, the evidence, and charge of the court the nuisance alleged was treated as permanent, and that by his recovery of $25 plaintiff is compensated for all damages suffered by him, past, present, and prospective, and therefore the court erred in granting and perpetuating the injunction. In this contention we concur. As heretofore shown, the plaintiff alleged, in substance, that his premises are valuable only as residence property; that without the said livery stable and the use of the building and premises in the ordinary way as a livery stable they are worth $3,000, but with the structure and the use of the same in the ordinary way as a livery stable plaintiff’s said premises are entirely worthless. The plaintiff testified that his property was worth $2,500 without the stable and $1,500 with the stable as it is. There was other testimony to the effect that the market value of plaintiff’s property before the stable was erected and used was about $2,500, and that its value had been decreased by the erection and use made of the stable from $500 to $1,000. The court charged the jury on the measure of damages as follows: “In the event you find for plaintiff under the instructions hereinbe-fore given, then you' are instructed that the measure of damages will be the difference in the market value of plaintiff’s premises without the livery stable and its value with the livery stable as it has been used and now exists.” There seems to have been no charge authorizing the assessment of damages for any physical discomfort suffered by the plaintiff and his family in the enjoyment of their home. The record sent to this court indicates very clearly that the case was prosecuted and tried solely upon the theory that the nuisance charged was permanent and not abatable.

If, in fact, it is of a permanent character, and the “injury constantly and regularly occurs,” then the whole damage, past, present, and future, may be recovered at once, as seems to have been done in this case, and the measure of‘plaintiff’s damages, as charged by the court, is the resulting depreciation in value of his property (Rosenthal v. Railway Company, 79 Tex. 325, 15 S. W. 268), and the injunction was improperly perpetuated.

If, however, the nuisance charged is abatable, and the plaintiff’s purpose was to treat this case as an action for its abatement, then the proper measure of his damages was not given in charge to the jury. In such a case, if entitled to recover at all, he would be entitled to recover such damages as would fairly compensate him for having been deprived of the comfortable enjoyment of his property up to the time of the trial, and also to have an injunction restraining the defendant from so using and maintaining his livery stable as would amount to a nuisance. Hockaday v. Wortham, 22 Tex. Civ. App. 419, 54 S. W. 1094. But, as held in the case here cited, if the plaintiff was entitled to recover as the measure of his damages a sum of money equal to the depreciation in the value of his property, he should have elected that remedy; for he could not recover such damages (as he did) and, in addition, have the cause of injury so treated as permanent removed by injunction. Rosenthal v. Railway Company, supra; City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62. The case at bar differs from Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665, in that in the latter ease the plaintiff only sought to recover the damages sustained by him in consequence of the nuisance complained of up to the time of the hearing, with a prayer for an injunction perpetually restraining the defendant from maintaining the nuisance; whereas in the present case the pleadings are such as to authorize a recovery for the whole damage at once, with a prayer for a similar injunction, and such was the recovery had. This being the nature and extent of plaintiff’s recovery, the judgment must be reversed. Having recovered, according to the verdict of the jury, the amount of depreciation of his property, based on the permanency of the nuisance alleged, plaintiff was not entitled to have the continuation of the nuisance enjoined.

Some of appellant’s assignments of error are not briefed in accordance with the rules, and are not therefore entitled to consideration; but, in order that the lower court may have our views, briefly stated, upon the questions raised by them upon another trial, they have been considered.

The refusal of the special charge made the basis of the second assignment furnishes no‘ground for a reversal, because it was sufficiently covered in the court’s general charge.

The fourth and sixth assignments have been sufficiently discussed in what has already been said, and the fifth discloses no error.

The seventh and last assignment is as follows: “The court erred in overruling the objection of plaintiff and permitting counsel for plaintiff to prove by the defendant, S. W. Kennedy, that he had made a contract not to engage in the livery stable business in the town of Cooper for the space of five years, and there was now pending a suit in the district court of Delta county, asking that he be enjoined from conducting a livery stable in said town of Cooper, which evidence was objected to on the grounds that the facts elicited were immaterial, irrelevant, did not tend to prove that the livery stable as being conducted was a nuisance, and the only effect such testimony could have would be to prejudice the defendant before the jury, and that such testimony was not admissible against the defendant on this trial, either to affect the merits of this controversy, or for the purpose of impeachment.” We are inclined to think that the testimony here complained of was inadmissible in the state of the record sent to this court for any purpose, and therefore should have been excluded.

Eor the reason indicated, the judgment is reversed, and the cause remanded to be tried in accordance with the views expressed in this opinion.

Reversed and remanded.