author: HUFF, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. JOHNSON.
    (Court of Civil Appeals of Texas. Amarillo.
    March 22, 1913.
    Rehearing Denied April 19, 1913.)
    1. Limitation of Actions (§ 32) — Damages to Land Not Taken.
    In trespass to try title to land occupied by a railroad, where the railroad by cross-action sought condemnation of the right of way, upon which issue alone the case was submitted, the statute of two or four years’ limitation did not apply to the right of the owner to compensation for damages to the remainder of the land.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 143-145; Dec. Dig. § 32.]
    2. Licenses (§ 44) — Belating to Beal Property — Distinguished from Easement.
    The difference between a license and an easement is that a license is a personal privilege to do some act on the land without possessing any interest therein, while an easement is a permanent interest in the land; a license may be by parol, while,an easement must be created by prescription or deed.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 97-99; Dec. Dig. § 44 ; Easements, Cent. Dig. § 4.]
    3. Licenses (§§ 56, 62) — Belating to Beal Property — ^Revocation.
    A mere license relating to real property is revoked by a conveyance by either the licensor or licensee, and also by the death of the li-censor.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 113-115, 125; Dec. Dig. §§ 56, 62.]
    4. Frauds, Statute op (§ 129) — Interest in Beal Property — License.
    While the statute of frauds prevents the creation by parol of an irrevocable license with respect to real property, yet, where there has been a parol license under a definite contract with performance on one side, such part performance takes the case out of the statute, and equity will recognize and enforce the licensee’s rights in case of attempted revocation.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. § 129.]
    5. Bailroads (§ 64) — Bight op Way — Contract — Construction—Payment.
    Under a parol agreement between the owner and defendant railroad that its right of way could be located across his land if a switch was placed on the land, and that otherwise he should be paid $4 per acre, the railroad, without locating the switch or paying for the land, did not obtain any interest or title to the land in the nature of an easement, since payment was a condition precedent to its right.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 144, 147-152; Dec. Dig. § 64.]

      6.Eminent Domain (§ 280) — Action fob Compensation — Estoppel by Knowledge oe Owner.
    Plaintiff, suing for damages for the value of a strip used by defendant as a railroad right of way and for damages to the remainder of the land, was not estopped by the fact that she ,and her deceased husband saw and knew that defendant was grading the road, expending money thereon, and operating its trains thereover, where defendant’s entry on and improvement of the land were under a parol agreement for a consideration made by defendant’s agent.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 776; Dec. Dig. § 280.]
    7.Adverse Possession (§ 47) — Presumption —Possession oe Owner.
    There is a presumption at all times‘in favor of the true owner, and he is deemed by law to have possession coextensive with his title, unless actually ousted by the personal occupation of another, so that, whenever such occupation ceases, the title again draws to it the possession and restores the seisin of the owner, and a subsequent entry, even by the same wrongdoer and under the same claim of title, constitutes a new disseisin, from the date of •which the statute takes a fresh start.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 234, 235; Dec. Dig. § 47.]
    8.Adverse Possession (§ 96) — Extent oe Possession — Actual Possession.
    When the real owner is in possession of land, one holding an inferior title is restricted to his actual possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 533-536; Dec. Dig. § 96.]
    9.Adverse Possession (§ 60) — Requisites —Assertion oe Adverse Title.
    To establish title by limitation, the party setting up the limitation must show that he asserted an adverse title, so that one claiming only a right to be on the land as a licensee, and not a right to or in the land, is not holding adversely to the owner.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 282-312, 323, 328; Dec. Dig. § 60.]
    10.Public Lands (§ 178) — Purchase—Filing Conveyance — Proper Description.
    Under Sayles’ Ann. Civ. St. 1897, art. 4291, requiring the original purchaser of public land to forward his application properly describing the land, and article 4292 authorizing him to sell and the substitute purchaser to file his obligation with the Commissioner of the General Land Office, together with the duly authenticated conveyance or transfer from the original purchaser, a proper description in the substitute purchaser’s affidavit, if required, was substantially complied with by application of the substitute purchaser, with the attached obligation describing the land correctly and including the county where it was located, so as to authorize the Commissioner to recognize him as a purchaser of the land, though the application itself omitted the county.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. 178.]
    11. Trial (§ 85) — Sufficiency of Objection-Evidence Admissible in Part.
    Where at least part of a certificate of the Land Commissioner was admissible, and defendant’s objection thereto did not inform the court what part it claimed to be opinion and conclusion of the Commissioner or what part he was not authorized to certify, the court was not bound upon its own motion to pick out any particular part of it as being inadmissible.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    12. Appeal and Error (§ 1051) — Harmless Error — Facts Otherwise Established.
    Error, if any, in the admission of certificate by the Land Commissioner was harmless, where the record contained his unobjected to certificate to most of the facts set out in the certificate to which objection was made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    13. Trespass to Try Title (§ 6) — Title to Support Action — Possession.
    Mere possession of land or possession by tenant will support a recovery in trespass to try title against a naked trespasser.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dee. Dig. § 6.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Trespass to try title by Alice Johnson against the Chicago, Rock Island & Gulf Railway Company, with alternative demand by defendant for a condemnation of a right of way. Judgment for plaintiff for damages to land from defendant’s taking of a right of way, and defendant appeals.
    Affirmed.
    Gustavus & Jackson, of Amarillo, and N. H. Lassiter and Robt. Harrison, both of Ft. Worth, for appellant. Veale & Davidson, of Amarillo, for appellee.

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

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

   HUFF, C. J.

The appellee, Alice Johnson, for herself and as survivor of the community estate of herself and her deceased husband, A. S. Johnson, sued the appellant, the Chicago, ¿Rock Island & Gulf Railway Company to recover section 30, block HI, in Old-ham county, containing 640 acres of land, in the form of an ordinary action of trespass to try title. The appellant disclaimed as to-all of said section except 19.35 acres thereof, described by metes and bounds; and as to-said strip appellant pleaded the general issue not guilty, two and four years’ statute-of limitation as to damages, and, by estop-pel, substantially that the appellant’s line of railway, was surveyed and located in 1901 and 1902 by the Choctaw, Oklahoma & Texas Railway Company, a duly incorporated railway company of Texas, and that with the knowledge and consent of A. S. Johnson, deceased, thereafter entered upon the section of land described in appellant’s petition and graded said line of railway and expended: large sums of money in doing such work, which right of way, franchises, etc., appellant acquired September 23, 1903, for a valuable consideration, from the Choctaw, Oklahoma & Texas Railway Company, and took possession thereof, and has continued ever-since to operate same, and that later, about 1908 and 1909, without objection from ap-pellee, constructed its track upon said roadbed and extended the same from Amarillo, to which, point said line had been completed and put in operation across said section, and has since been operating its trains over same and using said lands and the right of way across same for railway purposes, and therefore appellee is estopped from claiming the land and from attempting to revoke the license and permission giving it the right to enter upon and use said land. Appellant also pleads the five-year statute of limitation as to said strip of land, under deed duly registered; further, if appellant is not entitled to said land under its pleas aforesaid, it then asks that said land be condemned in the suit for its right of way, in accordance with the statutes regarding the condemnation of lands for right of way purposes for railway companies, and the value thereof fixed in accordance with the law.

The appellee, by supplemental petition, asks, in case of condemnation of the land, that she have judgment for the value of the strip so taken and damages to the remainder of the section. The verdict and judgment were in favor of appellee for $232.20 for the strip of land so used for right of way and $930.97 damages to the rest of the land, from which judgment this appeal is taken. The ease was submitted alone upon the issue of condemnation. The trial court instructed the jury, as a matter of law, that appellee held title to all of the land and should recover the same; that the strip should be condemned; and that the only question was the assessment of the damages by the jury.

The appellant, under its first and second assignments of error, assails the charge of the court wherein the jury were authorized to award damages to the section of land at the date of trial, not included in the right of way strip. The proposition presented under these assignments is: “If there ever was a cause of action in favor of plaintiff (appellee) or her husband for damages to the remainder of the section of land, the statute of limitation had barred it before the filing of this suit.” Appellant cites in support of its proposition the following authorities: Railway Co. v. Geiselman, 12 Tex. Civ. App. 123, 34 S. W. 658; Houston Waterworks Co. v. Kennedy, 70 Tex. 233, 8 S. W. 36; Lyles v. Railway Co., 73 Tex. 95, 11 S. W. 782; Railway Co. v. Chaffin, 60 Tex. 553. We do not think these authorities applicable to condemnation proceedings. Judge Stay-ton decided the Kennedy Case, supra, and one or two other cases cited by appellant.

In the case of the Texas Western Railway Company v. Cave, 80 Tex. 137, 15 S. W. 786, Judge Stayton, speaking for the court, said: “We do not see upon what theory it could be held that plaintiff is barred of his right to recover all damages he would be entitled to if the company 'had not occupied the land at all, and was seeking to condemn before entering. The land belongs to plaintiff, as the cross-bill admits, and will continue so to do until the company may pay the compensation awarded; and we see no reason why he should be held barred, by a former occupancy which in no way divested his title, from anything which goes to make up the compensation which the company must pay before it can lawfully use the right of way. It might as well be held that plaintiff was barred from recovering damages for the condemnation of the right of way itself, by reason of a former occupancy not sufficient to confer the right, as to hold that he is barred from recovering from injury to land not actually condemned, but made less valuable by the condemnation of the right of way, for the one element of damages as well as the other enters into the compensation to be paid for the taking, and neither can be barred so long as the land has not in some lawful manner been burdened with the easement. The damages awarded by the judgment are all prospective in character, the price for which the future burden is placed on the land; and a holding that a past unlawful occupancy, which gave no right to continue to occupy, would cut off the right of a landowner to damages based on every element entering into the measure of compensation for taking of land for a public use could find no justification in principle or authority. Such a holding could stand only on the theory that the wrongful possessor, who thereby has acquired no property in the thing possessed, should for his wrongdoing be placed in a more favorable position when he seeks to recover the right to possess than would the person who seeks lawfully to acquire the right to possess and use before he takes possession. The law offers no such rewards for wrongdoing.” Railway Co. v. Ruby, 80 Tex. 172, 15 S. W. 1040; Railway Co. v. Kinkead, 60 S. W. 468-470. We do not think the statute of two or four years’ limitation apply, and there was no error in the charge in that particular. The assignments are therefore overruled.

We also overrule the fourth and twelfth assignments of error, which present the question upon refusal by the court of special charge No. 3 and upon the insufficiency of the evidence to support appellee’s right to damages.

The third, sixth, ninth, and tenth assignments will be considered together. The appellant requested special instructions Nos. 2 and 6, which the court refused. No. 2 is to the effect that the undisputed testimony shows that A. S. Johnson, husband of ap-pellee, gave the Choctaw, Oklahoma & Texas Railway Company license and permission to enter upon the section and to survey and construct the roadbed on the right of way across the land, which right of way was sold to appellant by said Choctaw Railw-ay Company, which it had completed at great expense, and that appellee could not revoke the same and recover the land. Special charge No. 6 is to the effect that if A. S. Johnson permitted said road to go upon the land, lay out its line, expend money in grading same across said section in the construction of said road thereon, and that appellant has ever since operated its trains over said line of railway and claimed right to use the strip of land so constructed, ap-pellee would be estopped and could not recover.

The deed from the Choctaw, Oklahoma '& Texas Railway Company to appellant is dated September 15, 1903. The facts in this case show that the Choctaw, Oklahoma & Texas Railway Company, some time in 1903, graded the right of way across the land, and that no further work was done thereon until some time in 1909, which was after appellant purchased the property. In that year it laid the rails on the dump and began to operate trains over the road. The facts are not clear as to the exact time when the road was completed over the land. The record shows that A. S. Johnson died in April, 1909; whether before or after the work was finished on the grade and the rails placed thereon and the road in operation, the testimony does not show. It appears that one Dye was the right of way agent and stopped one night at Johnson’s while engaged in that work and was at his house several times during his work in that part of the country. The testimony of one witness, Glasscock, is to the effect that both Johnson and Dye told him Dye was to pay Johnson $4 per acre for the land if a switch was not located on his land. This witness states no such switch was placed on the land, and there is no evidence that the $4 was ever paid, and there is no offer to do so in this case. Appellee and her husband, A. S. Johnson, were living on the land when the grading was done across it and while the work was in progress. There is no .evidence that they objected to the work. They left the land in 1907, before the rails were laid, the road completed, or trains operated over it.

It will be seen appellant reguested the court to instruct the jury that the testimony was undisputed that Johnson gave appellant and its vendor a license to enter upon his land and to use his land as a right of way. While the term “license” is used in the cases cited by appellant and in a great number of reported cases, upon principle we think they can be supported only on the ground that what was called a license was something more than a mere license. In many cases the license is connected with the grant. In other cases there was not a mere license but an oral agreement to grant an easement, followed by permanent and substantial improvements made upon the faith of the agreement, which equity regards as part performance and thereby takes it out of the statute of frauds. The difference between an easement and a license is the former implies an interest in land and the other does not. An easement must be created by deed or prescription while a license may be by parol. An easement is a permanent interest in the land while a license is a personal privilege to do some act on the land without possessing any estate therein.

In Parsons v. Hunt, 98 Tex. 425, 84 S. W. 645, Judge Brown said: “The defendant in error claims that the consent and permission given by Rutherford for the landing and fastening of the ferry boat to the land of the latter on the Texas side of Red river vested in Hunt a continuing right which could not be revoked by Rutherford or by his vendee, Parsons. Conceding the effect claimed for the permission given, it follows that under article 624, Revised Statutes, of this state, the agreement was void because such a right could not be conveyed by parol agreement. * * * Whether the right acquired in the land by Rutherford be denominated an easement or a license* it cannot be conveyed except by writing. In 18 American & English Encyclopedia of Law it was said: ‘While a license proper may be created orally, if that which is given is equivalent to an estate in the land, it is not strictly a license, and a writing sufficient to satisfy the statute of frauds is required.’ Cook v. Stearns, 11 Mass. 537. In the case last cited, the court said: ‘Licenses to do a particular act do not in any degree trench upon the policy of the law, which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which otherwise would be a trespass. But a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by our Statute.’ ” T. & P. Ry. Co. v. Durrett, 57 Tex. 48; Toyaho Creek Irr. Co. v. Hutchins, 21 Tex. Civ. App. 280, 52 S. W. 101; Adams v. Weir, 99 S. W. 726; Hicks v. Swift Creek Mill Co., 133 Ala. 411, 31 South. 947, 57 L. R. A. 720, 91 Am. St. Rep. 38; Ewing v. Rhea, 37 Or. 583, 62 Pac. 790, 52 L. R. A. 140, 82 Am. St. Rep. 783; Lawrence v. Springer, 31 Am. St. Rep., for notes pp. 713, 715. A full discussion of the question is given in the notes.

If it was a mere license or permission, the death of the licensor, Johnson, would revoke it. The conveyance by either the licensee or licensor would revoke it; but, where the license is executed or coupled with an interest, it is held by some courts, and we take it our courts hold that it cannot be so revoked. The courts appear to be hopelessly in conflict upon this question. It is perhaps the rule by our courts that the statute of frauds prevents the creation of an irrevocable license by parol; but where there has been a parol license, under a definite contract with performance upon one side, the case is taken out of the statute by part performance, and equity will recognize and enforce the licensee’s rights in case of attempted revocation. T. & St. L. Ry. Co. v. Jarrell, 60 Tex. 267; Shepard v. Railway Co., 2 Tex. Civ. App. 535, 22 S. W. 267; Evans v. Railway Co., 9 Tex. Civ. App. 124, 28 S. W. 903.

In this case the evidence and all the evidence upon that point is that Johnson agreed with the right of way agent, Dye, that the right of way could be placed across his land if a switch was placed upon his land. This was not done, nor is it offered to be done. If the switch was not placed on his land, then he must have $4 per acre. This is not shown to have been paid, nor is there any offer to pay. Then, what are the rights and equities of the parties in the case? This case illustrates the wisdom of the rule requiring the conveyance of an interest in land to be in writing. Johnson is dead; Dye is not produced; and a third party testified what he heard both parties say; whether they were together when he heard them say it or whether they told him separately and at different times the record leaves to conjecture. One thing is evident, however. Johnson did not donate the right of way, and, if appellant and its assignor placed improvements thereon and expended money, they did so under an agreement through Dye to pay Johnson for his land. Until this agreement was complied with, they did not secure an interest in the land in the nature of an easement. If there was any permission given appellant to enter upon the land, it was under an agreement to pay for it. We think the title to this land did not vest in appellant until it paid for it. The contract is not set up nor an offer to perform it according to the terms agreed upon. Had such pleadings and offer been made, a question might have been made as to appellee’s right to recover more than the $4 per acre for the land appropriated,' but no such relief is sought. On the contrary, appellant seeks relief in condemnation proceedings under the laws of this state. If there was any license granted to enter upon the land, it was under an agreement, the terms of which appellant did not comply with, and hence no rights to the land save those which the law gave it under the right of eminent domain.

The case of Rio Grande & Eagle Pass Ry. Co. v. Ortiz, 75 Tex. 602, 12 S. W. 1129, sustains our position. The facts are substantially in that case that Ortiz first sued for damages against the railroad company appropriating his land for right of way, which judgment was not paid. Afterward that company sold to another, which went into the hands of a receiver. The claim was presented to the special master in chancery who disallowed the claim, and thereafter the road ■was purchased by the Rio Grande & Eagle Pass Railroad Company, which took over all the property, and suit was instituted against the road by Ortiz. Judge Qaines, in passing on that case, said: “But the company having already occupied the land without either the payment or assessment of any compensation, he had two methods of enforcing his right. The first was an action for the recovery of his land, which would have forced the company to take the statutory method for its condemnation; and the second was to bring a. direct action to recover the damages for the appropriation of the land.” Again he said: “The law gives the company, by reason of its franchises, the right to an easement over the land. It gives the owner the right to his compensation in the event the company appropriates the land, and it makes the company’s right to depend upon the precedent condition and that it first pay the compensation.” Again; “We think, therefore, that the plaintiff, by obtaining his judgment against the Rio Grande Pecos Railway Company, which was never satisfied, parted neither with his title to the'land nor with his right to demand compensation therefor from another company, which succeeded to the rights of the former and continued to use the property.” Railway Co. v. Benitos, 59 Tex. 326. The reasoning in that case applies, we think, with force in this case. The appellee has not received compensation for the land so appropriated by appellant, and the fact that compensation was agreed upon, instead of having been reduced to a judgment, does not affect the rule that the payment is a precedent condition of appellant’s right to the land.

Neither do we think that appellee is es-topped by the fact that she and her husband saw and knew appellant and its vendor were grading the road, expending money thereon, and operating its trains over the road. We do not think, under the facts in this case, there was error in refusing the charge on'estoppel. Railway Co. v. Hunnicutt, 18 Tex. Civ. App. 310, 44 S. W. 535; Railway Co. v. Kinkead, 60 S. W. 468; Railway Co. v. Donahoo, 59 Tex. 132; Railway Co. v. Pfeuffer, 56 Tex. 74.

The fifth assignment of error complains at the action of the court in refusing to give special charge No. 4 requested by appellant, submitting the issue of title under the five-year statute of limitation. The appellant claims under deed dated September 15, 1903, and recorded November 6, 1903, in Oldham county. The deed firom the Choctaw Railway Company to appellant describes the property conveyed as: “All and singular its railroad extending from a point on the east line of the state of Texas at or near the town of Texola, in a westerly direction, through the counties of Wheeler, ■ Gray, Donley, Carson, Deaf Smith and Oldham, to the west line of the state of Texas, together with all of its1 franchises, property rights and privileges of every kind and character, including all lands, right of way, roadbed, tracks,” etc. ■The evidence of the payment of taxes is a statement from the tax collector that all taxes, including the year 1904, up to and in-eluding tlie year 1910, on 37.29 acres, out of section 30, have been paid. The evidence shows that the grading of the right of way was commenced in the early part of 1903, and work was stopped thereon some time in July of that year, and nothing else was done on the grade until some time in 1909, when work was resumed. The ties were placed thereon and the trains operated over the road. The section of land was in the possession of Johnson up to the time he left in 1907 and by tenant until work was resumed on the grade. There was no segregation of the right of way from the rest of the section' by fence or otherwise, but it was under Johnson’s inclosure. No work of any kind was done on the grade, but it stood open and unused, and cattle and other animals could trespass freely on it. The suit was filed for the land the -day of-, 1910.

“At all times there is a presumption in favor of the true owner, and he is deemed by law to have possession coextensive with his title, unless actually ousted by the personal occupation of another; and so, too, whenever that occupation by another ceases, the title again draws to it the possession and the seisin of the owner is restored; and a subsequent entry, even by the same wrongdoer and under the same claim of title, constitutes a new disseisin from the date of which the statute takes a fresh start.” Collier v. Couts, 92 Tex. 238, 239, 47 S. W. 527. Appellant shows by its testimony that there was no actual continuous possession or use by it of the strip of land from 1903 to 1909. If Johnson was ever in fact ousted from possession after appellant or its vendor vacated the premises, he (Johnson) was then not only in constructive but actual possession of the land until appellant again entered for the purpose of completing the work. Even if there was possession of the l„and, it may be doubted if the deed sufficiently describes the land such as would support the five-year statute. However, we do not decide this point. Ellis v. Le Bow, 30 Tex. Civ. App. 449, 71 S. W. 576.

It is the well-recognized rule that, when the real owner is in possession of the land, the one holding an inferior title is restricted to his actual possession.

In this case it appears appellant only claims as a licensee and therefore is not holding adverse to appellee’s title. By so claiming it only claims a right to be on the land and not a right to or in the land. In order to establish title by limitation, the facts must show that appellant asserted title adverse to that of appellee. We think the court correctly refused to submit the issue of the five-year statute of limitation to the jury,

The appellant assigns error on the action of the court in permitting the application of A. S. Johnson to purchase section 30, block HI, to be read in evidence, because the county where the land was situated is not given in the application and does not appear to be the same land sued for. The land appears to have been purchased from the state by one E. Paschal on the 27th day of June, 1901, who properly filed his application and obligation with the Land Commissioner. On the 27th day of January, 1902, Paschal, by quitclaim deed, conveyed the land to A. S. Johnson, and on that date Johnson made his affidavit to purchase the land, which in its body leaves a blank where the county should have been given. The obligation of Johnson attached to the affidavit describes the land properly as being situated in Old-ham county. It will be noted that article 4291, Sayles’ Statutes, requires the original purchaser to forward his application “particularly describing the land.” Article 4292 authorizes the original purchaser to sell and ■ that the substitute purchaser “may file his obligation with the Commissioner of the General Land Office, together with the duly authenticated conveyance, or transfer, from the original purchaser.” In this article requirements of particular description in the substitute purchaser’s affidavit is not a requirement ; but, if such was the requirement, we think the application with the attached obligation, describing the land correctly, is a substantial compliance and was sufficient to authorize the Commissioner to recognize Johnson as a purchaser of the land. The following qases, while not directly in point, support the act of the Commissioner in so recognizing Johnson: Corrigan v. Fitzsimmons, 97 Tex. 595, 80 S. W. 989; Logan v. Currie, 95 Tex. 664, 69 S. W. 129.

The eighth assignment is urged on the action of the court in admitting the certificate of the Land Commissioner reciting the sale of the land to Paschal; that field notes were filed; that Paschal conveyed to Johnson ; that Johnson made proof of occupancy the payment of principal and interest, and that the section stood in the records of that office in the name of A. S. Johnson. The appellant objected to this certificate because it is not a certified statement of the contents of the records and but the conclusion of the Land Commissioner; is not best but secondary evidence; is not such certificate as the Land Commissioner is authorized to make; and is the conclusion of the Commissioner as to matters set out in said certificate. The Commissioner can certify to “facts contained in the papers, documents, or records” of his office. At least part of the certificate was admissible; just what part is claimed to be opinion and the conclusion of the Commissioner, and just what he was.not authorized to make by certificate, appellant has not seen proper to inform us. We do not feel authorized, under the general exceptions to the certificate, to pick out any particular portion of it upon our own motion. On what the certificate may show, we cite Robles v. Cooksey, 70 S. W. 586; Brewster County v. Presidio County, 19 Tex. Civ. App. 638, 48 S. W. 213.

We also find a certificate by the Commissioner in the record to most of the facts set ont in the above certificate, to which no objection was made. If there was any error in the admission of the certificate objected to, it was harmless. It may be doubted whether appellant, under article 4472, Sayles’ Statutes, can question appellee’s title in the action to condemn the land. It is provided by that article: “But the plea for condemnation shall be an admission of the plaintiff’s title to such property.” Railway Co. v. Kinhead, 60 S. W. 468. In this case appellant holds its right under the Johnson title and seeks to condemn the land to its own use.

Again, the appellee was in possession of the land by tenant. One in possession of land may recover against a naked trespasser. Railway Co. v. Ragsdale, 67 Tex. 24, 2 S. W. 515; Parker v. Railway, 71 Tex. 132, 8 S. W. 541.

The eleventh assignment is overruled for reasons set out under the first and second assignments of error.

We find no such error in this case as requires a reversal, and therefore affirm the judgment of the trial court.


source: Caselaw Access Project

author: MeMEANS, J.

license: Public Domain

text:
    NELLIUS v. THOMPSON BROS. LUMBER CO. et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 4, 1913.
    Rehearing Denied March 27, 1913.)
    1. Vendor and Purchaser (§ 337) — Bona Pide Purchaser — Rights.
    While a bona fide purchaser who has paid the entire purchase price without notice of a superior, outstanding, equitable title takes in preference to such title, and a purchaser who has given negotiable notes is considered a purchaser for value, yet the burden of proof being upon him to show that such notes are negotiable, an infant, a bona fide purchaser of land, is only entitled to a lien for the amount of the purchase price already paid; the notes for the balance being still in the vendor’s hands, and not being shown to be negotiable.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 985-990; Dec. Dig. § 337.],
    2. Vendor and Purchaser (§ 236) — Bona Fide Purchaser.
    A purchaser of land who gives negotiable ' instruments in payment is a purchaser for value.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 570; Dee. Dig. § 236.]
    3. Infants (§ 58) — Avoidance of Contract.
    As an infant may avoid his contracts, even promissory notes, one who bona fide purchased land giving promissory notes in payment is not entitled to take as against superior outstanding title; the infant having the power to disaffirm its contract upon reaching his majority.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 149-160; Dec. Dig.-§ 58.]
    Appeal from District Court, Tyler County; W. B. Powell, Judge.
    Trespass to try title by M. F. Nellius, by bis next friend, against the Thompson Bros. Lumber Company and others. From a judgment awarding plaintiff only a lien, he appeals.
    Affirmed.
    Joe W. Thomas, of Woodville, for appellant. J. O. Matthews, of Lampasas, for ap-pellees.

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

   MeMEANS, J.

This is a suit of trespass to try title brought by appellant, M. F. Nel-lius, by next friend, against appellee Thompson Bros. Lumber Company to recover the title and possession of 231% acres of land, part of the George Kirkwood survey in Tyler county. Appellee Thompson Bros. Lumber Company answered by general denial and a plea of not guilty and impleaded their vendors; S. F. Carter and J. P. Carter, upon the warranty of title contained in the deed conveying the land to said appellee. The war-rantors appeared and answered by general denial and a plea of not guilty. A trial before the court without the assistance of a jury resulted in a judgment in favor of ap-pellee Thompson Bros. Lumber Company for the land, and the establishment of a lien thereon in favor of plaintiff to secure the payment to him of $350, with 6 per cent, per annum interest from April 5, 1911, and decreeing a foreclosure of such lien on the land. To this judgment, and to the findings of fact and conclusions of law made and filed by the court, the plaintiff excepted, and has brought the case before this court by an appeal properly perfected.

From the evidence in the record and from the court’s findings, we make the following findings of fact:

In 1899 or 1900 Wm. McCready owned and operated a sawmill. Prior to December 29, 1900, he formed a partnership with J. I. Campbell, by the terms of which Campbell' and McCready became equal partners in the sawmill and of all the lands and other property owned and used in connection therewith. On December 29, 1900, McCready bought the land in controversy from one Cline, who held the fee-simple title thereto, paying his separate funds therefor and taking the title in his own name. Some time prior to August 15, 1902, McCready and Campbell entered into a contract in writing whereby McCready contracted to sell to Campbell the said sawmill property, including the land upon which the mill was situated, all machinery, tram roads, etc., connected therewith, and all lands owned by McCready in Tyler county, including the land in controversy, except one-half acre upon which a certain church was situated. The agreed consideration for the land was afterwards fully paid by Campbell to McCready, but no deed for the land in con--troversy was executed, and the contract itself was not recorded in Tyler county. About July 26, 1902, Campbell contracted in writing to sell to S. F. Cartér the sawmill, the lands, and tram roads connected therewith, and all the lands owned by the partnership, together with other lands; and on August 21, 1902, Campbell sold and conveyed to said Carter the said mill and lands, including the land in controversy, and this deed was filed for record in Tyler county August 25, 1902. Afterwards S. E. Carter conveyed this and other lands to the Emporia Lumber Company, which subsequently reconveyed the same to S. P. Carter, and the latter conveyed an undivided one-fourth interest to J. P. Carter, and the Carters conveyed the same by deed of general warranty to Alex Thompson, who conveyed by general warranty deed to appellee Thompson Bros. Lumber- Company.

On April 5, 1911, Wm. McCready conveyed the land in controversy to his nephew, M. P. Nellius, the plaintiff, for the consideration of $1,750, of which $350 was paid in cash, and two promissory notes of the said Nellius for $700 each, payable one and two years, respectively, from date. Nellius at that time and at the time of the trial in the district court was a minor. He actually paid the $350. At the time of the trial McCready had in his possession the two notes executed to him by Nellius, and no payments had been made thereon. When Nellius purchased the land from McCready, he had no notice or knowledge of the contract between McCready and J. I. Campbell above referred to, and there was nothing in his claim of title that would put him, or a reasonably prudent person, on inquiry as to any equitable or other title to the land in any one other than Mc-Cready. The evidence does not show whether the notes executed by Nellius for the deferred payments were negotiable. Nellius never at any time took actual-.possession of the land, nor did he erect any improvements thereon.

The judgment in addition to decreeing to Thompson Bros. Lumber Company the‘title to the land adjudges in favor of appellant Nellius a lien on the land to secure the payment to him of the said sum of $350, with 6 per cent, per annum interest thereon from April 5, 1911, the same to be paid by Thompson Bros. Lumber Company, or for it by S. P. Carter and J. P. Carter, its warrantors, within two months from the adjournment of the court, or within two months from the affirmance of said judgment on appeal, and providing that, if said sum be not so paid within the time required, then that an order of sale be issued by the clerk directed to the sheriff or any constable of Tyler county commanding him to seize and sell said land as under execution and to apply the proceeds of said sale to the satisfaction of said sum of $350 and interest.

■ Appellant by his first, second, third, and fourth assignments of error in effect complains that the judgment of the court in favor of Thompson Bros. Lumber Company is erroneous, for the reason that as the undisputed evidence established, and the court found, that the appellant was an innocent purchaser for value, the title to the land should have been adjudged to him, notwithstanding it was shown that Thompson Bros. Lumber Company held the superior equitable title.

By the fifth assignment of error, it is contended, in effect, that as appellant was an innocent purchaser, and had paid in cash at the time of his purchase a sum of money equal to one-fifth of the entire purchase price, he was at least entitled to a judgment for one-fifth of the land.

That a bona fide purchaser of land who has paid the entire purchase price, without notice of a superior outstanding title, takes the superior title, is too well settled to require discussion. And it seems to be settled that a purchaser who gives negotiable notes in payment for land is purchaser for value. Tillman v. Heller, 78 Tex. 600, 14 S. W. 700, 11 L. R. A. 628, 22 Am. St. Rep. 77. But the burden of proof is upon him to show that such notes are negotiable. But where, as in this case, it is not shown that the notes given for the deferred payments are negotiable, or where it is shown, as it was in this case, that the purchaser before he has paid notes given for part of the purchase price, and while they are still in the hands of his vendor, receives notice of a superior outstanding title, then the rule se.ems to be that he will be protected only to the extent of the actual payment made by him before receiving such notice. Batts v. Scott, 37 Tex. 63; Rawles v. Perkey, 50 Tex. 315; Morton v. Lowell, 56 Tex. 645; Vodrie v. Tynan, 57 S. W. 681; Durst v. Daugherty, 81 Tex. 654, 17 S. W. 388; Sparks v. Taylor, 99 Tex. 427, 90 S. W. 485, 6 L. R. A. (N. S.) 381. In Durst v. Daugherty, above cited, the district court rendered judgment for land in favor of the purchaser who paid half of the purchase money before knowledge of any adverse claim, but had not paid the other half of the purchase money. On appeal the appellant contended that the court erred in rendering judgment in favor of appellee for the entire tract of land, because he had only paid one-half of the purchase money before he obtained knowledge of the adverse title, and this contention was sustained by the Supreme Court. In deciding the case it was said: “The pro tanto protection accorded an innocent purchaser is so well recognized by American courts that we deem it unnecessary to cite authority in support of the right. The difficulty lies in the application of the rule, and - how the relief should be administered. Some of the courts adopt that rule that allows an innocent purchaser to retain of the land purchased the proportion paid for. Some .admit a lien in favor of the innocent purchaser upon the land for the amount of the purchase money paid. Other courts give to the innocent purchaser all the land, with a right in the real owner to recover from him the purchase money unpaid at the time of notice.” The trial court in determining tlie rights of the parties adopted the rule which admits a lien upon the land in favor of the appellant, the innocent purchaser in this case, for the amount of the purchase money he had paid, and we think that under the facts of this case that rule is applicable, and that the assignments point out no error.

But, even had it been shown that negotiable notes had been given by appellant for part of the purchase money, we would, under the facts of this case, be constrained to hold that the judgment is correct. Appellant at the time he gave the notes and at the date of the judgment was a minor, and McCready then had possession of the notes. Should suit be brought by McCready against appellant on the notes, appellant could plead his minority in avoidance, or on becoming of legal age he could disaffirm his contract. And, even if the notes have passed into the hands of a boha fide purchaser for value before maturity, the purchaser’s rights could not avail as against the minor’s right to dis-affirm, because the right of an infant to avoid his contract is an absolute and paramount right, superior to all equities of other persons. Howard v. Simpkins, 70 Ga. 322; Tiedeman on Commercial Paper, § 280; note to Craig v. Van Bebber, 18 Am. St. Rep. 661.

We have carefully examined all the other assignments presented by appellant, and are of the opinion that none of them points out reversible error. The judgment of the court below is affirmed.

Affirmed.


author: McMEANS, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. VOGEL et ux.
    (Court of Civil Appeals of Texas. Galveston.
    April 11, 1913.
    Rehearing Denied April 24, 1913.)
    1. Appeal and Error (§ 742) — Briefs — Proposition.
    In an action against a railroad company for damage to property by the construction of tracks near it, appellant railroad company assigned error in admitting evidence as to the market value of the property and supported the assignment by a proposition which recited that the court committed error to defendant’s prejudice in permitting plaintiff to testify over defendant’s objection and in refusing to sustain defendant’s objections to such testimony, that before the railroad was constructed the property was worth about $6,000 or $7,000 per lot, and that it was then worth from $6,000 to $8,-000 per lot, plaintiff theretofore having testified that he did not know the market value of the property and was not acquainted with the market value of property in that vicinity, and this defendant having objected to said testimony of the plaintiff upon the ground that plaintiff had testified that he did not know the market value of said property and hence was not qualified to testify with respect thereto, to which ruling defendant excepted, all of which more fully appeared from defendant’s bill of exceptions No. 1. Held, that the assignment of error sufficiently complied with the Court of Civil Appeals Rules 24 and 25 (142 S. W. xii), in that it sufficiently pointed out that part of the proceeding in which error was complained of in a manner so as to identify it and was sufficient as a proposition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Error (§ 742) — Briefs — Statements — Sufficiency.
    A copy of the bill of exceptions taken to the admission of certain evidence held sufficient as a statement under the court rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Evidence (§ 474) — Opinion Evidence — Value.
    A witness who testified that he did no! know the value of certain lots was not competent to give an opinion thereon.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.]
    4. Evidence (§ 498%) — Opinion Evidence-Competency of Witness — Sufficiency of Evidence.
    Evidence held to show that plaintiff did not know the market value of real property involved so as to be competent to give opinion on its value.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2290, 2291; Dec. Dig. § 498%.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by John Vogel and wife against the Houston Belt & Terminal Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Andrews, Ball & Streetman, of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellees.

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

   McMEANS, J.

This suit was brought by John Vogel and his wife, Christine Vogel, against the Houston Belt & Terminal Railway Company, the Trinity & Brazos Valley Railway Company, the Gulf, Colorado & Santa Fé Railway Company, the Beaumont, Sour Lake & Western Railway Company, and the St. Louis, Brownsville & Mexico Railway Company, for damages alleged to have been sustained by them through the depreciation of their property in the city of Houston, consisting of certain lots of land upon which their residence is situated, caused by the construction and operation of railroad tracks in the vicinity thereof. Afterwards plaintiffs dismissed their suit against all the defendants except the Houston Belt & Terminal Railway Company. The case was tried before a jury and resulted in a verdict and judgment -for plaintiffs for $3,812.66%, and from this judgment the defendant has appealed.

The issue of whether the construction of the defendant’s railroad* in the vicinity of plaintiffs’ property, and the operation of engines and cars thereover, had depreciated the market value of the property or enhanced such value was sharply contested. Several witnesses testified for defendant that plaintiffs’ property, and other property similarly situated with reference to the tracks, by reason of the construction of the road in the vicinity had been increased in value, while certain witnesses for plaintiffs testified that the building and operation of the road had caused a depreciation of its market value. Plaintiff John Vogel was called to testify in his own behalf, and testified that there had been a depreciation. His testimony was objected to on the ground that he had' not shown himself qualified to testify as to the market value of his lots just before and just after the construction of the railroad. The objection was overruled, and this action of the court is made ’ the basis of appellant’s fifth assignment of error, which is submitted as a proposition and which is as follows: “The court committed error, to the prejudice of this defendant, in permitting the plaintiff John Vogel to testify over the objections of this defendant, and in refusing to sustain the objections of this defendant to the testimony of the plaintiff John Vogel, that, before the railroad in question was constructed and operations begun thereon, the property in question was worth about $6,000 or $7,000 per lot, and that said property was then worth from $6,000 to $8,000 per lot, the said plaintiff, John Vogel, theretofore having testified that he did not know the market value ■of said property, and was not acquainted ■with the market value of the property in that vicinity, and this defendant having objected to said testimony of the plaintiff, John Vogel, upon the ground that the plaintiff had testified that he did not know the market value of said property, and hence was not qualified to testify with respect thereto, to which ruling of the court the defendant duly excepted, all of which will more fully appear from this defendant’s bill of exception No. 1 herein.”

Appellees object to the consideration of this assignment on the ground that the same is not a proposition in itself and is followed by none, and that besides which there is no statement thereunder tending to show whether, if error was committed, it was or was not reasonably calculated to prejudice the defendant or produce an improper judgment against it. The objections, we think, are not tenable. The assignment conforms to rules 24 and 25 (142 S. W. xii), in that it distinctly .specifies the ground, of error relied on, and .sufficiently points out “that part of the proceeding contained in the record in which the •error is complained of, in a particular manner so as to identify it,” and is, in itself, ■sufficient as a proposition.

The statement following the assignment ■consists of a copy» of the bill of exceptions taken to the admission of the evidence objected to and is, we think, a sufficient statement under the rules. The bill of exceptions is as follows: “Be it remembered that upon the trial of the above numbered and entitled cause, the plaintiff, John Vogel, on the examination in chief of him by his attorneys, among other things testified, as shown by the statement of facts, as follows: ‘At the time of the construction and the beginning of operation of this road in question I was not acquainted with the value of property in that neighborhood; there never had been no transfers that were made by anybody. X think my own property was worth just as much at that time for me, that is, my home, as my homestead, as it was worth to the company that they bought for their operations. I am not acquainted with the market value of my own property.. I built that place for a home; it was not fit for anything else but a home. All the property around me just before the construction and operation of this road was being used for dwelling purposes. So far as it was improved, it all had dwelling houses on it and was used and occupied for dwelling purposes. I was especially acquainted with this property and the uses to which it was being put at that time, and the uses that it was fit for. X have been living on this property that I have for going on 26 years; I have been living there in that neighborhood that long.’ Thereupon the plaintiff’s attorney asked him this question: ‘From your acquaintance with this property and the uses and advantages of similar property in that neighborhood, what in your opinion was.the fair market value of this property, taking in view any use to which it might be put just before the construction and operation of this railroad?’ To which question the defendant’s attorney objected, saying: ‘We interpose the objection that the witness stated that he didn’t know what the market value was and didn’t know of a sale of property in that neighborhood.’ Which objection the court then and there overruled. T mean without the railroad there, just before they put the railroad there, without the railroad or its operation. What was the fair market value of the property at that time? How much was it worth, in your opinion, the whole property with the improvements? How much was it worth, the fair market value without the railroad there?’ To which the witness answered: T think my whole property, with its improvements, its fair market value without the railroad there, was about $6,000 or $7,000 a lot. I had two lots and an eighth. Of course, that would be with the improvements, but it was not for sale; I didn’t want to sell it; it has never, been on the market. I said that I had two lots and an eighth; it measures up two lots and 25 square feet. It is 25 feet of lot 12, the key lot. I think it was worth about $6,000 or $7,000 a lot with the improvements on it, just like it stood then; I don’t think it’s worth anything more.’ To which action of the court in overruling said objection and in admitting said answer the defendant then and there in open court excepted. Thereupon the witness was asked by his attorney the following question: ‘What in your opinion was the fair market value of this property for any use to which it might be put before the road was built there and began to run its trains there?’ Thereupon the defendants renewed their objections, saying, ‘The court understands that our objection goes to all of this,’ to which the court responded in the affirmative. The witness then answered the question as follows: ‘As to what it was worth, taking into consideration any use to which it might be put, just before the railroad was put there, without, the road, with no railroad there, X don’t know what it was worth. I know what it was worth to me, but I couldn’t testify what it was worth, its market value; I know what it was worth to me to live.on at that time. X don’t know what it was worth for any other man to.live on.’ Thereafter the question was renewed by the plaintiff’s attorney and was answered by plaintiff as follows: ‘Before the railroad was constructed through there, I think that that property was worth just as much as the railroad has been paying to other people; I think -it was worth from $7,000 to $8,000 a lot; that includes the improvements.’ Thereupon the plaintiff’s attorney asked the plaintiff the following question: ‘Now, Mr. Vogel, what was the fair market value of the property for any use to which it might he put after the road was built and constructed there, and has been since, after they commenced operating trains there?’ Thereupon the defendants renewed their said objection and exception, and the court remarked that he would treat the objection as going all the way through the testimony. The witness then answered: T say that since the road was put there it ain’t worth more than $1,000, as it stands, for dwelling purposes.’ Thereupon the witness was again asked by his attorney: ‘What in your opinion was the fair market value of this property for any use to which it might be put before the road was built there and began to run its trains there, you said awhile ago?’ To which the witness answered: ‘I said awhile ago that it was worth from $6,000 to $8,000.’ Thereupon the witness was again asked by his attorney what was the fair market value of the property for any use to which it might be put after the road was built and constructed and had been since after they commenced ■operating trains there, and the witness again responded: ‘Eor residence purposes it ain’t worth more than $1,000 a lot since the building and construction there of the road and after they commenced operating trains over it.’ Thereafter the witness was again asked substantially the. same question by his attorney, and again responded: ‘It ain’t worth more than $1,000 for dwelling purposes, and it might be less.’ Thereupon the defendants objected and moved that the answer of the witness be stricken out, upon the ground that he had stated that he did not know the market value of the property, which objection and motion were by the court overruled. All of the aforesaid objections, repeated as aforesaid, and allowed as extending throughout said testimony so far as applicable, the court overruled and allowed the answers of the witness, as aforesaid, to be introduced in evidence, and to each of the rulings of the court in each of the particulars aforesaid the defendants then and there in open court excepted as and when the same were so made, and this bill of exceptions is here now tendered by the defendants in this behalf, with the request that the same be examined, approved, and ordered filed as a part of the record in this cause, which is accordingly done.”

Before plaintiff could be allowed to testify as to the market value of his lots, either before or after the construction of the road, he must have shown himself qualified to speak. This he did not do, but, on the contrary, expressly stated that he did not know what such value was; nevertheless he was permitted to give his opinion. His testimony in the circumstances was improperly received. Callen v. Collins, 135 S. W. 651.

But appellees contend that the testimony was admissible because it was shown by the testimony of plaintiff in that connection that he was especially acquainted with the property and to the uses to which it was being put at that time and the uses that it was fit for, and that in answering that he was not acquainted with its market value he added that “there never had been no transfers that were made by anybody” in that immediate locality, thus showing that he meant he did not know the value in the sense there had been no sales to accurately determine it. We think an answer to this contention is found in the language of the witness, where he says: “As to what it was worth, taking into consideration any use to which it might be put, just before the railroad was put there, without the railroad, with no railroad there, I don’t know what it was worth. I know what it was worth to me, but I couldn’t testify what it was worth, its market value; I know what it was worth for me to live on at that time; I don’t know what it was worth for any other man to live on.” The error in admitting the testimony requires a reversal.

We have carefully examined the other assignments of error and their several propositions presented by appellant in its brief, and are of the opinion that none of them are well taken, and they are severally overruled.

For the error indicated, the judgment of the.court below is reversed, and the cause remanded.

Reversed and remanded.


author: CONNER, C. J.

text:
    HARTSHORN BROS. et al. v. WILLIAMSON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 22, 1913.
    Rehearing Denied April 5, 1913.)
    1. Master and Servant (§ 107) — Transitory Condition — Peace or Work.
    The piling up of excelsior from the cutter around the machine for baling, up, during the absence of the servant, who fed the baling machine, on an errand for the master, rendering the work of feeding the machine dangerous, was not a mere transitory condition, not to have been anticipated by the master in providing a safe place to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.]
    2. Master and Servant (§ 281) — Personal Injuries — Contributory Negligence.
    In an action for personal injuries by a servant, who in feeding a machine for baling excelsior, while standing on excelsior piled around the machine, fell and had his hand crushed in the press, evidence held to warrant a finding that the servant was not guilty of contributory negligence.
    [Ed. Note. — ‘For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.]
    3. Master and Servant (§ 280) — Assumption oe Risk — Evidence.
    In an action for personal injuries by a servant, who in feeding a machine for baling excelsior, while standing on excelsior piled around the machine, fell and had his hand crushed in the press, evidence held to warrant a finding that the servant did not assume the the risk.
    [Ed. -Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 280.]
    4. Appeal and Error (§ 1002) — Review-Finding oe Jury — Conflicting Evidence. Where the evidence is conflicting, the finding of the jury is not reviewable on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.]
    5. Master and Servant (§ 153) — Duty to Warn — Negligence.
    It is the duty of a master to warn a boy of all dangers not obvious, or not brought home to his knowledge by the exercise of ordinary care in the performance of his duties; a failure to do so being negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 314^-317; Dec. Dig. § 153.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by Elton C. Williamson, by next friend, against Hartshorn Bros, and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Capps, Oantey, Hanger & Short and Will L. Evans, all of Ft. Worth, for appellants. Lindsley M. Brown and Ben M. Terrell, both of Ft. Worth, for appellee.

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

   CONNER, C. J.

Appellants have appealed from a judgment against them in the sum of $1,295.83, awarded as damages to Elton C. Williamson, a minor, for personal injuries received while operating a machine for baling excelsior.

A number of grounds of negligence were alleged in behalf of the minor as a basis for recovery, but the court submitted only the issue of whether appellants had furnished him a reasonably safe place in which to work, also submitting the defense of assumed risk and contributory negligence, which had been pleaded by appellants. In disposing of the appeal, therefore, we will confine ourselves to matters pertinent alone to the issues submitted.

The evidence shows that appellants, among other things, were engaged in cutting and baling excelsior. The cutting and baling machines were situated in a room from 60 to 70 feet long and 18 feet wide. The cutting machines were located within about 15 feet of the south end of the room, the baling machine within a couple of feet of the east wall of the room, and at its nearest point some 6 or 7 feet north of the cutting machines. The cutting machines were four in number, and were at the time operated by a Mr. Stacks, who. had charge of the room, and whose business it was to feed the cutting machines with wood. These machines would shave the pieces of wood with which they were fed into small strips or shavings, known as excelsior. The excelsior would be deposited toward the north and in the direction of the baling machine. The baling machine or press was made in much the same way as an ordinary hay press. It consisted of a box about 18 inches square and 14 feet long extending horizontally. About midway of the box there was an opening in the top about 22% or 24 inches long and about 15 or 16 inches wide, into which the excelsior was fed. The excelsior, after being thus placed, which was done with the hands, was pressed by what is termed a “blockhead,” which operated within the box backward and forward about 22 inches; its velocity being about 5% or 6 strokes to the minute. The machines in question were located upon a concrete floor, and the baling press extended above the floor some 2 or 3 feet. Elton O. Williamson was but a few months over 16 years of age at the time of his employment by appellant to operate the baling machine, and was wholly without experience in the labor in which he was employed. The evidence shows .that he was hurt on the third day after his employment. 1-Iis testimony was to the effect that as Stacks operated the cutting machine he (the •boy) would gather the excelsior and feed the press and bale it; that he was able to bale the excelsior as fast as it. was cut, and had been able to do so, and to keep the floor upon which he stood in feeding the press clear, up to the day of his injury; that about noon of that day he was directed to go to another part of the city upon a mission not included within his employment, and upon his return found that the excelsior had accumulated and become pressed up and around the baling press almost level with its top; that he said to Mr. Stacks, “ T did not have room to work there;’ and he said we did not have anywhere to put the excelsior. He told me I would have to feed it as it was.” He further testified to the effect he had to feed the baling press ás directed by Mr. Stacks, and while in the' act of pressing excelsior into the hopper of the press, and while standing on the accumulated excelsior after he had fed it away from around and under him about half down to the floor, the excelsior slipped from under him, and he was thrown forward and one of his hands caught and crushed in the press before he could extricate it.

The evidence sharply conflicted on the issue of whether the boy had been warned of the dangers attending his employment. He testified that after he had been employed by Mr. Hartshorn the latter took him down to the excelsior room and told him that “Mr. Stacks would show rhe what to do. He did not say anything else. After that Mr. Stacks just took the excelsior in his arms and packed it in and told me to do likewise. He did not give me any instruction or warning about the danger or probability of getting caught in the machine, or anything of the kind. He did not warn me not to stand on the excelsior.” Mr. Hartshorn testified that “when I first took him [the boy] down there I turned him over to Stacks, who had charge of the place. I visited the place every morning. One morning I went there, and the boy had let the excelsior accumulate up to the height of the first timber of the press, and I said, ‘Here, this won’t do,’ and explained to him if he stood upon that he would lose his balance and fall over in there. ‘You must stand on the floor.’ And he says, ‘Well, it is a lot easier for me to run it here.’' The first occurrence was the day prior to the time the boy got hurt. The morning of the day the boy got hurt I spoke right sharply to him. I said, ‘Did not “I tell you to keep off of this?’ and he said, ‘It is much easier,’ and I says: ‘You must keep off of this, or you won’t work here any longer; it is dangerous.’ I tried to impress upon his mind that he must keep off it, and keep it off the floor. I went to Stacks and told him that boy was going to fall in there and get hurt, and I says: ‘Either keep that boy off that excelsior and make him keep it clean away from there — clean all around — or fire him right straight. I won’t take a chance like that.’ ”

Stacks also testified. He stated, among other things: “The boy came down one evening and said Hartshorn hired him and sent him down to me. I explained to him the danger there was in the press. • * * The morning of the day the boy got hurt Hartshorn came up there and stopped and talked with the boy. After he talked to the boy, he came to me and says, ‘Stacks, if that boy' don’t keep the excelsior out of his way, you fire him.’ After Hartshorn went away, I told him [the boy] Hartshorn had been after me and told him to keep the excelsior out of his way, and if he did not I would fire him. I said to him that was what Hart-shorn told me.” Stacks further testified to circumstances indicating that the boy’s hurt was due to the fact that he was looking at a person standing at a window' in the east side of the building, instead of at his work; and there was other evidence to the effect that the cutting and baling machines and the room within which they were located were reasonably safe un,der usual conditions. Other facts may be hereinafter added in the course of this opinion.

Pretermitting a discussion of propositions relating to grounds of negligence not submitted, we will first notice appellants’ fourth assignment of error. In this complaint is made of the charge submitting the-issue of a safe place within which to work, on the ground that it was inapplicable, the particular proposition being that: “The evidence showing that the place furnished appellee in which to work was safe and not defective, and that it was rendered, unsafe, if at all, by the manner in which appellee and his fellow employs», Mr. Stacks, executed the work, and that these conditions of which appellee complained were temporary and a mere detail of the work, which appellant was; not obliged to supervise, the said charge was inapplicable to the case, and it was error to-overrule the motion for a new trial.”

That it is the duty of the master to use-ordinary care to provide his servants or employes a reasonably safe place to work, and that this duty is nondelegable, is too well established to require the citation of authority. But the liability of the master for a nonobservance of this rule is held not to extend' to mere transitory perils of which he has no notice and arising during the performance of the duties of the employ®, and not brought about by reason of faults of plan or of construction, or for want of reasonable rules for the protection of the employe. See 2 Labatt on Master and Servant, §§ 587, 588. Direct Navigation Co. v. Anderson, 29 Tex. Civ. App. 65, 69 S. W. 174; Wells Fargo & Co. v. Page, 29 Tex. Civ. App. 489, 68 S. W. 528; Armour & Co. v. Dumas, 43 Tex. Civ. App. 36, 95 S. W. 710. In the Anderson Case-Anderson’s injury was caused by his foot slipping from an iron pipe that had been negligently permitted by other employes to remain upon the deck of a tugboat, and it was-held that the danger thus brought about was one of Anderson’s assumed risks, and that the master was not liable. In the Page Case it was held that the express.company was not liable for the negligence of one of Page’s fellow servants in so placing a piece of timber in an express car as to permit of its falling upon Page’s foot. And in the Dumas Case this court held that the master was not liable for the negligence of a sweeping gang, which had permitted a piece of timber with spikes or nails therein, with upturned points, to remain upon the floor of the room within which Dumas was at work, and by reason of which Dumas was injured. In all of these •cases the injuries were caused by mere temporary conditions, occasioned by the negligence of fellow servants, which the master could not reasonably have anticipated. But not so here as we think. It is to be observed that, while appellants now urge that Stacks, the foreman in charge of the room within which Elton C. Williamson was at work, was a fellow servant with him, yet the evidence ■quoted shows that to him was committed not ■only the power of general superintendence, but also the specific duty of seeing that the boy should not feed the press while standing ■on the excelsior, having power to discharge, and appellants did not even plead that the injury complained of was caused by the negligence' of a fellow servant. The trial below ■seems to have proceeded upon the theory throughout that Stacks was a vice principal; the defense being that he in fact was guilty ■of no negligence in either failing to remove the accumulated excelsior from the spot where it was Elton O. Williamson’s duty to stand, or in giving the order that he did for the hoy to proceed with his work in the condition the excelsior was shown to be. It is to be further observed that the condition with which the boy was confronted on his return from another part of the city, as stated' by him, can hardly be said to be a mere transitory condition, not to have' been anticipated. As shown by the testimony of appellant Hartshorn himself, excelsior had more than once before accumulated on the ■spot from which the excelsior press was to be fed; and while he, as well as Stacks, testified that it was the duty of the boy to keep the place clean and free from accumulated excelsior, yet the fact that the excelsior was liable to so accumulate, both from careless handling on the part of the boy and in the very manner in which it was shown to have accumulated on the occasion in question, must have been in contemplation of the master, Hartshorn, and certainly was within the contemplation of Stacks, the operator of the cutting machines. He could hut know, and in fact does not deny, that upon the return of the boy the excelsior had accumulated as the result of his own labor during the boy’s absence.

Under such circumstances we can but think, in the absence of contributory negligence on the boy’s part, and in the absence of a risk assumed by him because of a knowledge of the danger, that the master would be liable for negligence on the part of Stacks, whether he be viewed as a vice principal or merely as a coemployé. See S. A. Foundry Co. v. Drish, 38 Tex. Civ. App. 214, 85 S. W. 440; So. Pac. Ry. Co. v. Markey (Sup.) 19 S. W. 392; McDonald v. Champion Iron & Steel Co., 140 Mich. 401, 103 N. W. 829. The case last cited seems particularly in point. There a boy of 14 years of age was employed to gather scrap that fell from the back of a trimming machine and bind them in bundles and place the bundles behind him. Other boys were likewise engaged behind other trimming machines extending in a line within the same room. The boy, in going behind the extended line of cutting machines as the circumstances show that it was his duty to do at the time, stumbled over an unseen bundle of scraps that another hoy had negligently permitted to remain in the way, and it was held that the master was liable, inasmuch as the space provided for the work was confined, and that the usual and required method of doing the work might reasonably be expected to result in the piling of scraps across the passageway near the cogwheels, and thereby expose passing scrap boys to serious peril, and inasmuch as the defendant had not made adequate provisions for the removal of the scrap, but permitted the accumulation; the decision proceeding upon the theory that the rule requiring the master to furnish a safe place to work applied, and that the negligence of the employe who left the bundle of scrap in the way was not among the assumed risks of the injured boy.

Of course, if Elton Williamson was guilty of negligence, or if his injury was the result of a risk assumed by him, the judgment should be set aside; but both of these issues were submitted to the jury, and the evidence is such as that we cannot disturb the verdict thereon in appellee’s favor. The boy specifically denied that he was looking at a person in an east window, and thus permitted his hand to be caught in the press; and it cannot be said, as a matter of law, that he was guilty of contributory negligence in obeying his foreman’s orders to proceed with his work with the condition of the excelsior as it was. The risks assumed were those ordinarily attending the work for which he was employed, but he did not assume negligence on the part of his employer, or of one to whom the master had committed an undelegable duty; and while the boy testified that he knew the danger of getting his hand in the press, he clearly denied a knowledge of the character and extent of the danger involved in attempting to feed the press while standing on an elevated accumulation of excelsior. That both appellants Hartshorn and Stacks testified to the effect otherwise cannot now avail appellants. The verdict settled this controversy in the boy’s favor. It is undisputed that Elton Williamson, while bright for one of his years, was of an immature age and wholly Inexperienced in the work for which he was called to do, and it was the duty of the master to warn him of all dangers not obvious, or not brought home to the knowledge of the boy by the exercise of ordinary care in the performance of his own duties, and a failure to so warn him — and such failure must be imputed to the verdict of the jury— constituted negligence not within the risks assumed by Elton Williamson.

We conclude that the evidence supports the verdict in appellee’s favor on both the issue of contributory negligence and of assumed risk, as well, also, as the verdict to the effect that appellants were guilty of negligence in not maintaining, at the time of Elton Williamson’s injury, a safe place for him to work. What we have said, we think, sufficiently disposes of the questions presented, and it follows that the judgment must be affirmed.